00-30632. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule and request for comment.

SUMMARY:

The EPA is proposing to use the Delisting Risk Assessment Software (DRAS) in the evaluation of a delisting petition. Based on waste specific information provided by the petitioner, EPA is proposing to use the DRAS to evaluate the impact of the petitioned waste on human health and the environment. Today's proposal provides background information on the mechanics of the DRAS, and the use of the DRAS in delisting decision-making.

The EPA is also proposing to grant a petition submitted by Eastman Chemical Company—Texas Operations, (Eastman) to exclude (or delist) certain solid wastes generated by its Longview, Texas, facility from the lists of hazardous wastes contained in 40 CFR 261.24 and 261.31 (hereinafter all sectional references are to 40 CFR unless otherwise indicated).

Eastman submitted the petition under sections 260.20 and 260.22(a). Section 260.20 allows any person to petition the Administrator to modify or revoke any provision of sections 260 through 266, 268 and 273. Section 260.22(a) specifically provides generators the opportunity to petition the Administrator to exclude a waste on a “generator specific” basis from the hazardous waste lists.

The Agency bases its proposed decision to grant the petition on an evaluation of waste-specific information provided by the petitioner. This proposed decision, if finalized, would conditionally exclude the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).

If finalized, we would conclude that Eastman's petitioned waste is nonhazardous with respect to the original listing criteria and that the waste process Eastman uses will substantially reduce the likelihood of migration of hazardous constituents from this waste. We would also conclude that their process minimizes short-term and long-term threats from the petitioned waste to human health and the environment.

DATES:

We will accept comments until January 18, 2001. We will stamp comments received after the close of the comment period as “late.” These “late” comments may not be considered in formulating a final decision.

Your requests for a hearing must reach EPA by December 19, 2000. The request must contain the information prescribed in section 260.20(d).

ADDRESSES:

Please send three copies of your comments. Two copies should be sent to William Gallagher, Delisting Section, Multimedia Planning and Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202. A third copy should be sent to the Texas Natural Resources Conservation Commission (TNRCC), P.O. Box 13087, Austin, Texas, 78711-3087. Identify your comments at the top with this regulatory docket number: “F-00-TXDEL-TXEASTMAN.”

You should address requests for a hearing to the Director, Carl Edlund, Multimedia Planning and Permitting Division (6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT:

Michelle Peace at [phone].

SUPPLEMENTARY INFORMATION:

The Information in This Section is Organized as Follows

I. What risk assessment methods has the Agency used in previous delisting determinations that are being revised in this proposal?

A. Introduction

B. What fate and transport model does the Agency use in the DRAS for evaluating the risks to groundwater from the proposed exempted waste?

C. Why is the EPACMTP fate and transport model an improvement over the EPACML?

D. Has the EPACMTP methodology been formally reviewed?

E. Has the Agency modified the EPACMTP as utilized in the HWIR proposal?

F. What modifications to the DRAS have been made since the proposal on September 27, 2000?

II. Overview Information

A. What action is EPA proposing?

B. Why is EPA proposing to approve this delisting?

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

D. When would the proposed exclusion be finalized?

E. How would this action affect states?

III. Background

A. What is the history of the delisting program?

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

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

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

A. What wastes did Eastman petition EPA to delist?

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

C. How did Eastman sample and analyze the data in this petition?

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

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

F. What did EPA conclude about Eastman's analysis?

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

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

V. Next Steps

A. With what conditions must the petitioner comply?

B. What happens if Eastman violates the terms and conditions?

VI. Public Comments

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

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

VII. Regulatory Impact

VIII. Regulatory Flexibility Act

IX. Paperwork Reduction Act

X. Unfunded Mandates Reform Act

XI. Executive Order 13045

XII. Executive Order 13084

XIII. National Technology Transfer and Advancements Act

XIV. Executive Order 13132 Federalism

I. What Risk Assessment Methods Has the Agency Used in Previous Delisting Determinations That Are Being Revised in This Proposal?

A. Introduction

The fate and transport of constituents in leachate from the bottom of the landfill or surface impoundment waste unit through the unsaturated zone (non-water bearing layer) and to a drinking water well in the saturated zone (water-bearing layer) is estimated using a fate and transport model. The Agency has applied the U.S. EPA Composite Model for Landfill (EPACML) fate and transport model to estimate constituent concentrations in groundwater at a receptor well located downgradient from a landfill or surface impoundment. The EPACML fate and transport model was used to determine a dilution attenuation factor (DAF). The DAF estimates the degree of dilution and attenuation that a waste constituent would undergo as it leaches from a waste management unit and is transported in the subsurface, into the saturated zone, and to a theoretical downgradient receptor well. The EPACML was originally developed to compute DAFs and set regulatory levels for specific constituents for the Toxicity Characteristics Rule (TC Rule) 55 FR 11798 (March 29, 1990). Subsequently, the EPACML has been used for multiple RCRA delistings beginning with the Reynolds Metals delisting decision 56 FR 67197 (December 30, 1991). The EPACML accounts for:

• one-dimensional steady and uniform advective flow;
• contaminant dispersion in the longitudinal, lateral, and vertical directions and;
• sorption

However, advances in groundwater fate and transport have been made in recent years and the Agency proposes the use of a more advanced groundwater fate and transport model for this RCRA delisting. More specific details about the DRAS can be found in 65 FR 58015 (September 27, 2000).

B. What Fate and Transport Model Does the Agency Use in the DRAS for Evaluating the Risks to Groundwater From the Proposed Exempted Waste?

The Agency proposes to use the EPACMTP (EPA's Composite Model for leachate migration with Transformation Products) in this delisting determination. The EPACMTP considers the subsurface fate and transport of chemical constituents. The EPACMTP is capable of simulating the fate and transport of dissolved contaminants from a point of release at the base of a waste management unit, through the unsaturated zone and underlying groundwater (saturated zone), to a receptor well at an arbitrary downstream location in the aquifer. The model accounts for the following mechanisms affecting contaminant migration: transport by advection and dispersion, retardation resulting from reversible linear or nonlinear equilibrium adsorption onto the soil and aquifer solid phase, and biochemical degradation processes (EPACMTP Background Document and User's Guide, 1996).

C. Why Is the EPACMTP Fate and Transport Model an Improvement Over the EPACML?

The modeling approach used for this proposed rulemaking includes three major categories of enhancements over the EPACML. The enhancements include:

1—Incorporation of additional fate and transport processes (e.g., degradation of chemical constituents);

2—Use of enhanced flow and transport solution algorithms and techniques (e.g., three-dimensional transport) and;

3—Revision of the Monte Carlo methodology (e.g., site-based implementation of available input data) (EPACMTP Background Document and User's Guide, 1996)

A Discussion of the key enhancements which have been implemented in the EPACMTP is presented here and the details are provided in the background documents to the proposed 1995 Hazardous Waste Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The background documents are available through the RCRA HWIR FR proposal docket (60 FR 66344, December 21, 1995). The EPACML was limited to conditions of uniform groundwater flow. It could not handle accurately the conditions of significant groundwater mounding and non-uniform groundwater flow due to a high rate of infiltration from the waste units. These conditions increase the transverse horizontal as well as the vertical spreading of a contaminant plume. The EPACMTP accounts for these effects directly by simulating groundwater flow in the vertical as well as horizontal directions.

The EPACMTP can simulate fate and transport of metals, taking into account geochemical influences on the mobility of metals. The EPA's MINTEQA2 metals speciation model is used to generate effective sorption isotherms for individual metals, corresponding to a range of geochemical conditions (EPACMTP Metals Background Document, 1996). The transport modules in EPACMTP have been enhanced to incorporate the nonlinear MINTEQ sorption isotherms. This enhancement provides the model with the capability to simulate, in the unsaturated and in the saturated zones, the impact of pH, leachate organic matter, natural organic matter, iron hydroxide and the presence of other ions in the groundwater on the mobility of metals. The saturated zone module implemented in the EPACML was based on a Gaussian distribution of concentration of a chemical constituent in the saturated zone. The module also used an approximation to account for the initial mixing of the contaminant entering at the water table (saturated zone) underneath the waste unit. The module accounting for initial mixing in the EPACML could lead to unrealistic groundwater concentrations. The enhanced EPACMTP model incorporates a direct linkage between the unsaturated zone and saturated zone modules which overcomes these limitations of the EPACML.

To enable a greater flexibility and range of conditions that can be modeled, the analytical saturated zone transport module has been replaced with a numerical module, based on the highly efficient state-of-the-art Laplace Transform Galerkin (LTG) technique (EPACMTP Background Document and User's Guide, 1996). The enhanced module can simulate the anisotropic, non-uniform groundwater flow, and transient, finite source, conditions. The latter requires the model to calculate a maximum receptor well concentration over a finite time horizon, rather than just the steady state concentration which was calculated by the EPACML. The saturated zone modules have been implemented to provide either a fully three-dimensional (3D) solution, or a highly efficient quasi-3D solution. The latter has been implemented for Monte Carlo applications and provides nearly the same accuracy as the fully three dimensional option but is more computationally efficient. Both the unsaturated zone and the saturated zone transport modules can accommodate the formation and the transport of parent as well as of the transformation products.

A highly efficient semi-analytical unsaturated zone transport module has been incorporated to handle the transport of metals in the unsaturated zone and can use MINTEQA2 derived linear or nonlinear sorption isotherms. Conventional numerical solution techniques are inadequate to handle extremely nonlinear isotherms. An enhanced method-of-characteristic based solution has been implemented which overcomes these problems and thereby enables the simulation of metals transport in the Monte Carlo framework. Non-linearity in the metals sorption isotherms is primarily of concern at higher concentration values; for low concentrations, the isotherms are linear or close to linear. Because of the attenuation in the unsaturated zone, and the subsequent dilution in the saturated zone, concentrations in the saturated zone are usually low enough so that properly linearized isotherms are used by the model in the saturated zone without significant errors.

The internal routines in the model which determine placement of the receptor well relative to the areal extent of the contaminant plume have been revised and enhanced. The calculation of the areal extent of the plume has been revised to take into consideration the dimensions of the waste unit. The logic for placing a receptor well inside the plume limits has been improved to eliminate a bias towards larger waste unit areas and to ensure that the placement of the well inside these limits, for a given radial distance from the unit, is truly randomly uniform. However, for this proposal, the closest drinking water well is located anywhere on the downgradient side of the waste unit.

The data sources from which parameter distributions for nationwide Monte Carlo assessments are obtained have been evaluated, and where appropriate, have been revised to make use of the latest data available for modeling. Leachate rates for Subtitle D waste units have been revised using the latest version of the HELP model with the revised data inputs. Source specific input parameters (e.g., waste unit area and volume) have been developed for various different types of industrial waste units besides landfills. Input values for the groundwater related parameters have been revised to utilize information from a nationwide industry survey of actual contaminated sites. The original version of the model was implemented for Monte Carlo assessments assuming continuous source (infinite source) conditions only. This methodology did not take into account the finite volume and/or operational life of waste units. The EPACMTP model has been implemented for Monte Carlo assessments of either continuous source or finite source scenarios. In the latter scenario, predicted groundwater impact is not only based on the concentrations of contaminants in the leachate, but also on the amount of constituent in the waste unit and/or the operational life of the unit.

The landfill is taken to be filled to capacity and covered when leaching begins. The time period during which the landfill is filled-up, usually on the order of 20 years, is considered to be small relative to the time required to leach all of the constituent mass out of the landfill. The model simulation results indicate that this assumption is not unreasonable; the model calculated leaching duration is typically on the order of several hundred years. The leachate flux, or infiltration rate, is determined using the HELP model. The net infiltration rate is calculated using a water balance approach, which considers precipitation, evapo-transpiration, and surface run-off. The HELP model was used to calculate landfill infiltration rates for a representative subtitle D landfill with 2-foot earthen cover, and no liner or leachate collection system, using climatic data from 97 climatic stations located throughout the United States. These correspond to the reasonable worst case assumptions as explained in the HWIR Risk Assessment Background Document for the HWIR proposed notice 60 FR 66344 (December 21, 1995). Additional details on the methodologies used by the EPACMTP to derive DAFs for waste constituents modeled for the landfill scenario are presented in the Background Documents for the proposed HWIR rule. See 60 FR 66344 (December 21, 1995). The fraction of waste in the landfill is assigned a uniform distribution with lower and upper limits of 0.036 and 1.0, respectively, based on analysis of waste composition in Subtitle D landfills. The lower bound assures that the waste unit will always contain a minimum amount of the waste of concern. The waste density is assigned a value based on reported densities of hazardous waste, and varies between 0.7 and 2.1 g/cm³.

The area of the surface impoundment and the impoundment depth used by the EPACMTP are obtained from the EPA's Office of Solid Waste Subtitle D Industrial Survey and were entered into the Monte Carlo analyses as distributions. The sediment layer at the base of the impoundment is taken to be 2 feet thick and to have an effective equivalent saturated conductivity of 10⁻⁷ cm/s. These values were selected in recognition of the fact that most non-hazardous waste surface impoundments do have some kind of liner in place. Additional details on the methodologies used by the EPACMTP to derive DAFs for waste constituents modeled for the surface impoundment waste management scenario are presented in the Background Documents for the 1995 proposed HWIR rule. See 60 FR 66344 (December 21, 1995).

D. Has the EPACMTP Methodology Been Formally Reviewed?

The Science Advisory Board (SAB), a public advisory group that provides information and advice to the EPA, reviewed the EPACMTP model as part of a continuing effort to provide improvements in the development and external peer review of environmental regulatory models. Overall, the SAB commended the Agency for making significant enhancements to the EPACMTP's predecessor, the EPACML and for responding to previous SAB suggestions. The SAB also concluded that the mathematical formulation incorporating daughter products into the model appeared to be correct and that the site-based approach using hydrogeologic regions is superior to the previous approach used in EPACML. The model underwent public comment during the 1995 proposed HWIR. See 60 FR 66344 (December 21, 1995).

E. Has the Agency Modified the EPACMTP as Utilized in the HWIR Proposal?

The EPACMTP, as developed for HWIR, determined the DAF using a Monte Carlo approach that selected, at random, a waste volume from a range of waste volumes identified in EPA's 1987 Subtitle D landfill survey. In delisting determinations, the waste volume of the petitioner is known. Therefore, application of EPACMTP to the delisting program has been modified to evaluate the specific waste volume. The Agency modified the DAFs determined under the HWIR proposal to account for a known waste volume. To generate waste volume-specific DAFs, EPA developed “scaling factors” to modify DAFs developed for HWIR (based on the entire range of disposal unit areas) to DAFs for delisting waste volumes. This was accomplished by computing a 90th percentile DAF for a conservative chemical for 10 specific waste volumes (ranging from 1,000 cubic yards to 300,000 cubic yards) for each waste management scenario (landfill and surface impoundment). The Agency assumed that DAFs for a specific waste volume are linearly related to DAFs developed by EPACMTP for the HWIR. DAF scaling factors were computed for the ten increment waste volumes. Using these ten scaling factor DAFs, regression equations were developed for each waste management scenario to provide a continuum of DAF scaling factors as a function of waste volume.

The regression equations are coded into the DRAS program which then automatically adjusts the DAF for the waste volume of the petitioner. The method used to verify the scaling factor approach is presented in the document, Application of EPACMTP to Region 6 Delisting Program: Development of Volume-adjusted Dilution Attenuation Factors (1996). For the landfill waste management scenario, the DAF scaling factors ranged from 9.5 for 10,000 cu. yard to approximately 1.0 for waste volumes greater than 200,000 cu. yards. Therefore, for solid waste volumes greater than 200,000 cu. yards, the waste volume-specific DAF is the same as the DAF computed for the proposed HWIR. The regression equation that can be used to determine the DAF scaling factor (DSF) as a function of waste volume (in cubic yards) for the landfill waste management unit is: DSF = 6152.7* (waste volume)^-0.7135. The correlation coefficient of this regression equation is 0.99, indicating a good fit of this line to the data points. DAF scaling factors for surface impoundment waste volumes ranged from 2.4 for 2,000 cu. yards to approximately 1.0 for 100,000 cu. yards. For liquid waste volumes greater than 200,000 cu. yards, the waste volume-specific DAF is the same as the DAF computed for the proposed HWIR. The regression equation for DAF scaling factor (DSF) as a function of waste volume for surface impoundment wastes is: DSF = 14.2* (waste volume) ^-0.2288. The correlation coefficient of this regression equation is also 0.99, indicating an extremely good fit of this line to the data points.

F. What Modifications Have Been Made to the DRAS Since its Proposal on September 27, 2000?

Several revisions have been made to the DRAS program in order to improve the modeling. Specifically, the groundwater inhalation pathway was revised to reflect recent advances in modeling household inhalation from home water use (e.g., showering). The basis for estimating the concentration of constituents in the indoor air is based on the mass transfer of constituent from water to shower air. The initial version of DRAS used a fate and transport model described by McKone and Bogen (1982) which predicted the highest waste concentration emitted from the water into the air during a given water use period (e.g., 10-minute shower). This method was revised to more accurately predict the average concentration occurring during the exposure event.

The revised model used in this analysis is based the equations presented in McKone (1987). The shower model estimates the change in the shower (or bathroom or household) air concentration based on the mass of constituent lost by the water (fraction emitted or emission rate) and the air exchange rate between the various model compartments (shower, the rest of the bathroom, and the rest of the house). The resulting differential equations were solved using finite difference numerical integration. The average air concentration in the shower and bathroom are obtained by averaging the concentrations obtained for each time step over the duration of the exposure event (shower and bathroom use). These concentrations and the durations of daily exposure are used to estimate risk from inhalation exposures to residential use of groundwater. Further, improvements were made to more accurately reflect the transfer efficiency of the waste constituent from the groundwater to the air compartment. The fraction emitted from the bathroom or household water use is a function of the input transfer efficiency (or maximum fraction emitted) and the driving force for mass transfer (the differential between air saturation concentration at air/water interface and bulk air concentration). For example, in the shower compartment, the constituent emission rate is estimated from the change in the shower water concentration as the water falls through the air. The shower emissions can be modeled based on falling droplets as a means of estimating the surface-area-to-volume ratio for mass transfer and the residence time of the water in the shower compartment, assuming the compound concentration in the gas phase is constant over the time frame of the droplet fall. By assuming the drops fall at terminal velocity, the surface-area-to-volume ratio and the residence time can be determined based solely on droplet size. A droplet size of approximately 1 mm (0.1 cm) was selected. The terminal velocity for the selected droplet size is approximately 400 cm/s. The fraction of constituent emitted from a water droplet at any given time can then be calculated.

The equations used to predict surface volatilization from a landfill have been modified to more accurately reflect true waste concentration releases. The previous version of DRAS used Farmer's equation to estimate the emission rate of volatiles from the surface of the landfill. Farmer's equation assumes that the emission originates as volatiles in liquids trapped in the pore spaces between solid particles of waste. The volatiles evaporate from the liquid and are emitted from the landfill following gaseous diffusion through the solid waste particles and soil cover to the surface of the landfill. Farmer's equation requires the mole fraction of a given volatile constituent in the liquid in order to calculate the emission. The previous version of DRAS used the TCLP value of a volatile constituent in the waste to approximate the mole fraction of a given constituent in the pore liquid. Since the TCLP test includes a 20-fold dilution, the calculation might underestimate the available concentration of volatiles in freshly deposited waste. The DRAS has been revised to use Shen's modification of Farmer's equation, described in U.S. EPA Office of Air Quality Planning and Standards' 1984 Evaluation and Selection of Models for Estimating Air Emissions from Hazardous Waste Treatment, Storage, and Disposal Facilities. EPA-450/3-84-020. Shen took the simplified version of Farmer's equation for vapor flux from a soil surface and converted it to an emission rate by multiplying it by the exposed landfill area. Shen's modification uses the total waste constituent concentration (weight fraction in the bulk waste) to approximate the mole fraction of that constituent in the liquid phase.

In estimating the amount of a given waste constituent that is released to surface water and eventually becomes freely dissolved in the water column, previous delisting petitions and the earlier version of the DRAS used the maximum observed TCLP concentration in waste as the total amount of the waste constituent available for erosion. Further, the former method assumed that all of the constituent mass that reached the stream, based on TCLP, became dissolved in the aqueous phase. Assuming complete conversion to a dissolved state is overly conservative and not in agreement with recent Agency methodology. In the revised DRAS, the total waste constituent concentration is used to estimate the constituent mass that reaches the stream. The portion of the waste constituent that becomes freely dissolved is determined by an estimate of partitioning between suspended solids and the aqueous phase. This methodology is described in U.S. EPA's 1998 Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities, Volume One. Peer Review Draft. EPA530-D-98-001A.

Recent developments in mercury partitioning described in the Mercury Report to Congress led to another revision to the surface water pathway. The DRAS was modified to account for bioaccumulation of methyl mercury as a result of the release of mercury into the surface water column. The primary human health hazard posed by the release of mercury into surface water is through bioaccumulation of methyl mercury in fish followed by human consumption of the contaminated fish. Biological processes in surface water cause the conversion, or methylation, of elemental mercury to methyl mercury. In accordance with the Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities, Volume One. Peer Review Draft, 15% of mercury in the water column is assumed to be converted to methyl mercury. This fraction is then used, along with the current bioaccummulation factor, to determine the predicted concentration of methyl mercury in fish tissue.

II. Overview Information

A. What Action Is EPA Proposing?

The EPA is proposing:

(1) To grant Eastman's petition to have its wastewater treatment sludge excluded, or delisted, from the definition of a hazardous waste, subject to certain continued verification and monitoring conditions; and

(2) To use a fate and transport model to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency would use this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.

B. Why Is EPA Proposing To Approve This Delisting?

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

C. How Will Eastman Manage the Waste if it Is Delisted?

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

The incinerator is a RCRA Subtitle C regulated unit permitted by the Texas Natural Resource Conservation Commission. This proposed decision will not affect the current regulatory controls on the incineration unit.

D. When Would EPA Finalize the Proposed Delisting?

RCRA section 3001(f) specifically requires EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, EPA will not grant the exclusion until it addresses all timely public comments (including those at public hearings, if any) on today's proposal.

RCRA section 3010(b)(1) at 42 USCA 6920(b)(1),allows rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.

The EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

E. How Would This Action Affect the States?

Because EPA is issuing today's exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received authorization from EPA to make their own delisting decisions.

Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C.A. § 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, 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 (for example, Louisiana, Georgia, Illinois) to administer a RCRA delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States unless that State makes the rule part of its authorized program. If Eastman transports the petitioned waste to or manages the waste in any State with delisting authorization, Eastman must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.

III. Background

A. What Is the History of the Delisting Program?

The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing Section 3001 of RCRA. The EPA has amended this list several times and published it in §§ 261.31 and 261.32.

We list these wastes as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in §§ 261.11(a)(2) or (a)(3).

Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be hazardous.

For this reason, §§ 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does it Require of a Petitioner?

A delisting petition is a request from a facility to EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions the Agency because they do not consider the wastes hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for the listed wastes. The criteria for which EPA lists a waste are in Part 261 and in the background documents for the listed wastes.

In addition, under § 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See Part 261 and the background documents for the listed wastes.)

Generators remain obligated under RCRA to confirm whether their waste remains nonhazardous based on the hazardous waste characteristics even if EPA has “delisted” the wastes.

C. What Factors Must EPA Consider in Deciding Whether To Grant a Delisting Petition?

Besides considering the criteria in § 260.22(a) and 3001 (f) of RCRA, 42 U.S.C. § 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which we listed the waste if a reasonable basis exists that these additional factors could cause the waste to be hazardous.

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 §§ 261.3(a)(2)(iii and iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until excluded.

The “mixture” and “derived-from” rules are now final, after having been vacated, remanded, and reinstated. On December 6, 1991, the U.S. Court of Appeals for the District of Columbia vacated the “mixture/derived from” rules and remanded them to EPA on procedural grounds. See Shell Oil Co. v. EPA., 950 F.2d 741 (D.C. Cir. 1991). EPA reinstated the mixture and derived-from rules, and solicited comments on other ways to regulate waste mixtures and residues. See 57 FR 7628 (March 3, 1992). These rules became final on October 30, 1992. See (57 FR 49278). Consult these references for more information about mixtures derived from wastes.

IV. EPA's Evaluation of the Waste Data

A. What Waste Did Eastman Petition EPA To Delist?

On February 4, 2000, Eastman petitioned the EPA to exclude from the lists of hazardous waste contained in §§ 261.31 and 261.32, a waste by-product (dewatered sludge from the wastewater treatment plant) which falls under the classification of listed waste because of the “derived from” rule in RCRA 40 CFR 261.3. Specifically, in its petition, Eastman Chemical Company, Texas Operations, located in Longview, Texas, requested that EPA grant an exclusion for 82,100 cubic yards per year of dewatered sludge resulting from its hazardous waste treatment process. The resulting waste is listed, in accordance with §261.3(c)(2)(i) (i.e., the “derived from” rule).

B. What Is Eastman Chemical Company, and What Process Does it use?

Eastman occupies approximately 6,000 acres in Longview, Texas. The facility owns and operates an organic chemical and plastics manufacturing facility in Longview, Texas. During manufacturing operations, various waste waters are generated such as process waste water, blowdowns from boilers, cooling towers, and the incinerators, and some storm water. Process waste waters from the facility, blowdowns, recovered ground water, leachate from the RCRA hazardous waste landfill, and some storm water are routed to an activated sludge wastewater treatment plant (WWTP). A sludge is generated from the waste water treatment system, which is dewatered and is currently sent to a fluidized bed incinerator (FBI) for thermal treatment. The resulting delisted FBI ash is disposed of in a solid waste landfill.

Influent to the waste water treatment plant is a combination of hazardous and non-hazardous waste. During treatment of the influent waste water, biological sludge is generated and dewatered. The wastewater treatment sludge currently falls under the classification of listed waste according to RCRA 40 CFR 261.3(c)(2)(i) because of the “derived from” rule. The waste codes of the constituents of concern are EPA Hazardous Waste Nos. F001, F002, F003, F005, K009, K010, U001, U002, U028, U031, U069, U088, U112, U115, U117, U122, U140, U147, U154, U159, U161, U220, U226, U239 and U359.

Table 1 lists the constituents of concern for these waste codes.

Table 1.—Hazardous Waste Codes Associated with Waste Streams

Waste code	Basis for characteristics/listing
F001	Tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1- trichloroethane, carbon tetrachloride, chlorinated fluorocarbons.
F002	Tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1- trichloroethane, 1,1,2-trichloroethane, chlorobenzene, 1,1,2- trichloro-1,2,2-trichlorofluoroethane, orthodichlorobenzene, trichlorofluoromethane.
F003	Not applicable.
F005	Toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, 2-ethoxyethanol, benzene, 2-nitropropane.
K009	Chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid.
K010	Chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid, chloroacetaldehyde.
U001	Acetaldehyde.
U002	Acetone.
U028	Bis(2-ethylhexyl) phthalate.
U031	n-Butyl alcohol.
U069	Dibutyl phthalate.
U088	Di-ethyl phthalate.
U112	Ethyl acetate.
U115	Ethylene Oxide.
U117	Ethyl ether.
U122	Formaldehyde.
U140	Isobutyl alcohol.
U147	Maleic anhydride.
U154	Methanol.
U159	Methyl ethyl ketone.
U161	Methyl isobutyl ketone.
U220	Toluene.
U226	1,1,1 Trichloroethane (Methyl chloroform).
U239	Xylene.
U359	Ethylene Glycol monoethyl ether.

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

To support its petition, Eastman submitted:

(1) descriptions of its waste water treatment system associated with petitioned wastes;

(2) results of the total constituent list for 40 CFR Part 264 Appendix IX volatiles, semivolatiles, and metals except pesticides, herbicides, and PCBs;

(3) results of the constituent list for Appendix IX on Toxicity Characteristic Leaching Procedure (TCLP) extract for volatiles, semivolatiles, and metals;

(4) results for reactive sulfide,

(5) results for reactive cyanide;

(6) results for pH;

(7) results of the metals concentrations using multiple pH extraction fluids;

(8) information and results from testing of the fluidized bed incinerator's compliance testing and

(9) results from oil and grease analysis.

D. What Were the Results of Eastman's Analysis?

The EPA believes that the descriptions of the Eastman hazardous waste process and analytical characterization provide a reasonable basis to grant Eastman's petition for an exclusion of the wastewater treatment sludge. The EPA believes the data submitted in support of the petition show Eastman's process can render the wastewater treatment sludge non-hazardous. The EPA has reviewed the sampling procedures used by Eastman and has determined they satisfy EPA criteria for collecting representative samples of the variations in constituent concentrations in the wastewater treatment sludge. The data submitted in support of the petition show that constituents in Eastman's waste are presently below health-based levels used in the delisting decision-making. The EPA believes that Eastman has successfully demonstrated that the wastewater treatment sludge is non-hazardous.

Eastman Chemical also conducted additional sampling at the pHs of 4.93, 7.0, and 10.1 to simulate whether the wastes would remain stable if disposed in a wide range of landfill pH environments. The highest level of leaching occurred at pH 4.93. The leachate concentrations for barium, nickel and zinc were below the maximum leachate concentration listed in Table II.

Eastman also provide data from its 1998 trial burn to demonstrate that the FBI incinerator met the required organic destruction and removal efficiency for RCRA incinerators and that the unit also met the Boiler and Industrial Furnace Tier I limits for metals.

E. How did EPA Evaluate the Risk of Delisting the Waste?

For this delisting determination, EPA used such information gathered to identify plausible exposure routes (i.e., ground water, surface water, air) for hazardous constituents present in the petitioned waste. The EPA determined that disposal in a Subtitle D landfill is the most reasonable, worst-case disposal scenario for Eastman's petitioned waste. EPA applied the Delisting Risk Assessment Software (DRAS) described above, to predict the maximum allowable concentrations of hazardous constituents that may release from the petitioned waste after disposal and determined the potential impact of the disposal of Eastman's petitioned waste on human health and the environment. In assessing potential risks to ground water, EPA used the maximum estimated waste volumes and the maximum reported extract concentrations as inputs to the DRAS program to estimate the constituent concentrations in the ground water at a hypothetical receptor well down gradient from the disposal site. Using the established an acceptable risk level (carcinogenic risk of 10−⁵ and non-cancer hazard index of 0.1), the DRAS program can back-calculate the acceptable receptor well concentrations (referred to as compliance-point concentrations) using standard risk assessment algorithms and Agency health-based numbers. Using the maximum compliance-point concentrations and the EPACMTP fate and transport modeling factors, the DRAS further back-calculates the maximum permissible waste constituent concentrations not expected to exceed the compliance-point concentrations in groundwater.

The EPA believes that the EPACMTP fate and transport model represents a reasonable worst-case scenario for possible ground water contamination resulting from disposal of the petitioned waste in a landfill, and that a reasonable worst-case scenario is appropriate when evaluating whether a waste should be relieved of the protective management constraints of RCRA Subtitle C. The use of some reasonable worst-case scenario resulted in conservative values for the compliance-point concentrations and ensured that the waste, once removed from hazardous waste regulation, may not pose a significant threat to human health or the environment.

Similarly, the DRAS used the maximum estimated waste volumes and the maximum reported total concentrations to predict possible risks associated with releases of waste constituents through surface pathways (e.g., volatilization or wind-blown particulate from the landfill). As in the ground water analyses, the DRAS uses the established acceptable risk level, the health-based data and standard risk assessment and exposure algorithms to predicts maximum compliance-point concentrations of waste constituents at a hypothetical point of exposure. Using fate and transport equations, the DRAS uses the maximum compliance-point concentrations and back-calculates the maximum allowable waste constituent concentrations (or “delisting levels”). In most cases, because a delisted waste is no longer subject to hazardous waste control, EPA is generally unable to predict, and does not presently control, how a petitioner will manage a waste after delisting. Therefore, EPA currently believes that it is inappropriate to consider extensive site-specific factors when applying the fate and transport model.

The EPA also considers the applicability of ground water monitoring data during the evaluation of delisting petitions. In this case, Eastman has never directly disposed of this material in its solid waste landfill, so no representative data exists. Therefore, EPA has determined that it would be unnecessary to request ground water monitoring data.

From the evaluation of Eastman's delisting petition, EPA developed a list of constituents for the verification testing conditions. Proposed maximum allowable leachable concentrations for these constituents were derived by back-calculating from the delisting health-based levels through the proposed fate and transport model for a landfill management scenario. These concentrations (i.e., “delisting levels”) are part of the proposed verification testing conditions of the exclusion.

The EPA believes that the descriptions of Eastman's hazardous waste process and analytical characterization, in conjunction with the proposed testing requirements (as discussed later in this notice) provide a reasonable basis to conclude that the likelihood of migration of hazardous constituents from the petitioned waste will be substantially reduced so that short-term and long-term threats to human health and the environment are minimized. Thus, EPA should grant Eastman's petition for a conditional exclusion of the wastewater treatment sludge.

The EPA Region 6 Delisting Program guidance document states that the appropriate fate and effect model will be used to determine the effect the petitioned waste could have on human health if it is not managed as a hazardous waste. Specifically, the model considers the maximum estimated waste volume and the maximum reported leachate concentrations as inputs to estimate the constituent concentrations in the ground water at a hypothetical receptor well downgradient from the disposal site. The calculated receptor well concentrations (referred to as compliance-point concentrations) are then compared directly to the health-based levels used in delisting decision-making for hazardous constituents of concern. EPA Region 6 is proposing the DRAS as the appropriate model for this delisting. This subsection presents an evaluation of the potential for ground water contamination for the petitioned waste using the DRAS.

The EPA considered the appropriateness of alternative waste management scenarios for Eastman's wastewater treatment sludge. The EPA decided, based on the information provided in the petition, that disposal of the wastewater treatment sludge in a municipal solid waste landfill is the most reasonable, worst-case scenario for the wastewater treatment sludge. Under a landfill disposal scenario, the major exposure route of concern for any hazardous constituents would be ingestion of contaminated ground water. The EPA, therefore, evaluated Eastman's petitioned waste using DRAS which predicts the potential for ground water contamination from waste placed in a landfill.

For the evaluation of Eastman's petitioned waste, EPA used the DRAS to evaluate the mobility of the hazardous constituents detected in the extract of samples of Eastman's wastewater treatment sludge. Total analysis was also utilized for the wastewater treatment sludge. The maximum annual waste volume for Eastman is 82,100 cubic yards per year. The DAFs are currently calculated assuming an ongoing process generates waste for 20 years.

Analytical data for the wastewater treatment sludge samples were used in the model. The data summaries for detected constituents are presented in Tables II and III.

The EPA's evaluation of the wastewater treatment sludge is based on the maximum reported Total and TCLP concentrations (See Table II). Based on the DRAS, the petitioned waste should be delisted because no constituents of concern exceed the delisting concentrations.

Table II.—Maximum Total and TCLP Constituent Concentrations Wastewater Treatment Sludge ¹

Constituent	Total Constituent Analyses (mg/kg)	TCLP Leachate Concentration (mg/l)
Antimony	1.5	<0.050
Barium	13	0.083
Chromium	2.5	<0.010
Cobalt	3.5	0.062
Lead	2.1	<0.050
Mercury	0.067	<0.0015
Nickel	20	0.18
Selenium	1.5	0.065
Silver	0.18	<0.005
Vanadium	1.7	0.014
Zinc	97	1.7
Acenaphthene	1.8	<0.010
Acetone	<2.5	4.0
bis(2-ethylhexyl) phthlate	4.1	<0.010
2-Butanone	<2.5	1.4
Chloroform	<0.25	0.009
Fluorene	2.0	<0.010
Methanol	0.052	<5.0
Methylene Chloride	<0.25	0.15
2-Methyl naphthalene	7.4	<0.010
Naphthalene	5.5	<0.010
1 These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent the specific levels found in one sample.

Table III.—Maximum Allowable Concentrations of Constituents in Leachate

Constituent	Maximum allowable leachate concentration (mg/l)
Antimony	0.0515
Barium	7.3
Chromium	5.0
Cobalt	2.25
Lead	5.0
Mercury	0.00115
Nickel	2.83
Selenium	0.22
Silver	0.384
Vanadium	2.11
Zinc	28
Acenaphthene	1.25
Acetone	7.13
bis(2-ethylhexyl) phthlate	0.28
2-Butanone	48.2
Chloroform	0.0099
Fluorene	0.55
Methanol	35.7
Methylene Chloride	0.486
Naphthalene	0.0321

F. What Did EPA Conclude About Eastman's Analysis?

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

G. What Other Factors Did EPA Consider?

During the evaluation of Eastman's petition, EPA also considered the potential impact of the petitioned waste via non-ground water routes (i.e., air emission and surface runoff). With regard to airborne dispersion in particular, EPA believes that exposure to airborne contaminants from Eastman's petitioned waste is unlikely. Therefore, no appreciable air releases are likely from Eastman's waste under any likely disposal conditions. The EPA evaluated the potential hazards resulting from the unlikely scenario of airborne exposure to hazardous constituents released from Eastman's waste in an open landfill. The results of this worst-case analysis indicated that there is no substantial present or potential hazard to human health and the environment from airborne exposure to constituents from Eastman's Wastewater treatment sludge. A description of EPA's assessment of the potential impact of Eastman's waste, regarding airborne dispersion of waste contaminants, is presented in the RCRA public docket for today's proposed rule, F-00-TXDEL-TXEASTMAN.

The EPA also considered the potential impact of the petitioned waste via a surface water route. The EPA believes that containment structures at municipal solid waste landfills can effectively control surface water runoff, as the Subtitle D regulations (See 56 FR 50978, October 9, 1991) prohibit pollutant discharges into surface waters. Furthermore, the concentrations of any hazardous constituents dissolved in the runoff will tend to be lower than the levels in the TCLP leachate analyses reported in today's notice due to the aggressive acidic medium used for extraction in the TCLP. The EPA believes that, in general, leachate derived from the waste is unlikely to directly enter a surface water body without first traveling through the saturated subsurface where dilution and attenuation of hazardous constituents will also occur. Leachable concentrations provide a direct measure of solubility of a toxic constituent in water and are indicative of the fraction of the constituent that may be mobilized in surface water as well as ground water.

Based on the reasons discussed above, EPA believes that the contamination of surface water through runoff from the waste disposal area is very unlikely. Nevertheless, EPA evaluated the potential impacts on surface water if Eastman's waste were released from a municipal solid waste landfill through runoff and erosion. See the RCRA public docket for today's proposed rule for further information on the potential surface water impacts from runoff and erosion. The estimated levels of the hazardous constituents of concern in surface water would be well below health-based levels for human health, as well as below EPA Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded that Eastman's wastewater treatment sludge is not a present or potential substantial hazard to human health and the environment via the surface water exposure pathway.

H. What Is EPA's Evaluation of This Delisting Petition?

The descriptions of Eastman's hazardous waste process and analytical characterization, with the proposed verification testing requirements (as discussed later in this notice), provide a reasonable basis for EPA to grant the exclusion. The data submitted in support of the petition show that constituents in the waste are below the maximum allowable leachable concentrations (see Table III). We believe Eastman's process will substantially reduce the likelihood of migration of hazardous constituents from the petitioned waste. Eastman's process also minimizes short-term and long-term threats from the petitioned waste to human health and the environment.

Thus, EPA believes we should grant Eastman an exclusion for the wastewater treatment sludge. The EPA believes the data submitted in support of the petition show Eastman's process can render the wastewater treatment sludge nonhazardous.

We have reviewed the sampling procedures used by Eastman and have determined they satisfy EPA criteria for collecting representative samples of variable constituent concentrations in the wastewater treatment sludge. The data submitted in support of the petition show that constituents in Eastman's waste are presently below the compliance point concentrations used in the delisting decision-making and would not pose a substantial hazard to the environment. The EPA believes that Eastman has successfully demonstrated that the wastewater treatment sludge is nonhazardous.

The EPA therefore, proposes to grant a conditional exclusion to the Eastman Chemical Company, in Longview, Texas, for the wastewater treatment sludge described in its petition. The EPA's decision to conditionally exclude this waste is based on descriptions of the treatment activities associated with the petitioned waste and characterization of the wastewater treatment sludge.

If we finalize the proposed rule, the Agency will no longer regulate the petitioned waste under parts 262 through 268 and the permitting standards of part 270.

V. Next Steps

A. With What Conditions Must the Petitioner Comply?

The petitioner, Eastman, must comply with the requirements in 40 CFR part 261, Appendix IX, Tables 1, 2, and 3. The text below gives the rationale and details of those requirements.

(1) Delisting Levels

This paragraph provides the levels of constituents for which Eastman must test the leachate from the wastewater treatment sludge, below which these wastes would be considered nonhazardous.

The EPA selected the set of inorganic and organic constituents specified in Paragraph (1) because of information in the petition. We compiled the list from the composition of the waste, descriptions of Eastman's treatment process, previous test data provided for the waste, and the respective health-based levels used in delisting decision-making.

These delisting levels correspond to the allowable levels measured in the TCLP extract of the waste.

(2) Waste Holding and Handling

The purpose of this paragraph is to ensure that any wastewater treatment sludge which might contain hazardous levels of inorganic and organic constituents are managed and disposed of in accordance with Subtitle C of RCRA. If EPA determines that the data collected under this condition do not support the data provided in the petition, the exclusion will not cover the petitioned waste.

(3) Verification Testing Requirements

Although the wastewater treatment sludge would be considered delisted upon promulgation of the final rule, EPA believes that conditional testing requirements are still warranted to ensure continued effectiveness of the treatment process. During the initial verification period, which is described in paragraph (3)(A), Eastman must perform quarterly sampling for a period of one year to maintain the delisted status of the waste. As an additional condition of the initial verification period, the waste must continue to be processed in the incinerator prior to disposal in a landfill. After successful completion of the initial verification period, which is 12 months from the date of promulgation, the subsequent verification period, which is described in paragraph (3)(B), will begin. During the subsequent verification period, the waste may be either directly disposed in a landfill or disposed as an ash in a landfill with prior incineration.

(A) Testing: The EPA believes that quarterly sampling of this waste is adequate for a facility to collect sufficient data to verify that the data provided for the wastewater treatment sludge in the 2000 petition, is representative. Eastman may dispose of the sludge as a non-hazardous waste during the initial verification period if the waste is processed as described in the 1996 delisting exclusion and meets the exclusion levels of the fluidized bed incinerator ash.

If the data from the initial verification period demonstrate that the treatment process is effective, Eastman may request subsequent verification testing. EPA will notify Eastman, in writing, if and when it may replace the testing conditions in paragraph(3)(A)(i) with the testing conditions in (3)(B).

(B) Subsequent Verification Testing: The EPA believes that the concentrations of the constituents of concern in the wastewater treatment sludge may vary over time. As a result, to ensure that Eastman's treatment process can effectively handle any variation in constituent concentrations in the waste, we are proposing a subsequent verification testing condition.

The proposed subsequent testing would verify that Eastman wastes are similar to those sludges generated during the initial verification testing. It would also verify that the wastewater treatment sludge does not exhibit unacceptable levels of toxic constituents. Eastman would begin annual sampling on the anniversary date of the final exclusion.

(4) Changes in Operating Conditions

Paragraph (4) would allow Eastman the flexibility of modifying its processes (for example, changes in equipment or changes in operating conditions) to improve its treatment process. However, Eastman must prove the effectiveness of the modified process and request approval from the EPA. Eastman must manage wastes generated during the new process demonstration as hazardous waste until they have obtained written approval and Paragraph (3) is satisfied.

(5) Data Submittals

To provide appropriate documentation that Eastman's facility is properly treating the waste, Eastman must compile, summarize, and keep delisting records on-site for a minimum of five years. They should keep all analytical data obtained through Paragraph (3) including quality control information for five years. Paragraph (5) requires that Eastman furnish these data upon request for inspection by any employee or representative of EPA or the State of Texas.

If the proposed exclusion is made final, it will apply only to 82,100 cubic yards of wastewater treatment sludge, generated annually at the Eastman facility after successful verification testing.

We would require Eastman to file a new delisting petition under any of the following circumstances:

(a) If it uses any new manufacturing or production process(es), or significantly change from the current process(es) described in its petition; or

(b) If it makes any changes that could affect the composition or type of waste generated.

Eastman must manage waste volumes greater than 82,100 cubic yards of wastewater treatment sludge as hazardous until we grant a new exclusion.

If this exclusion becomes final, Eastman's management of the wastes covered by this petition would be relieved from Subtitle C jurisdiction. Eastman would be required to either treat, store, or dispose of the waste in an on-site facility that has a State permit, license, or is registered to manage municipal or industrial solid waste. If not, Eastman must ensure that it delivers the waste to an off-site storage, treatment, or disposal facility that has a State permit, license, or is registered to manage municipal or industrial solid waste.

(6) Reopener Language

The purpose of Paragraph 6 is to require Eastman to disclose new or different information related to a condition at the facility or disposal of the waste if it is pertinent to the delisting. Eastman must also use this procedure, if the waste sample in the annual testing fails to meet the levels found in Paragraph 1. This provision will allow EPA to reevaluate the exclusion if a source provides new or additional information to the Agency. The EPA will evaluate the information on which we based the decision to see if it is still correct, or if circumstances have changed so that the information is no longer correct or would cause EPA to deny the petition if presented. This provision expressly requires Eastman to report differing site conditions or assumptions used in the petition in addition to failure to meet the annual testing conditions within 10 days of discovery. If EPA discovers such information itself or from a third party, it can act on it as appropriate. The language being proposed is similar to those provisions found in RCRA regulations governing no-migration petitions at § 268.6.

The EPA believes that we have the authority under RCRA and the Administrative Procedures Act, 5 U.S.C. § 551 (1978) et seq., to reopen a delisting decision. We may reopen a delisting decision when we receive new information that calls into question the assumptions underlying the delisting.

The Agency believes a clear statement of its authority in delistings is merited in light of Agency experience. See Reynolds Metals Company at 62 FR 37694 (July 14, 1997)and 62 FR 63458 (December 1, 1997) where the delisted waste leached at greater concentrations in the environment than the concentrations predicted when conducting the TCLP, thus leading the Agency to repeal the delisting. If an immediate threat to human health and the environment presents itself, EPA will continue to address these situations case by case. Where necessary, EPA will make a good cause finding to justify emergency rulemaking. See APA § 553 (b).

(7) Notification Requirements

In order to adequately track wastes that have been delisted, EPA is requiring that Eastman provide a one-time notification to any State regulatory agency through which or to which the delisted waste is being carried. Eastman currently intends to manage the petitioned waste on-site. This notification requirement must be met if the waste is transported off-site. Eastman must provide this notification within 60 days of commencing this activity.

B. What Happens if Eastman Violates the Terms and Conditions?

If Eastman violates the terms and conditions established in the exclusion, the Agency will start procedures to withdraw the exclusion. Where there is an immediate threat to human health and the environment, the Agency will evaluate the need for enforcement activities on a case-by-case basis. The Agency expects Eastman to conduct the appropriate waste analysis and comply with the criteria explained above in Paragraphs 3, 4, 5 and 6 of the exclusion.

VI. Public Comments

A. How Can I as an Interested Party Submit Comments?

The EPA is requesting public comments on this proposed decision. Please send three copies of your comments. Send two copies to William Gallagher, Delisting Section, Multimedia Planning and Permitting Division (6PD-O), Environmental Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Austin, Texas 78753. Identify your comments at the top with this regulatory docket number: “F-00-TXDEL-EASTMAN.”

You should submit requests for a hearing to Carl Edlund, Director, Multimedia Planning and Permitting Division (6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

B. How May I Review the Docket or Obtain Copies of the Proposed Exclusion?

You may review the RCRA regulatory docket for this proposed rule at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. It is available for viewing in the EPA Freedom of Information Act Review Room from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal holidays. Call [phone] for appointments. The public may copy material from any regulatory docket at no cost for the first 100 pages, and at fifteen cents per page for additional copies.

VII. Regulatory Impact

Under Executive Order 12866, EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions.

The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.

Because there is no additional impact from today's proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under Section (6) of Executive Order 12866.

VIII. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (that is, small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on small entities.

This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations and would be limited to one facility. Accordingly, I hereby certify that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.

IX. Paperwork Reduction Act

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

X. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.

When such a statement is required for EPA rules, under section 205 of the UMRA EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.

Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.

The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.

The EPA finds that today's delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

XI. Executive Order 13045

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

XII. Executive Order 13084

Because this action does not involve any requirements that affect Indian Tribes, the requirements of section 3(b) of Executive Order 13084 do not apply.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects that communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments.

If the mandate is unfunded, EPA must provide to the Office Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

XIII. National Technology Transfer and Advancement Act

Under Section 12(d) of the National Technology Transfer and Advancement Act, the Agency is directed to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices, etc.) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by EPA, the Act requires that Agency to provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards and thus, the Agency has no need to consider the use of voluntary consensus standards in developing this final rule.

XIV. Executive Order 13132 Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that impose substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This action does not have federalism implication. It will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it affects only one facility.

Lists of Subjects in 40 CFR Part 261

• Environmental protection
• Hazardous Waste
• Recycling
• Reporting and recordkeeping requirements

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

Dated: November 17, 2000.

Bill Luthans,

Deputy Director, Multimedia Planning and Permitting Division, Region 6.

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

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

2. In Tables 1, 2, and 3 of Appendix IX of part 261 it is proposed to add the following waste stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261—Waste Excluded Under §§ 260.20 and 260.22.

Table 1.—Waste Excluded From Non-Specific Sources

Facility	Address	Waste description
*         *         *         *         *         *         *
Eastman Chemical Company	Longview, Texas	Wastewater treatment sludge, (at a maximum generation of 82,100 cubic yards per calendar year) generated by Eastman (EPA Hazardous Waste Nos. F001, F002, F003, F005 generated at Eastman.
		Eastman must implement a testing program that meets the following conditions for the exclusion to be valid:
		(1) Delisting Levels: All concentrations for the following constituents must not exceed the following levels (mg/l). For the wastewater treatment sludge constituents must be measured in the waste leachate by the method specified in 40 CFR 261.24.
		(A) Wastewater treatment sludge
		(i) Inorganic Constituents: Antimony—0.0515; Barium—7.30; Cobalt—2.25; Chromium—5.0; Lead—5.00; Mercury—0.0015; Nickel—2.83; Selenium—0.22; Silver—0.384; Vanadium—2.11; Zinc—28.0
		(ii) Organic Constituents: Acenaphthene—1.25; Acetone—7.13; bis(2-ethylhexylphthalate—0.28; 2-butanone—42.8; Chloroform—0.0099; Fluorene—0.55; Methanol—35.7; Methylene Chloride—0.486; naphthalene—0.0321.
		(2) Waste Holding and Handling: Eastman may dispose of the waste water treatment sludge if it meets the conditions of the Eastman delisting exclusion found in 40 CFR Part 261, Appendix IX Tables, 1, 2, and 3 (September 25, 1996). If the waste water treatment sludge is not managed in the manner above, Eastman must manage it in accordance with applicable its RCRA Subtitle C requirements. If the levels of constituents measured in the samples of the waste water treatment sludge do not exceed the levels set forth in Condition (1), then the waste is nonhazardous and may be managed and disposed of in accordance with all applicable solid waste regulations.
		(3) Verification Testing Requirements: Eastman must perform sample collection and analyses, including quality control procedures, according to SW-846 methodologies. After completion of the initial verification period, Eastman may replace the testing required in Condition (3)(A) with the testing required in Condition (3)(B). Eastman must continue to test as specified in Condition (3)(A) until and unless notified by EPA in writing that testing in Condition (3)(A) may be replaced by Condition (3)(B).
		(A) Initial Verification Testing: (i) At quarterly intervals for one year after the final exclusion is granted, Eastman must collect and analyze composites of the wastewater treatment sludge for constituents listed in Condition (1).
		(B) Subsequent Verification Testing: Following termination of the quarterly testing, Eastman must continue to test a representative composite sample for all constituents listed in Condition (1) on an annual basis (no later than twelve months after the final exclusion).
		(4) Changes in Operating Conditions: If Eastman significantly changes the process which generate(s) the waste(s) and which may or could affect the composition or type waste(s) generated as established under Condition (1) (by illustration, but not limitation, change in equipment or operating conditions of the treatment process). Eastman must notify the EPA in writing and may no longer handle the waste generated from the new process or no longer manage as nonhazardous until the waste meet the delisting levels set in Condition (1) and it has received written approval to do so from EPA.
		(5) Data Submittals: Eastman must submit or maintain, as applicable, the information described below. If Eastman fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in Condition (6). Eastman must:
		(A) Submit the data obtained through Condition (3) to Mr. William Gallagher, Chief, Region 6 Delisting Program, EPA, 1445 Ross Avenue, Dallas, Texas 75202-2733, Mail Code, (6PD-O) within the time specified.
		(B) Compile records of operating conditions and analytical data from Condition (3), summarized, and maintained on-site for a minimum of five years.
		(C) Furnish these records and data when EPA or the State of Texas request them for inspection.
		(D) Send along with all data a signed copy of the following certification statement, to attest to the truth and accuracy of the data submitted:
		“Under civil and criminal penalty of law for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that the information contained in or accompanying this document is true, accurate and complete.
		“As to the (those) identified section(s) of this document for which I cannot personally verify its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete.
		“If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company's RCRA and CERCLA obligations premised upon the company's reliance on the void exclusion.”
		(6) Reopener Language (A) If, anytime after disposal of the delisted waste, Eastman possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or groundwater monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the Regional Administrator or his delegate in granting the petition, then the facility must report the data, in writing, to the Regional Administrator or his delegate within 10 days of first possessing or being made aware of that data.
		(B) If the annual testing of the waste does not meet the delisting requirements in Condition (1), Eastman must report the data, in writing, to the Regional Administrator or his delegate within 10 days of first possessing or being made aware of that data.
		(C) If Eastman fails to submit the information described in Conditions (5), (6)(A) or (6)(B) or if any other information is received from any source, the Regional Administrator or his delegate will make a preliminary determination as to whether the reported information requires Agency action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
		(D) If the Regional Administrator or his delegate determines that the reported information does require Agency action, the Regional Administrator or his delegate will notify the facility in writing of the actions the Regional Administrator or his delegate believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed Agency action is not necessary. The facility shall have 10 days from the date of the Regional Administrator or his delegate's notice to present such information.
		(E) Following the receipt of information from the facility described in Condition (6)(D) or (if no information is presented under Condition (6)(D)) the initial receipt of information described in Conditions (5), (6)(A) or (6)(B), the Regional Administrator or his delegate will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator or his delegate's determination shall become effective immediately, unless the Regional Administrator or his delegate provides otherwise.
		(7) Notification Requirements: Eastman must do following before transporting the delisted waste off-site: Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the exclusion.
		(A) Provide a one-time written notification to any State Regulatory Agency to which or through which they will transport the delisted waste described above for disposal, 60 days before beginning such activities.
		(B) Update the one-time written notification if they ship the delisted waste into a different disposal facility.
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Table 2.—Waste Excluded From Specific Sources

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

Table 3.—Waste Excluded From Commercial Chemical Products, Off Specification Species, Container Residues, and Soil Residues Thereof

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