59156 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 

Actions Accomplished Previously 

(g) Replacements done before the effective 

date of this AD according to Airbus Service 

Bulletin A300–27–0099 (for Model A300 B2 

and B4 series airplanes), A300–24–6082 (for 

Model A300–600 series airplanes), or A310–

24–2088 (for Model A310 series airplanes); 

dated October 11, 2002; as applicable; are 

acceptable for compliance with the 

corresponding action required by paragraph 

(a) of this AD. 

Alternative Methods of Compliance 

(AMOCs) 

(h) The Manager, International Branch, 

ANM–116, Transport Airplane Directorate, 

FAA, has the authority to approve AMOCs 

for this AD, if requested in accordance with 

the procedures found in 14 CFR 39.19. 

Related Information 

(i) French airworthiness directive 2003–

082R1, dated March 31, 2004, also addresses 

the subject of this AD.

Issued in Renton, Washington, on 

September 27, 2004. 

Kalene C. Yanamura, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service.

[FR Doc. 04–22267 Filed 10–1–04; 8:45 am] 

BILLING CODE 4910–13–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[SW FRL–7823–9] 

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: EPA is proposing to grant a 

petition submitted by Bayer Polymers 

(Bayer) to exclude (or delist) a certain 

solid waste generated by its Baytown, 

Texas, facility from the lists of 

hazardous wastes. 

EPA used the Delisting Risk 

Assessment Software (DRAS) in the 

evaluation of the impact of the 

petitioned waste on human health and 

the environment. 

EPA bases its proposed decision to 

grant the petition on an evaluation of 

waste-specific information provided by 

the petitioner. This proposed decision, 

if finalized, would exclude the 

petitioned waste from the requirements 

of hazardous waste regulations under 

the Resource Conservation and 

Recovery Act (RCRA). 

If finalized, EPA would conclude that 

Bayer’s petitioned waste is 

nonhazardous with respect to the 

original listing criteria and that the 

generation of K027, K104, K111, and 

K112 treated effluent from the facility’s 

waste water treatment plant will not be 

hazardous at the point of generation 

because of the adequately reduces the 

likelihood of migration of constituents 

from this waste. EPA would also 

conclude that Bayer’s process 

minimizes short-term and long-term 

threats from the petitioned waste to 

human health and the environment.

DATES: EPA will accept comments until 

November 3, 2004. EPA will stamp 

comments received after the close of the 

comment period as late. These late 

comments may not be considered in 

formulating a final decision. Your 

requests for a hearing must reach EPA 

by October 19, 2004. The request must 

contain the information prescribed in 40 

CFR 260.20(d).

ADDRESSES: Please send three copies of 

your comments. You should send two 

copies to the Chief, Corrective Action 

and Waste Minimization Section (6PD–

C), Multimedia Planning and Permitting 

Division, U. S. Environmental 

Protection Agency Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202. You 

should send a third copy to the Texas 

Commission on Environmental Quality, 

P.O. Box 13087, Austin, TX 78712. 

Identify your comments at the top with 

this regulatory docket number: [R6–

TXDEL–FY04–Bayer]. You may submit 

your comments electronically to 

Michelle Peace at 

peace.michelle@epa.gov. 

You should address requests for a 

hearing to Ben Banipal, Chief, 

Corrective Action and Waste 

Minimization Section (6PD–C), 

Multimedia Planning and Permitting 

Division, U.S. Environmental Protection 

Agency Region 6, 1445 Ross Avenue, 

Dallas, Texas 75202.

FOR FURTHER TECHNICAL INFORMATION

CONTACT: Michelle Peace (214) 665–

7430.

SUPPLEMENTARY INFORMATION:

The information in this section is 

organized as follows:

I. Overview Information 

A. What action is EPA proposing? 

A. Why is EPA proposing to approve this 

delisting? 

C. How will Bayer manage the waste, if it 

is delisted? 

D. When would the proposed delisting 

exclusion be finalized? 

E. How would this action affect states? 

II. Background 

A. What is the history of the delisting 

program? 

B. What is a delisting petition, and what 

does it require of a petitioner? 

C. What factors must EPA consider in 

deciding whether to grant a delisting 

petition?

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What wastes did Bayer petition EPA to 

delist? 

B. Who is Bayer and what process do they 

use to generate the petition waste? 

C. What information did Bayer submit to 

support this petition? 

D. What were the results of Bayer’s 

analysis? 

E. How did EPA evaluate the risk of 

delisting this waste? 

F. What did EPA conclude about Bayer’s 

analysis? 

G. What other factors did EPA consider in 

its evaluation? 

H. What is EPA’s evaluation of this 

delisting petition? 

IV. Next Steps 

A. With what conditions must the 

petitioner comply? 

B. What happens, if Bayer violates the 

terms and conditions? 

V. Public Comments 

A. How may I as an interested party submit 

comments? 

B. How may I review the docket or obtain 

copies of the proposed exclusion? 

VI. Regulatory Impact 

VII. Regulatory Flexibility Act 

VIII. Paperwork Reduction Act 

IX. Unfunded Mandates Reform Act 

X. Executive Order 13045 

XI. Executive Order 13084 

XII. National Technology Transfer and 

Advancements Act 

XIII. Executive Order 13132 Federalism

I. Overview Information 

A. What Action Is EPA Proposing? 

EPA is proposing to grant the 

delisting petition submitted by Bayer to 

have its Outfall 007 Treated Effluent 

(K027, K104, K111, and K112 listed 

hazardous waste) excluded, or delisted, 

from the definition of a hazardous 

waste. 

B. Why Is EPA Proposing To Approve 

This Delisting? 

Bayer’s petition requests a delisting 

for the treated effluent derived from the 

treatment of hazardous waste water 

listed as K027, K104, K111, and K112 

and non-hazardous waste water 

identified as brine header waste water. 

Bayer does not believe that the 

petitioned waste meets the criteria for 

which EPA listed it. Bayer also believes 

no additional constituents or factors 

could cause the waste to be hazardous. 

EPA’s review of this petition included 

consideration of the original listing 

criteria, and the additional factors 

required by the Hazardous and Solid 

Waste Amendments of 1984 (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 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 59157

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, EPA agrees with the petitioner 

that the waste is nonhazardous with 

respect to the original listing criteria. (If 

EPA had found, based on this review, 

that the waste remained hazardous 

based on the factors for which the waste 

was originally listed, EPA would have 

proposed to deny the petition.) EPA 

evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

EPA considered whether the waste is 

acutely toxic, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 

generated, and waste variability. EPA 

believes that the petitioned waste does 

not meet the listing criteria and thus 

should not be a listed waste. EPA’s 

proposed decision to delist waste from 

the Bayer facility is based on the 

information submitted in support of this 

rule, including descriptions of wastes 

and analytical data from the Baytown, 

Texas facility.

C. How Will Bayer Manage the Waste, if 

it Is Delisted? 

Bayer currently discharges the treated 

effluent as permitted by its Texas 

Pollutant Discharge Elimination System 

(TPDES) permit. If the delisting 

exclusion is finalized, Bayer intends to 

dispose of the petitioned waste (i.e., 

treated effluent) in the same manner. 

This delisting does not relieve Bayer of 

its responsibility to comply with and 

conduct all tests required by its TPDES 

permit. The waste would be delisted in 

the Outfall Tank prior to its discharge 

from Outfall 007. 

D. When Would the Proposed Delisting 

Exclusion Be Finalized? 

RCRA section 3001(f) specifically 

requires EPA to provide notice and an 

opportunity for comment before 

granting or denying a final exclusion. 

Thus, EPA will not grant the exclusion 

unless and until it addresses all timely 

public comments (including those at 

public hearings, if any) on this proposal. 

RCRA section 3010(b)(1) at 42 USCA 

6930(b)(1), allows rules to become 

effective in less than six months after 

EPA addresses public comments when 

the regulated facility does not need the 

six-month period to come into 

compliance. That is the case here, 

because this rule, if finalized, would 

reduce the existing requirements for 

persons generating hazardous wastes. 

EPA believes that this exclusion 

should be effective immediately upon 

final publication because a six-month 

deadline is not necessary to achieve the 

purpose of section 3010(b), and a later 

effective date would impose 

unnecessary hardship and expense on 

this petitioner. These reasons also 

provide good cause for making this rule 

effective immediately, upon final 

publication, under the Administrative 

Procedure Act, 5 U.S.C. 553(d). 

E. How Would This Action Affect the 

States? 

Because EPA is issuing this exclusion 

under the Federal RCRA delisting 

program, only States subject to Federal 

RCRA delisting provisions would be 

affected. This would exclude States who 

have received authorization from EPA to 

make their own delisting decisions. 

EPA allows the States to impose their 

own non-RCRA regulatory requirements 

that are more stringent than EPA’s, 

under section 3009 of RCRA, 42 U.S.C. 

6929. These more stringent 

requirements may include a provision 

that prohibits a Federally issued 

exclusion from taking effect in the State. 

Because a dual system (that is, both 

Federal (RCRA) and State (non-RCRA) 

programs) may regulate a petitioner’s 

waste, EPA urges petitioners to contact 

the state regulatory authority to 

establish the status of their wastes under 

the State law. Delisting petitions 

approved by EPA Administrator under 

40 CFR 260.22 are effective in the State 

of Texas only after the final rule has 

been published in the Federal Register. 

II. Background 

A. What Is the History of the Delisting 

Program? 

EPA published an amended list of 

hazardous wastes from nonspecific and 

specific sources on January 16, 1981, as 

part of its final and interim final 

regulations implementing section 3001 

of RCRA. EPA has amended this list 

several times and published it in 

§§ 261.31 and 261.32. EPA lists these 

wastes as hazardous because: (1) They 

typically and frequently exhibit one or 

more of the characteristics of hazardous 

wastes identified in Subpart C of Part 

261 (that is, ignitability, corrosivity, 

reactivity, and toxicity) or (2) they meet 

the criteria for listing contained in 

§ 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 

EPA because it does not believe the 

wastes should be hazardous under 

RCRA regulations. 

In a delisting petition, the petitioner 

must show that wastes generated at a 

particular facility do not meet any of the 

criteria for which the waste was listed. 

The criteria for which EPA lists a waste 

are in Part 261 and further explained in 

the background documents for the listed 

waste. 

In addition, under § 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 

waste. 

Generators remain obligated under 

RCRA to confirm whether their waste 

remains nonhazardous based on the 

hazardous waste characteristics even if 

EPA has ‘‘delisted’’ the waste. 

C. What Factors Must EPA Consider in 

Deciding Whether To Grant a Delisting 

Petition? 

Besides considering the criteria in 

§ 260.22(a) and section 3001(f) of RCRA, 

42 U.S.C. 6921(f), and in the background 

documents for the listed wastes, EPA 

must consider any factors (including 

additional constituents) other than those 

for which EPA listed the waste, if a 

reasonable basis exists that these 

additional factors could cause the waste 

to be hazardous. 

EPA must also consider as hazardous 

waste mixtures containing listed 

hazardous wastes and wastes derived 

from treating, storing, or disposing of 

listed hazardous waste. See 

§ 261.3(a)(2)(iii) and (iv) and (c)(2)(i), 

called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. These wastes 

are also eligible for exclusion and 

remain hazardous wastes until 

59158 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 

excluded. See 66 FR 27266 (May 16, 

2001). 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What Waste Did Bayer Petition EPA 

To Delist? 

On June 25, 2003, Bayer petitioned 

EPA to exclude from the lists of 

hazardous waste contained in §§ 261.31 

and 261.32, the treated effluent that is 

discharged pursuant to Bayer’s TPDES 

permit. The discharge originates at 

Outfall 007 and is piped to the 

discharge location described as the 

‘‘diffuser near Hog Island into the 

Houston Ship Channel.’’ The waste 

stream is generated from the Bayer 

facility located in Baytown, Texas. The 

waste (EPA Hazardous Waste Nos. 

K027, K104, K111, and K112) is 

effluent, which has been treated at the 

facility’s waste water treatment plant 

and is ultimately discharged to Outfall 

007 in accordance with the facility’s 

TPDES permit. Specifically, in its 

petition, Bayer requested that EPA grant 

an exclusion for 18,071,150 cubic yards 

(5.745 billion gallons) per calendar year 

of treated effluent resulting from the 

treatment of waste waters from the 

manufacturing processes at its facility. 

B. Who Is Bayer and What Process Do 

They Use to Generate the Petition 

Waste? 

Bayer produces plastics, coatings, 

polyurethanes, and industrial 

chemicals. Bayer is the first facility in 

the United States to employ Tower 

Biology, an onsite waste water treatment 

plant (the plant) process that uses 

bacteria to treat waste above ground to 

protect ground water resources. The 

waste waters treated at the plant are 

generated by the various manufacturing 

operations at the Baytown facility. 

Influent waste waters enter the plant via 

the ‘‘normal waste water header’’ or the 

‘‘brine waste water header.’’ The waste 

water entering the plant via the normal 

waste water header is placed in the 

primary clarifier. From the primary 

clarifier, the waste water is placed in a 

tank that feeds the waste water to a 

denitrification reactor prior to treatment 

in the biological oxidation towers. 

Following biological treatment, the 

waste water is run through a secondary 

clarifier. Waste water from the clarifier 

is sent to an activated carbon absorption 

system. Upon exiting the carbon 

absorption system, the waste water is 

fed to a series of filters. After filtration, 

the treated waste water is placed in an 

outfall tank for subsequent discharge 

under Bayer’s TPDES discharge permit. 

Influent waste waters that enter the 

plant via the ‘‘brine waste water header’’

are placed in dedicated brine tanks and 

a brine carbon absorption system. After 

filtration, the brine waste water is 

commingled in the outfall tank with the 

treated normal waste water prior to 

being discharged in accordance with the 

Bayer TPDES discharge permit. 

Treatment of the waste waters, which 

result from the manufacturing process 

generates the effluent that is classified 

as K027, K104, K111, and K112 listed 

hazardous wastes pursuant to 40 CFR 

§ 261.31. The 40 CFR Part 261 Appendix 

VII hazardous constituents which are 

the basis for listing K027, K104, K111, 

and K112 hazardous wastes are: toluene 

diisocyanate, aniline, benzene, 

diphenylamine, nitrobenzene, 

phenylenediamine, 2,4-dinitrotoluene, 

2,4-toluenediamine, o-toluidine, and ptoluidine.

C. What Information Did Bayer Submit 

To Support This Petition? 

To support its petition, Bayer 

submitted: 

(1) Results of the total constituent 

analysis for volatile and semivolatile 

organics, pesticides, herbicides, 

dioxins/furans, PCBs and metals for six 

samples. 

(2) Descriptions of the waste water 

treatment process and effluent. 

D. What Were the Results of Bayer’s 

Analyses? 

EPA believes that the descriptions of 

Bayer’s waste water treatment process, 

in addition to the analytical data 

submitted in support of the petition 

show that the treated effluent is 

nonhazardous. Analytical data from 

Bayer’s treated effluent samples were 

used in the Delisting Risk Assessment 

Software. The data summaries for 

detected constituents are presented in 

Table 1. EPA has reviewed the sampling 

procedures used by Bayer and has 

determined they satisfy EPA’s criteria 

for collecting representative samples of 

the variations in constituent 

concentrations in the treated effluent. 

The data submitted in support of the 

petition show that constituents in 

Bayer’s waste is presently below healthbased risk levels used in the delisting 

decision-making. EPA believes that 

Bayer has successfully demonstrated 

that the treated effluent is 

nonhazardous.

TABLE 1.—MAXIMUM TOTAL CONSTITUENT CONCENTRATIONS OF THE TREATED EFFLUENT AND CORRESPONDING

DELISTING LIMITS 1

Chemical name 

Waste stream 

total concentration

(mg/kg) 

Maximum allowable concentration

(mg/kg) 

Phenylenediamine, m- ....................................................................................................................................... 5.00E–02 .......... 8.79E–01 

Bis(2-ethylhexyl)phthalate .................................................................................................................................. 1.94E–03 .......... 1.26E+03 

Di-n-octyl phthalate ............................................................................................................................................ 2.50E–03 .......... 4.54E+02 

Dinitrotoluene, 2,4- ............................................................................................................................................ 1.50E–03 .......... 4.51E–03 

Diphenylamine ................................................................................................................................................... 1.50E–03 .......... 1.18E+01 

Dioxane, 1,4- ..................................................................................................................................................... 1.40E+00 .......... 1.76E+00 

Pyrene ................................................................................................................................................................ 2.00E–03 .......... 3.90E+01 

Fluoranthene ...................................................................................................................................................... 2.50E–03 .......... 2.46E+01 

Cyanide .............................................................................................................................................................. 2.84E–02 .......... 4.60E–01 

Aniline ................................................................................................................................................................ 2.56E–03 .......... 6.80E–01 

Tetrachloroethane, 1,1,1,2- ............................................................................................................................... 1.00E–03 .......... 7.03E–01 

Acetone .............................................................................................................................................................. 2.80E+00 .......... 1.46E+01 

Chloroform ......................................................................................................................................................... 1.40E–02 .......... 7.70E–02 

Benzene ............................................................................................................................................................. 3.00E–03 .......... 5.90E–02 

Mercury .............................................................................................................................................................. 6.80E–04 .......... 3.23E–02 

Nickel ................................................................................................................................................................. 9.16E–02 .......... 1.13E+01 

Thallium ............................................................................................................................................................. 5.00E–03 .......... 3.34E–02 

Antimony ............................................................................................................................................................ 7.10E–03 .......... 8.16E–02 

Arsenic ............................................................................................................................................................... 8.20E–03 .......... 3.85E–01 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 59159

TABLE 1.—MAXIMUM TOTAL CONSTITUENT CONCENTRATIONS OF THE TREATED EFFLUENT AND CORRESPONDING

DELISTING LIMITS 1—Continued

Chemical name 

Waste stream 

total concentration

(mg/kg) 

Maximum allowable concentration

(mg/kg) 

Barium ................................................................................................................................................................ 1.04E–01 .......... 2.22E+01 

Chromium .......................................................................................................................................................... 9.10E–03 .......... 1.53E+02 

Copper ............................................................................................................................................................... 1.02E–01 .......... 3.62E+03 

Vanadium ........................................................................................................................................................... 1.38E–02 .......... 8.38E+00 

Zinc .................................................................................................................................................................... 8.33E–02 .......... 1.12E+02 

Methylene chloride ............................................................................................................................................. 1.00E–03 .......... 2.90E–02 

Bromodichloromethane ...................................................................................................................................... 2.00E–03 .......... 7.19E–02 

Selenium ............................................................................................................................................................ 9.10E–03 .......... 2.30E–01 

Methyl ethyl ketone ............................................................................................................................................ 1.00E–02 .......... 8.79E+01 

Di-n-butyl phthalate ............................................................................................................................................ 2.08E–03 .......... 1.49E+02 

Toluidine, o- ....................................................................................................................................................... 2.00E–03 .......... 1.71E–02 

Acetophenone .................................................................................................................................................... 8.90E–04 .......... 1.58E+01 

Toluidine, p- ....................................................................................................................................................... 1.50E–03 .......... 2.15E–02 

Toluene diisocyanate ......................................................................................................................................... <1.0 E–02 ......... 1.0E–02 

Nitrobenzene ...................................................................................................................................................... 1.50E–03 .......... 7.88E–02 

2,4 toluenediamine ............................................................................................................................................ <1.0 E–02 ......... 1.21E–03 

1These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent the 

specific levels found in one sample. 

< Denotes that the constituent was below the detection limit. Concentrations reported below detect are not believed to be present in the waste. 

E. How Did EPA Evaluate the Risk of 

Delisting This Waste? 

For this delisting determination, we 

assumed that the most reasonable, worst 

case scenario would be if the effluent 

were disposed in a surface 

impoundment and we considered 

transport of waste constituents through 

ground water, surface water and air. 

We evaluated Bayer’s petitioned 

waste using the Agency’s Delisting Risk 

Assessment Software (DRAS) to predict 

the concentration of hazardous 

constituents that might be released from 

the petitioned waste and to determine if 

the waste would pose a threat. The 

DRAS uses EPA’s Composite Model for 

leachate migration with Transformation 

Products (EPACMTP) to predict the 

potential for release to groundwater 

from the wastes and subsequent routes 

of exposure to a receptor. From a release 

to ground water, we considered routes 

of exposure to a human receptor via 

ingestion of contaminated ground water, 

inhalation from ground water via 

showering and dermal contact while 

bathing. The DRAS program evaluates 

the subsequent routes of exposure to a 

human receptor from such releases 

through exposure pathways of fish 

ingestion and ingestion of drinking 

water. The DRAS also considers releases 

of waste particles and volatile emissions 

to air from the surface of an open 

impoundment. From a release to air, we 

considered as routes of exposure of 

inhalation of particulates and 

absorption into the lungs; ingestion of 

particulates eliminated from respiratory 

passages and subsequently swallowed, 

air deposition of particulates and 

subsequent ingestion of the soil/waste 

mixture; and inhalation of volatile 

constituents. 

We used the maximum estimated 

waste volume and the maximum 

reported total concentration to estimate 

the constituent concentrations in the 

ground water, soil, surface water and/or 

air. 

Assuming a cancer risk of 1 × 10 ¥

5 and a hazard quotient of one, the 

DRAS program back calculated a 

maximum allowable concentration level 

which did not exceed protective levels 

in the waste for each constituent at the 

given annual waste volume of 

18,071,150 cubic yards (5.475 billion 

gallons). 

F. What Did EPA Conclude About Bayer 

Analysis? 

EPA concluded, after reviewing 

Bayer’s waste water treatment process 

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 

Bayer’s wastes. In addition, on the basis 

of explanations and analytical data 

provided by Bayer, pursuant to § 260.22, 

EPA concludes that the effluent does 

not exhibit any of the characteristics of 

ignitability, corrosivity, reactivity, or 

toxicity. See §§ 261.21, 261.22 ,261.23, 

and 261.24 respectively.

G. What Other Factors Did EPA 

Consider in Its Evaluation? 

During the evaluation of this petition, 

EPA also considered the potential 

impact of the petitioned waste via nonground water routes (i.e., air emissions 

and surface runoff) for the treated 

effluent. With regard to airborne 

dispersion in particular, EPA believes 

that exposure to airborne contaminants 

from the petitioned waste is unlikely. 

No appreciable air releases are likely 

from the treated effluent under any 

likely disposal conditions. EPA 

evaluated the potential hazards 

resulting from the unlikely scenario of 

airborne exposure to hazardous 

constituents released from the waste 

water in an open surface impoundment. 

The results of this worst-case analysis 

indicated that there is no substantial 

present or potential hazard to human 

health and the environment from 

airborne exposure to constituents from 

the treated effluent waste water. 

H. What Is EPA’s Evaluation of This 

Delisting Petition? 

The descriptions by Bayer of the 

hazardous waste process and analytical 

characterization, with the proposed 

verification testing requirements (as 

discussed later in this 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 concentrations (See 

Table 1). EPA believes that the treated 

effluent generated by Bayer contains 

hazardous constituents at levels, which 

will present minimal short-term and 

long-term threats to human health and 

the environment. 

Thus, EPA believes that it should 

grant to Bayer an exclusion for the 

treated effluent. EPA believes that the 

59160 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 

data submitted in support of the petition 

shows the Bayer treated effluent to be 

nonhazardous. 

EPA has reviewed the sampling 

procedures used by Bayer and has 

determined they satisfy EPA’s criteria 

for collecting representative samples of 

variable constituent concentrations in 

the treated effluent. The data submitted 

in support of the petition show that 

constituents in Bayer’s wastes are 

presently below the compliance-point 

concentrations used in the delisting 

decision-making process and would not 

pose a substantial hazard to the 

environment and the public. EPA 

believes that Bayer has successfully 

demonstrated that the treated effluent is 

nonhazardous. 

EPA, therefore, proposes to grant an 

exclusion to Bayer, in Baytown, Texas, 

for the treated effluent described in its 

June 2003 petition. EPA’s decision to 

exclude this waste is based on analysis 

performed on samples taken of the 

treated effluent. 

If EPA finalizes the proposed rule, 

EPA will no longer regulate the treated 

effluent under Parts 262 through 268 

and the permitting standards of Part 

270. 

IV. Next Steps 

A. With What Conditions Must the 

Petitioner Comply? 

The petitioner, Bayer, must comply 

with the requirements in 40 CFR Part 

261, Appendix IX, Table 2 as amended 

by this notice. The text below gives the 

rationale and details of those 

requirements. 

(1) Delisting Levels 

This paragraph provides the levels of 

constituent concentrations that Bayer 

must test for in the treated effluent, 

below which these wastes would be 

considered nonhazardous. 

EPA selected the set of inorganic and 

organic constituents specified in 

paragraph (1) and listed in 40 CFR Part 

261, Appendix IX, Table 2, based on 

information in the petition. EPA 

compiled the inorganic and organic 

constituents list from descriptions of the 

manufacturing process used by Bayer, 

previous test data provided for the 

waste, and the respective health-based 

levels used in delisting decisionmaking. These delisting levels 

correspond to the allowable levels 

measured in the total concentrations of 

the treated effluent. The limits 

described here do not relieve Bayer of 

its duty to comply with discharge limits 

described in its TPDES permit for the 

effluent.

(2) Waste Holding and Handling 

Waste classification as non-hazardous 

cannot begin until compliance with the 

limits set in paragraph (1) has occurred 

for two consecutive quarterly sampling 

events. For example, if Bayer is issued 

a final exclusion in August, the first 

quarter samples are due in November 

and the second quarter samples are due 

in February. If EPA deems that both the 

first and second quarter samples (a total 

of four) meet all the delisting limits, 

classification of the waste as nonhazardous cannot begin until March. If 

constituent levels in any sample taken 

by Bayer exceed any of the delisting 

levels set in paragraph (1), Bayer must 

do the following: (i) notify EPA in 

accordance with paragraph (6), and; (ii) 

manage and dispose the treated effluent 

per its TPDES discharge permit as 

hazardous waste generated under 

Subtitle C of RCRA. The delisting for the 

treated effluent applies only during 

periods of TPDES compliance. 

(3) Verification Testing Requirements 

Bayer must complete a verification 

testing program on the treated effluent 

to assure that the waste does not exceed 

the maximum levels specified in 

paragraph (1). If EPA determines that 

the data collected under this paragraph 

does not support the data provided for 

in the petition, the exclusion will not 

cover the tested waste. This verification 

program operates on two levels. 

The first part of the quarterly 

verification testing program consists of 

testing a batch of treated effluent for 

specified indicator parameters as per 

paragraph (1). Each quarterly sampling 

event will consist of at least two 

samples of the treated effluent. Levels of 

constituents measured in the samples of 

the treated effluent that do not exceed 

the levels set forth in paragraph (1) can 

be considered nonhazardous after two 

consecutive quarters of sampling data 

meet the levels listed in paragraph (1). 

The second part of the verification 

testing program is the annual testing of 

two representative composite samples of 

treated effluent for all constituents 

specified in paragraph (1). 

If Bayer demonstrates for two 

consecutive quarters complete 

attainment of all specified limits, then 

Bayer may request approval of EPA to 

reduce the frequency of testing to 

annually. If, after review of performance 

of the treatment system, EPA finds that 

annual testing is adequately protective 

of human health and the environment, 

then EPA may authorize Bayer to reduce 

the quarterly comprehensive sampling 

frequency to an annual basis. If the 

annual testing of the waste does not 

meet the delisting levels in paragraph 1, 

Bayer must notify EPA according to the 

requirements in paragraph 6. EPA will 

then take the appropriate actions 

necessary to protect human health and 

the environment per paragraph 6. Bayer 

must provide sampling results that 

support the rationale that the delisting 

exclusion should not be withdrawn. 

The exclusion is effective upon 

publication in the Federal Register but 

the change in waste classification as 

‘‘non-hazardous’’ cannot begin until two 

consecutive quarters of verification 

sampling comply with the levels 

specified in paragraph 1. The waste 

classification as ‘‘non-hazardous’’ is also 

not authorized if Bayer fails to perform 

the quarterly and yearly testing as 

specified herein. Should Bayer fail to 

conduct the quarterly/yearly testing as 

specified herein, then disposal of 

treated effluent as delisted waste may 

not occur in the following quarter(s)/

year(s) until Bayer obtains the written 

approval of EPA. 

(4) Changes in Operating Conditions 

Paragraph (4) would allow Bayer the 

flexibility of modifying its processes (for 

example, changes in equipment or 

change in operating conditions) to 

improve its treatment processes. 

However, Bayer must prove the 

effectiveness of the modified process 

and request approval from EPA. Bayer 

must manage wastes generated during 

the new process demonstration as 

hazardous waste through verification 

sampling within 30 days of start-up.

(5) Data Submittals 

To provide appropriate 

documentation that the Bayer facility is 

managing the treated effluent, Bayer 

must compile, summarize, and keep 

delisting records on-site for a minimum 

of five years. It should keep all 

analytical data obtained through 

paragraph (3), including quality control 

information, for five years. Paragraph (5) 

requires that Bayer furnish these data 

upon request for inspection by any 

employee or representative of EPA or 

the State of Texas. 

If the proposed exclusion is made 

final, then it will apply only to 

18,071,150 cubic yards (5.475 billion 

gallons) per calendar year of treated 

effluent generated at the Bayer facility 

after successful verification testing. 

EPA would require Bayer to submit 

additional verification data under any of 

the following circumstances: 

(a) If Bayer significantly alters the 

manufacturing process treatment system 

except as described in paragraph (4). 

(b) If Bayer uses any new 

manufacturing or production 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 59161

process(es), or significantly changes the 

current process(es) described in its 

petition; or 

(c) If Bayer makes any changes that 

could affect the composition or type of 

waste generated. 

Bayer must submit a modification to 

the petition complete with full sampling 

and analysis for circumstances where 

the waste volume changes and/or 

additional waste codes are added to the 

waste stream. 

Bayer must manage waste volumes 

greater than 18,071,150 cubic yards 

(5.475 billion gallons) per calendar year 

of treated effluent as hazardous waste 

until EPA grants a revised exclusion. 

When this exclusion becomes final, the 

management of the treated effluent by 

Bayer covered in this petition would be 

relieved from Subtitle C jurisdiction. 

Bayer may not classify the waste as nonhazardous until the revised exclusion is 

finalized. 

(6) Reopener 

The purpose of paragraph (6) is to 

require Bayer to disclose new or 

different information related to a 

condition at the facility or disposal of 

the waste, if it is pertinent to the 

delisting. Bayer must also use this 

procedure, if the waste sample in the 

annual testing fails to meet the levels 

found in paragraph (1). This provision 

will allow EPA to reevaluate the 

exclusion, if a source provides new or 

additional information to EPA. EPA will 

evaluate the information on which it 

based the decision to see, if it is still 

correct, or if circumstances have 

changed so that the information is no 

longer correct or would cause EPA to 

deny the petition, if presented. 

This provision expressly requires 

Bayer to report differing site conditions 

or assumptions used in the petition in 

addition to failure to meet the annual 

testing conditions within 10 days of 

discovery. If EPA discovers such 

information itself or from a third party, 

it can act on it as appropriate. The 

language being proposed is similar to 

those provisions found in RCRA 

regulations governing no-migration 

petitions at § 268.6. 

It is EPA’s position that it has the 

authority under RCRA and the 

Administrative Procedures Act (APA), 5 

U.S.C. § 551 (1978) et seq., to reopen a 

delisting decision. EPA may reopen a 

delisting decision when it receives new 

information that calls into question the 

assumptions underlying the delisting. 

EPA believes a clear statement of its 

authority in delistings is merited in light 

of EPA’s 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 into 

the environment than the 

concentrations predicted when 

conducting the TCLP, thus leading EPA 

to repeal the delisting. If an immediate 

threat to human health and the 

environment presents itself, EPA will 

continue to address these situations 

case-by-case. Where necessary, EPA will 

make a good cause finding to justify 

emergency rulemaking. See APA section 

553(b).

B. What Happens, if Bayer Violates the 

Terms and Conditions? 

If Bayer violates the terms and 

conditions established in the exclusion, 

EPA will start procedures to withdraw 

the exclusion. Where there is an 

immediate threat to human health and 

the environment, EPA will evaluate the 

need for enforcement activities on a 

case-by-case basis. EPA expects Bayer to 

conduct the appropriate waste analysis 

and comply with the criteria explained 

above in paragraph (1) of the exclusion. 

V. Public Comments 

A. How May I as an Interested Party 

Submit Comments? 

EPA is requesting public comments 

on this proposed decision. Please send 

three copies of your comments. Send 

two copies to the Chief, Corrective 

Action and Waste Minimization 

Section, Multimedia Permitting and 

Planning Division, U.S. Environmental 

Protection Agency Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202. Send a 

third copy to the Industrial Hazardous 

Waste Permits Division, Technical 

Evaluation Team, Texas Commission on 

Environmental Quality, P.O. Box 13087, 

Austin, TX 78711–3087. Identify your 

comments at the top with this regulatory 

docket number: R6–FY04–Bayer. You 

may submit your comments 

electronically to Michelle Peace at 

peace.michelle@epa.gov.

B. How May I Review the Docket or 

Obtain Copies of the Proposed 

Exclusion? 

You may review the RCRA regulatory 

docket for this proposed rule at the U.S. 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, TX 

75202. It is available for viewing in EPA 

Freedom of Information Act Review 

Room from 9 a.m. to 4 p.m., Monday 

through Friday, excluding Federal 

holidays. Call (214) 665–6444 for 

appointments. The public may copy 

material from any regulatory docket at 

no cost for the first 100 pages and at 

fifteen cents per page for additional 

copies. 

VI. 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 this 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. 

VII. 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, 

EPA hereby certifies 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.

VIII. Paperwork Reduction Act 

Information collection and 

recordkeeping 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. 

IX. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

59162 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 

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. 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’s 

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. 

EPA finds that this 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. 

X. 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, EPA 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 EPA. 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. 

XI. 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 the 

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 have ‘‘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. 

XII. National Technology Transfer and 

Advancement Act 

Under Section 12(d) of the National 

Technology Transfer and Advancement 

Act, EPA 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 EPA 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, EPA has 

no need to consider the use of voluntary 

consensus standards in developing this 

final rule. 

XIII. 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’’ are 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 

imposes 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. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless EPA 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: September 24, 2004. 

Bill Luthans, 

Acting Division Director, Multimedia 

Permitting and Planning Division.

For the reasons set out in the 

preamble, 40 CFR part 261 is proposed 

to be amended as follows:

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 59163

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

1. The authority citation for part 261 

continues to read as follows:

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

6922, and 6938.

2. In Table 2 of Appendix IX of part 

261 add the following waste stream in 

alphabetical order by facility to read as 

follows:

Appendix IX to Part 261—Waste 

Excluded Under §§ 260.20 and 260.22

TABLE 2.—WASTE EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * * 

Bayer Polymers .............................. Baytown, TX .................................. Outfall 007 treated effluent (EPA Hazardous Waste Nos. K027, K104, 

K111, and K112) generated at a maximum rate of 18,071,150 cubic 

yards (5.475 billion gallons) per calendar year after [publication 

date of the final rule] as it exits the Outfall Tank and disposed in 

accordance with the TPDES permit. 

The delisting levels set do not relieve Bayer of its duty to comply with 

the limits set in its TPDES permit. For the exclusion to be valid, 

Bayer must implement a verification testing program that meets the 

following Paragraphs: 

(1) Delisting Levels: All concentrations for those constituents must not 

exceed the maximum allowable concentrations in mg/kg specified in 

this paragraph. 

(A) Outfall No. 7 Treated Effluent Total Concentrations (mg/kg): Antimony—0.0816; Arsenic—0.385, Barium—22.2; Chromium—153.0; 

Copper—3620.0; Cyanide—0.46; Mercury—0.0323; Nickel—11.3; 

Selenium—0.23; Thallium—0.0334; Vanadium—8.38; Zinc—112.0; 

Acetone—14.6; Acetophenone—15.8; Aniline—0.680; Benzene—

0.0590; Bis(2-ethylhexyl)phthalate—1260.0; 

Bromodichloromethane—0.0719; Chloroform—0.077; Di-n-octyl 

phthalate—454.0; 2,4-Dinitrotoluene—0.00451; Diphenylamine—

11.8; 1,4-Dioxane—1.76; Di-n-butyl phthalate—149.0; Fluoranthene—24.6; Methylene chloride—0.029; Methyl ethyl ketone—

87.9;Nitrobenzene—0.0788; m-phenylenediamine—0.879; Pyrene—

39.0; 1,1,1,2-Tetrachloroethane—0.703; o-Toluidine—0.0171; p-Toluidine—0.215; 2,4-Toluenediamine—0.00121. Toluene 

diisocyanate—0.001. 

(2) Waste Holding and Handling: 

(A) Waste classification as non-hazardous cannot begin until compliance with the limits set in paragraph (1) for the treated effluent has 

occurred for two consecutive quarterly sampling events. The 

delisting for the treated effluent applies only during periods of 

TPDES compliance. 

(B) If constituent levels in any sample taken by Bayer exceed any of 

the delisting levels set in paragraph (1) for the treated effluent, 

Bayer must do the following: (i) notify EPA in accordance with paragraph (6) and (ii) manage and dispose the treated effluent as hazardous waste generated under Subtitle C of RCRA. 

(3) Quarterly Testing Requirements: Upon this exclusion becoming 

final, Bayer may perform quarterly analytical testing by sampling 

and analyzing the treated effluent as follows: 

(A)(i) Collect two representative composite samples of the treated effluent at quarterly intervals after EPA grants the final exclusion. The 

first composite samples may be taken at any time after EPA grants 

the final approval. Sampling should be performed in accordance 

with the sampling plan approved by EPA in support of the exclusion. 

(ii) Analyze the samples for all constituents listed in paragraph 1. Any 

composite sample taken that exceeds the delisting levels listed in 

paragraph (1) for the treated effluent must be disposed as hazardous waste in accordance with the applicable hazardous waste 

requirements its TPDES discharge permit. 

(iii) Within thirty (30) days after taking its first quarterly sample, Bayer 

will report its first quarterly analytical test data to EPA. If levels of 

constituents measured in the samples of the treated effluent do not 

exceed the levels set forth in paragraph (1) of this exclusion for two 

consecutive quarters, Bayer can manage and dispose the nonhazardous treated effluent according to all applicable solid waste regulations. 

(4) Annual Testing: 

59164 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 

TABLE 2.—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued

Facility Address Waste description 

(i) If Bayer completes the quarterly testing specified in paragraph (3) 

above and no sample contains a constituent with a level which exceeds the limits set forth in paragraph (1), Bayer may begin annual 

testing as follows: Bayer must test two representative composite 

samples of the treated effluent for all constituents listed in paragraph (1) at least once per calendar year. 

(ii) The samples for the annual testing shall be a representative composite sample according to appropriate methods such as those 

found in SW–846 or other reliable sources (with the exception of 

analyses requiring the use of SW–846 methods incorporated by reference in 40 CFR 260.11, which must be used without substitution) 

for all constituents listed in paragraph (1). 

(iii) The samples for the annual testing taken for the second and subsequent annual testing events shall be taken within the same calendar month as the first annual sample taken. 

(4) Changes in Operating Conditions: If Bayer significantly changes 

the process described in its petition or starts any processes that 

generate(s) the waste that may or could affect the composition or 

type of waste generated as established under paragraph (1) (by illustration, but not limitation, changes in equipment or operating 

conditions of the treatment process), it must notify EPA in writing; it 

may no longer handle the wastes generated from the new process 

as nonhazardous until the wastes meet the delisting levels set in 

paragraph (1) and it has received written approval to do so from 

EPA. 

Bayer must submit a modification to the petition complete with full 

sampling and analysis for circumstances where the waste volume 

changes and/or additional waste codes are added to the waste 

stream. 

(5) Data Submittals: 

Bayer must submit the information described below. If Bayer fails to 

submit the required data within the specified time or maintain the 

required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as 

described in paragraph (6). Bayer must: 

(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and Waste Minimization Section, Multimedia Planning 

and Permitting Division, U. S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the time specified. All supporting data can be submitted on CD–ROM or some 

comparable electronic media. 

(B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site for a minimum of five years. 

(C) Furnish these records and data when either EPA or the State of 

Texas 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 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Proposed Rules 59165

TABLE 2.—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued

Facility Address Waste description 

(A) If, anytime after disposal of the delisted waste Bayer possesses or 

is otherwise made aware of any environmental data (including but 

not limited to leachate data or ground water monitoring data) or any 

other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the Division Director in granting the petition, then the facility must report the data, in writing, to 

the Division Director within 10 days of first possessing or being 

made aware of that data. 

(B) If either the quarterly or annual testing of the waste does not meet 

the delisting requirements in paragraph 1, Bayer must report the 

data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. 

(C) If Bayer fails to submit the information described in paragraphs 

(5),(6)(A) or (6)(B) or if any other information is received from any 

source, the Division Director will make a preliminary determination 

as to whether the reported information requires EPA action to protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate 

response necessary to protect human health and the environment. 

(D) If the Division Director determines that the reported information 

requires action by EPA, the Division Director will notify the facility in 

writing of the actions the Division Director believes are necessary to 

protect human health and the environment. The notice shall include 

a statement of the proposed action and a statement providing the 

facility with an opportunity to present information as to why the proposed EPA action is not necessary. The facility shall have 10 days 

from the date of the Division Director’s notice to present such information. 

(E) Following the receipt of information from the facility described in 

paragraph (6)(D) or (if no information is presented under paragraph 

(6)(D)) the initial receipt of information described in paragraphs (5), 

(6)(A) or (6)(B), the Division Director will issue a final written determination describing EPA actions that are necessary to protect 

human health and/or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. 

* * * * * * * 

[FR Doc. 04–22235 Filed 10–1–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[FRL–7823–7] 

Nebraska: Final Authorization of State 

Hazardous Waste Management 

Program Revision

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: Nebraska has applied to the 

EPA for final authorization of the 

changes to its hazardous waste program 

under the Resource Conservation and 

Recovery Act. The EPA proposes to 

grant final authorization to Nebraska. In 

the ‘‘Rules and Regulations’’ section of 

this Federal Register, the EPA is 

authorizing the changes by an 

immediate final rule. The EPA did not 

make a proposal prior to the immediate 

final rule because we believe this action 

is not controversial and do not expect 

comments that oppose it. We have 

explained the reasons for this 

authorization in the preamble to the 

immediate final rule. Unless we receive 

written comments which oppose this 

authorization during the comment 

period, the immediate final rule will 

become effective on the date it 

establishes, and we will not take further 

action on this proposal. If we receive 

comments that oppose this action, we 

will withdraw the immediate final rule 

and it will not take effect. We will then 

respond to public comments in a later 

final rule based on this proposal. You 

may not have another opportunity for 

comment. If you want to comment on 

this action, you must do so at this time.

DATES: Send your written comments by 

November 3, 2004.

ADDRESSES: Comments may be mailed to 

Lisa Haugen, Environmental Protection 

Agency, ARTD/RESP, 901 North 5th 

Street, Kansas City, Kansas 66101. 

Comments may also be submitted 

electronically or through hand delivery/

courier; please follow the detailed 

instructions in the ADDRESSES section of 

the direct final rule which is located in 

the rules section of this Federal 

Register.

FOR FURTHER INFORMATION CONTACT: Lisa 

V. Haugen at the above address, by 

phone at (913) 551–7877, or by e-mail 

at haugen.lisa@epa.gov.

SUPPLEMENTARY INFORMATION: For 

additional information, please see the 

immediate final rule published in the 

‘‘Rules and Regulations’’ section of this 

Federal Register.

Dated: September 2, 2004. 

William Rice, 

Acting Regional Administrator, Region 7.

[FR Doc. 04–22253 Filed 10–1–04; 8:45 am] 

BILLING CODE 6560–50–P