[Federal Register Volume 69, Number 191 (Monday, October 4, 2004)]
[Proposed Rules]
[Pages 59156-59165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22235]


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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.

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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 <a href="/cdn-cgi/l/email-protection#5c2c393d3f397231353f34393030391c392c3d723b332a"><span class="__cf_email__" data-cfemail="c5b5a0a4a6a0eba8aca6ada0a9a9a085a0b5a4eba2aab3">[email protected]</span></a>.
    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

[[Page 59157]]

determination, EPA evaluated the petitioned waste against the listing 
criteria and factors cited in Sec.  261.11(a)(2) and (a)(3). Based on 
this review, EPA agrees with the petitioner that the waste is 
nonhazardous with respect to the original listing criteria. (If EPA had 
found, based on this review, that the waste remained hazardous based on 
the factors for which the waste was originally listed, EPA would have 
proposed to deny the petition.) EPA evaluated the waste with respect to 
other factors or criteria to assess whether there is a reasonable basis 
to believe that such additional factors could cause the waste to be 
hazardous. EPA considered whether the waste is acutely toxic, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability. EPA believes that the petitioned waste does not meet the 
listing criteria and thus should not be a listed waste. EPA's 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 Sec. Sec.  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 Sec.  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, Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 59158]]

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 Sec. Sec.  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 Sec.  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 p-toluidine.

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 health-based 
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\
------------------------------------------------------------------------
                               Waste stream total     Maximum allowable
        Chemical name          concentration  (mg/   concentration  (mg/
                                       kg)                   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

[[Page 59159]]

 
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
------------------------------------------------------------------------
\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.
< 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 x 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 Sec.  
260.22, EPA concludes that the effluent does not exhibit any of the 
characteristics of ignitability, corrosivity, reactivity, or toxicity. 
See Sec. Sec.  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 non-ground 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

[[Page 59160]]

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 
decision-making. 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 non-hazardous 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

[[Page 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 non-hazardous 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 Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. Sec.  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 <a href="/cdn-cgi/l/email-protection#f38396929096dd9e9a909b969f9f96b3968392dd949c85"><span class="__cf_email__" data-cfemail="067663676563286b6f656e636a6a634663766728616970">[email protected]</span></a>.

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),

[[Page 59162]]

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:

[[Page 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 Sec. Sec.  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;Nitrobe
                                                    nzene--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--0.00
                                                    121. 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:

[[Page 59164]]

 
                                                   (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. Sec.   1001
                                                    and 42 U.S.C. Sec.
                                                    6928), I certify
                                                    that the information
                                                    contained in or
                                                    accompanying this
                                                    document is true,
                                                    accurate and
                                                    complete.''
                                                   As to the (those)
                                                    identified
                                                    section(s) of this
                                                    document for which I
                                                    cannot personally
                                                    verify its (their)
                                                    truth and accuracy,
                                                    I certify as the
                                                    company official
                                                    having supervisory
                                                    responsibility for
                                                    the persons who,
                                                    acting under my
                                                    direct instructions,
                                                    made the
                                                    verification that
                                                    this information is
                                                    true, accurate and
                                                    complete.
                                                   If any of this
                                                    information is
                                                    determined by EPA in
                                                    its sole discretion
                                                    to be false,
                                                    inaccurate or
                                                    incomplete, and upon
                                                    conveyance of this
                                                    fact to the company,
                                                    I recognize and
                                                    agree that this
                                                    exclusion of waste
                                                    will be void as if
                                                    it never had effect
                                                    or to the extent
                                                    directed by EPA and
                                                    that the company
                                                    will be liable for
                                                    any actions taken in
                                                    contravention of the
                                                    company's RCRA and
                                                    CERCLA obligations
                                                    premised upon the
                                                    company's reliance
                                                    on the void
                                                    exclusion.''
                                                   (6) Reopener

[[Page 59165]]

 
                                                   (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


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