Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72311 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that this action is one 

of a category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(32)(e), of the Instruction. 

Under figure 2–1, paragraph (32)(e), of 

the Instruction, an environmental 

analysis checklist and a categorical 

exclusion determination are not 

required for this rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Revise § 117.824 to read as follows: 

§ 117.824 Neuse River. 

The draw of the Atlantic and East 

Carolina Railway Bridge, mile 80.0, at 

Kinston shall open on signal if at least 

24 hours notice is given. 

Dated: November 1, 2011. 

William D. Lee, 

Rear Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. 2011–30188 Filed 11–22–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2009–0312; SW FRL– 

9490–9] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Final Exclusion 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is granting a petition 

submitted by Eastman Chemical 

Corporation—Texas Operations 

(Eastman Chemical) to exclude from 

hazardous waste control (or delist) a 

certain solid waste. This final rule 

responds to the petition submitted by 

Eastman Chemical to delist three waste 

streams generated from its rotary kiln 

incinerator (RKI). These waste streams 

are the rotary kiln incinerator (RKI) 

bottom ash, RKI fly ash, and RKI 

scrubber water blowdown. The RKI 

bottom ash and the RKI fly ash are 

derived from the management of several 

F-, K-, and U-waste codes. These waste 

codes are F001, F002, F003, F005, F039, 

K009, K010, U001, U002, U031, U069, 

U107, U112, U117, U140, U147, U161, 

U213, and U359. The Scrubber water 

blowdown produced by the RKI’s air 

pollution control equipment is also 

derived from the management of several 

F-, K-, and U-waste codes as well as 

certain characteristic hazardous wastes. 

These waste codes are D001, D002, 

D003, D007, D008, D018, D022, F001, 

F002, F003, F005, F039, K009, K010, 

U001, U002, U031, U069, U107, U112, 

U117, U140, U147, U161, U213, and 

U359. The RKI is authorized to manage 

a list of additional F-, K-, U-, and Pcodes to cover off-site sources not 

attributed to the above waste codes. If 

these waste codes are not specifically 

listed in the delisting exclusion, they 

are not covered by the exclusion and 

can not be managed as non-hazardous, 

unless and until, the exclusion is 

modified to include them. 

After careful analysis and evaluation 

of comments submitted by the public, 

the EPA has concluded that the 

petitioned wastes are not hazardous 

waste when disposed of in Subtitle D 

landfills or in the case of the scrubber 

water blowdown, discharged in 

conjunction with its TPDES discharge 

permit. This exclusion applies to the 

RKI bottom ash, RKI fly ash and RKI 

scrubber water blowdown generated at 

Eastman Chemical’s Longview, Texas 

facility. Accordingly, this final rule 

excludes the petitioned waste from the 

requirements of hazardous waste 

regulations under the Resource 

Conservation and Recovery Act (RCRA) 

when disposed of in Subtitle D landfills 

or discharged in accordance with a 

TPDES permit but imposes testing 

conditions to ensure that the futuregenerated wastes remain qualified for 

delisting. 

DATES: Effective Date: November 23, 

2011. 

ADDRESSES: The public docket for this 

final rule is located at the U.S. 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202, and is available for 

viewing in the EPA Freedom of 

Information Act review room on the 7th 

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

through Friday, excluding Federal 

holidays. Call (214) 665–6444 for 

appointments. The reference number for 

this docket is ‘‘EPA–R06–RCRA–2009– 

0312’’. The public may copy material 

from any regulatory docket at no cost for 

the first 100 pages and at a cost of $0.15 

per page for additional copies. 

FOR FURTHER INFORMATION CONTACT: For 

general information, contact Ben 

Banipal, at (214) 665–7324. For 

technical information concerning this 

notice, contact Michelle Peace, U.S. 

Environmental Protection Agency, 1445 

Ross Avenue, Dallas, Texas, (214) 665– 

7430. 

SUPPLEMENTARY INFORMATION: The 

information in this section is organized 

as follows: 

I. Overview Information 

A. What action is EPA finalizing? 

B. Why is EPA approving this delisting? 

C. What are the limits of this exclusion? 

D. How will Eastman Chemical manage the 

waste if it is delisted? 

E. When is the final delisting exclusion 

effective? 

F. How does this final rule affect states? 

II. Background 

A. What is a ‘‘delisting’’? 

B. What regulations allow facilities to 

delist a waste? 

C. What information must the generator 

supply? 

III. EPA’s Evaluation of the Waste Data 

A. What wastes did Eastman Chemical 

petition EPA to delist? 


pmangrum on DSK3VPTVN1PROD with RULES
72312 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

B. How much waste did Eastman Chemical 

propose to delist? 

C. How did Eastman Chemical sample and 

analyze the waste data in this petition? 

IV. Public Comments Received on the 

Proposed Exclusion 

A. Who submitted comments on the 

proposed rule? 

B. Comments and Responses 

V. Statutory and Executive Order Reviews 

I. Overview Information 

A. What action is EPA finalizing? 

The EPA is finalizing: 

(1) The decision to grant Eastman’s 

petition to have its RKI Fly ash, bottom 

ash and scrubber blowdown water 

excluded, or delisted, from the 

definition of a hazardous waste, subject 

to certain continued verification and 

monitoring conditions; and 

(2) to use the Delisting Risk 

Assessment Software to evaluate the 

potential impact of the petitioned waste 

on human health and the environment. 

The Agency used this model to predict 

the concentration of hazardous 

constituents released from the 

petitioned waste, once it is disposed. 

After evaluating the petition, EPA 

proposed and issued a direct final rule, 

on September 24, 2010 to exclude the 

Eastman Chemical waste from the lists 

of hazardous wastes under §§ 261.31 

and 261.32. The direct final rule 

received adverse comments and was 

subsequently withdrawn on November 

1, 2010. This decision is based on the 

proposed rule issued on September 24, 

2010. The comments received on this 

rulemaking will be addressed as part of 

this decision. 

B. Why is EPA approving this delisting? 

Eastman’s petition requests a delisting 

for the listed hazardous wastes 

associated with three waste streams. 

Eastman does not believe that the 

petitioned wastes meet the criteria for 

which EPA listed it. Eastman also 

believes no additional constituents or 

factors could cause the waste to be 

hazardous. EPA’s review of this petition 

included consideration of the original 

listing criteria, and the additional 

factors required by the Hazardous and 

Solid Waste Amendments of 1984 

(HSWA). See section 3001(f) of RCRA, 

42 U.S.C. 6921(f), and 40 CFR 

260.22(d)(1)–(4). In making the final 

delisting determination, EPA evaluated 

the petitioned waste against the listing 

criteria and factors cited in 

§§ 261.11(a)(2) and (a)(3). Based on this 

review, the EPA agrees with the 

petitioner that the waste is 

nonhazardous with respect to the 

original listing criteria. (If the EPA had 

found, based on this review, that the 

waste remained hazardous based on the 

factors for which the waste were 

originally listed, EPA would have 

proposed to deny the petition.) The EPA 

evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

The EPA considered whether the waste 

is acutely toxic, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 

generated, and waste variability. The 

EPA believes that the petitioned waste 

does not meet these criteria. EPA’s final 

decision to delist waste from Eastman’s 

facility is based on the information 

submitted in support of this rule, i.e., 

descriptions of the Rotary Kiln 

Incinerator, and analytical data from the 

Longview facility. 

C. What are the limits of this exclusion? 

This exclusion applies to the waste 

described in the petition only if the 

requirements described in Table 1, 2, 

and 3 of part 261, Appendix IX and the 

conditions contained herein are 

satisfied. The exclusion applies to 1,000 

cubic yards per calendar year of RKI fly 

ash; 750 cubic yards per calendar year 

of RKI bottom ash; and 643,000 cubic 

yards (500,000 million gallons) of RKI 

scrubber water blowdown waste 

resulting from the operations of the 

rotary kiln incinerator at its facility. 

D. How will Eastman Chemical manage 

the waste if it is delisted? 

Eastman will dispose of the fly ash 

and bottom ash in an onsite Subtitle D 

landfill. The scrubber water blowdown 

will be managed in the waste water 

treatment plant (WWTP). The sludge 

from the WWTP was delisted in 2000, 

and there are new waste codes being 

managed as part of this petition. See 

Appendix IX to Part 261, Table 1. All 

management occurs on-site and will 

remain the same after the delisting is 

granted. 

E. When is the final delisting exclusion 

effective? 

This rule is effective November 23, 

2011. The Hazardous and Solid Waste 

Amendments of 1984 amended Section 

3010 of RCRA to allow rules to become 

effective in less than six months when 

the regulated community does not need 

the six-month period to come into 

compliance. That is the case here 

because this rule reduces, rather than 

increases, the existing requirements for 

persons generating hazardous wastes. 

These reasons also provide a basis for 

making this rule effective immediately, 

upon publication, under the 

Administrative Procedure Act, pursuant 

to 5 U.S.C. 553(d). 

F. How does this final rule affect 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 two 

categories of States: States having a dual 

system that includes Federal RCRA 

requirements and their own 

requirements, and States who have 

received our authorization to make their 

own delisting decisions. 

Here are the details: We allow states 

to impose their own non-RCRA 

regulatory requirements that are more 

stringent than EPA’s, under section 

3009 of RCRA. These more stringent 

requirements may include a provision 

that prohibits a Federally issued 

exclusion from taking effect in the State. 

Because a dual system (that is, both 

Federal (RCRA) and State (non-RCRA) 

programs) may regulate a petitioner’s 

waste, we urge petitioners to contact the 

State regulatory authority to establish 

the status of their wastes under the State 

law. 

EPA has also authorized some States 

(for example, Louisiana, Georgia, 

Illinois) to administer a delisting 

program in place of the Federal 

program, that is, to make State delisting 

decisions. Therefore, this exclusion 

does not apply in those authorized 

States. If Eastman Chemical transports 

the petitioned waste to or manages the 

waste in any State with delisting 

authorization, Eastman Chemical must 

obtain delisting authorization from that 

State before they can manage the waste 

as nonhazardous in the State. 

II. Background 

A. What is a delisting petition? 

A delisting petition is a request from 

a generator to EPA or another agency 

with jurisdiction to exclude from the list 

of hazardous wastes, wastes the 

generator does not consider hazardous 

under RCRA. 

B. What regulations allow facilities to 

delist a waste? 

Under 40 CFR 260.20 and 260.22, 

facilities may petition the EPA to 

remove their wastes from hazardous 

waste control by excluding them from 

the lists of hazardous wastes contained 

in §§ 261.31 and 261.32. Specifically, 

§ 260.20 allows any person to petition 

the Administrator to modify or revoke 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72313 

any provision of Parts 260 through 266, 

268 and 273 of Title 40 of the Code of 

Federal Regulations. Section 260.22 

provides generators the opportunity to 

petition the Administrator to exclude a 

waste on a ‘‘generator-specific’’ basis 

from the hazardous waste lists. 

C. What information must the generator 

supply? 

Petitioners must provide sufficient 

information to EPA to allow the EPA to 

determine that the waste to be excluded 

does not meet any of the criteria under 

which the waste was listed as a 

hazardous waste. In addition, the 

Administrator must determine, where 

he/she has a reasonable basis to believe 

that factors (including additional 

constituents) other than those for which 

the waste was listed could cause the 

waste to be a hazardous waste, that such 

factors do not warrant retaining the 

waste as a hazardous waste. 

III. EPA’s Evaluation of the Waste Data 

A. What waste did Eastman Chemical 

petition EPA to delist? 

Eastman petitioned EPA on December 

1, 2008, to exclude from the lists of 

hazardous wastes contained in 

§§ 261.24, 261.31, and 261.32, certain 

wastes from its rotary kiln incineration 

system. The three waste streams 

included in the petition were: The RKI 

fly ash, RKI bottom ash and RKI 

scrubber water blowdown. 

The waste streams are generated from 

the Eastman facility located in 

Longview, Texas. The RKI fly ash and 

RKI bottom ash are listed under EPA 

Hazardous Waste No. F001, F002, F003, 

F005, F039, K009, K010, U001, U002, 

U031, U069, U107, U112, U117, U140, 

U147, U161, U213, and U359. The 

Scrubber water blowdown produced by 

the RKI’s air pollution control 

equipment is also derived from the 

management of several F-, K-, and Uwaste codes as well as certain 

characteristic hazardous wastes. These 

waste codes are D001, D002, D003, 

D007, D008, D018, D022, F001, F002, 

F003, F005, F039, K009, K010, U001, 

U002, U031, U069, U107, U112, U117, 

U140, U147, U161, U213, and U359. 

Specifically, in its petition, Eastman 

requested that EPA grant exclusions for 

1,000 cubic yards per calendar year of 

RKI fly ash; 750 cubic yards per 

calendar year of RKI bottom ash; and 

643,000 cubic yards (500,000 million 

gallons) of RKI scrubber water 

blowdown waste resulting from the 

operations of the rotary kiln incinerator 

at its facility. 

Eastman intends to dispose of the 

delisted RKI bottom ash and RKI fly ash 

at a on-site Subtitle D Landfill, and the 

RKI scrubber water blowdown will be 

treated in the Wastewater Treatment 

Plant. Treatment of process wastes and 

wastes from captured facilities generate 

the RKI bottom ash, RKI fly ash, and RKI 

scrubber water blowdown that is 

classified as F001, F002, F003, F005, 

F039, K009, K010, U001, U002, U031, 

U069, U107, U112, U117, U140, U147, 

U161, U213, and U359 listed hazardous 

wastes pursuant to 40 CFR 261.31 and 

261.32. The 40 CFR part 261 appendix 

VII hazardous constituents which are 

the basis for listing can be found in 

Table 1 and Table 2. 

TABLE 1—EPA WASTE CODES FOR RKI FLY AND BOTTOM ASHES AND THE BASIS FOR LISTING

Waste code Basis for listing 

F001 .......... Tetrachloroethylene, methylene chloride trichloroethylene, 1,1,1-trichloroethane, carbon tetrachloride, chlorinated fluorocarbons. 

F002 .......... Tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, chlorobenzene, 1,1,2- 

trichloro-1,2,2-trifluoroethane, ortho-dichlorobenzene, trichlorofluoromethane. 

F003 .......... N.A., xylene, acetone, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl ketone, n-butyl alcohol, cyclohexane, methanol. 

F005 .......... Toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, 2-ethoxyethanol, benzene, 2-nitropropane.. 

F039 .......... All constituents for which treatment standards are specified for multi-source leachate (wastewaters and nonwastewaters) under 40 

CFR 268.43, Table CCW. 

K009 .......... Chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid. 

K010 .......... Chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid, chloroacetaldehyde. 

U001 .......... Acetaldehyde. 

U002 .......... Acetone. 

U028 .......... Bis (2-ethyl hexyl) phthalate. 

U031 .......... n-Butyl alcohol. 

U069 .......... Dibutyl phthalate. 

U088 .......... Di-ethyl phthalate. 

U107 .......... Di-n-octyl phthalate. 

U112 .......... Ethyl acetate. 

U115 .......... Ethylene oxide. 

U117 .......... Ethane, 1,1′-oxybis-(I). 

U122 .......... Formaldehyde. 

U140 .......... Isobutyl alcohol. 

U147 .......... Maleic anhydride. 

U154 .......... Methanol. 

U159 .......... Methyl ethyl ketone. 

U161 .......... Methyl isobutyl ketone. 

U213 .......... Tetrahydrofuran. 

U220 .......... Toluene. 

U226 .......... 1,1,1-Trichloroethane (methyl chloroform). 

U239 .......... Xylene. 

U359 .......... Ethylene glycol monoethyl ether. 

TABLE 2—EPA WASTE CODES FOR RKI SCRUBBER WATER BLOWDOWN AND THE BASIS FOR LISTING

Waste code Basis for listing 

F001 .......... Tetrachloroethylene, methylene chloride trichloroethylene, 1,1,1-trichloroethane, carbon tetrachloride, chlorinated fluorocarbons. 


pmangrum on DSK3VPTVN1PROD with RULES
72314 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

TABLE 2—EPA WASTE CODES FOR RKI SCRUBBER WATER BLOWDOWN AND THE BASIS FOR LISTING—Continued 

Waste code Basis for listing 

F002 .......... Tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, chlorobenzene, 1,1,2- 

trichloro-1,2,2-trifluoroethane, ortho-dichlorobenzene, trichlorofluoromethane. 

F003 .......... N.A., xylene, acetone, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl ketone, n-butyl alcohol, cyclohexane, methanol. 

F005 .......... Toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, 2-ethoxyethanol, benzene, 2-nitropropane. 

F039 .......... All constituents for which treatment standards are specified for multi-source leachate (wastewaters and nonwastewaters) under 40 

CFR 268.43, Table CCW. 

K009 .......... Chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid. 

K010 .......... Chloroform, formaldehyde, methylene chloride, methyl chloride, paraldehyde, formic acid, chloroacetaldehyde. 

U001 .......... Acetaldehyde. 

U002 .......... Acetone. 

U028 .......... Bis (2-ethyl hexyl) phthalate. 

U031 .......... n-Butyl alcohol. 

U069 .......... Dibutyl phthalate. 

U088 .......... Di-ethyl phthalate. 

U107 .......... Di-n-octyl phthalate. 

U112 .......... Ethyl acetate. 

U115 .......... Ethylene oxide. 

U117 .......... Ethane, 1,1′-oxybis-(I). 

U122 .......... Formaldehyde. 

U140 .......... Isobutyl alcohol. 

U147 .......... Maleic anhydride. 

U154 .......... Methanol. 

U159 .......... Methyl ethyl ketone. 

U161 .......... Methyl isobutyl ketone. 

U213 .......... Tetrahydrofuran. 

U220 .......... Toluene. 

U226 .......... 1,1,1-Trichloroethane (methyl chloroform). 

U239 .......... Xylene. 

U359 .......... Ethylene glycol monoethyl ether. 

D001 .......... Ignitability. 

D002 .......... Corrosivity. 

D003 .......... Reactivity. 

D007 .......... Chromium. 

D008 .......... Lead. 

D018 .......... Benzene. 

D022 .......... Chloroform. 

B. How much waste did Eastman 

Chemical propose to delist? 

Specifically, in its petition, Eastman 

requested that EPA grant exclusions for 

1,000 cubic yards per calendar year of 

RKI fly ash; 750 cubic yards per 

calendar year of RKI bottom ash; and 

643,000 cubic yards (500,000 million 

gallons) of RKI scrubber water 

blowdown waste resulting from the 

operations of the rotary kiln incinerator 

at its facility. 

C. How did Eastman Chemical sample 

and analyze the waste data in this 

petition? 

To support its petition, Eastman 

submitted: 

1. Analytical results of the toxicity 

characteristic leaching procedure and 

total constituent analysis for volatile 

and semivolatile organics, pesticides, 

herbicides, dioxins/furans, PCBs and 

metals for eight samples for the RKI fly 

ash and RKI bottom ash, and RKI 

scrubber water blowdown; 

2. Analytical results of the total 

constituent analysis for volatile and 

semivolatile organics, pesticides, 

herbicides, dioxins/furans, PCBs and 

metals for eight samples for the RKI 

scrubber water blowdown; 

3. Analytical results from multiple pH 

leaching of metals and; 

4. The comparison of the results to the 

maximum allowable TCLP delisting 

levels found in Tables 4, 5, and 6. 

5. Description of the operations and 

waste received of the RKI. 

TABLE 4—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE RKI BOTTOM ASH 1

Constituent Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/l) 

Maximum 

allowable TCLP 

delisting level 

(mg/L) 

Antimony ............................................................................................................................ 16 0.062 0.801 

Acetone .............................................................................................................................. 0.194 0.772 33.8 

Arsenic ............................................................................................................................... 8.8 0.029 0.126 

Acetaldehyde ..................................................................................................................... 1.37 < 0.0100 5.35 

Acenaphthylene ................................................................................................................. 3.5 0.014 31.9 

Anthracene ......................................................................................................................... 1.6 <0.0100 77.9 

Acenaphthene .................................................................................................................... 0.721 0.014 31.9 

Barium ................................................................................................................................ 370 0.7 100 

Benzene ............................................................................................................................. < 0.170 0.0048 0.231 

Bis(2-ethylhexyl)phthalate .................................................................................................. 0.23 0.017 103.0 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72315 

TABLE 4—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE RKI BOTTOM ASH 1— 

Continued 

Constituent Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/l) 

Maximum 

allowable TCLP 

delisting level 

(mg/L) 

Benzo(a) anthracene ......................................................................................................... 0.763 < 0.0100 0.211 

Benzo(a) pyrene ................................................................................................................ 0.519 < 0.0100 79.1 

Benzo(b) flouranthene ....................................................................................................... 0.343 < 0.0100 673 

Bromomethane .................................................................................................................. 0.057 < 0.0100 0.0526 

n-Butyl alcohol ................................................................................................................... 4.5 < 0.0100 174 

Cadmium ............................................................................................................................ 1.5 0.002 0.274 

Chromium .......................................................................................................................... 14 0.02 5.0 

Cobalt ................................................................................................................................. 31 0.023 0.643 

Copper ............................................................................................................................... 29 0.048 73.8 

Chloroform ......................................................................................................................... 0.0024 0.0047 0.241 

Chrysene ............................................................................................................................ 0.545 < 0.0100 211 

Chloromethane .................................................................................................................. 0.034 < 0.0100 18.2 

Cyanide .............................................................................................................................. 0.195 0.125 9.25 

4,4-DDT ............................................................................................................................. 0.0032 < 0.0100 0.0103 

Di-n-butyl phthalate ............................................................................................................ < 0.010 0.005 73.9 

Dieldrin ............................................................................................................................... 0.0013 < 0.0100 2.78 

Ethylbenzene ..................................................................................................................... 0.0086 0.00855 32.6 

Fluorene ............................................................................................................................. 2.24 0.031 14.7 

Formaldehyde .................................................................................................................... 4.6 0.23 347 

Fluoranthrene ..................................................................................................................... 1.22 < 0.0100 7.39 

Isobutanol .......................................................................................................................... 1.9 1.88 521 

Lead ................................................................................................................................... 7.1 0.016 1.95 

Mercury .............................................................................................................................. < 0.017 < 0.0002 0.2 

Methyl Isobutyl ketone ....................................................................................................... 0.0035 0.0048 139 

2-Methylnaphathalene ....................................................................................................... 0.501 0.012 2.18 

Methylene Chloride ............................................................................................................ 0.072 0.131 0.237 

Naphthalene ....................................................................................................................... < 0.022 < 0.0100 0.0983 

Nickel ................................................................................................................................. 44,000 52 54.1 

Phenanthrene .................................................................................................................... 6.48 0.039 14.7 

Pyrene ................................................................................................................................ 2.67 < 0.0100 13.4 

Selenium ............................................................................................................................ 15 0.074 1.0 

Silver .................................................................................................................................. 0.027 < 0.0020 5.0 

Tetrachlorodibenzo-p-dioxin ..............................................................................................

(TCDD) 2,3,7,8- ................................................................................................................. 0.31E–06 < 5.92E–08 7.46 E–06 

mg/kg total 

Thallium ............................................................................................................................. 3.7 0.017 0.110 

Tin ...................................................................................................................................... 3.9 < 0.0100 22.5 

Toluene .............................................................................................................................. 0.015 0.0066 45.4 

Vanadium ........................................................................................................................... 7.1 0.11 10.4 

Xylenes .............................................................................................................................. 0.049 0.0486 28.7 

Zinc .................................................................................................................................... 550 8.5 600 

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. 

TABLE 5—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE RKI FLY ASH 1

Constituent Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/l) 

Maximum 

allowable TCLP 

delisting level 

(mg/L) 

Antimony ............................................................................................................................ 25 0.18 0.433 

Acetone .............................................................................................................................. 0.177 0.959 2070 

Arsenic ............................................................................................................................... 18 0.045 0.418 

Acetaldehyde ..................................................................................................................... 255 < 0.001 0.6264 

Barium ................................................................................................................................ 110 1.4 100 

Bis(2-ethylhexyl)phthalate .................................................................................................. 0.157 0.006 0.0522 

Cadmium ............................................................................................................................ 2.9 0.011 0.362 

Chromium .......................................................................................................................... 5.9 0.015 5.0 

Cobalt ................................................................................................................................. 86 0.1 0.852 

Copper ............................................................................................................................... 100 0.52 97.1 

Chloroform ......................................................................................................................... 0.002 0.0044 0.319 

Chloromethane .................................................................................................................. 0.0285 0.0018 24.1 

Cyanide .............................................................................................................................. 0.17 < 0.001 0.0154 

Delta BHC .......................................................................................................................... 0.0031 < 0.001 3 

1,2-Dichlorobenzene .......................................................................................................... < 0.5 0.0027 37 

1,3-Dichlorobenzene .......................................................................................................... < 0.5 0.0023 37 


pmangrum on DSK3VPTVN1PROD with RULES
72316 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

TABLE 5—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE RKI FLY ASH 1— 

Continued 

Constituent Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/l) 

Maximum 

allowable TCLP 

delisting level 

(mg/L) 

Formaldehyde .................................................................................................................... 5.44 0.272 461 

Lead ................................................................................................................................... 12 0.021 2.45 

Methanol ............................................................................................................................ 12.2 < 0.001 0.6743 

Methyl isobutanol ketone ................................................................................................... 0.004 0.0048 184 

Methylene Chloride ............................................................................................................ 0.047 0.137 0.315 

Nickel ................................................................................................................................. 110,000 47 53.8 

Nitrobenzene ...................................................................................................................... < 0.5 0.011 1.15 

Selenium ............................................................................................................................ 25 0.082 1.0 

Silver .................................................................................................................................. 2.4 < 0.001 5.0 

Thallium ............................................................................................................................. 6.7 0.019 0.146 

Tin ...................................................................................................................................... 7.8 < 0.001 22.5 

Toluene .............................................................................................................................. 0.002 0.037 60.1 

Vanadium ........................................................................................................................... 6.2 < 0.001 14.36 

Zinc .................................................................................................................................... 4200 < 0.001 11.3 

Tetrachlorodibenzo-p-dioxin ..............................................................................................

(TCDD) 2,3,7,8- ................................................................................................................. .......................... 2.8 E–06mg/kg 8.39 E–05 

mg/kg total 

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. 

TABLE 6—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE RKI SCRUBBER WATER

BLOWDOWN 1

Constituent Maximum TCLP 

(mg/l) 

Maximum 

allowable TCLP 

delisting level 

(mg/l) 

Antimony .......................................................................................................................................................... 0.041 0.0568 

Arsenic ............................................................................................................................................................. 0.013 0.112 

Barium .............................................................................................................................................................. 0.61 11.6 

Bis (2-ethylhexyl)phthalate .............................................................................................................................. 0.009 0.0522 

Chromium ........................................................................................................................................................ 0.019 10.3 

Cobalt ............................................................................................................................................................... 0.012 0.318 

Copper ............................................................................................................................................................. 0.052 22.1 

Chloroform ....................................................................................................................................................... 0.001 0.0163 

Chloromethane ................................................................................................................................................ 0.0021 1.48 

Cyanide ............................................................................................................................................................ 0.0048 0.752 

Di-n-butylphthalate ........................................................................................................................................... 0.001 25.6 

Lead ................................................................................................................................................................. 0.019 2.57 

Methanol .......................................................................................................................................................... 0.42 70.6 

Nickel ............................................................................................................................................................... 0.50 5.74 

Silver ................................................................................................................................................................ 0.002 1.71 

Thallium ........................................................................................................................................................... 0.011 0.0179 

Tin .................................................................................................................................................................... 0.022 22.5 

Vanadium ......................................................................................................................................................... 0.006 4.88 

Zinc .................................................................................................................................................................. 16 77.7 

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. 

IV. Public Comments Received on the 

Proposed Exclusion 

A. Who submitted comments on the 

proposed rule? 

The EPA received public comments 

on the September 24, 2010, proposed 

rule from two interested parties, the 

Environmental Technology Council 

(ETC), and Heritage Environmental. 

Heritage Environmental submitted 

comments objecting to the absence of 

the full administrative record not 

appearing electronically on the 

regulations.gov site on October 28, 2010. 

ETC submitted three rounds of 

comments dated October 28, 2010, 

February 7, 2011, and March 7, 2011. 

The comments and responses are 

addressed below. Some of the ETC 

October 28, 2010 comments requested 

documents that were not contained in 

the electronic docket. The actual records 

were sent to the commenter for 

verification purposes and no further 

comment is warranted. 

B. What comments were submitted on 

the Eastman Delisting Petition? 

Comment 1. The administrative 

record does not contain the company’s 

waste sampling plan, waste analysis 

plan or analytical test results. The 

commenter cannot determine such basic 

information as the number and 

representative nature of the waste 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72317 

samples. The Federal Register notice 

ambiguously states that Eastman 

submitted analytical results ‘‘for eight 

samples for the RKI fly ash and RKI 

bottom ash, and RKI scrubber water 

blowdown.’’ 75 FR at 58319. 

Response 1. The electronic docket for 

this rule only contained the proposed 

rule and associated materials. The 

administrative record for this rule 

contains the petition including the 

sampling and analysis plan and results. 

Requests for items not found online in 

the electronic docket can be requested 

from the Regional office as described in 

the notice. These documents were 

provided to the commenter in an 

electronic format on January 7, 2011, 

after a request for information was 

made. 

Comment 2. A commenter cannot 

determine from this general description 

whether the petition is supported by a 

total of only eight sample results, or 

whether EPA Region 6 meant eight 

samples for each type of waste material, 

or how many samples of each type of 

waste were collected. In other words, 

commenters cannot even determine 

whether the minimum number of four 

samples of each type of waste was 

collected as provided in EPA’s Delisting 

Guidance. There is no information on 

how the samples were collected, what 

wastes were incinerated prior to 

sampling, whether the samples were 

representative of wastes processed in 

the unit, and why EPA Region 6 

believes the analytical results submitted 

with the petition adequately support the 

delisting. In addition, commenters 

cannot ascertain basic information on 

the analytical testing that was 

conducted, such as detection limits and 

the quality assurance/quality control 

procedures followed by the testing 

laboratory. We cannot even determine 

whether the analysis was conducted by 

Eastman or a certified third-party 

laboratory. The commenter cannot 

effectively comment on the delisting 

without this necessary information and 

an adequate explanation by EPA of the 

basis for this administrative action. 

Response 2. The administrative record 

for this petition does include the 

information the commenter wanted to 

verify. Those documents were not 

included in the electronic docket 

because electronic copies were not 

available at the time of proposal. 

Requests for items not found online in 

the electronic docket could have been 

requested from the Regional office as 

described in the notice. 

Comment 3. Surprisingly, the record 

also does not contain the DRAS 

modeling results or any report on the 

model inputs, analysis, or conclusions, 

other than the summaries for 

constituents in the Federal Register 

tables. Most of the description of the 

DRAS analysis in the Federal Register 

notice is boilerplate that EPA includes 

in every delisting notice, and very little 

information or analysis is presented 

regarding the subject wastes. 

Response 3. The DRAS results are not 

available electronically for this docket. 

The administrative record for the rule 

contains hard copies of each DRAS run 

and the results. Requests for items not 

found online in the electronic docket 

can be requested from the Regional 

office as described in the notice. 

Comment 4. From the limited 

information gleaned from the Federal 

Register notices, the commenter must 

also raise a number of substantive 

concerns about the delisting petition. It 

appears that only total and TCLP 

analyses were conducted on the subject 

wastes. As EPA is aware, the TCLP was 

intended to simulate the highly acidic 

conditions in an active municipal 

landfill with decomposing organic 

wastes, and yet it appears that the 

subject wastes would be disposed in an 

on-site industrial landfill. No 

information is provided on the pH 

conditions of the industrial landfill. The 

leachability of hazardous constituents 

can be highly dependent on pH. If the 

pH in the landfill receiving the waste is 

not acidic, the leaching of the delisted 

waste may not perform as predicted by 

the TCLP. For this reason, EPA’s 

Delisting Guidance provides for testing 

of the waste under a range of pH 

conditions. It does not appear that this 

guidance was followed, and EPA has 

provided no explanation for public 

comment on why the subject waste was 

not tested under multiple pH 

conditions. In most of the delisting 

actions by other EPA regions of which 

the commenter is aware, multiple pH 

testing was required and we cannot 

determine, and therefore cannot 

comment on, whether and why such 

testing was not required for this 

delisting petition. 

Response 4. Multiple pH testing was 

conducted on the materials, since the 

multiple pH test is not a recognized test 

method or test protocol, while 

mentioned in guidance and performed 

by most petitioners, EPA Region 6 has 

never published the data gathered from 

these results. In all delistings, only 

TCLP and totals data are reported. 

Requests for items not found online in 

the electronic docket can be requested 

from the Regional office as described in 

the notice. 

Comment 5. In addition, Eastman 

apparently petitioned to exclude waste 

streams that bear a limited subset of 

RCRA Hazardous Waste Codes (5 Fcodes, 2 K-codes, and 12 U-codes). The 

correct identification of these waste 

codes is critical because EPA then used 

the basis for listing these waste codes to 

select a relatively short list of hazardous 

constituents for analysis and delisting 

levels. 75 FR at 58318. In our 

experience, it seems highly improbable 

that these are the only codes associated 

with incinerator operations at a large, 

complex chemical facility. Indeed, the 

Federal Register notice does disclose 

that the incinerator is RCRA-permitted 

for ‘‘a variety of D-, F-, U-, K-, and Pcodes.’’ 75 FR at 58317. Apparently 

many of these coded wastes were not 

considered for purposes of the petition. 

Given the nature of incinerator 

operations, there is no explanation for 

how ash and scrubber water covered by 

the petition would not also contain 

these additional waste codes. Indeed, 

there is literally no information in the 

administrative record for public 

comment on why the limited set of 

waste codes was selected for the 

petition, and how EPA will assure that 

only incinerator ash and scrubber water 

bearing only the 19 selected codes will 

be managed as delisted wastes. 

Response 5. The Eastman Permit 

limits the types of wastes that are 

treated in its rotary kiln incinerator to 

those addressed in the delisting 

petition. The operating permit for the 

rotary kiln incinerator restricts and 

limits the acceptance of wastes which 

carry only these 19 codes. Those 19 

waste codes were considered the focus 

of the delisting. Wastes with codes not 

listed in the Delisting Petition are still 

subject to hazardous waste regulation 

and are not covered by the delisting 

exclusion. 

Comment 6. Moreover, the Federal 

Register notice states that ‘‘there are 

some production plants that are not 

owned by Eastman but are located on 

the facility,’’ and these unidentified 

plants also send hazardous wastes to the 

incinerator. 75 FR at 58317. There is no 

information in the record that identifies 

these facilities, including the nature of 

their production activities, raw 

materials used, and wastes generated. 

Hazardous wastes are also accepted for 

processing in the incinerator ‘‘from 

other off-site Eastman facilities.’’ Id. 

Again, no information is provided in the 

administrative record that identifies 

these facilities or describes their 

processes, raw materials, or generated 

wastes, other than the broad assertion in 

the Federal Register that the wastes are 

‘‘similar’’ to those generated by 

Eastman. Id. Since the full and accurate 

description of the hazardous wastes 

processed in the incinerator is critical to 


pmangrum on DSK3VPTVN1PROD with RULES
72318 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

the proper selection of hazardous 

constituents for testing and delisting 

analysis, this bare-bones description 

and lack of supporting data and 

information in the administrative record 

cannot sustain a delisting action. 

Response 6. The Eastman RCRA 

Permit allows the facility to accept 

wastes from other Eastman facilities and 

treat in the rotary kiln incinerator. The 

Permit limits the types of wastes that are 

treated in its rotary kiln incinerator to 

those addressed in the delisting 

petition. The operating permit for the 

rotary kiln incinerator restricts and 

limits the acceptance of wastes which 

carry only these 19 codes. Those 19 

waste codes were considered the focus 

of the delisting. Wastes with codes not 

listed in the Delisting Petition are still 

subject to hazardous waste regulation 

and are not covered by the delisting 

exclusion. 

Comment 7. The DRAS model was 

apparently run for only 49 hazardous 

constituents, a surprisingly small 

number. Under RCRA section 3001(f), 

EPA must consider not only the 

constituents for which the subject 

wastes were listed, but also additional 

constituents that may cause the waste to 

be hazardous. Under EPA’s Delisting 

Guidance, the Agency usually requires 

that a delisting petitioner submit 

analytical results and undertake DRAS 

modeling for literally hundreds more 

hazardous constituents. Again, it 

somewhat defies credulity that 

incinerator ash and scrubber water from 

a major, complex chemical plant would 

contain such a small list of only 49 

hazardous constituents. Lacking any 

analytical data or other information in 

the administrative record, however, ETC 

cannot effectively comment on this 

critical issue. In fact, ETC cannot 

comment on the DRAS modeling in any 

substantive respect because the record 

contains inadequate information. 

Response 7. The EPA provided the 

administrative record and its supporting 

documents to the commenter. No 

additional comments were received 

regarding the DRAS analysis of the 

waste streams. Generally, in all 

delistings, the DRAS model is run for 

chemicals which are the basis for the 

waste codes petitioned for in the 

delisting and any additional waste 

codes detected in the waste. For 

Eastman specifically, there were 19 

waste codes evaluated. These waste 

codes represented more than 200 

chemical constituents. In its analysis of 

the data, EPA only found that 49 of the 

chemical constituents were detected in 

the analysis of the three Eastman waste 

streams. These 49 waste codes were 

evaluated in the DRAS model. 

Comment 8. We also must question 

why this delisting is being considered 

for incinerator ash and scrubber water 

that would effectively override the 

RCRA land disposal treatment standards 

for the subject wastes. Eastman has not 

petitioned to delist hazardous wastes 

which do not meet the listing criteria as 

generated. There is apparently no 

dispute that the waste materials 

processed in the incinerator are 

hazardous wastes. 

With respect to those wastes, EPA has 

already made the determination based 

on lengthy and thorough LDR 

rulemakings that combustion or 

comparable treatment to the specified 

treatment levels is required to minimize 

short-term and long-term threats to 

human health and the environment. In 

addition, EPA has already determined 

that disposal of the treated wastes in a 

RCRA-permitted landfill that meets 

minimum technology requirements 

(double synthetic liner, groundwater 

monitoring, etc.) is necessary for 

adequate public health and 

environmental protection. EPA Region 6 

has provided no justification in the 

record for overriding these national 

determinations, other than the 

conclusory and unsupported assertion 

in the Federal Register notice that the 

delisting levels will be adequate for 

such protections. Since the petitioner 

already processes the hazardous wastes 

in a RCRA-permitted incinerator and 

disposes of the residuals in an on-site 

RCRA-permitted landfill, we can see no 

justification for the potential lessening 

of public health and environmental 

protection from the proposed delisting 

action. The ETC is also concerned that 

EPA Region 6’s approval of this 

delisting would contravene Congress’s 

land disposal restrictions and treatment 

requirements in the RCRA statute. 

Likewise, after careful review of the 

administrative record for the Eastman 

Chemical delisting petition, it is clear 

that the incinerator ash and scrubber 

water blowdown derived from the 

incineration of numerous F-, K- and Ulisted hazardous wastes are not eligible 

for delisting, and that such an action 

would also violate the RCRA treatment 

requirements and land disposal 

prohibitions. 

We begin with basic principles—all 

seemingly ignored in the proposed 

delistings. A waste is eligible for 

delisting only if that waste as generated 

at a particular facility does not meet any 

of the criteria under which the waste 

was listed as a hazardous waste. In 

addition, the waste may not contain any 

other Appendix VIII constituents that 

would cause the waste to be hazardous. 

RCRA § 3001(f) and 40 CFR 260.22. 

Likewise, the incinerator residues 

from the Eastman facility are derived 

from the incineration of numerous 

waste streams that are F001, F002, F003, 

F005, F039, K009, K010, U001, U002, 

U031, U069, U107, U112, U117, U140, 

U147, U161, U213 and U359 hazardous 

wastes. By operation of the derived-from 

rule, the Eastman incinerator residues 

are these same F-, K- and U-listed 

hazardous wastes. The legal issue raised 

by the Eastman Chemical delisting is 

whether the original F-, K- and U-listed 

hazardous wastes would meet the 

applicable treatment requirements prior 

to land disposal if the proposed 

delisting of the incineration residuals 

were granted. 

However, EPA Region 6 has proposed 

to delist the incinerator residues and 

allow land disposal at constituent levels 

that are significantly higher than the 

required treatment standards. There is 

no exception from the land disposal 

prohibitions for inadequately treated 

residues; in fact, allowing such an 

exception would obviously eviscerate 

the treatment requirements. The original 

F-, K- and U-listed hazardous wastes 

cannot be land disposed if the 

incinerator ash does not meet the 

applicable treatment standards, and a 

delisting petition cannot be used to 

evade this statutory requirement. For 

this reason, the concentration levels in 

the incineration residues would have to 

be lower than applicable treatment 

standards for a delisting to be possible. 

The following are examples of F039 

treatment levels compared to Eastman 

delisting levels (all concentrations in 

mg/l TCLP): Barium 21.0 vs. 100 

delisted fly ash; Cadmium 0.11 vs. 0.362 

delisted fly ash; Chromium 0.60 vs. 5.0 

delisted bottom ash and fly ash; Lead 

0.75 vs. 2.45 delisted fly ash; Nickel 

11.0 vs. 54.1 delisted bottom ash; Silver 

0.14 vs. 5.0 delisted fly ash and bottom 

ash. 

Response 8. The Delisting Program 

and the LDR program serve different 

purposes and because they serve 

different purposes, different standards 

of compliance apply. As the commenter 

states ‘‘A waste is eligible for delisting 

only if that waste as generated at a 

particular facility does not meet any of 

the criteria under which the waste was 

listed as a hazardous waste. In addition, 

the waste may not contain any other 

Appendix VIII constituents that would 

cause the waste to be hazardous. RCRA 

§ 3001(f) and 40 CFR 260.22.’’ 

The derived-from rule states that any 

solid waste generated from the 

treatment, storage, or disposal of a listed 

hazardous waste, including any sludge, 

spill residue, ash, emission control dust, 

or leachate, remains a hazardous waste 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72319 

unless and until delisted. 

(§ 261.3(c)(2)(i)). 

EPA’s regulations establish two ways 

of identifying solid wastes as hazardous 

under RCRA. A waste may be 

considered hazardous if it exhibits 

certain hazardous properties 

(‘‘characteristics’’) or if it is included on 

a specific list of wastes EPA has 

determined are hazardous (‘‘listing’’ a 

waste as hazardous) because we found 

them to pose substantial present or 

potential hazards to human health or 

the environment. EPA’s regulations in 

the Code of Federal Regulations (40 

CFR) define four hazardous waste 

characteristic properties: ignitability, 

corrosivity, reactivity, or toxicity (see 40 

CFR 261.21–261.24). 

In order to list wastes EPA conducts 

a more specific assessment of a 

particular waste or category of wastes. 

The Agency will ‘‘list’’ them if they 

meet criteria set out in 40 CFR 261.11. 

As described in § 261.11, EPA may list 

a waste as hazardous if the waste: 

Exhibits any of the characteristics, i.e., 

ignitability, corrosivity, reactivity, or 

toxicity (§ 261.11(a)(1)); is ‘‘acutely’’ 

hazardous (e.g., if it is fatal to humans 

or animals at low doses, § 261.11(a)(2)); 

or it contains any of the toxic 

constituents listed in 40 CFR part 261, 

Appendix VIII and, after consideration 

of various factors described in the 

regulation, is capable of posing a 

‘‘substantial present or potential hazard 

to human health or the environment 

when improperly treated, stored, 

transported, or disposed of, or otherwise 

managed’’ (§ 261.11(a)(3)). 

EPA placed a substance on the list of 

hazardous constituents in Appendix 

VIII if scientific studies have shown the 

substance has toxic effects on humans 

or other life forms. 

Generally, listing of wastes are not 

driven by threshold limits except in the 

case of the toxicity characteristic (TC) 

determination. Several of the limits 

cited by the commenter are the TC limit 

for the constituents stated. If the waste 

is characteristic, then it can’t be 

delisted. The delisting limit is bound by 

the TC limit. 

In 1984, Congress created EPA’s Land 

Disposal Restrictions (LDR) program. 

The LDR program ensures that toxic 

constituents present in hazardous waste 

are properly treated before hazardous 

waste is land disposed. Since then, the 

LDR team has developed mandatory 

technology-based treatment standards 

that must be met before hazardous waste 

is placed in a landfill. These standards 

help minimize short and long-term 

threats to human health and the 

environment, which directly benefits 

local communities where hazardous 

waste landfills are located. The LDR 

Program does not determine if a waste 

is hazardous. It regulates how hazardous 

wastes are to be managed at the time of 

disposal. 

We do believe that the concentrations 

specified as delisting levels do 

minimize short term and long term 

threats to human health and the 

environment. Whereas, some LDR 

treatment standards are based on the 

best demonstrated technology, the 

delisting exit levels are risk based 

standards. We have not stated that 

Eastman is not subject to the LDR 

standards because the waste was not 

delisted at the point of generation, 

Eastman may submit a variance to the 

treatment standards as described in 

§ 268.42(b) or 268.44 in order to ensure 

compliance with the LDR standards, but 

the Delisting decision may still be made. 

However, wastes destined for disposal 

in Subtitle C landfills are subject to the 

LDR limits. Therefore, wastes when 

delisted must comply with all 

applicable Subtitle D landfill 

requirements. 

Comment 9. The ETC also notes that 

the DRAS software used by EPA for 

these delistings was apparently a new 

Version 3, and that the changes from 

Version 2 may not previously have been 

subject to public notice and opportunity 

for comment. We are in the process of 

determining all the changes 

incorporated into Version 3 and the 

effect of those changes on delisting 

levels and the protection of human 

health and the environment. The ETC 

requests that EPA Region 6 clarify the 

changes made in Version 3, the effect of 

those changes on the pending delistings, 

and the agency’s rationales for those 

changes to allow for effective public 

comment. 

Response 9. As discussed in the 

Eastman Direct Final Rule and Proposal, 

the changes made between version 2 of 

DRAS and Version 3 of DRAS are 

described in 73 FR 28777. In July 2007, 

U.S. EPA prepared an update of the 

DRAS by releasing version 3.0. The 

update addressed a number of issues 

with version 2 and improved the fate 

and transport modeling. To estimate the 

downgradient concentrations of waste 

leachate constituents released into 

groundwater, the DRAS utilizes 

conservative dilution attenuation factors 

(DAFs) taken from Monte-Carlo 

applications of U.S. EPA’s Composite 

Model for Leachate Migration with 

Transformation Products (CMTP). DRAS 

3.0 includes all new DAFs from new 

CMTP modeling runs. The new 

modeling takes advantage of: Updated 

saturated flow and transport modules; a 

new surface impoundment module and 

database; model corrections for 

unrealistic scenarios (like water tables 

modeled above the ground surface); new 

isotherms for metals; and a revised 

recharge and infiltration database. As a 

result, many of the DAFs used in 

previous versions of DRAS have 

changed. Further affecting the 

groundwater calculation, the 

relationships for determining scaling 

factors used to scale the DAFs to 

account for very small waste streams 

have been updated to reflect the new 

database information on landfills and 

surface impoundments and were also 

corrected for a metric conversion of 

cubic meters to cubic yards. The new 

scaling factors are generally higher than 

those of previous versions of DRAS, 

resulting in higher estimated dilution 

and attenuation at lower waste volumes 

for both landfills and surface 

impoundments. The new metals DAFs, 

based on MINTEQA2 isotherms, can 

vary as a function of the landfill 

leachate concentration. This means that 

the effective DAF (including a scaling 

factor adjustment, if necessary) for an 

input concentration may differ 

significantly with the effective DAF that 

corresponds to the allowable leachate 

concentration. DRAS 3.0 now displays 

the DAFs in both the forward calculated 

risk tables and the tables of maximum 

allowable concentrations so that the 

difference is evident to the user. The 

isotherms that vary by leachate 

concentration are represented in DRAS 

by a look-up table with leachate 

concentrations paired with DAFs. In the 

event that an actual concentration input 

to DRAS lies between two values in the 

table, or an allowable receptor 

concentration lies between two 

calculated receptor concentrations from 

the table, DRAS 3.0 will linearly and 

proportionally extrapolate between the 

two values to determine the 

corresponding exposure or allowable 

leachate concentration. EPA changed 

the calculation for particle emissions 

caused by vehicles driving over the 

waste at the landfill to provide a more 

realistic estimate. The estimate depends 

upon the number of trips per day 

landfill vehicles make back and forth 

over the waste. In previous versions of 

DRAS, this value was conservatively set 

at a 100 trips per day, corresponding 

with an extremely high annual waste 

volume. In DRAS 3.0, a minimum 

number of trips per day was 

conservatively assumed from the 

Subtitle D landfill survey (7.4 trips per 

day at the 95th percentile of values 

reported). The number of trips per day 

specific to the actual waste volume is 

then added to the minimum to reflect 


pmangrum on DSK3VPTVN1PROD with RULES
72320 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

the impact of very large waste streams. 

This will considerably reduce the 

particle emission estimate for wastes 

generated at all but the largest annual 

volumes. EPA added a conversion from 

English to metric tons to the calculation 

of particle emissions from waste 

unloading, resulting in a decrease of 

roughly 10% over previous versions of 

DRAS. We also made a unit-conversion 

factor correction to part of the air 

volatile pathway which will reduce the 

impact to the receptor. An error in the 

back-calculation for fish ingestion 

pathway was corrected to reflect the 

difference between freely dissolved and 

total water column waste constituent 

concentrations. For the estimation of 

risk and hazard, we made a number of 

updates to the forward and back 

calculations. Previous versions of DRAS 

assumed that only 12.5% of particles are 

absorbed by the receptor’s respiratory 

system. This is no longer necessary as 

toxicity reference values for inhalation 

currently recommended by U.S. EPA 

relate risk or hazard directly to exposure 

concentration. DRAS 3.0 does not 

include the 12.5% reduction. This 

change significantly increases estimated 

risks due to particle inhalation and 

lowers corresponding allowable 

concentrations. DRAS Version 3.0.47 

has a reformulated back calculation of 

the allowable leachate concentrations 

from exposure due to contaminants 

volatilized during household water use 

to match the forward calculation of risk. 

In previous versions of DRAS, the 

forward calculation summed the risks 

from exposure to all three evaluated 

household compartments (the shower, 

the bathroom, and the whole house) 

while the back calculation based the 

maximum allowable level on the single 

most conservative compartment. The 

DRAS 3.0 maximum allowable leachate 

concentrations are now based on the 

combined impact of all three 

compartments. The house exposure was 

also expanded to a 900 minute (15 hour) 

daily exposure to reflect non-working 

residents who have an overall 16 hour 

in-house exposure (the other 1 hour is 

spent in the shower and bathroom). EPA 

resolved the inconsistencies with the 

way DRAS chooses limiting pathways 

for specific waste constituents in DRAS 

3.0. EPA checked all toxicity reference 

values in DRAS and updated where 

necessary. Approximately 180 changes 

were made to the toxicity reference 

values in DRAS based on data in IRIS, 

PPRTV, HEAST, NCEA, CalEPA and 

other sources. Some route-to-route 

extrapolations of oral toxicity data to 

inhalation exposure have been returned 

to DRAS 3.0 if consistent with Agency 

policy. See U.S. EPA 2006 for full 

accounting of this methodology. The 

same reference also includes 

discussions of toxicity reference choices 

where the multiple values were 

available or where the toxicity reference 

values were specific to particular 

species of constituents. 

Comment 10. On January 18, 2011, 

President Barack Obama signed 

Executive Order 13563 to ‘‘improve 

regulation and regulatory review’’ in his 

Administration. In the section on public 

participation in the regulatory process, 

President Obama stated that ‘‘each 

agency shall afford the public a 

meaningful opportunity to comment 

through the internet on any proposed 

regulation, with a comment period that 

should generally be at least 60 days.’’ 

Response 10. The Eastman Direct 

Final Rule published in the Federal 

Register on September 24, 2010, several 

months before President Obama’s 

Executive Order was issued. The EPA 

Region 6 will abide by the order issued 

on January 18, 2011 in future delisting 

actions. 

Comment 11. Obviously, our concern 

is that these supporting materials may 

have been generated subsequent to the 

proposed delisting, and therefore could 

not have been relied on by EPA in 

developing the proposed rule. We 

request that EPA Region 6 clarify 

whether the DRAS output files included 

in the administrative record were the 

output files relied on for the proposed 

rule, how this could be possible given 

the dates of the output files, and 

whether other output files existed prior 

to proposal of the delisting that were not 

included in the administrative record. 

Response 11. The DRAS outputs for 

the Eastman petition were generated 

December 10, 2009 and January 6, 2010 

both prior to the issuance of the direct 

final rules. 

Comment 12. An initial review of the 

Eastman Chemical delisting petition 

raises numerous questions. The petition 

reveals that several dioxin/furan 

congeners were present in the samples 

of incinerator ash, with analytical 

results for selected hexa-, hepta-, and 

octa- dioxins and -furans in the fly and 

bottom ashes listed in Tables 1–5 of the 

Petition. However, only one delisting 

value was provided in the tables for 

octachlorodibenzofuran (OCDF) in the 

bottom ash and fly ash at a level of 

10,000,000 mg/kg. This value is equal to 

1000 percent OCDF, which of course is 

impossible. This approach to dioxins/ 

furans is totally inadequate for a 

hazardous waste incinerator, where 

products of incomplete combustion are 

a concern that must be addressed. 

Similarly, the delisting petition ignores 

PCBs, even though PCBs can form as 

PICs in the combustion process. 

In addition, the delisting levels for 

numerous metals, volatiles, semivolatiles and pesticides listed in the 

tables are very high, some on the order 

of 1,000,000,000 mg/kg (e.g., tin and 

xylenes for the bottom ash and 

methanol for the fly ash). Again, these 

levels are impossible, and indicate 

serious errors that undermine the 

technical veracity of the delisting 

petition. 

Response 12. The DRAS is a 

mathematical model which calculates 

the delisting level based on health based 

numbers and a delisting attenuation 

factor. The delisting attenuation factor is 

not bound, so it can sometimes produce 

impractical values for the delisting 

level, because of a chemicals affinity not 

to leach or degrade. Those values are 

not proposed as exit values because the 

technical review of the petition 

highlighted the infeasibility of these 

situations. 

Comment 13. Some metals are present 

in the incinerator ash at very close to 

the delisting levels. For example, 

antimony was present in the fly ash at 

a level of 0.18 mg/l TCLP versus the 

delisting level of 1.08 mg/l TCLP; 

arsenic at a level of 0.045 versus 0.049; 

and nickel at 47 versus 148. For this 

reason, sampling and analysis to 

demonstrate compliance with the 

delisting levels should be fairly 

stringent, yet we do not see any 

information in the administrative record 

on EPA’s sampling requirements. 

Response 13. The sampling plan is 

part of the administrative record and the 

requirements for sampling frequency are 

explained in the verification 

requirements of the exclusion language. 

A waste is eligible for delisting only if 

that waste as generated at a particular 

facility does not meet any of the criteria 

under which the waste was listed as a 

hazardous waste. In addition, the waste 

may not contain any other Appendix 

VIII constituents that would cause the 

waste to be hazardous. RCRA § 3001(f) 

and 40 CFR 260.22. Concentrations 

below a delisting level are eligible for 

the exclusion. We do monitor and 

require sampling to ensure that the 

concentrations of the waste to be 

delisted are measured and below the 

delisting level. 

Comment 14. As a further concern, 

most of the analysis for the Eastman 

delisting petition was apparently 

performed by a laboratory owned and 

operated by Eastman. There is no 

explanation for why in this case EPA 

Region 6 did not require use of an 

independent certified analytical 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72321 

laboratory, as must be done in most 

other delisting cases. 

Response 14. The petitioner must use 

a certified analytical laboratory to 

supply data for the delisting petition. 

The laboratory used by Eastman is a 

certified laboratory and the data 

validation package was reviewed and 

accepted. 

Comment 15. The Eastman incinerator 

should be considered a commercial 

incineration facility because Huntsman 

Chemical and Air Liquide ship 

significant quantities of hazardous 

waste to the Eastman incinerator. Yet 

very little data is presented to describe 

the Huntsman and Air Liquide waste 

and no information is provided on 

waste codes. Because of the wider range 

and variability of waste streams 

processed, the sampling and analytical 

concerns described above are magnified 

and require a reasonable response from 

EPA. 

Response 15. The wastes generated 

from Huntsman Chemical and Air 

Liquide are covered by the Texas 

Eastman Operating Permit and are 

acceptable waste streams for 

incineration in the rotary kiln 

incinerator. Both facilities are on-site at 

Eastman Chemical and are processes 

which were previously part of the 

Eastman Chemical Process Train but for 

business reasons were sold to the 

aforementioned companies. There is no 

additional variability of the waste 

stream created because the wastes are 

generated by processes owned by 

Huntsman and Air Liquide are present 

in the waste stream. 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866, 

‘‘Regulatory Planning and Review’’ (58 

FR 51735, October 4, 1993), this rule is 

not of general applicability and 

therefore is not a regulatory action 

subject to review by the Office of 

Management and Budget (OMB). This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) because it 

applies to a particular facility only. 

Because this rule is of particular 

applicability relating to a particular 

facility, it is not subject to the regulatory 

flexibility provisions of the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.), or 

to sections 202, 204, and 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). Because this 

rule will affect only a particular facility, 

it will not significantly or uniquely 

affect small governments, as specified in 

section 203 of UMRA. Because this rule 

will affect only a particular facility, this 

proposed rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, ‘‘Federalism,’’ 

(64 FR 43255, August 10, 1999). Thus, 

Executive Order 13132 does not apply 

to this rule. Similarly, because this rule 

will affect only a particular facility, this 

proposed rule does not have tribal 

implications, as specified in Executive 

Order 13175, ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000). Thus, Executive Order 13175 

does not apply to this rule. This rule 

also is not subject to Executive Order 

13045, ‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant as defined in Executive 

Order 12866, and because the Agency 

does not have reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

basis for this belief is that the Agency 

used the DRAS program, which 

considers health and safety risks to 

infants and children, to calculate the 

maximum allowable concentrations for 

this rule. This rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)), because it is not a significant 

regulatory action under Executive Order 

12866. This rule does not involve 

technical standards; thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988, 

‘‘Civil Justice Reform,’’ (61 FR 4729, 

February 7, 1996), in issuing this rule, 

EPA has taken the necessary steps to 

eliminate drafting errors and ambiguity, 

minimize potential litigation, and 

provide a clear legal standard for 

affected conduct. The Congressional 

Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report which includes a copy of the 

rule to each House of the Congress and 

to the Comptroller General of the United 

States. Section 804 exempts from 

section 801 the following types of rules 

(1) Rules of particular applicability; (2) 

rules relating to agency management or 

personnel; and (3) rules of agency 

organization, procedure, or practice that 

do not substantially affect the rights or 

obligations of non-agency parties, 5 

U.S.C. 804(3). EPA is not required to 

submit a rule report regarding this 

action under section 801 because this is 

a rule of particular applicability. 

Lists of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements. 

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

6921(f). 

Dated: November 9, 2011. 

Carl E. Edlund, 

Director, Multimedia Planning and Permitting 

Division. 

For the reasons set out in the 

preamble, 40 CFR part 261 is amended 

as follows: 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

■ 1. The authority citation for part 261 

continues to read as follows: 

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

6922, and 6938. 

PART 261—[AMENDED] 

■ 2. In Tables 1, 2 and 3 of Appendix 

IX to 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 


pmangrum on DSK3VPTVN1PROD with RULES
72322 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

*******

Eastman Chemical 

Company-Texas Operations.

Longview, TX .............. RKI bottom ash (EPA Hazardous Waste Numbers F001, F002, F003, F005, F039, K009, 

K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359.) 

generated at a maximum rate of 1,000 cubic yards per calendar year after November 23, 

2011 and disposed in Subtitle D Landfill. 

RKI fly ash EPA Hazardous Waste Number F001, F002, F003, F005, F039, K009, K010, 

U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359 generated at a maximum rate of 750 cubic yards per calendar year after November 23, 2011 

and disposed in Subtitle D Landfill. 

RKI scrubber water blowdown (EPA Hazardous Waste Numbers D001, D002, D003, D007, 

D008, D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, 

U107, U112, U117, U140, U147, U161, U213, and U359 generated at a maximum rate of 

643,000 cubic yards (500,000 million gallons) per calendar year after November 23, 2011 

and treated and discharged from a Wastewater Treatment Plant. 

For the exclusion to be valid, Eastman must implement a verification testing program for 

each of the waste streams that meets the following Paragraphs: 

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

allowable concentrations in mg/l specified in this paragraph. 

(A) RKI Bottom Ash. Leachable Concentrations (mg/l): Antimony—0.801; Acetone—33.8; Arsenic—0.126; Acetaldehyde—5.35; Acenaphthylene—31.9; Anthracene—77.9; Acenaphthene—31.9; Barium—100; Benzene—0.231; Bis(2-ethylhexyl)phthalate—103; Benzo(a) 

anthracene—0.211; Benzo(a) pyrene—79.1; Benzo(b) flouranthene—673; 

Bromomethane—0.0526; n-Butyl Alcohol—174; Cadmium—0.274; Chromium—5.0; Cobalt—0.643; Copper—73.8; Chloroform—0.241; Chrysene—211; chloromethane—18.2; Cyanide—9.25; 4,4- DDT—0.0103; Di-n-butyl phthalate- 73.9; Dieldrin—2.78; Ethylbenzene— 

32.6; Fluorene—14.7; Formaldehyde—347; Fluoranthrene—7.39; Isobutanol—521; Lead— 

1.95; Mercury—0.2; Methy Isobutyl ketone—139; 2-Methylnaphathalene—2.18; Methylene 

Chloride—0.237; Naphthalene—0.0983; Nickel—54.1; Phenanthrene—14.7; Pyrene—13.4; 

Selenium—1.0; Silver—5.0; Thallium—0.110; Tin—22.5; Toluene—45.4; Vanadium—10.4; 

Xylene—28.7; Zinc—600. 

Total Concentrations (mg/kg) Tetrachlorodibenzo-p-dioxin (TCDD) 2,3,7,8–7.46 E–06 mg/kg. 

(B) RKI Fly Ash. Leachable Concentrations (mg/l): Antimony—0.111; Acetone—533; Arsenic—0.178; Barium—36.9; Bis(2-ethylhexyl)phthalate—6.15; Chromium—2.32; Copper— 

26.5; Ehtylbenzene—11.1; Methylene Chloride—0.0809; Naphthalene—0.0355; Nickel— 

13.8; Phenanthrene—2.72; Toluene—15.5; Trichloroethane—11900; Trichloroethylene— 

0.0794; Vanadium—1.00; Zinc—202. 

Total Concentrations (mg/kg) Tetrachlorodibenzo-p-dioxin (TCDD) 2,3,7,8-4.30 E–05 mg/kg. 

(C) RKI Scrubber Water Blowdown. TCLP Concentrations (mg/l): Antimony—0.0568; Arsenic—0.112; Barium—11.6; Bis(2-ethylhexyl)phthalate—0.0522; Chromium—5.0; Cobalt— 

0.318, Copper—22.1; Chloroform—0.0163, Chloromethane—1.48; Cyanide—0.752; Di-nbutylphthalate—25.6; Lead—2.57; Methanol—70.6; Nickel—5.74; Silver—1.71; Thallium— 

0.0179; Tin—22.5; Vanadium—4.88; Zinc—77.7. 

(2) Waste Holding and Handling: 

(A) Waste classification as non-hazardous can not begin until compliance with the limits set 

in paragraph (1) for RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown has 

occurred for four consecutive quarterly sampling events. 

(B) If constituent levels in any annual sample and retest sample taken by Eastman exceed 

any of the delisting levels set in paragraph (1) for the RKI bottom ash, RKI fly ash, and RKI 

scrubber water blowdown, Eastman must do the following: 

(i) Notify EPA in accordance with paragraph (6) and 

(ii) Manage and dispose the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown 

as hazardous waste generated under Subtitle C of RCRA. 

(3) Testing Requirements: 

Upon this exclusion becoming final, Eastman must perform analytical testing by sampling and 

analyzing the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown as follows: 

(A) Initial Verification Testing: 

(i) Collect four representative composite samples of each of the RKI bottom ash, RKI fly ash, 

and RKI scrubber water blowdown at quarterly intervals after EPA grants the final exclusion. The first round of composite samples of each waste stream may be taken at any time 

after EPA grants the final approval. Sampling must 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) indicates that the RKI bottom 

ash, RKI fly ash, and RKI scrubber water blowdown must continue to be disposed as hazardous waste in accordance with the applicable hazardous waste requirements until such 

time that four consecutive quarterly samples indicate compliance with delisting levels listed 

in paragraph (1). 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72323 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(iii) Within sixty (60) days after taking its last quarterly sample, Eastman will report its analytical test data to EPA. If levels of constituents measured in the samples of the RKI bottom 

ash, RKI fly ash, and RKI scrubber water blowdown do not exceed the levels set forth in 

paragraph (1) of this exclusion for four consecutive quarters, Eastman can manage and 

dispose the non-hazardous RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown according to all applicable solid waste regulations. 

(B) Annual Testing: 

(i) If Eastman completes the quarterly testing specified in paragraph (3) above and no sample contains a constituent at a level which exceeds the limits set forth in paragraph (1), 

Eastman must begin annual testing as follows: Eastman must test a representative composite sample of the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown for all 

constituents listed in paragraph (1) at least once per calendar year. If any measured constituent concentration exceeds the delisting levels set forth in paragraph (1), Eastman must 

collect an additional representative composite sample within 10 days of being made aware 

of the exceedence and test it expeditiously for the constituent(s) which exceeded delisting 

levels in the original annual sample. 

(ii) The samples for the annual testing shall be a representative composite sample according 

to appropriate methods. As applicable to the method-defined parameters of concern, analyses requiring the use of SW–846 methods incorporated by reference in 40 CFR 260.11 

must be used without substitution. As applicable, the SW–846 methods might include 

Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 

1020B,1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 

9070A (uses EPA Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to 

demonstrate that samples of the Eastman RKI bottom ash, RKI fly ash, and RKI scrubber 

water blowdown are representative 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. 

(iv) The annual testing report shall include the total amount of delisted waste in cubic yards 

disposed during the calendar year. 

(4) Changes in Operating Conditions: If Eastman 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 (by illustration, but not limitation, changes in 

equipment or operating conditions of the treatment process), it must notify EPA in writing 

and it may no longer handle the wastes generated from the new process as non-hazardous until the wastes meet the delisting levels set in paragraph (1) and it has received 

written approval to do so from EPA. 

Eastman 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: 

Eastman must submit the information described below. If Eastman fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as 

described in paragraph(6). Eastman 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 comparable electronic media. 

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

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


pmangrum on DSK3VPTVN1PROD with RULES
72324 Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(A) If, anytime after disposal of the delisted waste Eastman possesses or is otherwise made 

aware of any environmental data (including but not limited to leachate data or 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 annual testing (and retest, if applicable) of the waste does not meet the 

delisting requirements in paragraph 1, Eastman 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 Eastman 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 receipt 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. 

(7) Notification Requirements: Eastman must do the following before transporting the delisted 

waste. Failure to provide this notification will result in a violation of the delisting petition and 

a possible revocation of the decision. 

(A) Provide a one-time written notification to any state Regulatory Agency to which or through 

which it will transport the delisted waste described above for disposal, 60 days before beginning such activities. 

(B) For onsite disposal a notice should be submitted to the State to notify the State that disposal of the delisted materials have begun. 

(C) Update one-time written notification, if it ships the delisted waste into a different disposal 

facility. 

(D) Failure to provide this notification will result in a violation of the delisting variance and a 

possible revocation of the decision. 

* * * * * * * 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description 

*******

Eastman Chemical 

Company—Texas 

Operations.

Longview, TX .............. RKI Bottom Ash. (EPA Hazardous Waste Number F001, F002, F003, F005, F039, K009, 

K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359) 

generated at a maximum rate of 1,000 cubic yards per calendar year after November 23, 

2011 and disposed in Subtitle D Landfill. 

RKI Fly Ash. (EPA Hazardous Waste Number F001, F002, F003, F005, F039, K009, K010, 

U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359) generated at a maximum rate of 2,000 cubic yards per calendar year after November 23, 2011 

and disposed in Subtitle D Landfill. 

RKI Scrubber Water Blowdown. (EPA Hazardous Numbers D001, D002, D003, D007, D008, 

D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, 

U112, U117, U140, U147, U161, U213, and U359) generated at a maximum rate of 

643,000 cubic yards (500,000 million gallons) per calendar year after November 23, 2011 

and treated and discharged from a Wastewater Treatment Plant. 

Eastman must implement the testing program in Table 1. Wastes Excluded from Non-Specific 

Sources for the petition to be valid. 

*******


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 76, No. 226 / Wednesday, November 23, 2011 / Rules and Regulations 72325 

TABLE 3—WASTE EXCLUDED FROM COMMERCIAL CHEMICAL PRODUCTS, OFF-SPECIFICATION SPECIES, CONTAINER

RESIDUES, AND SOIL RESIDUES THEREOF

Facility Address Waste description 

*******

Eastman Chemical 

Company-Texas Operations.

Longview, TX .............. RKI Bottom Ash. (EPA Hazardous Waste Number F001, F002, F003, F005, F039, K009, 

K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359) 

generated at a maximum rate of 1,000 cubic yards per calendar year after November 23, 

2011 and disposed in Subtitle D Landfill. 

RKI Fly Ash. (EPA Hazardous Waste Number F001, F002, F003, F005, F039, K009, K010, 

U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359) generated at a maximum rate of 2,000 cubic yards per calendar year after November 23, 2011 

and disposed in Subtitle D Landfill. 

RKI Scrubber Water Blowdown. (EPA Hazardous Numbers D001, D002, D003, D007, D008, 

D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, 

U112, U117, U140, U147, U161, U213, and U359) generated at a maximum rate of 

643,000 cubic yards (500,000 million gallons) per calendar year after November 23, 2011 

and treated and discharged from a Wastewater Treatment Plant. 

Eastman must implement the testing program in Table 1. Wastes Excluded from Non-Specific 

Wastes for the petition to be valid. 

*******

[FR Doc. 2011–30147 Filed 11–22–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 5b 

RIN 0906–AA91 

Privacy Act; Exempt Record System 

AGENCY: Health Resources and Services 

Administration (HRSA), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule exempts the 

system of records (09–15–0054, the 

National Practitioner Data Bank for 

Adverse Information on Physicians and 

Other Health Care Practitioners, HHS/ 

HRSA/BHPr) for the National 

Practitioner Data Bank (NPDB) from 

certain provisions of the Privacy Act 

(5 U.S.C. 552a). The exemption is 

necessary due to the recent expansion of 

the NPDB under section 1921 of the 

Social Security Act to include the 

investigative materials compiled for law 

enforcement purposes reported to the 

Healthcare Integrity and Protection Data 

Bank (HIPDB). The system of records for 

the HIPDB is exempt from certain 

provisions of the Privacy Act (see 45 

CFR 5b.11(b)(2)(ii)(F)). In order to 

maintain the exemption for the HIPDB 

investigative materials, which will now 

also be available through the NPDB, it 

is necessary to extend the same 

exemption to the NPDB. 

DATES: The effective date of this rule is 

December 23, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia Grubbs, Director, Division of 

Practitioner Data Banks, Bureau of 

Health Professions, Health Resources 

and Services Administration, Parklawn 

Building, 5600 Fishers Lane, Room 8– 

103, Rockville, MD 20857; telephone 

number: (301) 443–2300. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The NPDB was established by Title IV 

of Public Law 99–660, the Health Care 

Quality Improvement Act of 1986, as 

amended. The NPDB is primarily an 

alert or flagging system intended to 

facilitate a comprehensive review of 

health care practitioners’ professional 

credentials. On January 28, 2010, HRSA 

published a final rule in the Federal 

Register (75 FR 4656) designed to 

implement section 1921 of the Social 

Security Act (herein referred to as 

section 1921). Section 1921 expands the 

scope of the NPDB. Section 1921 

requires each State to adopt a system of 

reporting to the Secretary certain 

adverse licensure actions taken against 

health care practitioners and health care 

entities by any authority of the State 

responsible for the licensing of such 

practitioners or entities. It also requires 

each State to report any negative action 

or finding that a State licensing 

authority, a peer review organization, or 

a private accreditation entity has 

finalized against a health care 

practitioner or entity. Practically 

speaking, section 1921 resulted in, 

among other consequences, the transfer 

of the vast majority of information 

contained in the HIPDB, a companion 

data bank, to the NPDB. 

The HIPDB was created by the Health 

Insurance Portability and 

Accountability Act (HIPAA) of 1996, 

Public Law (Pub. L. 104–191), which 

required the Secretary, acting through 

the Office of Inspector General (OIG) 

and the United States Attorney General, 

to establish a new health care fraud and 

abuse control program, to combat health 

care fraud and abuse. Together, the 

HIPDB and NPDB serve to facilitate 

review of health care practitioners’ and 

entities’ backgrounds. 

II. Summary of the Proposed Rule 

In the February 17, 2011 Federal 

Register (76 FR 9295), HRSA published 

a proposed rule that would exempt the 

NPDB system of records from subsection 

(c)(3), (d)(1) through (d)(4), (e)(4)(G) and 

(H), and (f) of the Privacy Act pursuant 

to 5 U.S.C. 552a(k)(2). These exemptions 

are necessary to deal with the expansion 

of NPDB information after 

implementation of section 1921 on 

March 1, 2010. Groups that have access 

to the section 1921 information in the 

NPDB include all organizations eligible 

to query the NPDB under the Health 

Care Quality Improvement Act of 1986 

(hospitals, other health care entities that 

conduct peer review and provide health 

care services, State medical or dental 

boards, and other health care 

practitioner State boards), other State 

licensing authorities, agencies 

administering Federal health care 

programs (including private entities 

administering such programs under 

contract), State agencies administering 

or supervising the administration of 

State health care programs, State 

Medicaid Fraud Control Units, certain 

law enforcement agencies, utilization 

and quality control peer review 

organizations (referred to as QIOs), as 

defined in Part B of title XI of the Social 


pmangrum on DSK3VPTVN1PROD with RULES