[Federal Register Volume 87, Number 13 (Thursday, January 20, 2022)]
[Proposed Rules]
[Pages 3053-3066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00728]



[[Page 3053]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R10-RCRA-2018-0661; FRL-9414-01-R10]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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

DATES: Comments must be received on or before February 22, 2022. 
Requests for an informal hearing must reach the EPA by February 4, 
2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2018-0661 by one of the following methods:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> Mail: To Dr. David Bartus, Land, Chemicals and 
Redevelopment Division, EPA, Region 10, 1200 6th Avenue, Suite 155, M/S 
15-H04, Seattle, Washington 98101.
    <bullet> Hand Delivery: To Dr. David Bartus, Land, Chemicals and 
Redevelopment Division, EPA, Region 10, 1200 6th Avenue, Suite 155, M/S 
15-H04, Seattle, Washington 98101. Such deliveries are only accepted 
during normal hours of operation. Please contact Dr. David Bartus at 
(206) 553-2804.
    Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2018-0661. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov website is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any physical 
media you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption, and be free of any 
defects or viruses.
    Any person may request an informal hearing on this proposed 
decision by filing a request with Timothy Hamlin, Director, Land, 
Chemicals and Redevelopment Division, EPA, Region 10, 1200 6th Ave., 
Suite 155, M/S 15-H04, Seattle, Washington 98101. The request must 
contain the information prescribed in 40 Code of Federal Regulations 
(CFR) 260.20(d).
    Docket: All documents in the docket are listed in the 
www.regulations.gov index.\1\ Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy form. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the RCRA Records Center, 16th floor, U.S. EPA, Region 10, 1200 6th 
Avenue, Suite 155, M/S 16-C09, Seattle, Washington 98101. This facility 
is open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
legal holidays. We recommend you telephone David Bartus at (206) 553-
2804 before visiting the Region 10 office. The public may copy material 
from the regulatory docket at 15 cents per page.
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    \1\ The input files for the Delisting Risk Assessment Software 
(DRAS 4.0) used in support of this proposed rulemaking are in a file 
format not supported by EPA's electronic docket management system. 
EPA has provided ``screen shot'' images of the input data in 
Portable Document Format (.pdf) files. Commentors interested in the 
actual DRAS 4.0 input files may request them through the EPA 
contacts listed above.

FOR FURTHER INFORMATION CONTACT: Dr. David Bartus, EPA, Region 10, 1200 
6th Avenue, Suite 155, M/S 15-H04, Seattle, Washington 98101; telephone 
number: (206) 553-2804; fax number (206) 553-8509; email address: 
<a href="/cdn-cgi/l/email-protection#d6b4b7a4a2a3a5f8b2b7a0b396b3a6b7f8b1b9a0"><span class="__cf_email__" data-cfemail="3d5f5c4f49484e13595c4b587d584d5c135a524b">[email protected]</span></a>.
    As discussed in Section V of this preamble, the Washington State 
Department of Ecology is evaluating the Petitioner's petition under 
state authority. Information on Ecology's action may be found at 
https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Industrial-facilities-permits/Emerald-Kalama-Chemical.

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

I. Overview Information
II. Background
    A. What is the listed waste associated with this Petition?
    B. What is a delisting petition?
    C. What factors must the EPA consider in deciding whether to 
grant a delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did the Petitioner petition the EPA to delist?
    B. How does the Petitioner generate the waste?
    C. How does the Petitioner sample and analyze the waste?
    D. What were the results of the EPA's analysis of the 
Petitioner's waste?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What are the EPA's proposed findings regarding the petitioned 
waste?
IV. Conditions for Exclusion
    A. How will the Petitioner manage the waste if it is delisted?
    B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?
    C. How frequently must the Petitioner test the waste?
    D. What data must the Petitioner submit?
    E. What happens if the Petitioner fails to meet the conditions 
of the exclusion?
    F. What must the Petitioner do if the process changes?
V. When would the EPA finalize the proposed delisting exclusion?
VI. How would this action affect states?
VII. Statutory and Executive Order Reviews

I. Overview Information

    The EPA is proposing to grant the petition submitted by Emerald 
Kalama Chemical, LLC located in Kalama, Washington to exclude (or 
``delist'') an annual volume of up to 3,500 cubic yards of U019 
(benzene) and U220 (toluene) industrial wastewater biological solids 
(IWBS) hazardous waste per year from the list of hazardous waste set 
forth in 40 CFR 261.33. The Petitioner claims that the petitioned waste 
does not meet the criteria for

[[Page 3054]]

which the EPA listed it, and that there are no additional constituents 
or factors which could cause the waste to be hazardous.
    Based on our review described in Section III of this preamble, we 
propose to make a determination that the petitioned waste is non-
hazardous with respect to the listed waste codes that originally 
applied. As part of our supporting analysis, we reviewed the 
description of the process which generates the waste and the analytical 
data submitted by the Petitioner. We believe that the petitioned waste 
does not meet the criteria for which the waste was originally listed, 
that they do not exhibit any hazardous waste characteristic, and that 
there are no other factors which might cause the waste to be hazardous. 
Accordingly, the EPA is proposing to find the petitioned waste may be 
safely managed as non-listed hazardous waste. The EPA notes that while 
the burden of demonstrating that a delisted waste does not also exhibit 
a hazardous characteristic remains with the facility, data provided by 
the Petitioner demonstrate that the candidate waste does not exhibit a 
hazardous characteristic.

II. Background

A. What is the listed waste associated with this petition?

    The EPA published an amended list of discarded commercial chemical 
products, off-specification species, container residues and spill 
residues thereof on November 25, 1980 (45 FR 78532), as part of its 
final and interim final regulations implementing section 3001 of 
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6921. The EPA 
has amended this list several times and published it in 40 CFR 261.33.
    We list these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in 40 CFR part 261 subpart C (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in 261.11(a)(2) or (3).

B. What is a delisting petition?

    Individual waste streams may vary depending on raw materials, 
industrial processes, and other factors. Thus, while a waste from a 
source listed in the regulations as ``hazardous'' is by definition 
hazardous, a specific waste from an individual generating facility and 
from a source meeting the listing description may produce wastes that 
vary significantly from the wastes the EPA considered in establishing 
the waste listing.
    A procedure to exclude or delist a waste is provided in 40 CFR 
260.20 and 260.22 which allows a person or a facility to submit a 
petition to the EPA or to an authorized state demonstrating that a 
specific waste from a particular generating facility should not be 
regulated as hazardous.\2\
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    \2\ Washington State's promulgated regulations at WAC 173-303-
910(3) correspond to the Federal regulation. However, Washington 
State has not received final authorization to implement these 
regulations in lieu of the Federal program. As such, they are 
effective concurrent with 40 CFR 260.20 and 260.22 on a state-only 
basis.
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    In a delisting petition, the Petitioner must show that a waste does 
not meet any of the criteria for listed wastes in 40 CFR 261.11 and 
that the waste does not exhibit any of the hazardous waste 
characteristics of ignitability, reactivity, corrosivity, or toxicity. 
The Petitioner must present sufficient information for the EPA to 
decide whether any factors in addition to those for which the waste was 
listed warrant retaining it as a hazardous waste. (See 40 CFR 260.22 
and 42 U.S.C. 6921(f).) The EPA's basis for originally listing the 
wastes associated with this petition may be found at 45 FR 78532.
    If a delisting petition is granted, the specific waste identified 
in the delisting will be excluded from the associated lists of 
hazardous waste in 40 CFR part 261 subpart D so long as conditions in 
the delisting are met. A waste which is so excluded, however, may still 
exhibit a characteristic and thus be a hazardous waste by operation of 
40 CFR part 261 subpart C. The EPA notes that while the burden of 
demonstrating that a delisted waste does not also exhibit a hazardous 
characteristic remains with the facility, the data provided by the 
Petitioner demonstrate that the candidate wastes do not exhibit a 
hazardous characteristic.

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

    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the 
petitioned waste against the listing criteria and factors cited in 40 
CFR 261.11(a)(2) and (3).
    In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and 
(3), 42 U.S.C. 6921(f), and in the background documents for the listed 
wastes, the EPA also considered any factors (including additional 
constituents) other than those for which we listed the waste if these 
additional factors could cause the waste to be hazardous.
    Our proposed decision to grant the petition to delist the waste 
from the Petitioner's Kalama, Washington facility is based on our 
evaluation of the waste for factors or criteria which could cause the 
waste to be hazardous. These factors included: (1) Whether the waste is 
considered acutely toxic; (2) the toxicity of the constituents; (3) the 
concentration of the constituents in the waste; (4) the tendency of the 
constituents to migrate and to bioaccumulate; (5) the persistence in 
the environment of any constituents once released from the waste; (6) 
plausible and specific types of management of the petitioned waste; (7) 
the quantity of waste produced; and (8) waste variability.
    The EPA must also consider as hazardous wastes mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and 
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

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

A. What waste did the Petitioner petition the EPA to delist?

    The Petitioner manufactures various organic chemicals used as 
artificial flavors and fragrances, food preservatives, plasticizers, 
and intermediates at their facility in Kalama, Washington. Most of the 
chemicals produced are derived from toluene or from the oxidation 
products of toluene, including benzoic acid and benzaldehyde. 
Additional products are produced as derivatives of benzoic acid and 
benzaldehyde. Products are typically purified by continuous or batch 
distillation. In conjunction with its manufacturing processes, the 
Petitioner operates an industrial wastewater treatment system, 
consisting of an anaerobic digestion process and an aerobic oxidation 
system, both of which are biological treatment systems very similar to 
municipal wastewater treatment systems. This treatment system produces 
industrial wastewater treatment plant biological solids (IWBS). As 
documented in the Petitioner's delisting petition, the IWBS designates 
as U019 (benzene) and U220 (toluene). The Petitioner has requested that 
up to

[[Page 3055]]

3,500 cubic yards of IWBS be excluded from the list of hazardous 
wastes.\3\
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    \3\ The delisting petition submitted by the Petitioner requested 
exclusion of a waste volume different than those cited in this 
proposed rulemaking. The EPA notes that the requested quantity of 
waste in the delisting petition itself was expressed on a mass (ton) 
basis rather than the volume basis in this proposed rulemaking. See 
further discussion of this point in Section C of this preamble.
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B. How does the Petitioner generate the waste?

    The Petitioner's petition documents that its industrial wastewater 
treatment system from which IWBS are derived manages wastewaters from 
multiple sources within the facility. The first source consists of 
contaminated groundwater from an extensive groundwater recovery system 
to prevent contaminated water from leaving the plant site. Water pumped 
from the North Impact Area (NIA), West Impact Area (WIA), and 
Intermediate Sand Recovery Wells (ISRW) contains commercial product 
toluene from historical releases and therefore the IWBS carry the 
listed dangerous waste code U220 (toluene). Historical data from May 
2013 through April 2021 indicates that an average of 31.5 million 
gallons per year with a maximum of 38.6 million gallons per year of 
contaminated groundwater was treated in the wastewater treatment unit 
(WWTU) that generates IWBS. See Docket Entries starting with suffixes 
``-DRAFT-0056'' through ``-DRAFT-0063.'' The second source consists of 
stormwater that falls on the manufacturing process areas of the 
facility, which may become contaminated by spills or releases of the 
various raw materials, intermediates, products, or byproducts of its 
manufacturing operations. The third source consists of process 
wastewater from manufacturing processes. These second and third sources 
may be impacted by trace amounts of pure product benzene from de 
minimus spills that are captured by the treatment system; therefore, 
the IWBS from the second and third source categories carry the listed 
dangerous waste code U019 (benzene).
    The Petitioner provided the EPA with a detailed process flow 
diagram (Docket Entry 0-017-050-Model-BIOX Plant Process Flow Diagram-
DRAFT-0029) of the overall wastewater management system that documents 
the source of all wastewaters from which the candidate IWBS are 
generated and the various management processes that are applied to the 
wastewaters. Generally, process wastewater expected to have higher 
quantities of organic constituents from process units is routed to 
either the anaerobic digesters (ANTS) or to the aerobic digesters 
(BIOX), depending upon the types and concentrations of chemicals 
present. The effluent from the ANTS is routed to the BIOX for final 
treatment. Groundwater and stormwater \4\ with a low chemical oxygen 
demand (COD) are routed to the aerobic digesters (BIOX). This process 
flow arrangement, including flexibility to re-route wastewaters 
depending on their chemical makeup, ensures that concentrated free 
product from manufacturing process wastes or from spills is not 
introduced into the balance of the wastewater treatment system, and 
that the concentration of waste constituents entering the treatment 
system is maintained in a range that fosters microbial degradation. 
Wastewaters from the American Petroleum Institute (API) phase separator 
are then routed to the aerobic digester system. The use of the API 
separator for wastewaters expected to have higher levels of organic 
constituents helps ensure that significant excursions (variations) in 
waste composition do not adversely affect performance of the wastewater 
treatment system. The effluent of the ANTS system is then routed to the 
aerobic digester and sludge filtration systems. Groundwater and 
stormwater expected to have lower COD levels bypass the API separator 
and are fed directly to the aerobic digester treatment system. This 
arrangement of the overall wastewater management system from which IWBS 
is generated is expected to operate consistently and effectively, such 
that characterization data of the influent wastewater and the resulting 
IWBS provided by the Petitioner are representative of on-going 
operation of the system.
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    \4\ The Petitioner also provide the EPA with a map of the 
facility indicating areas where stormwater is collected from various 
areas of the facility. See Docket Entry 3-002-000 Storm Water 
Collection Map. DRAFT-0030.
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C. How does the Petitioner sample and analyze the waste?

    The Petitioner regularly collected and analyzed samples of the IWBS 
for various constituents on a monthly, quarterly, or annual basis from 
January 1998 through April 2015, when the delisting petition was 
submitted.\5\ These data are summarized in Table A-1 in Appendix A of 
the petition. See Docket Entry EPA-R10-RCRA-2018-0661-DRAFT-0034. 
Hazardous constituents for which routine analytical data are presented 
in the Petitioner's petition include benzene and toluene, and a suite 
of metals including copper, nickel, zinc, cobalt, lead, cadmium, 
arsenic, selenium, chromium, molybdenum, mercury and barium. Metals 
values were generally consistent over the measurement period, with 
copper values showing over an order of magnitude difference between the 
highest and lowest values.
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    \5\ The EPA notes that these data were gathered well before the 
Petitioner's submission of their delisting petition, and for 
technical and regulatory purposes other than delisting. Therefore, 
these data do not exactly match the information needs of the 
delisting process, although they do provide substantial and valuable 
characterization of the IWBS waste stream. As noted in the balance 
of this preamble, the Petitioner submitted supplemental 
characterization data as necessary to fully characterize the IWBS 
waste stream for purposes of delisting.
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    Toluene was detected in one sample of IWBS between 1998 and 2014 at 
a concentration of 69 micrograms per kilogram (ppb) reported on a dry 
weight basis, with thirteen non-detect values reported with detection 
limits ranging from 44 to 3,800 parts per billion. Benzene was not 
detected during this period, with fifteen samples reported as non-
detect with detection limits ranging from 44 to 3,800 parts per 
billion.
    The Petitioner had two Toxicity Characteristic Leaching Procedure 
(TCLP) analyses performed on the IWBS in 2000 and in 2014. The results 
were consistent and demonstrated that the IWBS do not exhibit the 
toxicity characteristic. The data are presented in Table A-2 in 
Appendix A of the petition. See Docket Entry EPA-R10-RCRA-2018-0661-
DRAFT-0034.
    The EPA developed preliminary delisting levels for the IWBS using 
the EPA's Hazardous Waste Delisting Risk Assessment Software (DRAS) 
Version 3.0 and provided them to the Petitioner. The procedure for 
doing so is described in Enclosure 1 to Docket Entry EPA-R10-RCRA-2018-
0661-DRAFT-0044, with the results provided in Docket Entry EPA-R10-
RCRA-2018-0661-DRAFT-0046. These preliminary delisting levels were 
based on initial estimates of the project waste generation volume. 
These data were used by the Petitioner and the EPA as an initial 
indication of the required level of data quality, particularly the 
sensitivity required for laboratory analytical methods, for waste 
characterization sampling data.
    Subsequent to submission of its delisting petition, the EPA 
requested certain additional data from the Petitioner. First, to ensure 
data on the petitioned waste annual generation volume could be 
converted from a mass to a volume basis necessary for input to

[[Page 3056]]

the DRAS model, the Petitioner provided data documenting the density of 
the IWBS as 0.67 tons/cubic yard, based on the average of six samples 
of IWBS (Docket Entries IWBS Delisting email 030302020-DRAFT-0035 and 
EPA-R10-RCRA-2018-0661-DRAFT-0045).
    Second, based on its evaluation of its initial DRAS model runs, the 
EPA identified that cobalt could not be shown to satisfy the calculated 
delisting levels based solely on the total data documented in the 
petition and a bounding assumption that all constituents would leach 
from the waste in the absence of an analysis of a TCLP extract of the 
waste. See Docket Entries DRAS-3-COCs-12202018-DRAFT-0052, DRAS-3-COCs-
12272018-DRAFT-0053, DRAS-3-inputs-12202018-DRAFT-0054 and DRAS-3-
inputs-12272018-DRAFT-0055. The EPA requested that the Petitioner 
provide supplemental data for cobalt that documented paired data for 
both total and TCLP extract analysis. (See Docket Entries IWBS 
Supplemental Information-DRAFT-0037, Biosolids Analytical Data 031919-
DRAFT-0036 and IWBS Supplemental Information email 04172019-DRAFT-
0038). The Petitioner submitted supplemental data for both total and 
TCLP extract analysis for copper, nickel, zinc, cobalt, and barium, and 
total data for benzene via email 3/3/2020 (See Docket Entries IWBS 
Delisting email 030302020 DRAFT-0035, RE_IWBS Supplemental Information 
email 04242019DRAFT-0041, K1901520-DRAFT-0040, RE_IWBS Supplemental 
Information email 04242019-DRAFT-0041 and K1903215-DRAFT-0042).
    The data results showed that copper, nickel, zinc, and barium met 
the initial DRAS model run limits for the TCLP extract of the waste; 
and cobalt, copper, nickel, zinc, and barium met the initial DRAS model 
run for the total concentration of the waste.

D. What were the results of the EPA's analysis of the Petitioner's 
waste?

    The first step in the EPA's analysis of the petitioned waste was to 
establish a list of potential constituents of concern (COCs) to guide 
further analysis of the waste and to establish initial delisting 
exclusion criteria. The EPA applied four criteria for identifying 
potential constituents of concern: (1) Whether the constituent is used 
as an input to, or created as an intermediate, byproduct or finished 
product from the Petitioner's production processes; (2) whether the 
IWBS designates as hazardous for a particular constituent; (3) the 
expected frequency of occurrence in the IWBS; and (4) the toxicity of 
the constituent of concern.
    The EPA first considered organic COCs. Based on the hazardous waste 
codes associated with wastewater that ultimately results in generation 
of IWBS (D018, U019, U220, U154, and U001), the EPA determined that 
benzene, toluene, methanol and acetaldehyde are COCs.\6\ The EPA notes 
that benzene is generally regarded as difficult to treat and is an 
excellent indicator of overall performance of the WWTU processes, and 
the ability of the WWTU to effectively treat other organic constituents 
other than benzene. Based on principle products of the Petitioner's 
production processes, the EPA determined that five additional organic 
constituents--benzaldehyde, benzoic acid, formic acid, benzyl alcohol, 
and phenol--should be retained as COCs in the IWBS. While at least some 
of these constituents are associated with products for human 
consumption or exposure, they exhibit a level of toxicity that warrants 
retention as COCs for purposes of evaluating the candidate waste 
stream.
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    \6\ As noted in the delisting petition, IWBS designate only for 
U019 (benzene) and U220 (toluene) because, due to an exception to 
RCRA's derived from rule, certain codes applicable to the wastewater 
do not carry through to the IWBS. However, as part of its evaluation 
of the IWBS waste stream and identification of COCs, the EPA also 
considered hazardous waste codes applicable to the wastewater 
managed by the WWTU generating IWBS. Although the F003 waste code 
applies to wastewater managed by the WWTU, EPA did not retain 
acetone as a constituent of concern on the basis that the process 
information provided by Emerald does not provide any evidence that 
acetone is associated with this waste stream.
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    Several additional organic constituents are associated with the 
Petitioner's production processes. However, they are associated with 
products for human consumption or exposure, such as food preservatives 
and vitamins, fragrances and perfumes, and sunscreens, and do not 
exhibit a degree of toxicity that warrants retention as COCs (Docket 
Entry EPA-R10-RCRA-2018-0661-DRAFT-0022). In addition, most, if not 
all, of these additional organic constituents are highly amenable to 
biological treatment in the WWTU and are not expected to be present in 
the IWBS at levels significantly below health-based levels that would 
be of concern in the delisting process.
    The Petitioner's production process uses a range of catalysts, 
including several metallic catalysts that include cobalt, copper and 
nickel. On this basis, cobalt, copper and nickel are identified as 
constituents of concern. Although these three metals are not hazardous 
constituents, they are retained as ``other factors'' (as discussed in 
Section I of this preamble) that may cause the waste to be retained as 
hazardous. Other metallic constituents reported to have been detected 
in the IWBS waste stream do not have a clear source related to the 
Petitioner's organic manufacturing process. These constituents include 
barium and zinc. Barium is a hazardous constituent and is present at 
detectable levels in the IWBS so barium is retained as an ``other 
factor'' that may cause the waste to be retained as hazardous. Zinc is 
a common contaminant in industrial wastewater and is found in the IWBS 
at concentrations as high as 1,350 ppm dry weight, so zinc is retained 
as an ``other factor'' that may cause the waste to be retained as 
hazardous.
    In the Petitioner's production process, cobalt is used as a 
catalyst in both its metallic form (sponge cobalt) and as cobalt 
acetate. The acetate functional group is expected to be readily 
degraded in the WWTU, leaving metallic cobalt in the IWBS. Further, 
cobalt acetate is soluble in water, so that any remaining cobalt 
acetate that is not degraded to metallic cobalt in the WWTU is likely 
to partition (separate) into the effluent wastewater managed separately 
from the IWBS. Thus, all forms of cobalt are considered to be metallic 
for purposes of the delisting evaluation of the IWBS.
    The final list of constituents of concern evaluated in the 
delisting process are documented in Table 2 of this preamble.

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

    For this delisting determination, we evaluated the risk that the 
waste would be disposed of as a non-hazardous waste in an unlined 
landfill which the EPA considers a reasonable worst-case mismanagement 
scenario. In evaluating this scenario, we considered transport of waste 
constituents through ground water, surface water and air. We evaluated 
the Petitioner's analysis of petitioned waste using the DRAS software 
to predict the concentrations of hazardous constituents that might be 
released from the petitioned waste and to determine if the waste would 
pose a threat to human health and the environment. The DRAS software 
and associated documentation can be found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
    To predict the potential for release to groundwater from landfilled 
wastes and subsequent routes of exposure to a receptor, the DRAS uses 
dilution attenuation factors derived from the EPA's Composite Model for 
leachate migration with Transformation Products. From a release to 
ground

[[Page 3057]]

water, the DRAS considers three potential routes of exposure to a human 
receptor: Ingestion of contaminated groundwater; inhalation from 
groundwater while showering; and dermal contact from groundwater while 
bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water run-off, DRAS evaluates the exposure to a 
human receptor from fish ingestion and ingestion of drinking water. 
From a release of waste particles and volatile emissions to air from 
the surface of an open landfill, DRAS considers three potential routes 
of exposure to a human receptor: Inhalation of volatile constituents; 
inhalation of particles; and air deposition of particles on residential 
soil and subsequent ingestion of the contaminated soil by a child. The 
technical support document and the user's guide to DRAS are available 
at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
    The EPA used the following inputs to its DRAS analysis of the 
Petitioner's waste, as summarized in Table 1 of this preamble. An image 
of the DRAS input screen is provided in Docket Entry DRAS-4.0-inputs-
DRAFT-043.

                      Table 1--Delisting DRAS Input
------------------------------------------------------------------------
     DRAS input parameter             Value             Assumptions
------------------------------------------------------------------------
Waste Management Unit Type....  Landfill.........  Waste planned for
                                                    disposal in a
                                                    municipal solid
                                                    waste landfill.
Waste Volume--annual            Up to 3,500 cubic  Conservative
 generation.                     yards/year.        estimation value
                                                    based on facility-
                                                    specific
                                                    information.
Waste Management Unit Active    20 years.........  Selected based on the
 Life.                                              DRAS default value.
Target risk--carcinogenic risk  1 x 10-\5\.......  Based on risk ranges
 level.                                             in the EPA's RCRA
                                                    Delisting Technical
                                                    Support Document
                                                    (2008).
Target risk--health quotient..  1.0..............  Based on risk ranges
                                                    in the EPA's RCRA
                                                    Delisting Technical
                                                    Support Document
                                                    (2008).
Detection limits..............  0.5..............  Non-detect samples
                                                    will be run as half
                                                    the value.
------------------------------------------------------------------------

    At a target cancer risk of 1 x 10<SUP>-5</SUP> and a target hazard 
quotient of 1.0, the DRAS program determined maximum allowable 
concentrations for each constituent in both the waste and the leachate. 
The EPA used the maximum estimated annual waste volume and the maximum 
reported total and estimated leachate concentrations as inputs to 
estimate the constituent concentrations in the ground water, soil, 
surface water or air. Table 2, of this preamble, documents the 
constituent-specific maximum total and TCLP sample results used as 
input to the DRAS analysis, and the resulting modeling results from 
DRAS using an annual waste volume of 3,500 cubic yards per year.

                                                    Table 2--Sampling Data and DRAS Modeling Results
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Maximum observed concentration                                   Modeling results
                                                     \1\              ----------------------------------------------------------------------------------
                                      --------------------------------           Total concentrations                       TCLP concentration
        Constituent of concern                                        ----------------------------------------------------------------------------------
                                       Total \1\ (mg/    TCLP (mg/L)      Limiting                                  Limiting
                                             kg)             \4\        concentration    Limiting pathway \3\     concentration    Limiting pathway \3\
                                                                         (mg/kg) \2\                               (mg/L) \ 2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acetaldehyde.........................             N/A             N/A     255,000,000  Air Particulate                     8.65  Groundwater Inhalation.
                                                                                        Inhalation.
Barium...............................             980            0.77      10,400,000  Fish Ingestion..........            74.8  Maximum Contaminant
                                                                                                                                  Level.
Benzaldehyde.........................             N/A             N/A      26,300,000  Fish Ingestion..........            6.08  Groundwater Ingestion.
Benzene..............................          <3.8 U          <0.2 U         276,000  Air Volatile Inhalation.           0.166  Maximum Contaminant
                                                                                                                                  Level.
Benzoic Acid.........................             N/A             N/A   8,460,000,000  Fish Ingestion..........           5,000  Groundwater Ingestion.
Benzyl alcohol.......................             N/A             N/A     813,000,000  Fish Ingestion..........             125  Groundwater Ingestion.
Cobalt...............................           3,660            1.26          62,300  Air Particulate                    0.583  Groundwater Ingestion.
                                                                                        Inhalation.
Copper...............................           7,520            0.29         463,000  Fish Ingestion..........              19  Maximum Contaminant
                                                                                                                                  Level.
Formic Acid..........................             N/A             N/A         145,000  Air Volatile Inhalation.             174  Groundwater Inhalation.
Methanol.............................             N/A         <0.75 U   3,030,000,000  Air Volatile Inhalation.           2,500  Groundwater Ingestion.
Nickel...............................             422            0.35         402,000  Air Particulate                     29.2  Groundwater Ingestion.
                                                                                        Inhalation.
Phenol...............................             N/A             N/A   1,300,000,000  Fish Ingestion..........             375  Groundwater Ingestion.
Toluene..............................           0.069             N/A      37,600,000  Fish Ingestion..........            32.6  Maximum Contaminant
                                                                                                                                  Level.
Zinc.................................           1,350             1.1       4,790,000  Fish Ingestion..........             426  Groundwater Ingestion.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Maximum concentration documented in the Petitioner's delisting petition, Tables A-1 and A-2, except for cobalt and zinc. The cobalt TCLP data are as
  reported via email 4/17/2019 with a corresponding maximum TCLP concentration of 1.2 mg/L. See docket Entries EPA-R10-RCRA-2018-0661-DRAFT-0036, -0037
  and -0038. The zinc TCLP data are as reported via email 3/1/2019 with a corresponding maximum TCLP concentration of 1.1 mg/L.
2. The Limiting Concentration is the lowest risk-based concentration developed in DRAS for the potential receptor pathways and specified target risk
  levels. See text in Section IV.B for the EPA's consideration of limiting concentrations exceeding 1,000,000 mg/kg for total concentrations or
  1,000,000 mg/L for TCLP concentrations.
3. The Limiting Pathway is the corresponding potential receptor pathway for the Limiting Concentration.

[[Page 3058]]

 
4. For detected constituents, the maximum analytical result was used. For non-detect constituents (annotated with a ``U''), the practical quantitation
  limit (PQL) was used.
5. Note: The italicized cell (cobalt) indicate exceedance of COC Concentration Input over the Limiting Concentration in the DRAS modeling.

F. What are the EPA's proposed findings regarding the petitioned waste?

    The maximum reported concentrations of the hazardous constituents 
found in this waste are presented in the Table 2 of this preamble. The 
table also presents the maximum allowable concentrations using an 
expected maximum annual waste volume of 3,500 cubic yards per year.
    Except for cobalt, all other COCs in Table 2 of this preamble have 
maximum observed concentrations below the Limiting Concentration from 
the DRAS modeling. Since the benzene TCLP was non-detected at 0.2 mg/L, 
the DRAS modeling assumed a value of one-half (0.1 mg/L), which is less 
than the Limiting Concentration from the DRAS modeling for benzene.
    As shown in Table 2 of this preamble, the maximum observed 
concentration for cobalt in a TCLP extract of the waste was 1.26 mg/L, 
which exceed the Limiting Concentration for cobalt of 0.583 mg/l from 
the DRAS modeling. The Petitioner sampled the IWBS for cobalt TCLP six 
times during January 2019 through April 2019. See Docket Entries EPA-
R10-RCRA-2018-0661-DRAFT-0036, -0037 and -0038. The TCLP analytical 
results for cobalt in the IWBS ranged from 0.45 mg/L to 1.26 mg/L. At 
the cobalt result of 0.45 mg/L TCLP, the IWBS meets the Limiting 
Concentration from the DRAS modeling using an expected maximum annual 
waste volume of 3,500 cubic yards per year. Because the sampling data 
for cobalt indicates that the limiting value for cobalt based on a 
maximum annual waste volume of 3,500 cubic yards per year may be 
exceeded, we performed DRAS modelling to determine the TCLP limiting 
concentration for cobalt for a range of annual waste volumes ranging 
from 1,000 to 3,500 cubic yards per year.\7\ The results of these model 
runs are presented in Table 3 of this preamble.
---------------------------------------------------------------------------

    \7\ The DRAS inputs used for these runs are identical to those 
documented in Docket entry DRAFT-043 DRAS-4.0-inputs.pdf, except 
that the maximum annual waste volume was varied between 1,000 and 
3,500 cubic yards/year.

                Table 3--DRAS Modeling Results for Cobalt
------------------------------------------------------------------------
  Annual waste volume (cubic yards     Modeling results--TCLP limiting
             per year)                       concentration (mg/L)
------------------------------------------------------------------------
                   1,000                                 1.99
                   1,100                                 1.81
                   1,200                                 1.66
                   1,300                                 1.54
                   1,400                                 1.43
                   1,500                                 1.34
                   1,600                                 1.25
                   1,700                                 1.18
                   1,800                                 1.12
                   1,900                                 1.06
                   2,000                                 1.01
                   2,100                                0.961
                   2,200                                0.918
                   2,300                                0.879
                   2,400                                0.843
                   2,500                                0.810
                   2,600                                0.780
                   2,700                                0.751
                   2,800                                0.725
                   2,900                                0.700
                   3,000                                0.678
                   3,100                                0.656
                   3,200                                0.636
                   3,300                                0.617
                   3,400                                0.599
                   3,500                              <=0.583
------------------------------------------------------------------------

    As shown in Table 3 of this preamble, as the annual waste volume 
increases, the TCLP Limiting Concentration for cobalt decreases. More 
specifically, the product of waste volume and the TCLP limiting 
concentration remains constant at 2,000 yds\3\-mg/L (to two significant 
figures). Based on these calculations, the EPA is proposing that the 
exclusion criteria for cobalt be based on a cobalt budget concept. 
Rather than specify an exclusion limit based on a fixed TCLP limiting 
concentration and a corresponding maximum annual waste volume, the 
compliance limit will be established based on a running total 
calculated for each batch. This running total can be expressed 
mathematically as:
[GRAPHIC] [TIFF OMITTED] TP20JA22.000

Where:

V<INF>i</INF> = the volume of each batch in cubic yards (yd\3\);
C<INF>i</INF> = the concentration of cobalt in a TCLP extract of 
each batch;
n = number of batches generated per calendar year

    This running total begins at zero for each annual period, starting 
with the effective date of this exclusion, if finalized. As each batch 
is generated, the running total is updated with the batch contribution 
according to the formula above. The batch volume is expressed in cubic 
yards but may be measured in practice by the weight of each batch 
divided by the density of 0.67 tons/cubic yard (See Section III.C of 
this preamble).\8\ As long as this running total remains below 2,000, 
IWBS that otherwise meets the numerical exclusion criteria according to 
the conditions of this approval and does not exhibit a hazardous 
characteristic may be disposed of in a Subtitle D disposal unit. Once 
the cobalt budget limit of 2,000 is exceeded, all subsequent batches of 
IWBS must be managed as hazardous for the balance of the annual period. 
The EPA notes that wastes with cobalt results greater than 1.99 mg/l in 
an extract of the waste cannot be excluded under this delisting, as 
documented in Table 4 of this preamble. EPA's rationale for this upper 
bound on concentration is that it corresponds to the maximum annual 
quantity of waste modeled by DRAS for all other constituents of 
concern.
---------------------------------------------------------------------------

    \8\ The EPA is applying this density based on available 
information provided by the Petitioner as part of the petition 
submittal process. As explained below, the EPA will require the 
Petitioner to gather additional density data during the first annual 
period under this exclusion, if finalized. If these additional 
density data support use of a revised density for the cobalt budget 
calculation, the EPA will provide the Petitioner approval to use the 
revised density according to Condition 2 of the proposed exclusion.
---------------------------------------------------------------------------

    One of the key elements of this cobalt budget mechanism is that it 
requires analytical data characterizing each batch of IWBS.\9\ In 
discussing this issue with the Petitioner, EPA learned that using an 
outside commercial analytical laboratory for this batch-by-batch 
analysis would complicate the logistics of managing filled containers 
of IWBS pending receipt and evaluation of outside laboratory data. To 
address this logistics problem the Petitioner proposed developing an 
in-house method that would provide faster turnaround and thus faster 
disposal

[[Page 3059]]

decisions for each batch of IWBS. This method is a colorimetric 
procedure which is applied to an extract of IWBS generated using SW-846 
Method 1311.
---------------------------------------------------------------------------

    \9\ Other waste constituents considered in this exclusion do not 
approach the applicable limiting concentration calculated by DRAS. 
Therefore, constituents other than cobalt considered in this 
proposed exclusion do not warrant batch-by-batch sampling.
---------------------------------------------------------------------------

    The Petitioner shared an early draft of the proposed method (Docket 
Entry Method-TCLP-Cobalt-draft-DRAFT-0047), on which the EPA reviewed 
and provided several comments. EPA's comments and the Petitioners 
responses are documented in Docket Entry EPA and Ecology comments Rev 0 
08172021-DRAFT-0048, with the final method documented in Docket Entry 
Method-TCLP-Cobalt-Rev1.0-DRAFT-0049. After resolving these comments, 
the Petitioner obtained paired data on an extract of IWBS prepared in-
house following SW-846 Method 1311, followed by analysis of the extract 
at an off-site commercial laboratory using SW-846 Method 6010C and an 
in-house analysis of the same extract using the in-house colorimetric 
method. These data are presented in Docket Entry RE_Emerald-Kalama 
Delisting Check-In and Planning--meeting follow-up-DRAFT-0051. To 
evaluate these data, the EPA performed a two-point percent relative 
difference analysis on each paired data point. The percent relative 
difference is calculated using the formula:
[GRAPHIC] [TIFF OMITTED] TP20JA22.001

Where:

%RBD = percent relative difference;
X<INF>1</INF> and X<INF>2</INF> = paired data

    The paired data are presented below, along with the calculated 
percent relative difference:

    Table 4--Paired Data Comparison, TCLP Extract Analysis for Cobalt
------------------------------------------------------------------------
                       Petitioner      Independent lab
    Sample No.          analysis          analysis            %RPD
------------------------------------------------------------------------
               1               0.48              0.49               2.1
               2               0.55              0.58               5.3
               3               0.75              0.74               1.3
               4               0.56              0.54               3.6
               5               0.27              0.29               7.1
               6               0.34              0.32               6.1
               7               0.56              0.57               1.8
               8               0.54              0.53               1.9
               9               0.48              0.52               8.0
              10               0.38              0.37               2.7
------------------------------------------------------------------------

    The calculated relative percent difference indicates that the 
results from in-house and outside laboratory are in close agreement, 
with the calculated relative percent difference ranging from 1.3 
percent to 8.0 percent. The EPA notes that a typical analytical 
laboratory performance for paired data from a single sample results in 
a relative percent difference of <plus-minus>30%. Therefore, the 
relative percent difference between the Petitioner's in-house method 
and a standard outside laboratory method compare very favorably to the 
variability seen for multiple laboratory analysis of a single sample. 
On this basis, the EPA has determined that the Petitioner's in-house 
method for analyzing an extract of the IWBS obtained through an SW-846 
Method 1311 TCLP procedure can be used for obtaining batch-by-batch 
cobalt data for use with the cobalt budget mechanism described above.
    Because this cobalt budget tool is a novel application of DRAS 
modelling output to an exclusion, the EPA has determined that it is 
appropriate to review implementation of this model based on real-world 
experience. Therefore, the EPA is proposing a reporting requirement at 
the end of each anniversary of operations under this proposed 
exclusion. Under this requirement, the Petitioner must report all 
verification data obtained during each year following the effective 
date of this exclusion, including measurement of IWBS density and 
additional paired data for cobalt in an extract of the waste according 
to Condition 1 of this proposed exclusion. These additional data will 
provide the EPA with an opportunity to verify that the mechanism is 
operating as intended, and if warranted, to initiate any changes to the 
delisting rule to ensure the criteria of 40 CFR 260.22 will continue to 
be satisfied. EPA is providing a mechanism whereby the Petitioner may 
request relief from this requirement following the first year of 
reporting. If EPA agrees that further reporting is not warranted, EPA 
will provide the Petitioner a written response providing future relief 
from this requirement. EPA will, of course, retain its statutory 
authority under RCRA Sec.  3008(a) to inspect records required by this 
exclusion and to enforce its terms and conditions.
    Because it is likely that the Petitioner will monitor IWBS 
production on a weight basis (it is much easier and more accurate to 
weigh each IWBS roll-off box than to measure the volume of waste in the 
roll-off box), the EPA is requiring the Petitioner to document the 
density of each batch of IWBS during the first year of operations to 
verify that the reported density of 0.67 tons/cubic yard supporting the 
petition is representative of the waste over an entire annual period. 
Should additional data provide a basis to revise the 0.67 tons/cubic 
yard density, the EPA may provide the Petitioner with written approval 
to use an updated value pursuant to Condition 6.
    The Petitioner sampled the IWBS for benzene TCLP twice; once in 
2000 with a result of non-detected at 0.15 mg/L and once in 2014 with a 
result of non-detected at 0.2 mg/L. The Limiting Concentration from the 
DRAS modeling for TCLP benzene is 0.166 mg/L. The PQL for the 2014 TCLP 
benzene sample was greater than the Limiting Concentration of 0.166 mg/
L TCLP, although the model used one-half the detection limit. Based on 
the benzene total concentrations of the IWBS, we conclude that the 
Limiting Concentration from DRAS for TCLP benzene will not be exceeded. 
Verification sampling is required to confirm this, with appropriate 
data quality to allow direct comparison between the laboratory results 
and the delisting exclusion limit of 0.166 mg/l in an extract of the 
waste.
    We therefore conclude that the Petitioner's wastewater treatment 
sludge (IWBS) is not a substantial or potential hazard to human health 
and the environment when disposed of in a Subtitle D landfill according 
to the conditions of this proposed exclusion. Further, the data 
presented by the Petitioner in their petition supports the EPA's 
conclusion that the petitioned waste does not exhibit any hazardous

[[Page 3060]]

characteristic, and that there are no other factors that would warrant 
retaining the waste as hazardous. On this basis, we propose to grant 
the Petitioner's petition to delist this waste. If this exclusion is 
finalized, and subject to the conditions of the final delisting, the 
Petitioner must dispose of the allowed amount of waste (based on the 
verification approach documented in the rule) in a Subtitle D landfill 
permitted or licensed by a state and will remain obligated to verify 
that the waste continues to meet the allowable concentrations set forth 
here. The Petitioner must also continue to demonstrate that the waste 
does not exhibit any hazardous characteristics pursuant to 40 CFR part 
261 subpart C.

IV. Conditions for Exclusion

A. How will the Petitioner manage the waste if it is delisted?

    If the petitioned waste is delisted, the Petitioner must dispose of 
it in a Subtitle D landfill which is permitted, licensed, or registered 
by a state to manage industrial waste.

B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?

    Concentrations measured in the waste of the following constituents 
must not exceed the concentrations in Table 5 below.

    Table 5--Verification Constituents and Compliance Concentrations
------------------------------------------------------------------------
                                         Total
                                     concentration   TCLP concentration
            Constituent             DRAS model (mg/   DRAS model (mg/l)
                                          kg)
------------------------------------------------------------------------
Acetaldehyde......................             N/A  8.65.
Barium............................             N/A  74.8.
Cobalt............................          62,300  cobalt budget
                                                     mechanism.
Copper............................         463,000  19.0.
Nickel............................         402,000  29.2.
Zinc..............................             N/A  426.
Benzaldehyde......................             N/A  6.08.
Benzene...........................         276,000  0.166.
Benzoic Acid......................             N/A  5,000.
Formic Acid.......................         145,000  174.
Benzyl alcohol....................             N/A  125.
Methanol..........................             N/A  2,500.
Phenol............................             N/A  375.
Toluene...........................             N/A  32.6.
------------------------------------------------------------------------

    The EPA notes that in multiple instances the maximum allowable 
total constituent concentrations provided by the DRAS model exceed 100% 
of the waste--these DRAS results are an artifact of the risk 
calculations and do not have physical meaning (since it is not possible 
to have a concentration greater than 100%). In instances where DRAS 
predicts a maximum constituent greater than 100 percent of the waste 
(that is, greater than 1,000,000 mg/kg or mg/L, respectively, for total 
and TCLP concentrations), the EPA is not requiring the Petitioner to 
perform sampling and analysis for that constituent and sampling type 
(total or TCLP). In these instances, the corresponding entry in Table 5 
of this preamble is ``N/A.''

C. How frequently must the Petitioner test the waste?

    To fully verify that the Petitioner's waste complies with the 
verification limits of this proposed exclusion are satisfied on an on-
going basis, and because the Petitioner operates multiple generation 
processes that could alter the concentration of waste constituents from 
which IWBS is derived, the Petitioner must analyze a representative 
sample of the wastewater treatment sludges on a periodic basis to 
demonstrate that the constituents of concern in the petitioned waste do 
not exceed the concentrations of concern in Section IV.B of this 
preamble. The EPA is proposing that the Petitioner sample its delisted 
waste (for the constituents in Table 5 of this preamble, except cobalt) 
every ten roll-off boxes, estimated to be generated at a rate of three/
week.\10\ This would result in approximately 16 samples per year. The 
Petitioner must analyze a representative sample of each batch (roll-off 
box) of the wastewater treatment sludges for cobalt TCLP concentration. 
The Petitioner will use the batch cobalt TCLP concentration, volume of 
IWBS in the batch, and Formula 1 to determine the running cobalt budget 
as discussed in Section III.F of this preamble.
---------------------------------------------------------------------------

    \10\ The Petitioner noted logistics issues if a ``10th batch'' 
must be sampled on a weekend or Federal holiday. See Docket Entry 
RE_Emerald-Kalama Delisting Follow-up-DRAFT-0073. To address this, 
EPA has added a provision that in such circumstances, the Petitioner 
may substitute sampling for the 9th or 11th batch for purposes of 
verification sampling.
---------------------------------------------------------------------------

    The EPA believes that this sampling rate will provide an 
appropriate level of certainty that all delisted waste does indeed meet 
the delisting criteria presented in Table 5 of this preamble. As the 
Petitioner gathers a more extensive data set of sampling data, the EPA 
recognizes that changes to these sampling rates may be warranted. 
Therefore, the EPA is including a proposed provision that the 
Petitioner may request the EPA's approval for changes to the 
verification sampling and analysis frequency. The Petitioner must use 
methods with appropriate analytical sensitivity quality control 
procedures, as documented in a written quality assurance project plan. 
SW-846 Method 1311 must be used for generation of the leachate extract 
used in the testing of the subject waste. SW-846 Method 1311 is 
incorporated by reference in 40 CFR 260.11.
    The Petitioner has provided information to EPA that the Washington 
State Department of Ecology does not currently accredit any laboratory 
in the state of Washington for analysis of acetaldehyde, benzaldehyde, 
or formic acid in samples of solid material. See Docket Entry LAI 
Verification Sampling Plan 2020 04 08 final-DRAFT-0074, Section 3.0 and 
COCs-Lab-Search-DRAFT-0075. Therefore, the EPA will accept laboratory 
analyses result for acetaldehyde, benzaldehyde and formic acid from a 
laboratory that otherwise

[[Page 3061]]

holds accreditation for all other analytes.
    A total analysis of the waste (accounting for any filterable 
liquids and the dilution factor inherent in the TCLP method) may be 
used to estimate the TCLP concentration as provided for in section 1.2 
of Method 1311, except for weekly cobalt sampling.\11\
---------------------------------------------------------------------------

    \11\ For additional details on this approach, see https://archive.epa.gov/epawaste/hazard/web/html/faq_tclp.html.
---------------------------------------------------------------------------

D. What data must the Petitioner submit?

    The Petitioner must submit the data obtained through verification 
testing to U.S. EPA Region 10, Office of Air and Waste, 1200 6th 
Avenue, Suite 155, M/S 15-H04, Seattle, Washington 98101 upon each 
anniversary of the effective date of this exclusion.
    The Petitioner must compile, summarize, and maintain on-site for a 
minimum of five years, records of analytical data required by this 
rule, and operating conditions relevant to those data analytical data. 
The Petitioner must make those records available for inspection. All 
data must be accompanied by a signed copy of the certification 
statement in 40 CFR 260.22(i)(12).

E. What happens if the Petitioner fails to meet the conditions of the 
exclusion?

    If the Petitioner violates the terms and conditions established in 
the exclusion, the Agency may start procedures to withdraw the 
exclusion.
    If the verification testing of the waste does not demonstrate 
compliance with the delisting concentrations described in section IV.B 
above, or other data (including but not limited to leachate data or 
groundwater monitoring data from the final land disposal facility) 
relevant to the delisted waste indicates that any constituent is at a 
concentration in waste above specified delisting verification 
concentrations in Table 5 of this preamble, the Petitioner must notify 
the Agency within 10 days of first possessing or being made aware of 
the data. The exclusion will be suspended, and the waste managed as 
hazardous until the Petitioner has received written approval from the 
EPA to continue the exclusion. The Petitioner may provide sampling 
results which support the continuation of the delisting exclusion.
    The EPA has the authority under RCRA and the Administrative 
Procedure Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting 
decision if we receive new information indicating that the conditions 
of this exclusion have been violated or are otherwise not being met.

F. What must the Petitioner do if the process changes?

    If the Petitioner significantly changes the manufacturing or 
treatment process or the chemicals used in the manufacturing or 
treatment process, the Petitioner may not handle the wastewater 
treatment sludge generated from the new process under this exclusion 
until it has demonstrated to the EPA that the waste meets the 
concentrations set forth in section IV.B and that no new hazardous 
constituents listed in Appendix VIII of 40 CFR part 261 have been 
introduced. The Petitioner must manage wastes generated after the 
process change as hazardous waste until the Petitioner has received 
written notice from the EPA that the demonstration has been accepted.

V. When would the EPA finalize the proposed delisting exclusion?

    40 CFR 260.20(c) requires the EPA to provide notice and an 
opportunity for comment before granting or denying a final exclusion. 
Thus, the EPA will not make a final decision or grant an exclusion 
until it has addressed all timely public comments on today's proposal, 
including any at public hearings.
    Since this proposed rulemaking would reduce the existing 
requirements for persons generating hazardous wastes, the regulated 
community does not need a six-month period to come into compliance in 
accordance with section 3010 of RCRA, 42 U.S.C. 6930, as amended by 
HSWA.

VI. How would this action affect states?

    Because the EPA is proposing to issue this exclusion under the 
federal RCRA delisting regulations, only states subject to federal RCRA 
delisting provisions will be affected. This exclusion may not be 
effective in states which have received authorization from the EPA to 
make their own delisting decisions.
    The EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than the EPA's, under section 3009 
of RCRA, 42 U.S.C. 6929. These more stringent requirements may include 
a provision that prohibits a federally issued exclusion from taking 
effect in the state. We urge petitioners to contact the state 
regulatory authority to establish the status of their wastes under the 
state law.
    The EPA has also authorized some states 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 the Petitioner manages the waste in any state 
with delisting authorization, the Petitioner must obtain delisting 
authorization or other determination from the receiving state before it 
can manage the waste as nonhazardous in that state.
    While Washington State has received final authorization to 
implement most of its dangerous waste program regulations in lieu of 
the Federal program, including the listing and identification of listed 
waste codes associated with the petitioned wastes, it has not been 
authorized to implement its delisting regulations program in lieu of 
the Federal program. The EPA notes that Washington State has provisions 
in the Washington Administrative Code (WAC) 173-303-910(3) similar to 
the Federal provisions upon which this delisting is based. These 
provisions are in effect as a matter of state law. Thus, the Petitioner 
must seek approval from Washington State at the state level in addition 
to this proposed delisting.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

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

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

    This proposed action is not an Executive Order 13771 regulatory 
action because actions such as approval of delisting petitions under 
RCRA are exempted under Executive Order 12866.

C. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) because it only applies to a particular facility.

D. Regulatory Flexibility Act

    Because this rule is of particular applicability relating to a 
particular facility, it is not subject to the regulatory

[[Page 3062]]

flexibility provision of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.).

E. Unfunded Mandates Reform Act

    This proposed action does not contain any unfunded mandate as 
described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and 
does not significantly or uniquely affect small governments. The 
proposed action imposes no new enforceable duty on any state, local, or 
tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.

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

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

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

    This proposed action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 12866, and because the EPA does not believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

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

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

J. National Technology Transfer and Advancement Act

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

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

    The EPA believes that this proposed action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples. The EPA has determined that this proposed action 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment.

L. Congressional Review Act

    This proposed action is exempt from the Congressional Review Act (5 
U.S.C. 801 et seq.) because it is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, and Reporting 
and recordkeeping requirements.

    Dated: January 6, 2022.
Davis Zhen,
Acting Director, Land, Chemicals and Redevelopment Division.

    For the reasons set out in the preamble, the EPA proposes to amend 
40 CFR part 261 as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.

0
2. In Table 1 of Appendix IX to Part 261 add an entry ``Emerald Kalama 
Chemical, LLC'' in alphabetical order to read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. Sec.  260.20 and 
260.22

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[FR Doc. 2022-00728 Filed 1-19-22; 8:45 am]
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