Federal Register / Vol. 87, No. 13 / Thursday, January 20, 2022 / Proposed Rules 3053 

1The 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. 

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. 

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: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• 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. 

• 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. 

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: 

bartus.dave@epa.gov. 

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/Permitscertifications/Industrial-facilitiespermits/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 


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2Washington 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. 

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 nonlisted 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

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 ‘‘derivedfrom’’ 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 


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3The 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. 

4The 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. 

5The 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. 

3,500 cubic yards of IWBS be excluded 

from the list of hazardous wastes.3

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. 

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. 

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 


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6As 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. 

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. 

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-wastedelisting-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 


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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/hazardouswaste-delisting-risk-assessmentsoftware-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 generation Up to 3,500 cubic yards/year ........ Conservative estimation value based on facility-specific information. 

Waste Management Unit Active Life 20 years ......................................... Selected based on the DRAS default value. 

Target risk—carcinogenic risk level 1 × 10¥5 ........................................ Based on risk ranges 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 × 10¥5 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

Constituent of concern 

Maximum observed 

concentration 1

Modeling results 

Total 1

(mg/kg) 

TCLP 

(mg/L) 4

Total concentrations TCLP concentration 

Limiting 

concentration 

(mg/kg) 2

Limiting pathway 3

Limiting 

concentration 

(mg/L) 2

Limiting pathway 3

Acetaldehyde ................ N/A N/A 255,000,000 Air Particulate Inhalation.8.65 Groundwater 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 Inhalation.0.583 Groundwater Ingestion. 

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 Inhalation.29.2 Groundwater Ingestion. 

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. 


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7The 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. 

8The 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. 

9Other 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. 

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. 

TABLE 3—DRAS MODELING RESULTS

FOR COBALT

Annual waste 

volume 

(cubic yards per year) 

Modeling 

results—TCLP 

limiting 

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 yds3-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: 

Where: 

Vi = the volume of each batch in cubic yards 

(yd3); 

Ci = 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. 

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 


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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. 

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 inhouse 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: 

Where: 

%RBD = percent relative difference; 

X1 and X2 = 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

Sample No. Petitioner 

analysis 

Independent 

lab 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 ±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 inhouse 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 § 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 nondetected 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 


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10The 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. 

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

Constituent 

Total 

concentration 

DRAS model 

(mg/kg) 

TCLP concentration DRAS model 

(mg/l) 

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. 

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 


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11For additional details on this approach, see 

https://archive.epa.gov/epawaste/hazard/web/html/ 

faq_tclp.html. 

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

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/lawsregulations/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 


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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 

■ 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. 

■ 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 §§ 260.20 and 260.22 

BILLING CODE 6560–50–P 


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Table I-Wastes Excluded From Non-Specific Sources 

Facility Address Waste description 

* * * * * * * 

Emerald Kalama Kalama, Wastewater treatment sludges, U019 (benzene) and U220 (toluene), generated at Emerald Kalama 

Chemical, LLC Washington Chemical, LLC in Kalama, Washington at a maximum annual rate of 3,500 cubic yards per year. The 

sludge must be disposed of in a Subtitle D landfill which is licensed, permitted, or otherwise 

authorized by a state to accept the delisted wastewater treatment sludge. The exclusion becomes 

effective as of January 20, 2022. 

1. Delisting Levels: 

The constituent concentrations in a representative sample of the waste must not exceed the following 

levels. Total concentrations (mg/kg): Cobalt--62,300; Copper-463,000; Nickel-402,000; Benzene276,000; Formic Acid-145,000. TCLP Concentrations (mg/I in the waste extract): Acetaldehyde-8.65; 

Barium-74.8; Copper-19.0; Nickel-29.2; Zinc-426; Benzaldehyde-6.08; Benzene--0.166; Benzoic 

Acid-5,000; Formic Acid-174; Benzyl Alcohol-125; Methanol-2,500; Phenol-375; Toluene-32.6. 

For the cobalt concentration in an extract of the waste, the exclusion is based on a demonstration of 

being within a cobalt budget defined as 2000 yds3-mg/L. The Petitioner must calculate a running total 

starting with the effective date of this exclusion, and for each annual period, using the following: 

n 

LViCi 

1 

Where Vi= the volume of each batch in cubic yards (yd3) 

Ci = the concentration of cobalt in a TCLP extract of each batch as per 

Condition of this exclusion (mg/L) 

n = number of batches generated per year 

The Petitioner may conduct analysis for cobalt in an extract of the IWBS biosolids using the in-house 

method documented in (reference) as placed in the rulemaking docket. The Petitioner may monitor the 

quantity of waste in each batch on a weight basis, converting to volume using a documented density of 

0.67 tons/cubic yard. Provided that the cumulative cobalt budget remains less than the limit of 2000 

yds3-mg/L each batch will be considered in compliance with the exclusion limit for cobalt in an extract 

of the waste. However, any batch with a cobalt concentration greater than 1.99 mg/I in a TCLP extract 

of the waste cannot be managed under this exclusion and must remain subject to RCRA Subtitle C 

regulation. For the first year following the effective date of this exclusion, the Petitioner shall also 

document the density ofIWBS for each batch ofIWBS using ASTM Method ASTM E1109 - 19 or 

other equivalent method for purposes of verifying the 0.67 tons/cubic yard density. In addition, the 
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Petitioner shall, on an on-going monthly basis, obtain analysis of one spit aliquot of the TCLP extract 

of IWBS biosolids for cobalt from an independent laboratory accredited by the Washington State 

Department of Ecology subject to the provision of Condition 2 below. 

2. Reporting. Within 60 days of each anniversary of the effective date of this exclusion, or such other 

time as the EPA may approve in writing, the Petitioner shall provide a written report to the EPA 

documenting all data gathered regarding extraction and analysis of the extract for cobalt pursuant to 

the requirements of this exclusion, including the results of IWBS density measurement (first year 

report only) and the independent laboratory data for cobalt required by Condition 1. This report must 

be accompanied by the signed certification language appearing at 40 CFR 270.1( dXl ). After review of 

the density data presented in this report, the EPA may provide the Petitioner written approval to use 

some other numerical density than 0.67 tons/cubic yard for purposes of subsequent implementation of 

cobalt budget calculations pursuant to Condition 1. Following submission of the first annual report, the 

Petitioner may request relief from the spilt aliquot analysis requirement in Condition 1. Upon receipt of 

written approval of the request from EPA, the Petitioner will be relieved of the spilt aliquot analysis 

requirement in Condition 1. 

3. Verification Testing: To verify that the waste does not exceed the delisting concentrations specified 

in Condition 1 ( except for cobalt), the Petitioner must collect and analyze one representative waste 

sample of every tenth roll-off box of wastewater treatment sludge. If this sampling is expected to occur 

on a weekend or a federal holiday, the Petitioner may substitute sampling of the 9th or 11th batch, with 

sampling of subsequent batches resuming on the original every 10th roll-off box schedule. EPA notes 

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. the EPA will accept laboratory analyses result for acetaldehyde, benzaldehyde and formic 

acid from a laboratory that otherwise holds accreditation for all other analytes. For cobalt, sampling 

must occur once per batch (as defined by a single roll-off box). All sampling and analysis must be 

conducted using methods with appropriate detection concentrations and elements of quality control. 

Sampling data must be provided to the EPA no later 60 days following each anniversary of the 

effective date of this delisting, or such later date as the EPA may agree to in writing. No earlier than 

the first anniversary of the effective date of this delisting, the Petitioner may request that the EPA 

approve changes to the sampling frequency under this condition. Such a request must include data and 

analysis that demonstrated that the revised sampling frequency will ensure that all wastes subject to 

this exclusion will consistently satisfy the delisting exclusion criteria under Condition 1. The Petitioner 

must conduct all verification sampling according to a written sampling plan and associated quality 

assurance project plan which is approved in advance by the EPA that ensures analytical data are 

suitable for their intended use. The Petitioner's annual submission must also include a ce1tification that 
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all wastes satisfying the delisting concentrations in Condition 1 have been disposed of in a Subtitle D 

landfill which is licensed, permitted, or otherwise authorized by a state to accept the delisted 

wastewater treatment sludge. 

4. Changes in Operating Conditions: The Petitioner must notify the EPA in writing if it significantly 

changes the manufacturing process, the chemicals used in the manufacturing process, the treatment 

process, or the chemicals used in the treatment process. The Petitioner must handle wastes generated 

after the process change as hazardous until it has demonstrated that the wastes continue to meet the 

delisting concentrations in Condition 1, demonstrated that no new hazardous constituents listed in 40 

CFR Part 261 Appendix VIII have been introduced into the manufacturing process or waste treatment 

process, and it has received written approval from the EPA that it may continue to manage the waste as 

non-hazardous. 

5. Data Submittals: The Petitioner must submit the data obtained through verification testing or as 

required by other conditions of this rule to the Director, Land, Chemical, & Redevelopment Division, 

U.S. EPA Region 10, 1200 6th Avenue Suite 155, MIS 15-H04, Seattle, Washington, 98101 or his or 

her equivalent. The annual verification data and certification of proper disposal must be submitted 

within 60 days after each anniversary of the eflective date of this delisting exclusion, or such later date 

as the EPA may agree to in writing. 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. The Petitioner must make these records available for inspection. All data must be 

accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(l2). If the Petitioner 

fails to submit the required data within the specified time or maintain the required records on-site for the 

specified time, the EPA may, at its discretion, consider such failure a sufficient basis to reopen the 

exclusion as described in paragraph 5. 

6. Reopener Language: (A) If, any time after disposal of the delisted waste, the Petitioner possesses or is 

otherwise made aware of any data relevant to the delisted waste indicating that any constituent is at a 

higher than the specified delisting concentration, then the Petitioner must report such data, in writing, to 

the Director, Land, Chemical, & Redevelopment Division, EPA Region l 0 at the address above, or his 01 

her equivalent, within 10 days of first possessing or being made aware of those data. 

(B) Based on the information described in Condition 4 or 6(A) and any other information received from 

any source, the EPA will make a preliminary determination as to whether the reported information 

requires Agency action to protect human health or the environment. Further action may include 

suspending, or revoking the exclusion, or other appropriate response necessary to protect human health 

and the environment. 

(C) If the EPA determines that the reported information does require Agency action, the EPA will 

notify the Petitioner in writing of the actions it believes are necessary to protect human health and the 
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[FR Doc. 2022–00728 Filed 1–19–22; 8:45 am] 

BILLING CODE 6560–50–C 


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environment. The notice shall include a statement of the proposed action and a statement providing the 

Petitioner with an opportunity to present information as to why the proposed Agency action is not 

necessary or to suggest an alternative action. The Petitioner shall have 30 days from the date of the 

EP A's notice to present the information. 

(D) If after 30 days the Petitioner presents no further information or after a review of any submitted 

information, the EPA will issue a final written determination describing the Agency actions that are 

necessary to protect human health or the environment. Any required action described in the EP A's 

determination shall become effective immediately unless the EPA provides otherwise. 

* * * * * * *