10680 Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 

Item/description of charges 

Rate ($) Montreal to or 

from Lake Ontario 

(5 locks) 

Rate ($) Welland Canal—Lake 

Ontario to or from Lake Erie 

(8 locks) 

Column 1 Column 2 Column 3 

3. Minimum charge per vessel per lock transited for full or partial transit of the Seaway.25.00 .............................................. 25.00. 

4. A charge per pleasure craft per lock transited for full or partial transit of the Seaway, including applicable federal taxes 2.25.00 3 ............................................ 25.00. 

6. Under the New Business Initiative Program, for cargo accepted as 

New Business, a percentage rebate on the applicable cargo 

charges for the approved period.

20% ................................................ 20%. 

7. Under the Volume Rebate Incentive program, a retroactive percentage rebate on cargo tolls on the incremental volume calculated 

based on the pre-approved maximum volume.

10% ................................................ 10%. 

1Or under the US GRT for ships prescribed prior to 2002. 

2The applicable charge at the Saint Lawrence Seaway Development Corporation’s locks (Eisenhower, Snell) for pleasure craft is $30 U.S. or 

$30 Canadian per lock. The applicable charge under item 3 at the Saint Lawrence Seaway Development Corporation’s locks (Eisenhower, Snell) 

will be collected in U.S. dollars. The other amounts are in Canadian dollars and are for the Canadian share of tolls. The collection of the U.S. 

portion of tolls for commercial vessels is waived by law (33 U.S.C. 998a(a)). 3Pleasure craft rates-subject to change in subsequent years. 

§ 402.6 [Redesignated as § 402.8] 

■ 10. Section 402.6 is redesignated as 

§ 402.8 and amended by revising the 

heading and paragraphs (a) and (b) to 

read as follows: 

§ 402.8 Post-clearance date operational 

surcharges. 

(a) Subject to paragraph (b) of this 

section, a vessel that reports for its final 

transit of the Seaway from a place set 

out in column 1 of § 402.11 within a 

period after the clearance date 

established by the Manager and the 

Corporation set out in column 2 of 

402.11 shall pay operational surcharges 

in the amount set out in column 3 of 

402.11, prorated on a per-lock basis. 

(b) If surcharges are postponed for 

operational or climatic reasons, a vessel 

that reports for its final transit of the 

Seaway from a place set out in column 

1 within a period after the clearance 

date established by the Manager and the 

Corporation set out in column 2 shall 

pay operational surcharges in the 

amount set out in column 3, prorated on 

a per-lock basis. 

* * * * * 

■ 11. A new § 402.6 is added to read as 

follows: 

§ 402.6 Volume Rebate Incentive program 

(a) To be eligible to the Volume 

Rebate Incentive program: 

(1) A shipper/receiver in the Great 

lakes/St. Lawrence Seaway System must 

submit to the Manager for approval, 

before June 30th of every season, the 

commodity, as defined under the 

Manager’s commodity classification, for 

which a Volume Rebate is sought, the 

origin or destination of the commodity, 

and a proof of the maximum volume of 

the commodity the shipper/receiver has 

shipped over the last 5 years from that 

origin or to that destination. 

(2) The shipper/receiver must already 

move the commodity, as defined under 

the Manager’s commodity classification, 

through the Seaway at a minimum of 

100,000 tonnes per season for the past 

five navigation seasons. 

(b) Once approved by the Manager, 

the maximum volume will become the 

basis on which to calculate the 

incremental volume. 

(c) The Volume Rebate Incentive 

program is not accessible at the end of 

the navigation season without a preapproved maximum volume within the 

set deadline. 

(d) The same cargo volume can only 

be used by one shipper/receiver. 

(e) For the Volume Rebate to be 

applicable, the total volume of the 

commodity shipped through the Seaway 

must also increase during the navigation 

season. 

Issued at Washington, DC on March 2, 

2009. 

Saint Lawrence Seaway Development 

Corporation. 

Collister Johnson, Jr., 

Administrator. 

[FR Doc. E9–4918 Filed 3–11–09; 8:45 am] 

BILLING CODE 4910–61–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2008–0418; SW–FRL– 

8776–4] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Final Exclusion 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: Environmental Protection 

Agency (EPA) is granting a petition 

submitted by Bayer Material Science in 

Baytown, Texas to exclude (or delist) 

the toluene diisocyanate (TDI) residues 

generated from its facility located in 

Baytown, Texas from the lists of 

hazardous wastes. This final rule 

responds to the petition submitted by 

Bayer Material Science to delist K027 

TDI residues generated from the 

facility’s distillation units. 

After careful analysis and use of the 

Delisting Risk Assessment Software 

(DRAS), EPA has concluded the 

petitioned waste is not hazardous waste. 

This exclusion applies to 9,780 cubic 

yards per year of the K027 residues. 

Accordingly, this final rule excludes the 

petitioned waste from the requirements 

of hazardous waste regulations under 

the Resource Conservation and 

Recovery Act (RCRA) when it is 

disposed in a Subtitle D Landfill. 

DATES: Effective Date: March 12, 2009. 

ADDRESSES: The public docket for this 

final rule is located at the 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202, and is available for 

viewing in EPA Freedom of Information 

Act review room on the 7th floor from 

9 a.m. to 4 p.m., Monday through 

Friday, excluding Federal holidays. Call 

(214) 665–6444 for appointments. The 

reference number for this docket is 

EPA–R06–RCRA–2008–0418. The 

public may copy material from any 

regulatory docket at no cost for the first 

100 pages and at a cost of $0.15 per page 

for additional copies. 

FOR FURTHER INFORMATION CONTACT: Ben 

Banipal, Section Chief of the Corrective 

Action and Waste Minimization 

Section, Multimedia Planning and 

Permitting Division (6PD–C), 


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Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 10681 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202. 

For technical information concerning 

this notice, contact Michelle Peace, 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, (6PD–C), 

Dallas, Texas 75202, at (214) 665–7430, 

or peace.michelle@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this section is organized 

as follows: 

I. Overview Information 

A. What action is EPA finalizing? 

B. Why is EPA approving this action? 

C. What are the limits of this exclusion? 

D. How will Bayer Material Science 

manage the waste, if it is delisted? 

E. When is the final delisting exclusion 

effective? 

F. How does this final rule affect states? 

II. Background 

A. What is a delisting? 

B. What regulations allow facilities to 

delist a waste? 

C. What information must the generator 

supply? 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did Bayer Material Science 

petition EPA to delist? 

B. How much waste did Bayer Material 

Science propose to delist? 

C. How did Bayer Material Science sample 

and analyze the waste data in this 

petition? 

IV. Public Comments Received on the 

Proposed Exclusion 

A. Who submitted comments on the 

proposed rule? 

B. What were the comments and what are 

EPA’s responses to them? 

V. Statutory and Executive Order Reviews 

I. Overview Information 

A. What action is EPA finalizing? 

After evaluating the petition, EPA 

proposed, on May 19, 2008, to exclude 

the TDI residues from the lists of 

hazardous waste under 40 CFR 261.31 

and 261.32 (see 70 FR 41358). EPA is 

finalizing the decision to grant Bayer 

Material Science’s delisting petition to 

have its TDI residues managed and 

disposed as non-hazardous waste 

provided certain verification and 

monitoring conditions are met. 

B. Why is EPA approving this action? 

Bayer Material Science’s petition 

requests a delisting from the K027 waste 

listing under 40 CFR 260.20 and 260.22. 

Bayer Material Science does not believe 

that the petitioned waste meets the 

criteria for which EPA listed it. Bayer 

Material Science also believes no 

additional constituents or factors could 

cause the waste to be hazardous. EPA’s 

review of this petition included 

consideration of the original listing 

criteria and the additional factors 

required by the Hazardous and Solid 

Waste Amendments of 1984. See section 

3001(f) of RCRA, 42 U.S.C. 6921(f), and 

40 CFR 260.22 (d)(1)–(4) (hereinafter all 

sectional references are to 40 CFR 

unless otherwise indicated). In making 

the final delisting determination, EPA 

evaluated the petitioned waste against 

the listing criteria and factors cited in 

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

review, EPA agrees with the petitioner 

that the waste is nonhazardous with 

respect to the original listing criteria. If 

EPA had found, based on this review, 

that the waste remained hazardous 

based on the factors for which the waste 

as originally listed, EPA would have 

proposed to deny the petition. EPA 

evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

EPA considered whether the waste is 

acutely toxic, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 

generated, and waste variability. EPA 

believes that the petitioned waste does 

not meet the listing criteria and thus 

should not be a listed waste. EPA’s final 

decision to delist waste from Bayer 

Material Science’s facility is based on 

the information submitted in support of 

this rule, including descriptions of the 

wastes and analytical data from the 

Baytown, Texas facility. 

C. What are the limits of this exclusion? 

This exclusion applies to the waste 

described in the petition only if the 

requirements described in 40 CFR Part 

261, Appendix IX, Table 2 and the 

conditions contained herein are 

satisfied. 

D. How will Bayer Material Science 

manage the waste, if it is delisted? 

The TDI residues from Bayer Material 

Science will be disposed of in a RCRA 

Subtitle D landfill. 

E. When is the final delisting exclusion 

effective? 

This rule is effective March 12, 2009. 

The Hazardous and Solid Waste 

Amendments of 1984 amended Section 

3010 of RCRA, 42 U.S.C. 6930(b)(1), 

allows rules to become effective less 

than six months after the rule is 

published when the regulated 

community does not need the six-month 

period to come into compliance. That is 

the case here because this rule reduces, 

rather than increases, the existing 

requirements for persons generating 

hazardous waste. This reduction in 

existing requirements also provides a 

basis for making this rule effective 

immediately, upon publication, under 

the Administrative Procedure Act, 

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

F. How does this final rule affect states? 

Because EPA is issuing this exclusion 

under the Federal RCRA delisting 

program, only states subject to Federal 

RCRA delisting provisions would be 

affected. This would exclude states 

which have received authorization from 

EPA to make their own delisting 

decisions. 

EPA allows states to impose their own 

non-RCRA regulatory requirements that 

are more stringent than EPA’s, under 

section 3009 of RCRA, 42 U.S.C. 6929. 

These more stringent requirements may 

include a provision that prohibits a 

federally issued exclusion from taking 

effect in the state. Because a dual system 

(that is, both Federal (RCRA) and State 

(non-RCRA) programs) may regulate a 

petitioner’s waste, EPA urges petitioners 

to contact the State regulatory authority 

to establish the status of their wastes 

under the State law. 

EPA has also authorized some states 

(for example, Louisiana, Oklahoma, 

Georgia, and Illinois) to administer a 

RCRA 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 unless that state makes 

the rule part of its authorized program. 

If Bayer Material Science transports the 

petitioned waste to or manages the 

waste in any state with delisting 

authorization, Bayer Material Science 

must obtain delisting authorization from 

that state before it can manage the waste 

as non-hazardous in the state. 

II. Background 

A. What is a delisting petition? 

A delisting petition is a request from 

a generator to EPA, or another agency 

with jurisdiction, to exclude or delist 

from the RCRA list of hazardous waste, 

certain wastes the generator believes 

should not be considered hazardous 

under RCRA. 

B. What regulations allow facilities to 

delist a waste? 

Under §§ 260.20 and 260.22, facilities 

may petition EPA to remove their 

wastes from hazardous waste regulation 

by excluding them from the lists of 

hazardous wastes contained in 

§§ 261.31 and 261.32. Specifically, 

§ 260.20 allows any person to petition 

the Administrator to modify or revoke 


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10682 Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 

any provision of 40 CFR Parts 260 

through 265 and 268. Section 260.22 

provides generators the opportunity to 

petition the Administrator to exclude a 

waste from a particular generating 

facility from the hazardous waste lists. 

C. What information must the generator 

supply? 

Petitioners must provide sufficient 

information to EPA to allow EPA to 

determine that the waste to be excluded 

does not meet any of the criteria under 

which the waste was listed as a 

hazardous waste. In addition, the 

Administrator must determine, where 

he/she has a reasonable basis to believe 

that factors (including additional 

constituents) other than those for which 

the waste was listed could cause the 

waste to be a hazardous waste and that 

such factors do not warrant retaining the 

waste as a hazardous waste. 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did Bayer Material 

Science petition EPA to delist? 

On September 2, 2004, Bayer 

petitioned EPA to exclude from the lists 

of hazardous waste contained in 

§ 261.32, toluene diisocyanate (TDI) 

residues generated from its facility 

located in Baytown, Texas. The waste 

falls under the classification of a listed 

waste under § 261.30. The waste is 

listed as K027 hazardous wastes. These 

are centrifuge and distillation residues 

from TDI production. 

B. How much waste did Bayer Material 

Science propose to delist? 

Specifically, in its petition, Bayer 

Material Science requested that EPA 

grant a conditional exclusion for 9,780 

cubic yards per year of TDI residues 

resulting from the TDI production 

processes at its facility. 

C. How did Bayer Material Science 

sample and analyze the waste data in 

this petition? 

To support its petition, Bayer Material 

Science submitted: 

• Analytical results of the toxicity 

characteristic leaching procedure 

(TCLP) and total constituent analysis for 

volatile and semivolatile organics, 

pesticides, herbicides, dioxins/furans, 

PCBs and metals for five TDI samples; 

• Analytical results from multiple pH 

leaching of metals; and 

• A description of the TDI production 

process. 

IV. Public Comments Received on the 

Proposed Exclusion 

A. Who submitted comments on the 

proposed rule? 

There was one set of comments 

submitted regarding this petition. The 

commenter was an industry consultant 

in the field of hazardous waste 

recycling. 

B. What were the comments and what 

are EPA’s responses to them? 

Comment 1: Is EPA aware of the fact 

that mishandling of TDI waste bottoms 

at a cement plant permitted to burn 

hazardous waste resulted in a major 

explosion and fire? Please see http:// 

www.ntsb.gov/Publictn/2001/ 

HZM0101.pdf for the DOT report on this 

incident. 

Response 1: The EPA reviewer was 

not aware of the incident at the Essroc 

Cement Corporation in 1999. The DOT 

report identified has been reviewed. As 

a result, EPA will require Bayer to 

employ additional management 

requirements to ensure that the residues 

are offloaded safely and opportunities 

for chemical self-reaction and expansion 

are minimized. 

Comment 2: Did EPA require the 

petitioner to analyze samples of the 

waste for phosgene? Is EPA aware of 

how difficult it is to completely remove 

this highly toxic compound from these 

bottoms? 

Response 2: No, EPA did not require 

the samples to be analyzed for 

phosgene. Phosgene is not included in 

Appendix 9 of Part 264. EPA is aware 

that complete removal of phosgene is 

extremely difficult. However, Bayer 

does use a process to remove TDI, 

phosgene, and orthodichlorbenzene 

from the residuals. Review of 

compliance records did not indicate 

issues that would suggest unsafe 

handling of this highly toxic compound 

has occurred at the Bayer facility. 

Comment 3: Is EPA aware of the fact 

that TDI bottoms are often water 

reactive, potentially generating heat and 

gas when in contact with water? 

Response 3: Yes, EPA is aware that 

TDI is water reactive and has a potential 

to generate heat and gas when it 

contacts water. However, EPA believes 

that the amount of heat generated from 

the TDI residuals will be minimal due 

to the small amount of TDI remaining in 

the residuals. Bayer uses an additional 

reaction step to ensure that there is no 

free TDI remaining in the residues, 

which further alleviates the situation. 

Comment 4: Did EPA require the 

petitioner to submit tests demonstrating 

that there was no TDI present in the 

waste? Is EPA aware of the toxicity and 

reactivity of TDI relative to this issue? 

Response 4: The concentrations of 

leachable TDI in the waste samples 

analyzed were reported as non-detect at 

concentrations less than 0.039 mg/l. As 

a result of the comment made EPA has 

added TDI to the list of constituents, 

Bayer must monitor for and set the limit 

of TDI as 0.039 mg/l. 

Comment 5. Did EPA require the 

petitioner to test the material for 

residual orthodichlorobenzene and 

evaluate the potential environmental 

problems from releasing such a solvent 

outside of hazardous waste regulations? 

Response 5: Yes, the residuals were 

tested for orthodichlorobenzene. The 

potential for release was modeled using 

the DRAS software. The total 

constituent analysis detected this waste 

in concentration of 10 mg/kg; the 

leachable concentration was less than 

0.001 mg/l. The delisting limit is 9.72 

mg/l. This limit will be added to the list 

of constituents Bayer must monitor for 

the TDI residue prior to disposal. 

Comment 6. Is EPA aware of the fact 

that TDI itself can dimerize leading to 

the release of CO2 and potential build 

up of pressure in confined tanks, 

especially upon heating? Given the 

history of the very large explosion at the 

Essroc cement plant in Indiana that 

resulted from mishandling this 

hazardous waste the commenter 

believes that it is imperative that EPA 

make absolutely certain that the 

material proposed for delisting does not 

have any of the hazardous 

characteristics (not EPA definition 

hazardous—but real hazardous in a real 

world setting) that resulted in the 

massive explosion and fire at the 

Indiana plant. 

Response 6: The disposal scenario for 

the Bayer TDI residue is not associated 

with combustion as detailed in the 

Essroc Cement incident because this 

TDI residue is only delisted if and when 

it meets the delisting limits and is 

disposed in a Subtitle D landfill. In light 

of the information presented by this 

commenter, EPA has required that prior 

to its disposal, Bayer handle the 

material safely to prevent its contact 

with water and to continue to minimize 

the possibility of significant amounts of 

free TDI in the residue. As stated above, 

Bayer employs an additional reaction 

step to ensure that free TDI, phosgene, 

and ortho-dichlorobenzene are 

minimized. Therefore, the Agency does 

not believe that the allowable 

concentrations of TDI remaining in the 

waste will pose a significant risk when 

disposed in a Subtitle D landfill. 


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Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 10683 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866, 

‘‘Regulatory Planning and Review’’ (58 

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

not of general applicability and 

therefore is not a regulatory action 

subject to review by the Office of 

Management and Budget (OMB). This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

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

applies to a particular facility only. 

Because this rule is of particular 

applicability relating to a particular 

facility, it is not subject to the regulatory 

flexibility provisions of the Regulatory 

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

to sections 202, 204, and 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). Because this 

rule will affect only a particular facility, 

it will not significantly or uniquely 

affect small governments, as specified in 

section 203 of UMRA. Because this rule 

will affect only a particular facility, this 

final rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, ‘‘Federalism’’, 

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

Executive Order 13132 does not apply 

to this rule. Similarly, because this rule 

will affect only a particular facility, this 

final rule does not have tribal 

implications, as specified in Executive 

Order 13175, ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000). Thus, Executive Order 13175 

does not apply to this rule. This rule 

also is not subject to Executive Order 

13045, ‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

because it is not economically 

significant as defined in Executive 

Order 12866, and because the Agency 

does not have reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

basis for this belief is that the Agency 

used the DRAS program, which 

considers health and safety risks to 

infants and children, to calculate the 

maximum allowable concentrations for 

this rule. This rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

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

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

regulatory action under Executive Order 

12866. This rule does not involve 

technical standards; thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

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

272 note) do not apply. As required by 

section 3 of Executive Order 12988, 

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

February 7, 1996), in issuing this rule, 

EPA has taken the necessary steps to 

eliminate drafting errors and ambiguity, 

minimize potential litigation, and 

provide a clear legal standard for 

affected conduct. The Congressional 

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

added by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report which includes a copy of the 

rule to each House of the Congress and 

to the Comptroller General of the United 

States. Section 804 exempts from 

section 801 the following types of rules: 

(1) Rules of particular applicability; (2) 

rules relating to agency management or 

personnel; and (3) rules of agency 

organization, procedure, or practice that 

do not substantially affect the rights or 

obligations of non-agency parties 5 

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

submit a rule report regarding today’s 

action under section 801 because this is 

a rule of particular applicability. 

Lists of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements. 

Authority: 3001(f) RCRA, 42 U.S.C. 6921(f). 

Dated: January 20, 2009. 

Carl E. Edlund, 

Director, Multimedia Planning and Permitting 

Division. 

■ For the reasons set out in the 

preamble, 40 CFR part 261 is amended 

as follows: 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

■ 1. The authority citation for part 261 

continues to read as follows: 

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

6922, and 6938. 

■ 2. In Table 2 of Appendix IX of part 

261 add the following waste stream in 

alphabetical order by facility to read as 

follows: 

Appendix IX to Part 261—Waste 

Excluded Under §§ 260.20 and 260.22 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * * 

Bayer Material Science LLC ...... Baytown, TX ..... Toluene Diisocyanate (TDI) Residue (EPA Hazardous Waste No. K027) generated at a 

maximum rate of 9,780 cubic yards per calendar year after March 12, 2009. 

For the exclusion to be valid, Bayer must implement a verification testing program that 

meets the following Paragraphs: 

(1) Delisting Levels: 

All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph. 

TDI Residue Leachable Concentrations (mg/l): Arsenic—0.10, Barium—36.0; 

Chloromethane—6.06; Chromium—2.27; Cobalt—13.6; Copper—25.9; Cyanide—3.08; 

Dichlorophenoxyacetic acid—1.08; Diethyl phthalate—1000.0; Endrin—0.02; Lead— 

0.702; Nickel—13.5; ortho-dichlorobenzene—9.72; Selenium—0.89; Tin—22.5; Vanadium—0.976; Zinc—197.0; 2,4-Toluenediamine—0.0459; Toluene Diisocyanate—0.039. 

(2) Waste Holding and Handling: 

(A) Bayer must manage the TDI residue in a manner to ensure that the residues are 

offloaded safely and opportunities for chemical self-reaction and expansion are minimized. The TDI residue must be handled to ensure that contact with water is minimized. 

(B) Waste classification as non-hazardous cannot begin until compliance with the limits set 

in paragraph (1) for the TDI residue has occurred for two consecutive quarterly sampling 

events and the reports have been approved by EPA. 


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10684 Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(C) If constituent levels in any sample taken by Bayer exceed any of the delisting levels set 

in paragraph (1) for the TDI residue, Bayer must do the following: 

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

(ii) manage and dispose the TDI residue as hazardous waste generated under Subtitle C 

of RCRA. 

(3) Testing Requirements: 

Upon this exclusion becoming final, Bayer must perform quarterly analytical testing by 

sampling and analyzing the TDI residue as follows: 

(A) Quarterly Testing: 

(i) Collect two representative composite samples of the TDI residue at quarterly intervals 

after EPA grants the final exclusion. The first composite samples may be taken at any 

time after EPA grants the final approval. Sampling should be performed in accordance 

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

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

taken that exceeds the delisting levels listed in paragraph (1) for the TDI residue must 

be disposed as hazardous waste in accordance with the applicable hazardous waste requirements. 

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

quarterly analytical test data to EPA. If levels of constituents measured in the samples of 

the TDI residue do not exceed the levels set forth in paragraph (1) of this exclusion for 

two consecutive quarters, Bayer can manage and dispose the non-hazardous TDI residue according to all applicable solid waste regulations. 

(B) Annual Testing: 

(i) If Bayer completes the quarterly testing specified in paragraph (3) above and no sample 

contains a constituent at a level which exceeds the limits set forth in paragraph (1), 

Bayer can begin annual testing as follows: Bayer must test two representative composite 

samples of the TDI residue for all constituents listed in paragraph (1) at least once per 

calendar year. 

(ii) The samples for the annual testing shall be a representative composite sample according to appropriate methods. As applicable to the method-defined parameters of concern, 

analyses requiring the use of SW–846 methods incorporated by reference in 40 CFR 

260.11 must be used without substitution. As applicable, the SW–846 methods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 

1010A, 1020B, 1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 

9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B, and 9095B. Methods must 

meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the Bayer spent carbon are representative for 

all constituents listed in paragraph (1). 

(iii) The samples for the annual testing taken for the second and subsequent annual testing 

events shall be taken within the same calendar month as the first annual sample taken. 

(iv) The annual testing report must include the total amount of waste in cubic yards disposed during the calendar year. 

(4) Changes in Operating Conditions: 

If Bayer significantly changes the process described in its petition or starts any process 

that generates the waste that may or could affect the composition or type of waste generated (by illustration, but not limitation, changes in equipment or operating conditions of 

the treatment process), it must notify EPA in writing and it may no longer handle the 

wastes generated from the new process as non-hazardous until the wastes meet the 

delisting levels set in paragraph (1) and it has received written approval to do so from 

EPA. 

Bayer must submit a modification to the petition complete with full sampling and analysis 

for circumstances where the waste volume changes and/or additional waste codes are 

added to the waste stream. 

(5) Data Submittals: 

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

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

time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as 

described in paragraph (6). Bayer must: 

(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and 

Waste Minimization Section, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the 

time specified. All supporting data can be submitted on CD–ROM or some comparable 

electronic media. 

(B) Compile records of analytical data from paragraph (3), summarized, and maintained 

on-site for a minimum of five years. 

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

for inspection. 


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Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 10685 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(D) Send along with all data a signed copy of the following certification statement, to attest 

to the truth and accuracy of the data submitted. ‘‘Under civil and criminal penalty of law 

for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that the information contained in or 

accompanying this document is true, accurate and complete. 

As to the (those) identified section(s) of this document for which I cannot personally verify 

its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that 

this information is true, accurate and complete. 

If any of this information is determined by EPA in its sole discretion to be false, inaccurate 

or incomplete, and upon conveyance of this fact to the company, I recognize and agree 

that this exclusion of waste will be void as if it never had effect or to the extent directed 

by EPA and that the company will be liable for any actions taken in contravention of the 

company’s RCRA and CERCLA obligations premised upon the company’s reliance on 

the void exclusion.’’ 

(6) Reopener: 

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

aware of any environmental data (including but not limited to leachate data or ground 

water monitoring data) or any other data relevant to the delisted waste indicating that 

any constituent identified for the delisting verification testing is at a level higher than the 

delisting level allowed by EPA in granting the petition, then the facility must report the 

data, in writing, to EPA within 10 days of first possessing or being made aware of that 

data. 

(B) If either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph 1, Bayer must report the data, in writing, to EPA within 10 days of 

first possessing or being made aware of that data. 

(C) If Bayer fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if 

any other information is received from any source, EPA will make a preliminary determination as to whether the reported information requires action to protect human health 

and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. 

(D) If EPA determines that the reported information requires action, EPA will notify the facility in writing of the actions it believes are necessary to protect human health and the 

environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information explaining why the 

proposed EPA action is not necessary. The facility shall have 10 days from the date of 

EPA’s notice to present such information. 

(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if 

no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), EPA will issue a final written determination 

describing the actions that are necessary to protect human health and/or the environment. Any required action described in EPA’s determination shall become effective immediately, unless EPA provides otherwise. 

(7) Notification Requirements 

Bayer must do the following before transporting the delisted waste. Failure to provide this 

notification will result in a violation of the delisting petition and a possible revocation of 

the decision. 

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

through which it will transport the delisted waste described above for disposal, 60 days 

before beginning such activities. 

(B) Update the one-time written notification if it ships the delisted waste into a different disposal facility. 

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

possible revocation of the decision. 

* * * * * * * 

[FR Doc. E9–5213 Filed 3–11–09; 8:45 am] 

BILLING CODE 6560–50–P 


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