[Federal Register: March 12, 2009 (Volume 74, Number 47)]
[Rules and Regulations]
[Page 10680-10685]
[DOCID:fr12mr09-7]

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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.

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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<PHONE_NUMBER> 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),

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<PHONE_NUMBER>, or
<EMAIL_ADDRESS>
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 Sec.
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the
petitioner that the waste is nonhazardous with respect to the original
listing criteria. If EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste 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 Sec. Sec.  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 Sec. Sec.  261.31 and
261.32. Specifically, Sec.  260.20 allows any person to petition the
Administrator to modify or revoke

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 Sec.  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 Sec.  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.

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.

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For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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2. In Table 2 of Appendix IX of part 261 add the following waste stream
in alphabetical order by facility to read as follows:

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

                                  Table 2--Waste Excluded From Specific Sources
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                 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.

                                                                     (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.

                                                                     (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.

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

BILLING CODE 6560-50-P