
[Federal Register: May 19, 2008 (Volume 73, Number 97)]
[Proposed Rules]               
[Page 28768-28786]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my08-16]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2008-0418; SW-FRL-8566-6]

 
Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA is proposing to use the Delisting Risk Assessment 
Software (DRAS) Version 3.0 in the evaluation of a delisting petition. 
Based on waste specific information provided by the petitioner, EPA is 
proposing to use the

[[Page 28769]]

DRAS to evaluate the impact of the petitioned waste on human health and 
the environment. This proposal provides background information on the 
updates and revisions made to the DRAS, and the use of the DRAS in 
delisting decision-making. The EPA is also proposing to grant petitions 
submitted by Bayer Material Science in Baytown, Texas; Lockheed Martin 
Aeronautics Company in Ft. Worth, Texas; and ConnocoPhillips Company 
Borger Refinery in Borger, Texas, to exclude (or delist) certain solid 
wastes generated by these facilities from the lists of hazardous 
wastes.

DATES: We will accept comments until June 18, 2008. We will stamp 
comments postmarked after the close of the comment period as ``late.'' 
These ``late'' comments may not be considered in formulating a final 
decision.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0418 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov: Follow 
the on-line instructions for submitting comments.
    2. E-mail: peace.michelle@epa.gov.
    3. Mail: Michelle Peace, Environmental Protection Agency, 
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code: 
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier: Deliver your comments to: Michelle 
Peace, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0418. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail 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, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, 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.
    Docket. All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not 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. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The 
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2008-0418, is available for viewing from 8 a.m. to 5 p.m., Monday 
through Friday, excluding Federal holidays. The public may copy 
material from the regulatory docket at $0.15 per page. EPA requests 
that you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The interested persons 
wanting to examine these documents should make an appointment with the 
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket or the 
Bayer facility petition, contact Michelle Peace, Environmental 
Protection Agency, Multimedia Planning and Permitting Division, RCRA 
Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by 
calling 214-665-7430 or by e-mail at peace.michelle@epa.gov.
    For technical information regarding the ConocoPhillips Company 
petition, contact Youngmoo Kim at 214-665-6788 or by e-mail at 
kim.youngmoo@epa.gov.
    For information regarding the Lockheed Martin petition, contact 
Wendy Jacques at (214) 665-7395 or by e-mail at jacques.wendy@epa.gov.
    Your requests for a hearing must reach EPA by June 3, 2008. The 
request must contain the information described in Sec.  260.20(d).

SUPPLEMENTARY INFORMATION: Each company listed in the SUMMARY submitted 
a petition under 40 CFR 260.20 and 260.22(a). Section 260.20 allows any 
person to petition the Administrator to modify or revoke any provision 
of Sec. Sec.  260 through 266, 268 and 273. Section 260.22(a) 
specifically provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists.
    The Agency bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA).
    If finalized, we would conclude the petitioned wastes from these 
facilities are nonhazardous with respect to the original listing 
criteria and that the waste process used will substantially reduce the 
likelihood of migration of hazardous constituents from this waste. We 
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the 
environment.
    The information in this section is organized as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve these delistings?
    C. What is unique about these delistings?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
III. EPA's Evaluation of the Individual Waste Information and Data
    A. Bayer Material Science LLC, Baytown, Texas--TDI Residue
    1. What waste did Bayer petition EPA to delist?
    2. Who is Bayer and what process does it use to generate the 
petitioned waste?
    3. What information did the facility submit to support this 
petition?
    4. What were the results of Bayer's analyses?
    5. What did EPA conclude about the facility's analysis?
    6. What other factors did EPA consider in its evaluation?
    7. What is EPA's evaluation of this delisting petition?

[[Page 28770]]

    8. What is the final disposition of the waste?
    B. ConnocoPhillips Company, Borger, Texas--Thermal Desorber 
Residual Solids
    1. What waste did ConnocoPhillips Company petition EPA to 
delist?
    2. Who is ConnocoPhillips Company and what process does it use 
to generate the petitioned waste?
    3. How did ConnocoPhillips Company sample and analyze the data 
in this petition?
    4. What were the results of ConnocoPhillips Company's analysis?
    5. What did EPA conclude about the facility's analysis?
    6. What other factors did EPA consider in its evaluation?
    7. What is EPA's evaluation of this delisting petition?
    8. What is the final disposition of the waste?
    C. Lockheed Martin Aeronautics Company, Fort Worth, Texas--F019 
Waste Water Treatment Sludge
    1. What waste did Lockheed Martin Aeronautics Company petition 
EPA to delist?
    2. Who is Lockheed Martin Aeronautics Company and what process 
do they use to generate the petition waste?
    3. What information did Lockheed Martin Aeronautics Company 
submit to support this petition?
    4. What were the results of Lockheed Martin Aeronautics 
Company's analysis?
    5. What did EPA conclude about the facility's analysis?
    6. What other factors did EPA consider in its evaluation?
    7. What is EPA's evaluation of this delisting petition?
IV. The Risk Evaluation
    A. How did EPA evaluate the risk of delisting these wastes?
    B. What Changes have been made to the DRAS model?
V. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if the petitioners violates the terms and 
conditions?
VI. Public Comments
    A. How may I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
VII. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing to grant the delisting petitions submitted by 
Bayer, ConnocoPhillips Company, and Lockheed Martin Aeronautics Company 
(Lockheed Martin Aeronautics Company) to have their petitioned wastes 
excluded, or delisted, from the definition of a hazardous waste.

B. Why is EPA proposing to approve these delistings?

    Each individual petition requests a delisting for the waste stream 
be delisted. They do not believe that their petitioned wastes meet the 
criteria for which EPA listed them. They also believe no additional 
constituents or factors could cause the wastes to be hazardous. EPA's 
review of these petitions included consideration of the original 
listing criteria, and the additional factors required by the Hazardous 
and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 
42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the initial 
delisting determination, EPA evaluated each of the petitioned wastes 
against the listing criteria and factors cited in Sec. Sec.  
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the 
petitioners that the wastes are non-hazardous with respect to the 
original listing criteria. If EPA had found, based on these reviews, 
that the wastes remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petitions. EPA evaluated the wastes with respect to other factors or 
criteria to assess whether there is a reasonable basis to believe that 
such additional factors could cause the wastes to be hazardous. EPA 
considered whether the wastes were acutely toxic, the concentration of 
the constituents in the wastes, their tendencies to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the wastes, plausible and specific types of management of the 
petitioned waste, the quantities of wastes generated, and waste 
variability. EPA believes that the each petitioned waste does not meet 
the listing criteria and thus should not be a listed waste. EPA's 
proposed decision to delist these individual waste streams from the 
facilities above is based on the information submitted in support of 
this rule, including descriptions of the waste and analytical data from 
each facility.

C. What is unique about these delistings?

    Each of the petitioned wastes has been submitted by individual 
facilities. Each waste stream has been evaluated on its own merit. The 
proposed rule is being combined because each of these petitions have 
been evaluated using the new provisional delisting numbers generated by 
DRAS Version 3.0.

II. Background

 A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended this list several times and published it in Sec. Sec.  261.31 
and 261.32. EPA lists these wastes as hazardous because: (1) They 
typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in Subpart C of Part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in Sec.  261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

 B. What is a delisting petition, and what does it require of a 
petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not believe the wastes 
should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in Part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics and 
present sufficient information for EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See Part 261 and the background documents for the 
listed waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

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

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, EPA must consider any factors (including additional 
constituents) other than those

[[Page 28771]]

for which EPA listed the waste, if a reasonable basis exists to 
determine that these additional factors could cause the waste to be 
hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and 
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

D. When would the proposed delisting exclusions be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion unless and until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months after EPA addresses public 
comments when the regulated facility does not need the six-month period 
to come into compliance. That is the case here, because this rule, if 
finalized, would reduce the existing requirements for persons 
generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect the 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 the 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. Delisting 
petitions approved by the EPA Administrator (or his designee) under 40 
CFR 260.22 are effective in the State of Texas only after the final 
rule has been published in the Federal Register.

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

A. Bayer Material Science LLC, Baytown Texas--TDI Residue

1. What waste did Bayer 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. 
Specifically, in its petition, Bayer requested that EPA grant a 
conditional exclusion for 9,780 cubic yards per year of the TDI 
residues.
2. Who is Bayer and what process does it use to generate the petitioned 
waste?
    Bayer as a facility has four manufacturing groups: Plastics, 
Coatings, Polyurethanes, and Industrial Chemicals. They manufacture six 
products within the manufacturing groups. Hydrazine Hydrate; Maleic 
Anhydride; Coatings; Makrolon Polycarbonate; Methane Diisocyanate; and 
Toluene Diisocyanate (TDI) which is used in flexible foam applications 
such as auto seating, furniture and bedding.
    TDI is produced by a reaction of toluene diamine (TDA) and 
phosgene. The reaction takes place in a solvent (orthodichlorobenzene, 
ODB). The reaction produces TDI, HCL gas and a small amount of high 
boiling impurities, which are removed in the TDI residue stream. The 
HCL gas is recovered and re-used, all the phosgene is stripped from the 
product stream and returned to the process in the reaction step. The 
TDI, ODB, and the residue stream are processed further by separating 
the residue from the TDI and ODB through a distillation process. The 
stream resulting from the distillation process contains bottom residues 
mixed with TDI and solvent. The residue separation step removes the TDI 
and ODB, leaving the residue waste. ODB is separated from TDI and 
recycled back into the process and pure TDI is sold as product.
3. What information did the facility submit to support this petition?
    To support its petition, Bayer 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.
4. What were the results of Bayer's analyses?
    EPA believes that the descriptions of the Bayer analytical 
characterization provide a reasonable basis to grant Bayer's petition 
for an exclusion of the TDI residues. EPA believes the data submitted 
in support of the petition show the TDI residues are non-hazardous. 
Analytical data for the residue samples were used in the DRAS to 
develop delisting levels. The data summaries for compounds of concern 
(COC)s are presented in Table 1. EPA has reviewed the sampling 
procedures used by Bayer and has determined that it satisfies EPA 
criteria for collecting representative samples of the variations in 
constituent concentrations in the TDI residues. In addition, the data 
submitted in support of the petition show that constituents in Bayer's 
waste are presently below risk-based levels used in the delisting 
decision-making. EPA believes that Bayer has successfully demonstrated 
that the TDI residues are non-hazardous.

[[Page 28772]]



     Table 1.--Analytical Results and Maximum Allowable Delisting Concentrations of the TDI Residues at Bayer
                                           Polymers LLC In Baytown, TX
----------------------------------------------------------------------------------------------------------------
                                                                                                     Maximum
                                                              Maximum total   Maximum TCLP (mg/  allowable TCLP
                       Constituents                              (mg/kg)             L)          delisting level
                                                                                                     (mg/L)
----------------------------------------------------------------------------------------------------------------
 Arsenic..................................................            1.0              0.011              0.10
 Barium...................................................            0.17             0.837             36.0
 Chloromethane (Methyl Chloride)..........................            0.09             0.033              6.06
 Chromium.................................................           30.2              0.0034             2.27
 Cobalt...................................................            0.42             0.0007            13.6
 Copper...................................................            0.64             0.00610           25.9
 Cyanide..................................................            0.265            0.0133             3.08
 Dichlorophenoxyacetic acid...............................            0.0310           0.0020             1.08
 Diethyl phthalate........................................            8.90             0.0010          1000.0
 Endrin...................................................            0.28             0.0002             0.02
 Lead.....................................................            0.18             0.00210            0.702
 Nickel...................................................           24.8              0.0525            13.5
 Selenium.................................................           88.0              0.0209             0.89
 Tin......................................................            1.70             0.0196            22.5
 2-4 Toluenediamine.......................................            1.80             0.020              0.0459
 Vanadium.................................................            8.40             0.0225             0.976
 Zinc.....................................................            2.20             0.0628           197.0
----------------------------------------------------------------------------------------------------------------
Note: 1. These levels represent the highest constituent concentration found in any one sample and do not
  necessarily represent the specific level found in one sample.

 5. What did EPA conclude about the facility's analysis?
    EPA concluded, after reviewing Bayer's processes that no other 
hazardous constituents of concern, other than those for which Bayer 
tested, are likely to be present or formed as reaction products or by-
products in Bayer's wastes. In addition, on the basis of explanations 
and analytical data provided by Bayer, pursuant to Sec.  260.22, EPA 
concludes that the petitioned waste, sludge, does not exhibit any of 
the characteristics of ignitability, corrosivity, reactivity, or 
toxicity. See Sec. Sec.  261.21, 261.22, 261.23, and 261.24 
respectively.
 6. What other factors did EPA consider in its evaluation?
    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the sludge. With 
regard to airborne dispersion in particular, EPA believes that exposure 
to airborne contaminants from the petitioned waste is unlikely. No 
appreciable air releases are likely from the sludge under any likely 
disposal conditions. EPA evaluated the potential hazards resulting from 
the unlikely scenario of airborne exposure to hazardous constituents 
released from the waste water in an open landfill. The results of this 
worst-case analysis indicated that there is no substantial present or 
potential hazard to human health and the environment from airborne 
exposure to constituents from the sludge.
7. What is EPA's evaluation of this delisting petition?
    The descriptions by Bayer's of the hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this notice), provide a reasonable 
basis for EPA to grant the petition. The data submitted in support of 
the petition show that constituents in the waste are below the maximum 
allowable concentrations (See Table 1). EPA believes that the sludge 
generated by Bayer contains hazardous constituents at levels which will 
present minimal short-term and long-term threats from the petitioned 
waste to human health and the environment.
    Thus, EPA believes that it should grant to Bayer an exclusion from 
the list of hazardous wastes for the TDI residue. EPA believes that the 
data submitted in support of the petition show the Bayer's TDI residue 
to be non-hazardous.
    EPA has reviewed the sampling procedures used by Bayer and has 
determined they satisfy EPA's criteria for collecting representative 
samples of variable constituent concentrations in the TDI residue. The 
data submitted in support of the petition show that constituents in 
Bayer's wastes are presently below the compliance-point concentrations 
used in the delisting decision-making process and would not pose a 
substantial hazard to the environment and the public. EPA believes that 
Bayer has successfully demonstrated that the TDI residue is non-
hazardous.
    EPA, therefore, proposes to grant an exclusion to Bayer for the TDI 
residue described in its July 2004 petition. EPA's decision to exclude 
this waste is based on analysis performed on samples taken of the TDI 
residue.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
9,780 cubic yards per year of TDI residue from Bayer's Baytown facility 
under parts 262 through 268 and the permitting standards of part 270.
8. What is the final disposition of the waste?
    If EPA finalizes the proposed rule, the TDI residue will be 
disposed of in a Subtitle D landfill.

B. ConocoPhillips Company, Borger, Texas--Thermal Desorber Residual 
Solids

1. What waste did ConocoPhillips Company petition EPA to delist?
    On August 26, 2005, ConocoPhillips Company, (now WRB Refining LLC) 
petitioned EPA to exclude from the lists of hazardous wastes contained 
in Sec. Sec.  261.31, thermal desorber residual solids from processing 
oil-bearing hazardous secondary materials including F037, F038, K048, 
K049, K050 and K051 generated by its facility located in Borger, Texas. 
The waste falls under the classification of listed waste pursuant to 
Sec.  261.31. Specifically, in its petition, ConocoPhillips Company 
requested that EPA grant a conditional exclusion for 1500 cubic yards 
per year

[[Page 28773]]

of thermal desorber residual solids for a period of 10 years.
2. Who is ConocoPhillips Company and what process does it use to 
generate the petitioned waste?
    Effective, January 1, 2007, ConocoPhillips and EnCana Corporation 
of Canada created an integrated North American heavy oil business 
consisting of both upstream and downstream assets. The downstream 
venture, WRB Refining LLC, consists of ConocoPhillips Company's Wood 
River Refinery located in Roxana, IL and Borger Refinery, located in 
Borger, TX. ConocoPhillips Company remains the operator of both 
refineries.
    ConocoPhillips Company operates the WRB Refining LLC (formerly 
ConocoPhillips Company Borger Refinery which processes crude oil into 
unleaded gasoline, furnace oil, jet fuels, stove oil, kerosene, dual-
purpose fuel oil, isobutene, propane, butane, hexane, heptane, 
propylene and sulfur. Processes used in the refining of these products 
are atmospheric distillation, vacuum distillation, desalting, fluid 
catalytic cracking, hydrotreating, hydrogen fluoride alkylation 
reforming. The use of the thermal desorption enables ConocoPhillips 
Company Borger Refinery to process its oil-bearing hazardous secondary 
materials in a manner that allows oil recovered from the desorption 
process to be recycled back into the refining process. The thermal 
desorber residual solids are currently disposed into the Texas 
Commission for Environmental Quality (TCEQ) Class I-H hazardous waste 
landfill, and the waste to be delisted will be disposed in the TCEQ 
Class I/II proposed non-hazardous landfill location on site. The Class 
I/II landfill is located within the facility and the nearest property 
line is located more than 500 feet from the area of landfill 
operations. The landfill is equipped with a 3-foot bentonite-amended 
clay liner and a 60-mil geomembrane on its bottom and side slopes, and 
a leachate collection system.
3. How did ConocoPhillips Company sample and analyze the data in this 
petition?
    To support its petition, ConocoPhillips Company submitted:
     Historical information on waste generation and management 
practices;
     Results of the total constituents list for 40 CFR part 
264, Appendix IX volatile and semi-volatile organic compounds and 
metals. These wastes are also analyzed for cyanide and sulfide.
     Results of the constituent list for appendix IX on 
Toxicity Characteristic Leaching Procedure(TCLP) extract for volatiles, 
semi-volatiles, and metals.
     Results from total oil and grease analyses and multiple pH 
measurements and;
     Results from a total of ten composite samples including 
two duplicates, representing 60 discrete thermal desorber residual 
solids samples.
4. What were the results of ConocoPhillips Company's analyses?
    EPA believes that the descriptions of the ConocoPhillips Company 
analytical characterization provide a reasonable basis to grant 
ConocoPhillips Company's petition for an exclusion of the thermal 
desorber residual solids. EPA believes the data submitted in support of 
the petition show the thermal desorber residual solids are non-
hazardous. Analytical data for the thermal desorber solid samples were 
used in the DRAS to develop delisting levels. The data summaries for 
compounds of concern (COC)s are presented in Table 2. EPA has reviewed 
the sampling procedures used by ConocoPhillips Company and has 
determined that it satisfies EPA criteria for collecting representative 
samples of the variations in constituent concentrations in the thermal 
desorber residual solids. In addition, the data submitted in support of 
the petition show that constituents in ConocoPhillips Company's waste 
are presently below risk-based levels used in the delisting decision-
making. EPA believes that ConocoPhillips Company has successfully 
demonstrated that the thermal desorber residual solids are non-
hazardous.

   Table 2.--Analytical Results and Maximum Allowable Delisting Concentration of the Thermal Desorber Residual
                            Solids at ConocoPhillips Refinery Company, Borger, Texas
----------------------------------------------------------------------------------------------------------------
                                                                                               Maximum allowable
                      Constituents                         Maximum total    Maximum TCLP  (mg/   TCLP delisting
                                                              (mg/kg)               L)           level  (mg/L)
----------------------------------------------------------------------------------------------------------------
Benzene................................................              0.047             <0.05               0.5
Carbon Disulfide.......................................              0.040             <0.05             552.00
Ethylbenzene...........................................              0.008             <0.05             106.00
Methylene Chloride.....................................              0.016             <0.05               0.077
Trichlorofluoromethane.................................              0.005             <0.05             151.00
Toluene................................................              0.150             <0.05             148.00
Xylenes................................................              0.040             <0.05              93.40
Acenapthene............................................              2.60              <0.10             104.00
Anthracene.............................................              0.44              <0.10             253.00
2-chlorophenol.........................................              0.73              <0.10              28.10
1,4-Dichlorobenzene....................................              1.90              <0.10              90.90
Dibenzofuran...........................................              0.59              <0.10               0.14
Fluoranthene...........................................              0.066             <0.10              24.00
Napthalene.............................................              0.94              <0.10               0.32
Phenol.................................................              1.20              <0.10            1690.00
Pyrene.................................................              1.10              <0.10              43.40
1,2,4-Trichlorobenzene.................................              2.30              <0.10               9.68
Silver.................................................              8.70              <0.10               5.0
Barium.................................................            734.00               2.60             100.0
Beryllium..............................................              1.80              <0.05               0.76
Cobalt.................................................             70.30              <0.10             130.00
Chromium...............................................            320.00              <0.10               5.0
Copper.................................................           1090.00               0.23             234.00
Nickel.................................................            864.00               0.14             129.00
Tin....................................................             22.60               0.015         379000.00

[[Page 28774]]


Vanadium...............................................            267.00               0.24               6.93
Zinc...................................................           1940.00               0.52            1930.00
Antimony...............................................            186.00               1.69               2.65
Arsenic................................................             64.10               0.25               1.69
Cadmium................................................              1.55            0001                  1.0
Lead...................................................            135.00               0.007              5.00
Selenium...............................................           2280.00               0.37               1.0
Chromium+6.............................................              0.06               0.10               5.0
Mercury................................................              0.05               0.002              0.20
Cyanide................................................              1.30               0.012             30.10
----------------------------------------------------------------------------------------------------------------

5. What did EPA conclude about the facility's analysis?
    EPA concluded, after reviewing ConocoPhillips Company's processes 
that no other hazardous constituents of concern, other than those for 
which ConocoPhillips Company tested, are likely to be present or formed 
as reaction products or by-products in ConocoPhillips Company's wastes. 
In addition, on the basis of explanations and analytical data provided 
by ConocoPhillips Company, pursuant to Sec.  260.22, EPA concludes that 
the petitioned waste, sludge, does not exhibit any of the 
characteristics of ignitability, corrosivity, reactivity, or toxicity. 
See Sec. Sec.  261.21, 261.22, 261.23, and 261.24 respectively.
6. What other factors did EPA consider in its evaluation?
    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the sludge. With 
regard to airborne dispersion in particular, EPA believes that exposure 
to airborne contaminants from the petitioned waste is unlikely. No 
appreciable air releases are likely from the sludge under any likely 
disposal conditions. EPA evaluated the potential hazards resulting from 
the unlikely scenario of airborne exposure to hazardous constituents 
released from the waste water in an open landfill. The results of this 
worst-case analysis indicated that there is no substantial present or 
potential hazard to human health and the environment from airborne 
exposure to constituents from the sludge.
7. What is EPA's evaluation of this delisting petition?
    The descriptions by ConocoPhillips Company of the hazardous waste 
process and analytical characterization, with the proposed verification 
testing requirements (as discussed later in this notice), provide a 
reasonable basis for EPA to grant the petition. The data submitted in 
support of the petition show that constituents in the waste are below 
the maximum allowable concentrations (See Table 2). EPA believes that 
the thermal desorber residual solids generated by ConocoPhillips 
Company contain hazardous constituents at levels which will present 
minimal short-term and long-term threats from the petitioned waste to 
human health and the environment.
    Thus, EPA believes that it should grant to WRB Refining LLC 
(formerly ConocoPhillips Company Borger Refinery) an exclusion from the 
list of hazardous wastes for the thermal desorber residual solids. EPA 
believes that the data submitted in support of the petition show the 
ConocoPhillips Company's thermal desorber residual solids to be non-
hazardous.
    EPA has reviewed the sampling procedures used by ConocoPhillips 
Company and has determined they satisfy EPA's criteria for collecting 
representative samples of variable constituent concentrations in the 
thermal desorber residual solids. The data submitted in support of the 
petition show that constituents in ConocoPhillips Company's thermal 
desorber residual solids are presently below the compliance-point 
concentrations used in the delisting decision-making process and would 
not pose a substantial hazard to the environment and the public. EPA 
believes that ConocoPhillips Company has successfully demonstrated that 
the thermal desorber residual solids are non-hazardous.
    EPA, therefore, proposes to grant an exclusion to WRB Refining LLC 
(formerly ConocoPhillips Company Borger Refinery) for the thermal 
desorber residual solids described in its 2005 petition. EPA's decision 
to exclude this waste is based on analysis performed on samples taken 
of the solids.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
1500 cubic yards per year of thermal desorber residual solids from WRB 
Refining LLC (formerly ConocoPhillips Company Borger Refinery), Borger, 
TX facility under Parts 262 through 268 and the permitting standards of 
Part 270.
8. What is the final disposition of the waste?
    If EPA finalizes the proposed rule, the thermal desorber residual 
solids will be disposed of in an onsite non-hazardous industrial solid 
waste landfill.

C. Lockheed Martin Aeronautics Company, Fort Worth, Texas--F019 Waste 
Water Treatment Sludge

 1. What waste did Lockheed Martin Aeronautics Company petition EPA to 
delist?
    Lockheed Martin Aeronautics Company petitioned EPA on February 21, 
2006, to exclude from the lists of hazardous waste contained in 
Sec. Sec.  261.31 and 261.32, the sludge from its waste water treatment 
plant. The sludge waste stream is generated from the Lockheed Martin 
Aeronautics Company facility located in Fort Worth, Texas. The sludge 
is listed under EPA Hazardous Waste No. F019, because it is derived 
from the treatment of listed waste water which is treated at the 
facility's waste water treatment plant. Specifically, in its petition, 
Lockheed Martin Aeronautics Company requested that EPA grant an 
exclusion for 90 cubic yards per calendar year of sludge resulting from 
the treatment of waste waters from the manufacturing processes at its 
facility.

[[Page 28775]]

 2. Who is Lockheed Martin Aeronautics Company and what process do they 
use to generate the petition waste?
    Lockheed Martin Aeronautics Company is engaged in design, 
development, production and full system support of fighter/attack 
aircraft for the United States Air Force and foreign governments. The 
United States Air Force Plant No. 4 (AFP4), operated by Lockheed Martin 
Aeronautics Company, consists of over seven million square feet of 
advanced tactical fighter aircraft manufacturing, research, 
development, and office area on a six hundred acre site. Manufacturing 
advanced aircraft requires typical metal finishing techniques such as 
aqueous cleaning, sulfuric acid anodizing, and chromate conversion 
coating. Waste water from these processes is routed to a centralized 
pre-treatment industrial waste water pre-treatment facility through 
segregated waste collection lines. Industrial waste water is primarily 
generated from the sulfuric acid anodize and chromated conversion 
coating process line. This line consists of fourteen, 8,000 gallon 
tanks arranged in linear fashion for the etch-clean-rinse-clean-rinse-
anodize-rinse-seal process.
    Lockheed Martin Aeronautics Company intends to dispose of the 
delisted sludge at a Subtitle D Landfill.
    Treatment of the waste waters, which result from the manufacturing 
process generates the sludge that is classified as F019 listed 
hazardous waste pursuant to 40 CFR 261.31. The 40 CFR Part 261, 
Appendix VII hazardous constituents which are the basis for listing 
F019 hazardous waste are: Hexavalent chromium and cyanide.
3. What information did Lockheed Martin Aeronautics Company submit to 
support this petition?
    To support its petition, Lockheed Martin Aeronautics Company 
submitted:
     Analytical results of the toxicity characteristic leaching 
procedure and total constituent analysis for volatile and semivolatile 
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for 
six sludge samples;
     Analytical results from multiple pH leaching of metals; 
and
     Descriptions of the waste water treatment process.
4. What were the results of Lockheed Martin Aeronautics Company's 
analysis?
    EPA believes that the descriptions of Lockheed Martin Aeronautics 
Company's waste, and the analytical data submitted in support of the 
petition show that the sludge is non-hazardous. Analytical data from 
Lockheed Martin Aeronautics Company's sludge samples were used in the 
Delisting Risk Assessment Software. The data summaries for detected 
constituents are presented in Table 3. EPA has reviewed the sampling 
procedures used by Lockheed Martin Aeronautics Company and has 
determined that they satisfy EPA's criteria for collecting 
representative samples of the variations in constituent concentrations 
in the sludge. The data submitted in support of the petition show that 
constituents in Lockheed Martin Aeronautics Company's wastes are 
presently below health-based risk levels used in the delisting 
decision-making. EPA believes that Lockheed Martin Aeronautics Company 
has successfully demonstrated that the sludge is non-hazardous.

Table 3.--Maximum TCLP and Total Constituent Concentrations of the Sludge and Corresponding Delisting Limits \1\
----------------------------------------------------------------------------------------------------------------
                                                              Waste stream      Waste stream
                                                                  total             TCLP            Delisting
                       Chemical name                          concentration     concentration     concentration
                                                                 (mg/kg)           (mg/l)            (mg/l)
----------------------------------------------------------------------------------------------------------------
Acetone...................................................          3.40E+00          5.00E-02          4.06E+04
Acetonitrile..............................................          2.20E-02         <1.00E-02          7.66E+02
Antimony..................................................          6.30E+02          1.30E-01          8.45E+00
Arsenic...................................................          9.30E+01         <5.00E-02          6.57E-01
Barium....................................................          3.40E+02          6.80E-01          1.00E+02
Bis(2-Ethylhexyl) Phthalate...............................          3.20E+03         <1.00E-01          4.68E+29
Cadmium...................................................         <1.20E+01          6.10E-02          1.00E+00
Carbon Disulfide..........................................          1.00E-02         <1.00E-02          4.40E+03
Chromium..................................................          2.50E+04          1.60E+00          5.00E+00
Chromium, Hexavalent......................................           4.00E+2         <2.00E-02          5.00E+00
Cobalt....................................................          8.50E+01          5.60E-01          1.04E+03
Copper....................................................          4.00E+03          2.10E+01          1.81E+03
Cyanide...................................................          3.00E+02          9.90E-01          2.40E+02
Ethylbenzene..............................................          2.20E-02         <1.00E-02          8.46E+02
Formaldehyde..............................................          1.20E+02          1.40E+03          6.76E+03
Lead......................................................          3.80E+03          1.40E-01          5.00E+00
Mercury...................................................          1.90E+00         <2.00E-02          2.00E-01
Methyl Ethyl Ketone (2-butanone)..........................          7.80E-01          2.50E-02          2.00E+02
Methyl Isobutyl Ketone....................................         <4.80E-02         <5.00E-02          3.61E+03
Methylene Chloride........................................          3.90E-01          6.00E-02          6.16E+00
Nickel....................................................          4.90E+03          3.00E+01          3.00E+01
Selenium..................................................         <6.00E+01          2.20E-02          1.00E+00
Silver....................................................          3.30E+02          4.00E-02          5.00E+00
Toluene...................................................          1.10E-02         <1.00E-02          1.18E+03
Vanadium..................................................          1.10E+03          1.30E-02          5.15E+01
Xylenes, Total............................................          6.70E-02         <2.50E-02          7.45E+02
Zinc......................................................          2.50E+03          1.50E+01         1.58E+04
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.


[[Page 28776]]

5. What did EPA conclude about the facility's analysis?
    EPA concluded, after reviewing Lockheed Martin Aeronautics 
Company's processes that no other hazardous constituents of concern, 
other than those for which Lockheed Martin Aeronautics Company tested, 
are likely to be present or formed as reaction products or by-products 
in Lockheed Martin Aeronautics Company's wastes. In addition, on the 
basis of explanations and analytical data provided by Lockheed Martin 
Aeronautics Company, pursuant to Sec.  260.22, EPA concludes that the 
petitioned waste, sludge, does not exhibit any of the characteristics 
of ignitability, corrosivity, reactivity, or toxicity. See Sec. Sec.  
261.21, 261.22, 261.23, and 261.24 respectively.
6. What other factors did EPA consider in its evaluation?
    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the sludge. With 
regard to airborne dispersion in particular, EPA believes that exposure 
to airborne contaminants from the petitioned waste is unlikely. No 
appreciable air releases are likely from the sludge under any likely 
disposal conditions. EPA evaluated the potential hazards resulting from 
the unlikely scenario of airborne exposure to hazardous constituents 
released from the waste water in an open landfill. The results of this 
worst-case analysis indicated that there is no substantial present or 
potential hazard to human health and the environment from airborne 
exposure to constituents from the sludge.
 7. What is EPA's evaluation of this delisting petition?
    The descriptions by Lockheed Martin Aeronautics Company of the 
hazardous waste process and analytical characterization, with the 
proposed verification testing requirements (as discussed later in this 
notice), provide a reasonable basis for EPA to grant the petition. The 
data submitted in support of the petition show that constituents in the 
waste are below the maximum allowable concentrations (See Table 3). EPA 
believes that the sludge generated by Lockheed Martin Aeronautics 
Company contains hazardous constituents at levels which will present 
minimal short-term and long-term threats from the petitioned waste to 
human health and the environment.
    Thus, EPA believes that it should grant to Lockheed Martin 
Aeronautics Company an exclusion from the list of hazardous wastes for 
the sludge. EPA believes that the data submitted in support of the 
petition show the Lockheed Martin Aeronautics Company's sludge to be 
non-hazardous.
    EPA has reviewed the sampling procedures used by Lockheed Martin 
Aeronautics Company and has determined they satisfy EPA's criteria for 
collecting representative samples of variable constituent 
concentrations in the sludge. The data submitted in support of the 
petition show that constituents in Lockheed Martin Aeronautics 
Company's wastes are presently below the compliance-point 
concentrations used in the delisting decision-making process and would 
not pose a substantial hazard to the environment and the public. EPA 
believes that Lockheed Martin Aeronautics Company has successfully 
demonstrated that the sludge is non-hazardous.
    EPA, therefore, proposes to grant an exclusion to Lockheed Martin 
Aeronautics Company for the sludge described in its February 2006 
petition. EPA's decision to exclude this waste is based on analysis 
performed on samples taken of the sludge.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
242,000 pounds per year of sludge from Lockheed Martin Aeronautics 
Company's Fort Worth facility under Parts 262 through 268 and the 
permitting standards of Part 270.

IV. The Risk Evaluation

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

    The worst case scenario for management of the sludge was modeled 
for disposal in a landfill. EPA used such information gathered to 
identify plausible exposure routes (i.e., ground water, surface water, 
soil, air) for hazardous constituents present in the sludge. EPA 
determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for the wastes. In assessing 
potential risks to ground water, EPA used the maximum estimated waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
ground water at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 
10-5 and non-cancer hazard index of 0.1), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and Agency health-based numbers. Using the 
maximum compliance-point concentrations and EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP) fate and 
transport modeling factors, the DRAS further back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from disposal of the petitioned waste in a landfill, and that 
a reasonable worst-case scenario is appropriate when evaluating whether 
a waste should be relieved of the protective management constraints of 
RCRA Subtitle C. The use of some reasonable worst-case scenarios 
resulted in conservative values for the compliance-point concentrations 
and ensured that the waste, once removed from hazardous waste 
regulation, will not pose a significant threat to human health and/or 
the environment. The DRAS also uses the maximum estimated waste volumes 
and the maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance-point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, the 
facilities have never directly disposed of this material in a solid 
waste landfill, so no representative data exists. Therefore, EPA has

[[Page 28777]]

determined that it would be unnecessary to request ground water 
monitoring data.
    EPA believes that the descriptions of the wastes and analytical 
characterization which illustrate the presence of toxic constituents at 
lower concentrations in these waste streams provide a reasonable basis 
to conclude that the likelihood of migration of hazardous constituents 
from the petitioned waste will be substantially reduced so that short-
term and long-term threats to human health and the environment are 
minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the wastes are presented in 
Tables 1, 2 and 3. Based on the comparison of the DRAS results and 
maximum TCLP concentrations found in Tables 1, 2, and 3, the petitioned 
wastes should be delisted because no constituents of concern are likely 
to be present or formed as reaction products or by products in the 
wastes.

B. What changes have been made to the DRAS model?

    In July 2007, U.S. EPA prepared an update of the Delisting Risk 
Assessment Software (DRAS) by releasing version 3.0. The update 
addressed a number of issues with version 2 and improved the fate and 
transport modeling.
    To estimate the downgradient concentrations of waste leachate 
constituents released into groundwater, the DRAS utilizes conservative 
dilution-attenuation factors (DAFs) taken from Monte-Carlo applications 
of U.S. EPA's Composite Model for Leachate Migration with 
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new 
CMTP modeling runs. The new modeling takes advantage of: Updated 
saturated flow and transport modules; a new surface impoundment module 
and database; model corrections for unrealistic scenarios (like water 
tables modeled above the ground surface); new isotherms for metals; and 
a revised recharge and infiltration database. As a result, many of the 
DAFs used in previous versions of DRAS have changed.
    Further affecting the groundwater calculation, the relationships 
for determining scaling factors used to scale the DAFs to account for 
very small waste streams have been updated to reflect the new database 
information on landfills and surface impoundments and were also 
corrected for a metric conversion of cubic meters to cubic yards. The 
new scaling factors are generally higher than those of previous 
versions of DRAS, resulting in higher estimated dilution and 
attenuation at lower waste volumes for both landfills and surface 
impoundments.
    The new metals DAFs, based on MINTEQA2 isotherms, can vary as a 
function of the landfill leachate concentration. This means that the 
effective DAF (including a scaling factor adjustment, if necessary) for 
an input concentration may differ significantly with the effective DAF 
that corresponds to the allowable leachate concentration. DRAS 3.0 now 
displays the DAFs in both the forward calculated risk tables and the 
tables of maximum allowable concentrations so that the difference is 
evident to the user. The isotherms that vary by leachate concentration 
are represented in DRAS by a look-up table with leachate concentrations 
paired with DAFs. In the event that an actual concentration input to 
DRAS lies between two values in the table, or an allowable receptor 
concentration lies between two calculated receptor concentrations from 
the table, DRAS 3.0 will linearly and proportionally extrapolate 
between the two values to determine the corresponding exposure or 
allowable leachate concentration.
    EPA changed the calculation for particle emissions caused by 
vehicles driving over the waste at the landfill to provide a more 
realistic estimate. The estimate depends upon the number of trips per 
day landfill vehicles make back and forth over the waste. In previous 
versions of DRAS, this value was conservatively set at a 100 trips per 
day, corresponding with an extremely high annual waste volume. In DRAS 
3.0, a minimum number of trips per day was conservatively assumed from 
the Subtitle D landfill survey (7.4 trips per day at the 95th 
percentile of values reported). The number of trips per day specific to 
the actual waste volume is then added to the minimum to reflect the 
impact of very large waste streams. This will considerably reduce the 
particle emission estimate for wastes generated at all but the largest 
annual volumes.
    EPA added a conversion from English to metric tons to the 
calculation of particle emissions from waste unloading, resulting in a 
decrease of roughly 10% over previous versions of DRAS. We also made a 
unit-conversion factor correction to part of the air-volatile pathway 
which will reduce the impact to the receptor.
    An error in the back-calculation for fish ingestion pathway was 
corrected to reflect the difference between freely dissolved and total 
water column waste constituent concentrations.
    For the estimation of risk and hazard, we made a number of updates 
to the forward and back calculations. Previous versions of DRAS assumed 
that only 12.5% of particles are absorbed by the receptor's respiratory 
system. This is no longer necessary as toxicity reference values for 
inhalation currently recommended by U.S. EPA relate risk or hazard 
directly to exposure concentration. DRAS 3.0 does not include the 12.5% 
reduction. This change significantly increases estimated risks due to 
particle inhalation and lowers corresponding allowable concentrations.
    DRAS Version 3.0.47 has a reformulated back calculation of the 
allowable leachate concentrations from exposure due to contaminants 
volatilized during household water use to match the forward calculation 
of risk. In previous versions of DRAS, the forward calculation summed 
the risks from exposure to all three evaluated household compartments 
(the shower, the bathroom, and the whole house) while the back 
calculation based the maximum allowable level on the single most 
conservative compartment. The DRAS 3.0 maximum allowable leachate 
concentrations are now based on the combined impact of all three 
compartments. The house exposure was also expanded to a 900 minute (15 
hour) daily exposure to reflect non-working residents who have an 
overall 16 hour in-house exposure (the other 1 hour is spent in the 
shower and bathroom).
    EPA resolved the inconsistencies with the way DRAS chooses limiting 
pathways for specific waste constituents in DRAS 3.0.
    EPA checked all toxicity reference values in DRAS and updated where 
necessary. Approximately 180 changes were made to the toxicity 
reference values in DRAS based on data in IRIS, PPRTV, HEAST, NCEA, 
CalEPA and other sources. Some route-to-route extrapolations of oral 
toxicity data to inhalation exposure have been returned to DRAS 3.0 if 
consistent with Agency policy. See U.S. EPA 2006 for full accounting of 
this methodology. The same reference also includes discussions of 
toxicity reference choices where the multiple values were available or 
where the toxicity reference values were specific to particular species 
of constituents.

V. Next Steps

 A. With What Conditions Must the Petitioners Comply?

    The petitioners must comply with the requirements in 40 CFR Part 
261, Appendix IX, Tables 1 and 2 as amended by this notice. The text 
below

[[Page 28778]]

gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituent concentrations 
for which the facility must test in the petitioned wastes, below which 
these wastes would be considered non-hazardous.
    EPA selected the set of inorganic and organic constituents 
specified in paragraph (1) and listed in 40 CFR Part 261, Appendix IX, 
Tables 1 and 2, based on information in the petition. EPA compiled the 
inorganic and organic constituents list from descriptions of the 
manufacturing processes used by the facilities, previous test data 
provided for the wastes, and the respective health-based levels used in 
delisting decision-making. These delisting levels correspond to the 
allowable levels measured in the leachable concentrations of the 
petitioned wastes.
(2) Waste Holding and Handling
    Waste classification as non-hazardous cannot begin until compliance 
with the limits set in paragraph (1) has occurred for two consecutive 
quarterly sampling events. For example, if the facility is issued a 
final exclusion in August, the first quarter samples are due in 
November and the second quarter samples are due in February. If EPA 
deems that both the first and second quarter samples (a total of four) 
meet all the delisting limits, classification of the waste as non-
hazardous can begin in March. If constituent levels in any sample taken 
by the facility exceed any of the delisting levels set in paragraph 
(1), the facility must: (i) notify EPA in accordance with paragraph 
(6), and; (ii) manage and dispose of the petitioned waste as hazardous 
waste generated under Subtitle C of RCRA.
(3) Verification Testing Requirements
    The petitioner must complete a verification testing program on the 
wastes to assure that they do not exceed the maximum levels specified 
in paragraph (1). If EPA determines that the data collected under this 
paragraph does not support the data provided in the petition, the 
exclusion will not cover the tested waste. This verification program 
operates on two levels.
    The first part of the quarterly verification testing program 
consists of testing a batch of sludge for specified indicator 
parameters as described in paragraph (1). Each quarterly sampling event 
will consist of at least two samples of the waste. Levels of 
constituents measured in the samples of the waste that do not exceed 
the levels set forth in paragraph (1) can be considered non-hazardous 
after two consecutive quarters of sampling data meet the levels listed 
in paragraph (1).
    The second part of the verification testing program is the annual 
testing of two representative composite samples of the wastes for all 
constituents specified in paragraph (1).
    If the petitioner demonstrates for two consecutive quarters 
complete attainment of all specified limits, then the facility may 
request approval of EPA to reduce the frequency of testing to annually. 
If, after review of performance of the treatment system, EPA finds that 
annual testing is adequately protective of human health and the 
environment, then EPA may authorize the facility to reduce the 
quarterly comprehensive sampling frequency to an annual basis. If the 
annual testing of the wastes does not meet the delisting levels in 
paragraph (1), the facility must notify EPA according to the 
requirements in paragraph (6). EPA will then take the appropriate 
actions necessary to protect human health and the environment as 
described in paragraph (6). The facility must provide sampling results 
that support the rationale that the delisting exclusion should not be 
withdrawn.
    The exclusion is effective upon publication in the Federal Register 
but the change in waste classification as ``non-hazardous'' cannot 
begin until two consecutive quarters of verification sampling comply 
with the levels specified in paragraph (1). The waste classification as 
``non-hazardous'' is also not authorized, if the facility fails to 
perform the quarterly and yearly testing as specified herein. Should 
the facility fail to conduct the quarterly/yearly testing as specified 
herein, then disposal of sludge as delisted waste may not occur in the 
following quarter(s)/year(s) until the facility obtains the written 
approval of EPA.
(4) Changes in Operating Conditions
    Paragraph (4) would allow the facility the flexibility of modifying 
its processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment processes. However, the facility 
must prove the effectiveness of the modified process and request 
approval from EPA. The facility must manage wastes generated during the 
new process demonstration as hazardous waste through verification 
sampling within 30 days of start-up.
(5) Data Submittals
    To provide appropriate documentation that the facility is correctly 
managing the waste, the facility must compile, summarize, and keep 
delisting records on-site for a minimum of five years. It should keep 
all analytical data obtained pursuant to paragraph (3), including 
quality control information, for five years. Paragraph (5) requires 
that the facility furnish these data upon request for inspection by any 
employee or representative of EPA or the State of Texas.
    If the proposed exclusion is made final, then it will apply only to 
amount of wastes designated by the exclusion per calendar year.
    EPA would require a petitioner to submit additional verification 
data under any of the following circumstances:
    (a) If the facility significantly alters the manufacturing process 
treatment system except as described in paragraph (4).
    (b) If the facility uses any new manufacturing or production 
process(es), or significantly changes the current process(es) described 
in its petition; or
    (c) If the facility makes any changes that could affect the 
composition or type of waste generated.
    The facility 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. EPA will publish an amendment to the exclusion if the changes 
are acceptable.
    The facility must manage waste volumes greater than those 
designated by the exclusion as hazardous waste until EPA grants a 
revised exclusion. When this exclusion becomes final, the management by 
the facility of the wastes covered in this petition would be relieved 
from Subtitle C jurisdiction. The facility may not classify the waste 
as non-hazardous until the revised exclusion is finalized.
(6) Reopener
    The purpose of paragraph (6) is to require the facility to disclose 
new or different information related to a condition at the facility or 
disposal of the waste, if it is pertinent to the delisting. The 
petitioner must also use this procedure if the waste sample in the 
annual testing fails to meet the levels found in paragraph (1). This 
provision will allow EPA to reevaluate the exclusion, if a source 
provides new or additional information to EPA. EPA will evaluate the 
information on which it based the decision to see if it is still 
correct or if circumstances have changed so that the information is no 
longer correct or would cause EPA to deny the petition, if presented.
    This provision expressly requires the petitioner to report 
differing site

[[Page 28779]]

conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is 
merited in light of EPA's experience. See the Federal Register notice 
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 
FR 63458 (December 1, 1997) where the delisted waste leached at greater 
concentrations into the environment than the concentrations predicted 
when conducting the TCLP, leading EPA to repeal the delisting. If an 
immediate threat to human health and the environment presents itself, 
EPA will continue to address these situations on a case-by-case basis. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA section 553 (b)(3)(B).

B. What happens if the petitioner violates the terms and conditions?

    If the petitioner violates the terms and conditions established in 
the exclusion, EPA will start procedures to withdraw the exclusion. 
Where there is an immediate threat to human health and the environment, 
EPA will evaluate the need for enforcement activities on a case-by-case 
basis. EPA expects the petitioner to conduct the appropriate waste 
analysis and comply with the criteria explained above in paragraph (1) 
of the exclusion.

VI. Public Comments

 A. How may I as an interested party submit comments?

    EPA is requesting public comments on this proposed decision. You 
may submit comments on one of the three petitions or the decision as a 
whole. Please send three copies of your comments. Send two copies to 
the Chief, Corrective Action and Waste Minimization Section, Multimedia 
Permitting and Planning Division, U.S. Environmental Protection Agency 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to 
the Industrial Hazardous Waste Permits Division, Technical Evaluation 
Team, Texas Commission on Environmental Quality, P.O. Box 13087, 
Austin, TX 78711-3087. Identify your comments at the top with this 
regulatory docket number. You may submit your comments electronically 
to Michelle Peace at peace.michelle@epa.gov.

B. How may I review the docket or obtain copies of the proposed 
exclusion?

    You may review the RCRA regulatory docket for this proposed rule at 
the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, 
Dallas, TX 75202. It is available for viewing in the EPA Freedom of 
Information Act Review Room from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages and at fifteen cents per page for 
additional copies.

VII. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this proposed rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132, ``Federalism,'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule. Similarly, because this rule will affect only a 
particular facility, this proposed rule does not have tribal 
implications, as specified in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000). Thus, Executive Order 13175 does not apply to this rule. This 
rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
maximum allowable concentrations for this rule. This rule is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules (1) rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties, 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability.

Lists of Subjects in 40 CFR Part 261

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


[[Page 28780]]


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

    Dated: May 2, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    2. In Table 1 of Appendix IX of part 261 add the following waste 
streams 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 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                  Facility                                  Address                      Waste description
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Lockheed Martin Aeronautics Company........  Fort Worth, TX......................  Sludge (EPA Hazardous Waste
                                                                                    Number F019) generated at a
                                                                                    maximum rate of 90 cubic
                                                                                    yards per calendar year
                                                                                    after [insert publication
                                                                                    date of the final rule].
                                                                                   For the exclusion to be
                                                                                    valid, Lockheed Martin
                                                                                    Aeronautics Company 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.
                                                                                   Sludge Leachable
                                                                                    Concentrations (mg/l):
                                                                                    Antimony--8.45; Arsenic--
                                                                                    0.657; Barium--100.0;
                                                                                    Cadmium--1.00; Chromium--
                                                                                    5.0; Chromium, Hexavalent--
                                                                                    5.0; Cobalt--1040; Copper--
                                                                                    1810; Cyanide--240; Lead--
                                                                                    5.0; Mercury--0.20; Nickel--
                                                                                    1040; Selenium--1.0; Silver--
                                                                                    5.0; Vanadium--51.5; Zinc--
                                                                                    15800; Acetone--40600;
                                                                                    Acetonitrile--766; Carbon
                                                                                    Disulfide--4400;
                                                                                    Ethylbenzene--846; Methyl
                                                                                    Ethyl Ketone--200.0; Methyl
                                                                                    Isobutyl Ketone--3610;
                                                                                    Methylene Chloride--6.16;
                                                                                    Toluene--1180; Xylenes--745.
                                                                                   (2) Waste Holding and
                                                                                    Handling:
                                                                                   (A) Waste classification as
                                                                                    non-hazardous can not begin
                                                                                    until compliance with the
                                                                                    limits set in paragraph (1)
                                                                                    for sludge has occurred for
                                                                                    two consecutive quarterly
                                                                                    sampling events.
                                                                                   (B) If constituent levels in
                                                                                    any sample taken by Lockheed
                                                                                    Martin Aeronautics Company
                                                                                    exceed any of the delisting
                                                                                    levels set in paragraph (1)
                                                                                    for the sludge, Lockheed
                                                                                    Martin Aeronautics Company
                                                                                    must do the following:
                                                                                   (i) Notify EPA in accordance
                                                                                    with paragraph (6) and
                                                                                   (ii) Manage and dispose of
                                                                                    the sludge as hazardous
                                                                                    waste generated under
                                                                                    Subtitle C of RCRA.
                                                                                   (3) Testing Requirements:
                                                                                   Upon this exclusion becoming
                                                                                    final, Lockheed Martin
                                                                                    Aeronautics Company may
                                                                                    perform quarterly analytical
                                                                                    testing by sampling and
                                                                                    analyzing the sludge as
                                                                                    follows:
                                                                                   (A) Quarterly Testing:
                                                                                   (i) Collect two
                                                                                    representative composite
                                                                                    samples of the sludge 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
                                                                                    sludge must be disposed as
                                                                                    hazardous waste in
                                                                                    accordance with the
                                                                                    applicable hazardous waste
                                                                                    requirements.
                                                                                   (iii) Within thirty (30) days
                                                                                    after taking each quarterly
                                                                                    sample, Lockheed Martin
                                                                                    Aeronautics Company will
                                                                                    report its quarterly
                                                                                    analytical test data to EPA.
                                                                                    If levels of constituents
                                                                                    measured in the samples of
                                                                                    the sludge do not exceed the
                                                                                    levels set forth in
                                                                                    paragraph (1) of this
                                                                                    exclusion for two
                                                                                    consecutive quarters or
                                                                                    sampling events, Lockheed
                                                                                    Martin Aeronautics Company
                                                                                    can manage and dispose the
                                                                                    non-hazardous sludge
                                                                                    according to all applicable
                                                                                    solid waste regulations.
                                                                                   (B) Annual Testing:
                                                                                   (i) If Lockheed Martin
                                                                                    Aeronautics Company
                                                                                    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), Lockheed
                                                                                    Martin Aeronautics Company
                                                                                    may begin annual testing as
                                                                                    follows: Lockheed Martin
                                                                                    Aeronautics Company must
                                                                                    test two representative
                                                                                    composite samples of the
                                                                                    sludge 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 Lockheed Martin
                                                                                    Aeronautics Company sludge
                                                                                    are representative for all
                                                                                    constituents listed in
                                                                                    paragraph (1).

[[Page 28781]]


                                                                                   (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 should include the
                                                                                    total amount of waste in
                                                                                    cubic yards disposed during
                                                                                    the calendar year.
                                                                                   (4) Changes in Operating
                                                                                    Conditions: If Lockheed
                                                                                    Martin Aeronautics Company
                                                                                    significantly changes the
                                                                                    process described in its
                                                                                    petition or starts any
                                                                                    processes that generate(s)
                                                                                    the waste that may or could
                                                                                    affect the composition or
                                                                                    type of waste generated (by
                                                                                    illustration, but not
                                                                                    limitation, changes in
                                                                                    equipment or operating
                                                                                    conditions of the treatment
                                                                                    process), it must notify EPA
                                                                                    in writing and it may no
                                                                                    longer handle the wastes
                                                                                    generated from the new
                                                                                    process as non-hazardous
                                                                                    until the wastes meet the
                                                                                    delisting levels set in
                                                                                    paragraph (1) and it has
                                                                                    received written approval to
                                                                                    do so from EPA.
                                                                                   Lockheed Martin Aeronautics
                                                                                    Company 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:
                                                                                   Lockheed Martin Aeronautics
                                                                                    Company must submit the
                                                                                    information described below.
                                                                                    If Lockheed Martin
                                                                                    Aeronautics Company 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).
                                                                                    Lockheed Martin Aeronautics
                                                                                    Company 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 Lockheed Martin
                                                                                    Aeronautics Company
                                                                                    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 the Division
                                                                                    Director in granting the
                                                                                    petition, then the facility
                                                                                    must report the data, in
                                                                                    writing, to the Division
                                                                                    Director within 10 days of
                                                                                    first possessing or being
                                                                                    made aware of that data.
                                                                                   (B) If either the quarterly
                                                                                    or annual testing of the
                                                                                    waste does not meet the
                                                                                    delisting requirements in
                                                                                    paragraph 1, Lockheed Martin
                                                                                    Aeronautics Company must
                                                                                    report the data, in writing,
                                                                                    to the Division Director
                                                                                    within 10 days of first
                                                                                    possessing or being made
                                                                                    aware of that data.
                                                                                   (C) If Lockheed Martin
                                                                                    Aeronautics Company fails to
                                                                                    submit the information
                                                                                    described in paragraphs (5),
                                                                                    (6)(A) or (6)(B) or if any
                                                                                    other information is
                                                                                    received from any source,
                                                                                    the Division Director will
                                                                                    make a preliminary
                                                                                    determination as to whether
                                                                                    the reported information
                                                                                    requires EPA action to
                                                                                    protect human health and/or
                                                                                    the environment. Further
                                                                                    action may include
                                                                                    suspending, or revoking the
                                                                                    exclusion, or other
                                                                                    appropriate response
                                                                                    necessary to protect human
                                                                                    health and the environment.

[[Page 28782]]


                                                                                   (D) If the Division Director
                                                                                    determines that the reported
                                                                                    information requires action
                                                                                    by EPA, the Division
                                                                                    Director will notify the
                                                                                    facility in writing of the
                                                                                    actions the Division
                                                                                    Director believes are
                                                                                    necessary to protect human
                                                                                    health and the environment.
                                                                                    The notice shall include a
                                                                                    statement of the proposed
                                                                                    action and a statement
                                                                                    providing the facility with
                                                                                    an opportunity to present
                                                                                    information as to why the
                                                                                    proposed EPA action is not
                                                                                    necessary. The facility
                                                                                    shall have 10 days from the
                                                                                    date of the Division
                                                                                    Director's notice to present
                                                                                    such information.
                                                                                   (E) Following the receipt of
                                                                                    information from the
                                                                                    facility described in
                                                                                    paragraph (6)(D) or (if no
                                                                                    information is presented
                                                                                    under paragraph (6)(D)) the
                                                                                    initial receipt of
                                                                                    information described in
                                                                                    paragraphs (5), (6)(A) or
                                                                                    (6)(B), the Division
                                                                                    Director will issue a final
                                                                                    written determination
                                                                                    describing EPA actions that
                                                                                    are necessary to protect
                                                                                    human health and/or the
                                                                                    environment. Any required
                                                                                    action described in the
                                                                                    Division Director's
                                                                                    determination shall become
                                                                                    effective immediately,
                                                                                    unless the Division Director
                                                                                    provides otherwise.
----------------------------------------------------------------------------------------------------------------

* * * * *
    2. In Table 1of 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 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                  Facility                                  Address                      Waste description
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
WRB Refining LLC...........................  Borger, TX..........................  Thermal desorber residual
                                                                                    solids (Hazardous Waste No.
                                                                                    F037, F038, K048, K049,
                                                                                    K050, K051) generated at a
                                                                                    maximum annual rate of 1,500
                                                                                    cubic yards per calendar
                                                                                    year after [insert
                                                                                    publication date of the
                                                                                    final rule] and disposed in
                                                                                    Subtitle D Landfill.
                                                                                   For the exclusion to be
                                                                                    valid, WRB Refining LLC 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.
                                                                                   Thermal Desorber Residual
                                                                                    Solid Leachable
                                                                                    Concentrations (mg/l):
                                                                                    Antimony--2.65; Arsenic--
                                                                                    1.69; Barium--100;
                                                                                    Beryllium--0.76; Cadmium--
                                                                                    1.00; Chromium--5.0;
                                                                                    Chromium, Hexavalent--5.0;
                                                                                    Cobalt--130.0; Copper--
                                                                                    234.0; Cyanide--30.10; Lead--
                                                                                    5.0; Mercury--0.20; Nickel--
                                                                                    129.0; Selenium--1.0;
                                                                                    Silver--5.0; Tin--3790.00;
                                                                                    Vanadium--6.93; Zinc--
                                                                                    1930.0;
                                                                                   Acenapthene--104.0;
                                                                                    Anthracene--253.0; Benzene--
                                                                                    0.5; Carbon Disulfide--
                                                                                    552.0; Dibenzofuran--0.14;
                                                                                    1,4-Dichlororbenzene--7.50;
                                                                                    Ethylbenzene--106.0;
                                                                                    Fluoranthene--24.00;
                                                                                    Methylene Chloride--0.077;
                                                                                    Naphthalene--0.32; Phenol--
                                                                                    1690.00; Pyrene--43.40;
                                                                                    Toluene--148.0; 1,2,4-
                                                                                    Trichlorobenzene--9.68;
                                                                                    Trichlorofluoromethane--151.
                                                                                    0; Xylenes--93.40.
                                                                                   (2) Waste Holding and
                                                                                    Handling:
                                                                                   (A) Waste classification as
                                                                                    non-hazardous cannot begin
                                                                                    until compliance with the
                                                                                    limits set in paragraph (1)
                                                                                    for thermal desorber
                                                                                    residual solids has occurred
                                                                                    for two consecutive
                                                                                    quarterly sampling events.
                                                                                   (B) If constituent levels in
                                                                                    any sample taken by WRB
                                                                                    Refining LLC exceed any of
                                                                                    the delisting levels set in
                                                                                    paragraph (1) for the
                                                                                    thermal desorber residual
                                                                                    solids, WRB Refining LLC
                                                                                    must do the following:
                                                                                   (i) Notify EPA in accordance
                                                                                    with paragraph (6) and
                                                                                   (ii) Manage and dispose the
                                                                                    thermal desorber residual
                                                                                    solids as hazardous waste
                                                                                    generated under Subtitle C
                                                                                    of RCRA.
                                                                                   (3) Testing Requirements:
                                                                                   Upon this exclusion becoming
                                                                                    final, WRB Refining LLC may
                                                                                    perform quarterly analytical
                                                                                    testing by sampling and
                                                                                    analyzing the desorber
                                                                                    residual solids as follows:
                                                                                   (A) Quarterly Testing:
                                                                                   (i) Collect two
                                                                                    representative composite
                                                                                    samples of the sludge 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
                                                                                    sludge 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, WRB
                                                                                    Refining LLC will report its
                                                                                    first quarterly analytical
                                                                                    test data to EPA. If levels
                                                                                    of constituents measured in
                                                                                    the samples of the sludge do
                                                                                    not exceed the levels set
                                                                                    forth in paragraph (1) of
                                                                                    this exclusion for two
                                                                                    consecutive quarters, WRB
                                                                                    Refining LLC can manage and
                                                                                    dispose the non-hazardous
                                                                                    thermal desorber residual
                                                                                    solids according to all
                                                                                    applicable solid waste
                                                                                    regulations.

[[Page 28783]]


                                                                                   (B) Annual Testing:
                                                                                   (i) If WRB Refining LLC
                                                                                    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), WRB
                                                                                    Refining LLC may begin
                                                                                    annual testing as follows:
                                                                                    WRB Refining LLC must test
                                                                                    two representative composite
                                                                                    samples of the thermal
                                                                                    desorber residual solids 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 WRB Refining LLC thermal
                                                                                    desorber residual solids 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 should include the
                                                                                    total amount of waste in
                                                                                    cubic yards disposed during
                                                                                    the calendar year.
                                                                                   (4) Changes in Operating
                                                                                    Conditions: If WRB Refining
                                                                                    LLC significantly changes
                                                                                    the process described in its
                                                                                    petition or starts any
                                                                                    processes that generate(s)
                                                                                    the waste that may or could
                                                                                    affect the composition or
                                                                                    type of waste generated (by
                                                                                    illustration, but not
                                                                                    limitation, changes in
                                                                                    equipment or operating
                                                                                    conditions of the treatment
                                                                                    process), it must notify EPA
                                                                                    in writing and it may no
                                                                                    longer handle the wastes
                                                                                    generated from the new
                                                                                    process as non-hazardous
                                                                                    until the wastes meet the
                                                                                    delisting levels set in
                                                                                    paragraph (1) and it has
                                                                                    received written approval to
                                                                                    do so from EPA.
                                                                                   WRB Refining LLC 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:
                                                                                   WRB Refining LLC must submit
                                                                                    the information described
                                                                                    below. If WRB Refining LLC
                                                                                    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). WRB Refining
                                                                                    LLC 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 WRB Refining LLC
                                                                                    possesses or is otherwise
                                                                                    made aware of any
                                                                                    environmental data
                                                                                    (including but not limited
                                                                                    to leachate data or ground
                                                                                    water monitoring data) or
                                                                                    any other data relevant to
                                                                                    the delisted waste
                                                                                    indicating that any
                                                                                    constituent identified for
                                                                                    the delisting verification
                                                                                    testing is at level higher
                                                                                    than the delisting level
                                                                                    allowed by the Division
                                                                                    Director in granting the
                                                                                    petition, then the facility
                                                                                    must report the data, in
                                                                                    writing, to the Division
                                                                                    Director within 10 days of
                                                                                    first possessing or being
                                                                                    made aware of that data.

[[Page 28784]]


                                                                                   (B) If either the quarterly
                                                                                    or annual testing of the
                                                                                    waste does not meet the
                                                                                    delisting requirements in
                                                                                    paragraph 1, WRB Refining
                                                                                    LLC must report the data, in
                                                                                    writing, to the Division
                                                                                    Director within 10 days of
                                                                                    first possessing or being
                                                                                    made aware of that data.
                                                                                   (C) If WRB Refining LLC fails
                                                                                    to submit the information
                                                                                    described in paragraphs (5),
                                                                                    (6)(A) or (6)(B) or if any
                                                                                    other information is
                                                                                    received from any source,
                                                                                    the Division Director will
                                                                                    make a preliminary
                                                                                    determination as to whether
                                                                                    the reported information
                                                                                    requires EPA action to
                                                                                    protect human health and/or
                                                                                    the environment. Further
                                                                                    action may include
                                                                                    suspending, or revoking the
                                                                                    exclusion, or other
                                                                                    appropriate response
                                                                                    necessary to protect human
                                                                                    health and the environment.
                                                                                   (D) If the Division Director
                                                                                    determines that the reported
                                                                                    information requires action
                                                                                    by EPA, the Division
                                                                                    Director will notify the
                                                                                    facility in writing of the
                                                                                    actions the Division
                                                                                    Director believes are
                                                                                    necessary to protect human
                                                                                    health and the environment.
                                                                                    The notice shall include a
                                                                                    statement of the proposed
                                                                                    action and a statement
                                                                                    providing the facility with
                                                                                    an opportunity to present
                                                                                    information as to why the
                                                                                    proposed EPA action is not
                                                                                    necessary. The facility
                                                                                    shall have 10 days from the
                                                                                    date of the Division
                                                                                    Director's notice to present
                                                                                    such information.
                                                                                   (E) Following the receipt of
                                                                                    information from the
                                                                                    facility described in
                                                                                    paragraph (6)(D) or (if no
                                                                                    information is presented
                                                                                    under paragraph (6)(D)) the
                                                                                    initial receipt of
                                                                                    information described in
                                                                                    paragraphs (5), (6)(A) or
                                                                                    (6)(B), the Division
                                                                                    Director will issue a final
                                                                                    written determination
                                                                                    describing EPA actions that
                                                                                    are necessary to protect
                                                                                    human health and/or the
                                                                                    environment. Any required
                                                                                    action described in the
                                                                                    Division Director's
                                                                                    determination shall become
                                                                                    effective immediately,
                                                                                    unless the Division Director
                                                                                    provides otherwise.
----------------------------------------------------------------------------------------------------------------

* * * * *
    3. In Table 2 of Appendix IX of Part 261 add the following waste 
streams 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
----------------------------------------------------------------------------------------------------------------
                  Facility                                  Address                      Waste description
----------------------------------------------------------------------------------------------------------------
Bayer Material Science LLC.................  Baytown, TX.........................  Toluene Diisocyanate (TDI)
                                                                                    Residue (EPA Hazardous Waste
                                                                                    Nos. K027) generated at a
                                                                                    maximum rate of 9,780 cubic
                                                                                    yards per calendar year
                                                                                    after [insert publication
                                                                                    date of the final rule]. 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; Selenium--0.89; Tin--
                                                                                    22.5; Vanadium--0.976; Zinc--
                                                                                    197.0; 2,4-Toluenediamine--
                                                                                    0.0459.
                                                                                   (2) Waste Holding and
                                                                                    Handling:
                                                                                   (A) Waste classification as
                                                                                    non-hazardous can not 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.
                                                                                   (B) 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 of
                                                                                    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:

[[Page 28785]]


                                                                                   (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.

[[Page 28786]]


                                                                                   (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.
----------------------------------------------------------------------------------------------------------------

* * * * *
    4. 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
----------------------------------------------------------------------------------------------------------------
                  Facility                                  Address                      Waste description
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
WRB Refining LLC (formerly ConocoPhillips    Borger, TX..........................  Thermal desorber residual
 Company).                                                                          solids (Hazardous Waste No.
                                                                                    F037, F038, K048, K049,
                                                                                    K050, K051) generated at a
                                                                                    maximum annual rate of 1,500
                                                                                    cubic yards per calendar
                                                                                    year after [insert
                                                                                    publication date of the
                                                                                    final rule] and disposed in
                                                                                    Subtitle D Landfill.
                                                                                    ConocoPhillips must
                                                                                    implement the testing
                                                                                    program described in Table
                                                                                    1.--Waste Excluded From Non-
                                                                                    Specific Sources for the
                                                                                    petition to be valid.
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 [FR Doc. E8-11004 Filed 5-16-08; 8:45 am]

BILLING CODE 6560-50-P
