Rules and Regulations. Notice of proposed rulemaking
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BILLING CODE 9110-12-P 71 30 Tuesday, February 14, 2006 Proposed Rules DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Parts 544 and 552 [No. 2006-05] RIN 1550-AC00 Federal Savings Association Bylaws; Integrity of Directors AGENCY: Office of Thrift Supervision, Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: The Office of Thrift Supervision
(OTS)is proposing to change its regulations concerning corporate governance to add a preapproved bylaw that federally chartered savings associations and mutual holding companies (collectively, federal savings associations) may adopt. The bylaw would preclude persons who, among other things, are under indictment for or have been convicted of certain crimes involving dishonesty or breach of trust, or have been subject to certain cease and desist orders entered by any of the banking agencies, from being members of the federal savings association's Board of Directors. The proposal would also permit federal savings associations to adopt bylaws that bar such persons from nominating individuals for membership on the federal savings association's Board of Directors. The proposal is intended to permit federal savings associations to protect their businesses from the adverse effects that are likely to result when the reputation of their board members is not conducive to maintaining the public's trust. DATES: Your comments must be received by April 17, 2006. ADDRESSES: You may submit comments, identified by No. 2006-05, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • E-mail: *regs.comments@ots.treas.gov* . Please include No. 2006-05 in the subject line of the message, and include your name and telephone number in the message. • Fax:
(202)906-6518. • Mail: Regulation Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, Attention: No. 2006-05. • Hand Delivery/Courier: Guard's Desk, East Lobby Entrance, 1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: Regulation Comments, Chief Counsel's Office, Attention: No. 2006-05. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this rulemaking. All comments received will be posted without change to the OTS Internet site at *http://www.ots.treas.gov/pagehtml.cfm?catNumber=67&an=1,* including any personal information provided. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.ots.treas.gov/pagehtml.cfm?catNumber=67&an=1.* In addition, you may inspect comments at the Public Reading Room, 1700 G Street, NW., by appointment. To make an appointment for access, call
(202)906-5922, send an e-mail to *public.info@ots.treas.gov,* or send a facsimile transmission to
(202)906-7755. (Prior notice identifying the materials you will be requesting will assist us in serving you.) We schedule appointments on business days between 10 a.m. and 4 p.m. In most cases, appointments will be available the next business day following the date we receive a request. FOR FURTHER INFORMATION CONTACT: Aaron B. Kahn, Assistant Chief Counsel, Business Transactions Division,
(202)906-6263; or Donald W. Dwyer, Director, Applications, Examinations and Supervision—Operations,
(202)906-6414, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: I. General Congress has repeatedly emphasized the importance of ensuring that the people who control savings associations have the requisite character and integrity. When it created the federal savings and loan regulatory system, Congress directed the federal regulatory agency to adopt the best practices then existing in the savings and loan industry. One such practice was ensuring that directors of savings associations were persons of good judgment and character who had the respect and confidence of the community served by their respective institution. *See* Joseph H. Sundheim, *Law of Building and Loan Associations* , § 71 (3d ed. 1933). In 1966, Congress also addressed the integrity of management of savings associations. At that time Congress gave the banking agencies authority to prevent individuals who had engaged in certain conduct from being affiliated with insured depository institutions, including savings associations. 1 In the 1966 legislation, Congress found certain conduct so egregious that it authorized the regulatory agencies to debar perpetrators from the industry, but Congress did not determine whether everyone else was qualified to sit on the boards of savings associations or whether individual savings associations could establish minimum requirements for service as a director that might prevent other persons from sitting on their respective boards of directors. 1 *See* Financial Institutions Supervisory Act of 1966 (FISA), Pub. L. 89-695, 80 Stat. 1028, 1030-32, 1039-40, 1049-50. Among other things, FISA amended section 8 of the Federal Deposit Insurance Act (FDIA), 12 U.S.C. 1818, to provide for the removal and prohibition of persons a banking agency finds to have committed certain acts involving personal dishonesty or willful or continuing disregard for the safety or soundness of an insured depository institution and has either received financial gain, injured the institution or prejudiced the interests of its depositors. Similarly, section 19 of the FDIA, 12 U.S.C. 1829, prohibits persons who have been convicted of any criminal offense involving dishonesty or a breach of trust from controlling or participating in the conduct of the affairs of any insured depository institutions without the prior consent of the Federal Deposit Insurance Corporation. In addition, Congress' attention to the management of savings associations is evident in, among other acts:
(i)The Change in Bank Control Act, which allows the applicable federal banking agency to disapprove a proposed acquisition if, among other things, the competence, experience, and integrity of any of the acquiror's proposed management personnel might jeopardize the financial stability of the institution or prejudice the interests of the depositors of the institution; 2 and
(ii)the holding company acquisition provisions of the Home Owners' Loan Act, which require OTS to consider the competence, experience, and integrity of directors of an acquiror and the savings associations involved in connection with agency review of managerial resources. 3 2 12 U.S.C. 1817(j)(7)(D). 3 12 U.S.C. 1467a(e)(1)(B), (e)(2). Congress again recognized the need to ensure integrity in the banking industry when it enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183. In FIRREA, Congress required certain financial institutions to provide prior notice to their federal regulator of any new board members and authorized the regulator to disapprove a board member if he or she lacked the requisite character or integrity to advance the interests of the depositors of the institution. 4 4 Section 914 of FIRREA (12 U.S.C. 1831i) provides for a banking agency to disapprove a proposed director “if the competence, experience, character, or integrity of the [proposed director] indicates that it would not be in the best interests of the depositors of the depository institution or in the best interests of the public to permit the individual to be [so] employed. * * *” In 1996, Congress changed the categories of institutions subject to this requirement. *See* Section 2209 of the Economic Growth and Regulatory Paperwork Reduction Act, Pub. L. 104-208, 110 Stat. 3009-409. On March 15, 2001, OTS published a rule amending its corporate governance rules for federally chartered savings associations to create a class of preapproved optional bylaw provisions that those savings associations could adopt without prior OTS review. 66 FR 15017. In addition, OTS promulgated a preapproved optional bylaw dealing with the qualifications of directors. The bylaw was intended to make it easier for federal savings associations to protect their businesses from the adverse effects that are likely to result when the reputation of its board members does not maintain the public's trust. Recently, a number of federal savings associations have requested permission to adopt bylaws similar to the preapproved bylaw but also containing additional restrictions. On March 17, 2005, OTS approved an application by a federal savings association to adopt a bylaw amendment containing additional restrictions (OTS Order No. 2005-13). Rather than continue to deal with each request individually, OTS has determined to reconsider the optional bylaw and determine if changes are warranted. Proceeding by rulemaking will afford an opportunity for those interested in submitting comments to do so and for OTS to consider such comments. 5 5 If OTS adopts the current proposal, the preapproved optional bylaw adopted in 2001 will be deleted. The proposed bylaw provisions focus particularly on actions against an individual predicated on serious dishonesty, breach of fiduciary duty, or willful violation of financial regulatory law. Under the proposed preapproved bylaw provisions, a person would not be qualified if the person:
(i)Is under indictment for, or has been convicted of, a criminal offense involving dishonesty or breach of trust and the penalty for the offense could be imprisonment for more than one year;
(ii)has been subject to a banking agency final cease and desist order for conduct involving dishonesty or breach of trust; or
(iii)has been found, either by a regulatory agency whose decision is final and not subject to appeal or by a court, to have breached a fiduciary duty under circumstances involving personal profit; committed a willful violation of any law, rule, or regulation governing banking, securities, commodities, or insurance; or committed a willful violation of a final cease and desist order issued by a banking, securities, commodities, or insurance regulatory agency. The preapproved optional bylaw that OTS adopted in 2001 differs from the terms of the preapproved optional bylaw provisions now being proposed by OTS in certain respects. First, while both bylaw provisions would disqualify someone who has been subject to a banking agency cease and desist order because the person was found to have engaged in conduct involving dishonesty or breach of trust and that order is final and not subject to appeal, the bylaws do not contain the same disqualification time periods. The existing preapproved optional bylaw provides for a ten-year period of disqualification. In the proposed optional bylaw provisions, the period of disqualification is indefinite. However, under the proposed preapproved bylaw provisions, OTS would consider any specific time period of disqualification chosen by an adopting institution or holding company to also be preapproved. Second, the existing preapproved optional bylaw does not foreclose a disqualified person from nominating other persons to serve on the board. In contrast, the proposed optional bylaw provisions allow a bylaw to prohibit a person who is disqualified from serving as a director from nominating others to serve as directors. However, otherwise qualified persons who are nominated by someone who is not disqualified would not be prohibited from serving merely because a disqualified person also nominated them. Finally, in order to make the nomination provision effective, the proposed optional bylaw provision allows an institution to preclude entities owned or controlled by an ineligible person from using their share ownership to nominate directors. If OTS adopts the proposal, a federal savings association could adopt a bylaw containing either some or all of the preapproved bylaw provisions and could limit the period for the restrictions contained in the proposed bylaw to whatever period the institution deemed appropriate. However, federal savings associations that wish to adopt a bylaw containing additional director qualifications beyond those in the preapproved bylaw provisions would continue to be required to obtain prior approval from OTS. The proposed regulation does not bar anyone from the industry. Rather, like the existing preapproved bylaw, it permits individual federal savings associations to voluntarily adopt bylaws that set qualifications for board membership only for their respective institutions. Federal savings associations that adopt the preapproved bylaw provisions or less restrictive provisions would not have to provide prior notice to OTS, but would have to file notice of the adoption of the bylaw within 30 days after adopting the bylaw. OTS believes that the proposed regulation would enhance the ability of federal savings associations to assure themselves that persons who are subject to adverse actions concerning their fiduciary integrity or compliance with financial regulatory laws do not become board members or obtain board membership for their representatives. The proposed provisions, like the existing preapproved bylaw provisions, permit the setting of standards for the integrity of prospective board members and are derived in part from the existing standards contained in § 563.39(b)(1) for terminating savings association officers for cause. Because that provision deals with the integrity of officials who are supervised by the board of directors, it appears reasonable to hold the board members to at least a comparable standard of integrity. It is important that the directors of savings associations be persons of good character and integrity. They oversee management and have the ultimate responsibility for the operations of the savings association. In addition, directors of savings associations commonly assist their institutions in attracting and retaining business. Their reputations in the community or communities served by the savings association reflect on the institution and affect their ability to help the institution attract and retain business. People need to be able to trust the institution that holds their money. Moreover, people may be wary of contracting with an institution that they do not trust. Thus, a director who has an exemplary reputation may be a valuable asset to the association. Conversely, a director whose reputation is tainted, for example because a court has found he or she personally profited from a breach of his or her fiduciary duties, may injure an institution simply by being a member of the board. The proposed regulation enhances the ability of federal savings associations to limit board membership to persons of good character and integrity. In addition, OTS is concerned that an institution may suffer reputational risk if the representatives of a disreputable person are elected to the institution's board of directors. It is reasonable to assume that when such a person seeks to have others elected to a board of directors, that person has chosen nominees who he or she believes will pursue the same objectives as their sponsor. Thus, their election may well engender the same reaction from the public as would the election of their sponsor, the disreputable person. Given these concerns, OTS proposes to permit federal savings associations to prohibit disqualified persons from nominating others for positions on the board of directors. Also, to prevent evasion of that prohibition, OTS proposes to permit federal savings associations to prohibit nominations from entities that are owned or controlled by disqualified persons. For example, under the proposed preapproved bylaw, a trust that holds shares could be prohibited from nominating someone to be a director if the trustee or principal beneficiary of the trust was disqualified under the preapproved bylaw. However, persons should not be kept off boards of directors if they are not merely representatives of a disqualified person. Therefore, the proposed preapproved bylaw does not prohibit a person's service if that person is nominated by more than one shareholder and at least one of the nominating shareholders is someone who the proposed bylaw would not prohibit from serving as a director. When OTS adopted the existing preapproved bylaw it noted that a trade association had commented that such bylaw should not be expanded to prevent ineligible persons from nominating otherwise eligible candidates for director positions. The trade association reasoned that the focus of the bylaw should be that directors themselves be individuals of integrity. At that time, OTS stated that, “[i]n the absence of any reasoned support for a broader provision, OTS will not expand the wording of the preapproved bylaw to encompass nominees of persons covered by the terms of the bylaw.” 66 FR 15019 (Mar. 15, 2001). OTS agrees that the primary focus should be on the integrity of the individual directors. However, as discussed above, it appears to OTS that there is reasoned support for the broader provision. Moreover, OTS would not require institutions to adopt the nominee provision to obtain the benefit of having the bylaw preapproved. Thus, an institution that adopted a bylaw that was essentially the same as the proposed preapproved bylaw except that it did not include the nominee clause would still be able to make the bylaw effective by simply notifying OTS of the bylaw's adoption. In OTS's view, individual federal savings associations should, in the first instance, make the judgment as to the extent of reputational risk presented by permitting nominees of disqualified persons to serve on the institution's board of directors. II. Request for Comments A. Solicitation of Comments on the Proposed Amendments OTS requests comment on all aspects of this proposal. In particular, OTS is interested in comments addressing the proposal to permit federal savings associations to disqualify individuals who have been subject to certain cease and desist orders indefinitely rather than for a maximum of ten years. Is this change beneficial? In addition, the proposed provision governing cease and desist orders is limited to orders issued by a banking agency. Should this provision be expanded to cover cease and desist orders issued by regulatory agencies with jurisdiction over other financial businesses? Should it cover regulatory agencies with jurisdiction over non-financial businesses? OTS is also interested in receiving comments on the added provision barring disqualified persons from nominating individuals to serve on the board of directors. Is this provision desirable? Are OTS's concerns about reputational risks engendered by allowing disqualified persons to nominate others for the board of directors valid? Are there any disadvantages to permitting federal savings associations to adopt such a bylaw? OTS also solicits more general comments. The proposed bylaw is intended to reduce the risk of harm to the reputation of the adopting federal savings association. Are OTS's concerns about the reputational risks posed by persons who have engaged in dishonest conduct valid? Is the proposed optional bylaw an effective comprehensive means of reducing risk to reputation? Are there other methods or means of addressing that risk that are less restrictive? B. Solicitation of Comments Regarding the Use of Plain Language Section 722 of the Gramm-Leach-Bliley Act requires federal banking agencies to use “plain language” in all proposed and final rules published after January 1, 2000. OTS invites comments on how to make this proposed rule easier to understand. For example:
(1)Have we organized the material to suit your needs? If not, how could the material be better organized?
(2)Do we clearly state the parameters of the preapproved bylaw in the rule? If not, how could the rule be more clearly stated?
(3)Does the rule contain technical language or jargon that is not clear? If so, what language requires clarification?
(4)Would a different format make the rule easier to understand? If so, what changes to the format would make the rule easier to understand? III. Regulatory Findings A. Paperwork Reduction Act OTS has determined that this proposed rule does not involve any additional collection of information from that previously approved under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). B. Executive Order 12866 The Director of OTS has determined that this proposed rule does not constitute a “significant regulatory action” for purposes of Executive Order 12866. Because no savings association is required to take any action by this proposal and because any federal savings association could have requested permission to impose qualifications for membership on its Board of Directors comparable to those contained in the proposal, OTS has concluded that the proposal will not have significant effects on the thrift industry. C. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS certifies that this proposal will not have a significant impact on a substantial number of small entities. The proposed preapproved bylaw reduces regulatory burden on federal savings associations, including small federal savings associations, by permitting them to adopt certain bylaws without providing prior notice to OTS. The rule does not require any savings association to modify its bylaws and all federal savings associations currently can request permission to adopt such bylaws, if they choose to do so. Accordingly, a regulatory flexibility analysis is not required. D. Unfunded Mandates Reform Act Of 1995 OTS has determined that this proposed rule will not result in expenditures by state, local and tribal governments, or by the private sector, of $100 million or more in any one year. Therefore, OTS has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered. The proposal simply gives federal savings associations the option to adopt a bylaw without having to first request permission from OTS. List of Subjects 12 CFR Part 544 Reporting and recordkeeping requirements, Savings associations. 12 CFR Part 552 Reporting and recordkeeping requirements, Savings associations. Securities. Authority and Issuance For the reasons set out in the preamble, parts 544 and 552 of Chapter V of title 12 of the Code of Federal Regulations are proposed to be amended as follows: PART 544—FEDERAL MUTUAL SAVINGS ASSOCIATIONS—CHARTER AND BYLAWS 1. The authority citation for part 544 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 2901 *et seq.* 2. Amend § 544.5 by adding a new paragraph (c)(1)(iv) to read as follows: § 544.5 Federal mutual savings association bylaws.
(c)* * *
(1)* * *
(iv)For purposes of this paragraph (c), bylaw provisions that use the following language or provide less restrictive qualifications for directors or the ability to nominate directors than provided in the following language are effective upon adoption, provided such bylaws are filed with OTS within 30 days after adoption: A person is not qualified to serve as a director if he or she: 1—is under indictment for, or has ever been convicted of, a criminal offense involving dishonesty or breach of trust and the penalty for such offense could be imprisonment for more than one year; 2—is a person against whom a banking agency has issued a cease and desist order for conduct involving dishonesty or breach of trust and that order is final and not subject to appeal; or 3—has been found either by a regulatory agency whose decision is final and not subject to appeal or by a court to have breached a fiduciary duty involving personal profit or committed a willful violation of any law, rule or regulation governing banking, securities, commodities or insurance, or any final cease and desist order issued by a banking, securities, commodities or insurance regulatory agency. A person who under this provision is not qualified to serve as a director, and any entity that is owned or controlled by such person, is not permitted to nominate anyone to serve as a director. PART 552—FEDERAL STOCK ASSOCIATIONS—INCORPORATION, ORGANIZATION, AND CONVERSION 3. The authority citation for part 552 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a. 4. Amend § 552.5 by adding a new paragraph (b)(1)(iv) to read as follows: § 552.5 Bylaws.
(b)* * *
(1)* * *
(iv)For purposes of this paragraph (b), bylaw provisions that use the following language or provide less restrictive qualifications for directors or the ability to nominate directors than provided in the following language are effective upon adoption provided, such bylaws are filed with OTS within 30 days after adoption: A person is not qualified to serve as a director if he or she: 1—is under indictment for, or has ever been convicted of, a criminal offense involving dishonesty or breach of trust and the penalty for such offense could be imprisonment for more than one year; 2—is a person against whom a banking agency has issued a cease and desist order for conduct involving dishonesty or breach of trust and that order is final and not subject to appeal; or 3—has been found either by a regulatory agency whose decision is final and not subject to appeal or by a court to have breached a fiduciary duty involving personal profit or committed a willful violation of any law, rule or regulation governing banking, securities, commodities or insurance, or any final cease and desist order issued by a banking, securities, commodities or insurance regulatory agency. A person who under this provision is not qualified to serve as a director, and any entity that is owned or controlled by such person, is not permitted to nominate anyone to serve as a director. Dated: February 7, 2006. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. E6-2003 Filed 2-13-06; 8:45 am] BILLING CODE 6720-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2004-19220; Directorate Identifier 2004-CE-27-AD] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. Models PC-12 and PC-12/45 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for all Pilatus Aircraft Ltd. (Pilatus) Models PC-12 and PC-12/45 airplanes equipped with certain crew seat bucket assemblies with and without a backrest recline system. This proposed AD would require you to replace the backrest tubes on these crew seat bucket assemblies at a specified time and adds a life limit for these backrest tubes. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by the airworthiness authority for Switzerland. We are issuing this proposed AD to prevent cracks in the backrest tubes of certain crew seat bucket assemblies, which could result in failure of the seat system. This failure could lead to the pilot and co-pilot's reduced ability to control the airplane. This failure could also affect the proper function of the seat restrain system in the case of an emergency landing. DATES: We must receive comments on this proposed AD by March 16, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • Fax: 1-202-493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Pilatus Aircraft Ltd., Customer Support Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 6208; facsimile: +41 41 619 7311; or Pilatus Business Aircraft Ltd., Product Support Department, 11755 Airport Way, Broomfield, Colorado 80021; telephone:
(303)465-9099; facsimile:
(303)465-6040 for the service information identified in this proposed AD. You may examine the comments on this proposed AD in the AD docket on the Internet at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; facsimile:
(816)329-4090. SUPPLEMENTARY INFORMATION: Comments Invited *How do I comment on this proposed AD?* We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include the docket number, “FAA-2004-19220; Directorate Identifier 2004-CE-27-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Using the search function of the DOT docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov.* Examining the Dockets *Where can I go to view the docket information?* You may examine the docket that contains the proposal, any comments received and any final disposition on the Internet at *http://dms.dot.gov,* or in person at the DOT Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the Docket Management Facility receives them. Discussion *What events have caused this proposed AD?* The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, notified FAA that an unsafe condition may exist on all Pilatus Models PC-12 and PC-12/45 airplanes equipped with certain crew seat bucket assemblies with and without a backrest recline system. The FOCA reports that during a regular maintenance inspection, the seat bucket assembly tubes on a crew seat with a recline system had failed. Fatigue on the left-hand
(LH)and right-hand
(RH)seat bucket assembly tubes at the location of the energy device pins caused the seat bucket assembly tubes to fail. The lower tubes were attached but the upper tubes were completely detached. Pilatus conducted further investigation to determine if additional crew seat bucket assembly backrest tubes have fatigue cracks. Thirty-one of the affected airplanes were inspected. Six pilot and two co-pilot seats were found with partial fatigue cracks. None had completely failed. The cracks were found on the backrest tubes of the crew seat bucket assemblies with the recline feature. The result of the inspections led to the establishment of a life limit for the backrest tubes on certain crew seat bucket assemblies with and without a backrest recline system. *What is the potential impact if FAA took no action?* If not prevented, cracks in the backrest tubes of the seat bucket assembly could cause the seat system to fail. This failure could lead to the pilot and co-pilot's reduced ability to control the airplane. This failure could also affect the proper function of the seat system in the case of an emergency landing. *Is there service information that applies to this subject?* Pilatus has issued Pilatus PC12 Maintenance Manual Temporary Revision No. 04-13, dated June 15, 2005. *What are the provisions of this service information?* The maintenance manual temporary revision establishes a life limit for the backrest tubes on crew seat bucket assemblies with and without a recline system. *What action did the FOCA take?* The FOCA classified this maintenance manual temporary revision as mandatory and issued Swiss AD Number HB-2005-470, Effective Date: December 30, 2005, to ensure the continued airworthiness of these airplanes in Switzerland. *Did the FOCA inform the United States under the bilateral airworthiness agreement?* These Pilatus Models PC-12 and PC-12/45 airplanes are manufactured in Switzerland and are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the FOCA has kept us informed of the situation described above. FAA's Determination and Requirements of This Proposed AD *What has FAA decided?* We have examined the FOCA's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Since the unsafe condition described previously is likely to exist or develop on other Pilatus Models PC-12 and PC-12/45 airplanes of the same type design that are registered in the United States, we are proposing AD action to prevent cracks in the backrest tubes of certain crew seat bucket assemblies, which could result in failure of the seat system. This failure could lead to the pilot and co-pilot's reduced ability to control the airplane. This failure could also affect the proper function of the seat restrain system in the case of an emergency landing. FAA's Determination and Requirements of the Proposed AD * Why have we determined AD action is necessary and what would this proposed AD require? * We are proposing this AD to address an unsafe condition that we determined is likely to exist or develop on other products of this same type design. The proposed AD would require you to replace the backrest tubes on certain crew seat bucket assemblies at a specified time and adds a life limit for the backrest tubes. Costs of Compliance *How many airplanes would this proposed AD impact?* We estimate that this proposed AD affects 260 airplanes in the U.S. registry. *What would be the cost impact of this proposed AD on owners/operators of the affected airplanes?* We estimate the following costs to accomplish this proposed replacement: Labor cost Parts cost Total cost per seat bucket assembly Total cost on U.S. operators 3 work hours × $65 per hour = $195 per seat bucket assembly $600 per seat bucket assembly. 2 seats on each airplane $195 + $600 = $795 per seat bucket assembly $795 per seat bucket assembly × 2 per airplane = $1,590. $1,590 × 260 = $413,400. Authority for This Rulemaking *What authority does FAA have for issuing this rulemaking action?* Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings *Would this proposed AD impact various entities?* We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administrator amends § 39.13 by adding the following new airworthiness directive (AD): **Pilatus Aircraft LTD.:** Docket No. FAA-2004-19220; Directorate Identifier 2004-CE-27-AD. When Is the Last Date I Can Submit Comments on This Proposed AD?
(a)The Federal Aviation Administration
(FAA)must receive comments on this proposed AD action by March 16, 2006. What Other ADs Are Affected by This Action?
(b)None. What Airplanes Are Affected by This AD?
(c)This AD affects all Models PC-12 and PC-12/45 airplanes that are equipped with the following crew seat bucket assemblies and are certificated in any category:
(1)*Crew seats with a recline system, part numbers (P/N):* 959.30.01.111, 959.30.01.112, 959.30.01.121, and 959.30.01.122.
(2)*Crew seats without recline system, P/Ns:* 959.30.01.131, 959.30.01.132, 959.30.01.133, and 959.30.01.134. What Is the Unsafe Condition Presented in This AD?
(d)This AD is the result of mandatory continuing airworthiness information
(MCAI)issued by the airworthiness authority for Switzerland. The actions specified in this AD are intended to prevent cracks in the backrest tubes of certain crew seat bucket assemblies, which could result in failure of the seat system. This failure could lead to the pilot and co-pilot's reduced ability to control the airplane. This failure could also affect the proper function of the seat restrain system in the case of an emergency landing. What Must I Do To Address This Problem?
(e)To address this problem, you must do the following: Actions Compliance Procedures
(1)For crew seat bucket assemblies with a recline system, part numbers (P/N) 959.30.01.111, 959.30.01.112, 959.30.01.121, and 959.30.01.122 (or FAA-approved equivalent P/Ns), replace the backrest tubes Initially replace upon the accumulation of 5,000 hours time-in-service
(TIS)or within the next 100 hours TIS after the effective date of this AD, whichever occurs later. Thereafter, replace the backrest tubes upon the accumulation of 5,000 hours TIS (the life limit established in this AD) As specified in Pilatus PC12 Maintenance Manual Temporary Revision No. 04-13, dated June 15, 2005. Replace following the procedures in the applicable component maintenance manual.
(2)For crew seat bucket assemblies without a recline system, P/Ns 959.30.01.131, 959.30.01.132, 959.30.01.133, and 959.30.01.134 (or FAA-approved equivalent P/Ns), replace the backrest tubes Initially replace upon the accumulation of 10,000 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later. Thereafter, replace the backrest tubes upon the accumulation of 10,000 hours TIS (the life limit established in this AD) As specified in Pilatus PC12 Maintenance Manual Temporary Revision No. 04-13, dated June 15, 2005. Replace following the procedures in the CMM.
(3)Do not install:
(i)Any crew seat bucket assembly with a recline system, P/N 959.30.01.111, 959.30.01.112, 959.30.01.121, and 959.30.01.122 (or FAA-approved equivalent P/Ns), with unknown hours TIS or which has accumulated 5,000 or more hours TIS; or As of the effective date of this AD. The life limits specified in paragraphs (e)(1) and (e)(2) of this AD apply to all parts installed as spares Not Applicable.
(ii)Any crew seat bucket assembly without a recline system, P/N 959.30.01.131, 959.30.01.132, 959.30.01.133, and 959.30.01.134 (or FAA-approved equivalent P/Ns), with unknown hours TIS or which has accumulated 10,000 or more hours TIS.
(4)14 CFR 21.303 allows for replacement parts through parts manufacturer approval (PMA). The phrase “or FAA-approved equivalent part number” in this AD is intended to signify those parts that are PMA parts approved through identicality to the design of the part under the type certificate and replacement parts to correct the unsafe condition under PMA (other than identicality). If parts are installed that are identical to the unsafe parts, then the corrective actions of the AD affect these parts also. In addition, equivalent replacement parts to correct the unsafe condition under PMA (other than identicality) may also be installed provided they meet current airworthiness standards, which include those actions cited in this AD Not Applicable Not Applicable.
(5)You must contact the type certificate holder any time a modification or repair is done that affects the parts listed in paragraphs (e)(1), (e)(2), and (e)(3) of this AD to determine the effect, if any, the modification or repair may have on the life limits established in this AD As of the effective date of this AD Not Applicable. Note: Return all replaced backrest tubes to Pilatus Aircraft Ltd., Structural Analysis Group ECE, Ch-6371 Stans, Switzerland. Include the following information: crew seat P/N and serial number, aircraft manufacturer serial number, aircraft flying hours, number of flights, and replacement date of the replaced backrest tubes. May I Request an Alternative Method of Compliance?
(f)The Manager, Standards Office, Small Airplane Directorate, FAA, has the authority to approve alternative methods of compliance for this AD, if requested using the procedures found in 14 CFR 39.19. For information on any already approved alternative methods of compliance or for information pertaining to this AD, contact Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; facsimile:
(816)329-4090. Is There Other Information That Relates to This Subject?
(g)Swiss AD Number HB-2005-470, Effective Date: December 30, 2005, also addresses the subject of this AD. May I Get Copies of the Documents Referenced in This AD?
(h)To get copies of the documents referenced in this AD, contact Pilatus Aircraft Ltd., Customer Support Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 6208; facsimile: +41 41 619 7311; or Pilatus Business Aircraft Ltd., Product Support Department, 11755 Airport Way, Broomfield, Colorado 80021; telephone:
(303)465-9099; facsimile:
(303)465-6040. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov.* The docket number is Docket No. FAA-2004-19220; Directorate Identifier 2004-CE-27-AD. Issued in Kansas City, Missouri, on February 7, 2006. Steven W. Thompson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-2020 Filed 2-13-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Saint Lawrence Seaway Development Corporation 33 CFR Part 402 [Docket No. SLSDC 2006-23839] RIN 2135-AA23 Tariff of Tolls AGENCY: Saint Lawrence Seaway Development Corporation, DOT. ACTION: Notice of proposed rulemaking. SUMMARY: The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls in their respective jurisdictions. The Tariff sets forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the SLSDC and the SLSMC. The SLSDC is revising its regulations to reflect the fees and charges levied by the SLSMC in Canada starting in the 2006 navigation season, which are effective only in Canada. An amendment to increase the minimum charge per lock for those vessels that are not pleasure craft or subject in Canada to tolls under items 1 and 2 of the Tariff for full or partial transit of the Seaway will apply in the U.S. (See Supplementary Information .) DATES: Any party wishing to present views on the proposed amendment may file comments with the Corporation on or before March 16, 2006. ADDRESSES: You may submit comments [identified by DOT DMS Docket Number SLSDC 2005-20518] by any of the following methods: • Web Site: *http://dms.dot.gov* . Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 1-202-493-2251. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. • Federal eRulemaking Portal: Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number
(RIN)for this rulemaking. Note that all comments received will be posted without change to *http://dms.dot.gov* , including any personal information provided. Please see the Privacy Act heading under *Regulatory Notices* . *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to RoomPL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: Craig H. Middlebrook, Acting Chief Counsel, Saint Lawrence Seaway Development Corporation, 400 Seventh Street, SW., Washington, DC 20590,
(202)366-0091. SUPPLEMENTARY INFORMATION: The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls (Schedule of Fees and Charges in Canada) in their respective jurisdictions. The Tariff sets forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the SLSDC and the SLSMC. The SLSDC is proposing to revise 33 CFR 402.8, “Schedule of Tolls”, to reflect the fees and charges levied by the SLSMC in Canada beginning in the 2006 navigation season. Additionally, the SLSDC is proposing to revise 33 CFR 402.3 and 33 CFR 402.4 to provide interpretations of two charges for vessels carrying new cargo on the Welland Canal and the MLO Section of the Seaway. With one exception, the changes affect the tolls for commercial vessels and are applicable only in Canada. The collection of tolls by the SLSDC on commercial vessels transiting the U.S. locks is waived by law (33 U.S.C. 988a(a)). Accordingly, no notice or comment is necessary on these amendments. The SLSDC is proposing to amend 33 CFR 402.8, “Schedule of Tolls”, to increase the minimum charge per vessel per lock for full or partial transit of the Seaway from $20.00 to $20.40. This charge is for vessels that are not pleasure craft or subject in Canada to the tolls under items 1 and 2 of the Tariff. This increase is due to higher operating costs at the locks. *Regulatory Notices: Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov* . Regulatory Evaluation This proposed regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required. Regulatory Flexibility Act Determination I certify this proposed regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels. Environmental Impact This proposed regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et reg.) because it is not a major Federal action significantly affecting the quality of the human environment. Federalism The Corporation has analyzed this proposed rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this proposal does not have sufficient federalism implications to warrant a Federalism Assessment. Unfunded Mandates The Corporation has analyzed this proposed rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives. Paperwork Reduction Act This proposed regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review. List of Subjects in 33 CFR Part 402 Vessels, Waterways. Accordingly, the Saint Lawrence Seaway Development Corporation proposes to amend 33 CFR part 402, Tariff of Tolls, as follows: PART 402—TARIFF OF TOLLS 1. The authority citation for part 402 continues to read as follows: Authority: 33 U.S.C. 983(a), 984(a)(4) and 988, as amended; 49 CFR 1.52. 2. Section 402.3 is amended by redesignating paragraphs
(k)through
(n)as
(m)through
(p)and by adding new paragraphs
(k)and
(l)to read as follows: § 402.3 Interpretation.
(k)*New cargo—MLO Section* means either containerized cargo or cargo which has not moved through the MLO Section in an average annual amount, over the navigation seasons 2001-2002-2003, greater than 10,000 metric tons.
(l)*New cargo—Welland Canal* means either containerized cargo or cargo which has not moved through the Welland Canal in an average annual amount, over the navigation seasons 2001-2002-2003, greater than 10,000 metric tons.
(m)*Passenger* means a person being transported through the Seaway who has a paid fare for passage.
(n)*Pleasure craft* means a ship, however propelled, that is used exclusively for pleasure and does not carry passengers.
(o)*Seaway* includes all facilities and services authorized under Public Law 358, 83rd Congress, May 13, 1954, enacted by the Congress of the United States, as amended, (33 U.S.C. 981, *et seq.* ) and the meaning ascribed to it under the Canada Marine Act.
(p)*Vessel* (“ship” in Canada) means every type of craft used as a means of transportation on water, except a vessel owned or employed by the Manager or the Corporation. 3. Section 402.4 is amended by adding paragraphs
(d)through
(f)to read as follows: § 402.4 Tolls.
(d)As part of the fees applicable under the New Cargo—Welland Canal and the New Cargo—MLO Section, once a cargo has qualified as new cargo, it will remain qualified for the navigation seasons 2006 and 2007.
(e)For a transit to be accepted under the New Cargo—Welland Canal or the New Cargo—MLO Section, more than 50% of the cargo carried on that transit for each section must qualify as new cargo.
(f)Barges transiting the Welland Canal together as one unit pulled by the same tug or tugs shall, for the purpose of calculating lockage fees, be deemed to be a combination unit and will pay lockage fees as a single barge. 4. Section 402.8 is revised to read as follows: § 402.8 Schedule of tolls. Column 1 Item—Description of charges Column 2 Rate ($) Montreal to or from Lake Ontario (5 locks) Column 3 Rate ($) Welland Canal—Lake Ontario to or from Lake Erie (8 locks) 1. Subject to item 3, for complete transit of the Seaway, a composite toll, comprising:
(1)A charge per gross registered ton of the ship, applicable whether the ship is wholly or partially laden, or is in ballast, and the gross registered tonnage being calculated according to prescribed rules for measurement or under the International Convention on Tonnage Measurement of Ships, 1969, as amended from time to time 0.0947 0.1537.
(2)A charge per metric ton of cargo as certified on the ship's manifest or other document, as follows:
(a)Bulk cargo 0.9816 0.6504.
(b)General cargo 2.3651 1.0408.
(c)Steel slab 2.1405 0.7451.
(d)Containerized cargo 0.9816 0.6504.
(e)Government aid cargo N/A N/A.
(f)Grain 0.6030 0.6504.
(g)Coal 0.5795 0.6504.
(3)A charge per passenger per lock 1.3954 1.3954.
(4)A charge per lock for transit of the Welland Canal in either direction by cargo ships:
(a)Loaded N/A 519.40.
(b)In ballast N/A 383.75. 2. Subject to item 3, for partial transit of the Seaway 20 per cent per lock of the applicable charge under items 1(1) and
(2)plus the applicable charge under items 1(3) and
(4)13 per cent per lock of the applicable charge under items 1(1) and
(2)plus the applicable charge under items 1(3) and (4). 3. Minimum charge per ship per lock transited for full or partial transit of the Seaway 20.40 20.40. 4. A rebate applicable to the rates of item 1 to 3 N/A N/A. 5. A charge per pleasure craft per lock transited for full or partial transit of the Seaway, including applicable federal taxes 1 20.00 20.00. 6. Subject to item 3, in lieu of item 1(4), for vessel carrying new cargo on the Welland Canal or returning ballast after carrying new cargo on the Welland Canal, a charge per gross registered ton of the ship, the gross registered tonnage being calculated according to item 1(1):
(a)Loaded N/A 0.1530.
(b)In ballast N/A 0.1122. 7. Subject to item 3, in lieu of item 1(1), for vessel carrying new cargo on the MLO section or returning ballast after carrying new cargo on the MLO Section, a charge per gross registered ton of the ship, the gross registered tonnage being calculated according to item 1(1): 0.0000 N/A. 1 The applicable charge at the Saint Lawrence Seaway Development Corporation's locks (Eisenhower, Snell) for pleasure craft is $25 U.S., or $30 Canadian per lock. The applicable charge under item 3 at the Saint Lawrence Seaway Development Corporation's locks (Eisenhower, Snell) will be collected in U.S. dollars. The other amounts are in Canadian dollars and are for the Canadian Share of tolls. The collection of the U.S. portion of tolls for commercial vessels is waived by law (33 U.S.C. 988a(a)). Issued at Washington, DC, on February 2, 2006. Saint Lawrence Seaway Development Corporation. Albert S. Jacquez, Administrator. [FR Doc. E6-2045 Filed 2-13-06; 8:45 am] BILLING CODE 4910-61-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [SW FRL-8031-5] Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule and request for comment. SUMMARY: EPA is proposing to grant a petition submitted by Bayer Material Science LLC (Bayer) to exclude (or delist) a certain solid waste generated by its Baytown, Texas, facility from the lists of hazardous wastes. EPA used the Delisting Risk Assessment Software
(DRAS)in the evaluation of the impact of the petitioned waste on human health and the environment. EPA 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 exclude the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA). If finalized, EPA would conclude that Bayer's petitioned waste, spent carbon, is non-hazardous. The spent carbon from the facility's waste water treatment plant, before treatment, would be listed under the hazardous waste codes K027, K104, K111, and K112. Long- and short-term threats to human health and the environment from the spent carbon as generated are minimized. DATES: EPA will accept comments until March 16, 2006. EPA will stamp comments received after the close of the comment period as late. These late comments may not be considered in formulating a final decision. Your requests for a hearing must reach EPA by March 1, 2006. The request must contain the information prescribed in 40 CFR 260.20(d) (hereinafter all CFR cites refer to 40 CFR unless otherwise stated). ADDRESSES: Please send three copies of your comments. You should send two copies to the Chief, Corrective Action and Waste Minimization Section (6PD-C), Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. You should send a third copy to the Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX 78712. Identify your comments at the top with this regulatory docket number: R6-TXDEL-FY06-Bayer-Spent Carbon. You may submit your comments electronically to Michelle Peace at *peace.michelle@epa.gov* . You may also submit your comments through *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. You should address requests for a hearing to Ben Banipal, Chief, Corrective Action and Waste Minimization Section (6PD-C), Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. FOR FURTHER INFORMATION CONTACT: Michelle Peace
(214)665-7430. SUPPLEMENTARY INFORMATION: 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 this delisting? C. How will Bayer manage the waste if it is delisted? D. When would the proposed delisting exclusion be finalized? E. How would this action affect states? 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? III. EPA's Evaluation of the Waste Information and Data A. What waste did Bayer petition EPA to delist? B. Who is Bayer and what process do they use to generate the petition waste? C. What information did Bayer submit to support this petition? D. What were the results of Bayer's analysis? E. How did EPA evaluate the risk of delisting this waste? F. What did EPA conclude about Bayer's analysis? G. What other factors did EPA consider in its evaluation? H. What is EPA's evaluation of this delisting petition? IV. Next Steps A. With what conditions must the petitioner comply? B. What happens, if Bayer violates the terms and conditions? V. 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? VI. Statutory and Executive Order Reviews I. Overview Information A. What action is EPA proposing? EPA is proposing to grant the delisting petition submitted by Bayer to have its spent carbon (K027, K104, K111, and K112 listed hazardous waste) excluded, or delisted, from the definition of a hazardous waste. B. Why is EPA proposing to approve this delisting? Bayer's petition requests a delisting for the spent carbon derived from the treatment of hazardous waste water listed as K027, K104, K111, and K112 be delisted. Bayer does not believe that the petitioned waste meets the criteria for which EPA listed it. Bayer also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (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 the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's proposed decision to delist waste from the facility is based on the information submitted in support of this rule, including descriptions of the waste and analytical data from the Bayer, Baytown, Texas facility. C. How will Bayer manage the waste if it is delisted? Bayer will dispose of the spent carbon in a Subtitle D landfill. D. When would the proposed delisting exclusion 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 U.S.C. 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 EPA Administrator under 40 CFR 260.22 are effective in the State of Texas only after the final rule has been published in the **Federal Register** . 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 §§ 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 § 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, §§ 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 § 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 § 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 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* § 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). III. EPA's Evaluation of the Waste Information and Data A. What waste did Bayer petition EPA to delist? Bayer petitioned EPA on September 26, 2003, to exclude from the lists of hazardous waste contained in §§ 261.31 and 261.32, the spent carbon from its waste water treatment plant. This petition also included a request to delist the Clarifier Outlet Wastewater. This waste stream was subsequently removed from the petition. The spent carbon waste stream is generated from the Bayer facility located in Baytown, Texas. The spent carbon is listed under EPA Hazardous Waste Nos. K027, K104, K111, and K112, 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, Bayer requested that EPA grant an exclusion for 7,728 cubic yards per calendar year of spent carbon resulting from the treatment of waste waters from the manufacturing processes at its facility. B. Who is Bayer and what process do they use to generate the petition waste? Bayer produces plastics, coatings, polyurethanes, and industrial chemicals. Bayer is the first facility in the United States to employ Tower Biology, an onsite waste water treatment plant (the plant) process that uses bacteria to treat waste above ground to protect ground water resources. The waste waters treated at the plant are generated by the various manufacturing operations at the Baytown facility. Influent waste waters enter the plant via the “normal waste water header” or the “brine waste water header.” The waste water entering the plant via the normal waste water header is placed in the primary clarifier. From the primary clarifier, the waste water is placed in a tank that feeds the waste water to a denitrification reactor prior to treatment in the biological oxidation towers. Following biological treatment, the waste water is run through a secondary clarifier. Waste water from the clarifier is sent to an activated carbon absorption system. Upon exiting the carbon absorption system, the waste water is fed to a series of filters. After filtration, the treated waste water is placed in an outfall tank for subsequent discharge under Bayer's TPDES discharge permit. Influent waste waters that enter the plant via the “brine waste water header” are placed in dedicated brine tanks and a brine carbon absorption system. After filtration, the brine waste water is commingled in the outfall tank with the treated normal waste water prior to being discharged in accordance with the Bayer TPDES discharge permit. Bayer intends to dispose of the delisted spent carbon at a Subtitle D Landfill. Treatment of the waste waters, which result from the manufacturing process generates the spent carbon that is classified as K027, K104, K111, and K112 listed hazardous wastes pursuant to 40 CFR 261.31. The 40 CFR part 261, appendix VII hazardous constituents which are the basis for listing K027, K104, K111, and K112 hazardous wastes are: Toluene diisocyanate, aniline, benzene, diphenylamine, nitrobenzene, phenylenediamine, 2,4-dinitrotoluene, 2,4-toluenediamine, o-toluidine, and p-toluidine. C. What information did Bayer submit to support this petition? To support its petition, Bayer submitted:
(1)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 spent carbon samples;
(2)Analytical results from multiple pH leaching of metals; and
(3)Descriptions of the waste water treatment process and carbon regeneration process. D. What were the results of Bayer's analysis? EPA believes that the descriptions of Bayer's waste, and the analytical data submitted in support of the petition show that the spent carbon is non-hazardous. Analytical data from Bayer's spent carbon samples were used in the Delisting Risk Assessment Software. The data summaries for detected constituents are presented in Table 1. EPA has reviewed the sampling procedures used by Bayer and has determined that they satisfy EPA's criteria for collecting representative samples of the variations in constituent concentrations in the spent carbon. The data submitted in support of the petition show that constituents in Bayer's wastes are presently below health-based risk levels used in the delisting decision-making. EPA believes that Bayer has successfully demonstrated that the spent carbon is non-hazardous. Table 1.—Maximum TCLP and Total Constituent Concentrations of the Spent Carbon and Corresponding Delisting Limits 1 Chemical name Waste stream total concentration (mg/kg) Waste stream TCLP concentration (mg/l) Delisting concentration (mg/kg) Acetophenone 3.0E-04 1.60E+00 8.71E+01 Aniline 2.56E-03 1.20E-01 2.82E+00 Antimony 7.10E-03 1.90E-02 2.51E-01 Arsenic 8.20E-03 1.72E-02 3.85E-01 Aldrin 8.50E-03 <2.00E-05 4.82E-05 Barium 4.42E+01 2.43E-01 8.93E+00 Benzene 5.00E-03 <5.00E-02 5.54E-01 Benzyl Alcohol 2.4E-01 <4.00E-04 2.61E+02 Beryllium 1.0E+00 5.00E-02 9.53E-01 Bis(2-ethylhexyl)phthalate 7.90E-02 <2.00E-04 3.42E-01 Butylbenzylphthalate 2.50E-02 1.25E-03 3.54E+00 Cadmium <4.50E-04 <2.30E-01 6.87E-01 Chloroform 2.00E-02 <5.00E-02 2.97E-01 Chromium 1.50E+01 2.30E-03 5.00E+00 Cobalt 4.10E+00 2.05E-01 2.75E+00 Copper 6.58E+01 3.29E+00 1.28E+02 Cyanide 4.33E+01 4.18E-003 1.65E+00 Di-n-butyl phthalate 5.60E-02 2.00E-03 2.02E+00 Di-n-octyl phthalate 3.70E-02 <1.5E-04 4.27E-03 Dinitrotoluene, 2,4- 1.20E+00 <1.5 E-04 2.49E-02 Dioxane, 1,4- 1.60E+00 <4.6E+00 1.46E+01 Dinitrotoluene, 2,6- 1.70E+00 <1.0E-04 2.49E-02 Diphenylamine 1.00E-01 <1.50E-04 1.43E+00 Kepone <4.15E-01 <2.20E-04 3.73E-04 Lead 4.10E-01 2.60E-03 5.0E+00 Mercury <3.4E+00 <2.60E-02 2.94E-02 2-Nitrophenol 3.40E+00 <1.50E-04 8.79E+01 N-Nitrodiphenylamine <1.0E-04 2.30E-01 3.28E+00 Nickel 1.70E+02 3.18E-01 3.45E+00 Phenol 4.10E-02 <1.00E-04 5.22E+01 Selenium 1.20E+00 1.76E-02 2.66E-01 Tin 1.90E+00 9.50E-02 2.75E+01 Toluene diisocyanate <1.0 E-02 <1.0E-02 1.0E-02 2,4 toluenediamine <2.0 E-02 <4.0E-03 5.02E-03 Vanadium 1.17E+01 5.85E-01 2.58E+00 Zinc 8.64E+01 4.32E+00 3.42E+01 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. E. How did EPA evaluate the risk of delisting this waste? The worst case scenario for management of the spent carbon 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 spent carbon. EPA determined that disposal in a Subtitle D landfill is the most reasonable, worst-case disposal scenario for Bayer's spent carbon. EPA applied the DRAS described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 (December 4, 2000), to predict the maximum allowable concentrations of hazardous constituents that may be released from the petitioned waste after disposal and determined the potential impact of the disposal of Bayer's petitioned waste on human health and the environment. 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, Bayer has never directly disposed of this material in a solid waste landfill, so no representative data exists. Therefore, EPA has determined that it would be unnecessary to request ground water monitoring data. EPA believes that the descriptions of Bayer's spent carbon 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 spent carbon are presented in Table 1. Based on the comparison of the DRAS results and maximum TCLP concentrations found in Table 1, the petitioned waste should be delisted because no constituents of concern are likely to be present or formed as reaction products or by products in Bayer's waste. F. What sid EPA conclude about Bayer'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 § 260.22, EPA concludes that the petitioned waste, spent carbon, does not exhibit any of the characteristics of ignitability, corrosivity, reactivity, or toxicity. *See* §§ 261.21, 261.22, 261.23, and 261.24 respectively. G. 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 spent carbon. 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 spent carbon 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 spent carbon. H. What is EPA's evaluation of this delisting petition? The descriptions by Bayer of the hazardous waste process and analytical characterization, with the proposed verification testing requirements (as discussed later in this action), 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 spent carbon 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 spent carbon. EPA believes that the data submitted in support of the petition show the Bayer's spent carbon 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 spent carbon. 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 spent carbon is non-hazardous. EPA, therefore, proposes to grant an exclusion to Bayer for the spent carbon described in its September 2003 petition. EPA's decision to exclude this waste is based on analysis performed on samples taken of the spent carbon. If EPA finalizes the proposed rule, EPA will no longer regulate 7,728 cubic yards/year of spent carbon from Bayer's Baytown facility under parts 262 through 268 and the permitting standards of part 270. IV. Next Steps A. With what conditions must the petitioner comply? The petitioner, Bayer, must comply with the requirements in 40 CFR part 261, appendix IX, Table 2 as amended by this action. The text below gives the rationale and details of those requirements.
(1)Delisting Levels This paragraph provides the levels of constituent concentrations for which Bayer must test in the spent carbon, 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, Table 2, based on information in the petition. EPA compiled the inorganic and organic constituents list from descriptions of the manufacturing process used by Bayer, previous test data provided for the waste, 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 spent carbon.
(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 Bayer 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 Bayer exceed any of the delisting levels set in paragraph (1), Bayer must:
(i)notify EPA in accordance with paragraph (6), and;
(ii)manage and dispose of the spent carbon as hazardous waste generated under Subtitle C of RCRA.
(3)Verification Testing Requirements Bayer must complete a verification testing program on the spent carbon to assure that the wastes 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 spent carbon for specified indicator parameters as described in paragraph (1). Each quarterly sampling event will consist of at least two samples of the spent carbon. Levels of constituents measured in the samples of the spent carbon 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 spent carbon for all constituents specified in paragraph (1). If Bayer demonstrates for two consecutive quarters complete attainment of all specified limits, then Bayer 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 Bayer 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), Bayer 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). Bayer 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 Bayer fails to perform the quarterly and yearly testing as specified herein. Should Bayer fail to conduct the quarterly/yearly testing as specified herein, then disposal of spent carbon as delisted waste may not occur in the following quarter(s)/year(s) until Bayer obtains the written approval of EPA.
(4)Changes in Operating Conditions Paragraph
(4)would allow Bayer the flexibility of modifying its processes (for example, changes in equipment or change in operating conditions) to improve its treatment processes. However, Bayer must prove the effectiveness of the modified process and request approval from EPA. Bayer 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 Bayer facility is correctly managing the spent carbon, Bayer 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 Bayer 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 7,728 cubic yards per calendar year of spent carbon generated at the Bayer facility after successful verification testing. EPA would require Bayer to submit additional verification data under any of the following circumstances:
(a)If Bayer significantly alters the manufacturing process treatment system except as described in paragraph (4).
(b)If Bayer uses any new manufacturing or production process(es), or significantly changes the current process(es) described in its petition; or
(c)If Bayer makes any changes that could affect the composition or type of waste generated. 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. EPA will publish an amendment to the exclusion if the changes are acceptable. Bayer must manage waste volumes greater than 7,728 cubic yards of spent carbon as hazardous waste until EPA grants a revised exclusion. When this exclusion becomes final, the management by Bayer of the spent carbon covered in this petition would be relieved from Subtitle C jurisdiction. Bayer may not classify the waste as non-hazardous until the revised exclusion is finalized.
(6)Reopener The purpose of paragraph
(6)is to require Bayer 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. Bayer 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 Bayer to report differing site 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 § 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 Bayer violates the terms and conditions? If Bayer 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 Bayer to conduct the appropriate waste analysis and comply with the criteria explained above in paragraph
(1)of the exclusion. V. Public Comments A. How may I as an interested party submit comments? EPA is requesting public comments on this proposed decision. 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: R6-TXDEL-FY06-Bayer-Spent Carbon. 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 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. VI. 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. List of Subjects in 40 CFR Part 261 Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements. Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f). Dated: February 3, 2006. William Rhea, 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. 2. In Table 2 of Appendix IX of Part 261 add the following waste stream in alphabetical order by facility to read as follows: Appendix IX to Part 261—Waste Excluded Under §§ 260.20 and 260.22 Table 2.—Waste Excluded From Specific Sources Facility Address Waste Description * * * * * * * Bayer Material Science Baytown, TX Spent Carbon (EPA Hazardous Waste Numbers K027, K104, K111, and K112) generated at a maximum rate of 7,728 cubic yards per calendar year after [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. Spent Carbon Leachable Concentrations (mg/l): Antimony-0.251; Arsenic-0.385, Barium-8.93; Beryllium-0.953; Cadmium-0.687; Chromium-5.0; Cobalt-2.75; Copper-128.0; Cyanide-1.65; Lead-5.0; Mercury-0.0294; Nickel-3.45; Selenium-0.266 ; Tin-2.75; Vanadium-2.58; Zinc-34.2; Aldrin-0.0000482; Acetophenone-87.1; Aniline-2.82; Benzene—0.554; Bis(2-ethylhexyl)phthalate-0.342; Benzyl alcohol-261; Butylbenzylphthalate-3.54; Chloroform-0.297; Di-n-octyl phthalate-0.00427; 2,4-Dinitrotoluene-0.0249; 2,6-Dinitrotoluene-0.0249 Diphenylamine-1.43; 1,4-Dioxane-14.6; Di-n-butyl phthalate-2.02; Kepone-0.000373; 2-Nitrophenol-87.9; N-Nitrodiphenylamine-3.28; Phenol-52.2; 2,4-Toluenediamine-0.00502; Toluene diisocyanate-0.001.
(2)Waste Holding and Handling:
(A)Waste classification as non-hazardous can not begin until compliance with the limits set in paragraph
(1)for spent carbon has occurred for two consecutive quarterly sampling events.
(B)If constituent levels in any sample taken by Bayer exceed any of the delisting levels set in paragraph
(1)for the spent carbon, Bayer must do the following:
(i)Notify EPA in accordance with paragraph
(6)and
(ii)Manage and dispose the spent carbon as hazardous waste generated under Subtitle C of RCRA.
(3)Testing Requirements: Upon this exclusion becoming final, Bayer may perform quarterly analytical testing by sampling and analyzing the spent carbon as follows:
(A)Quarterly Testing:
(i)Collect two representative composite samples of the spent carbon 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 spent carbon 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 spent carbon 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 spent carbon according to all applicable solid waste regulations.
(B)Annual Testing:
(i)If Bayer completes the quarterly testing specified in paragraph
(3)above and no sample contains a constituent at a level which exceeds the limits set forth in paragraph (1), Bayer may begin annual testing as follows: Bayer must test two representative composite samples of the spent carbon 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 should 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 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. 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 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, Bayer 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 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, 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. * * * * * * * [FR Doc. 06-1398 Filed 2-13-06; 8:45 am]
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U.S. Code
- Termination of status as insured depository institution§ 1818
- Penalty for unauthorized participation by convicted individual§ 1829
- Assessments§ 1817
- Regulation of holding companies§ 1467a
- Agency disapproval of directors and senior executive officers of insured depository institutions or depository institution holding companies§ 1831i
- Purposes§ 3501
- Definitions§ 1462
- Federal Aviation Administration§ 106
- Waiver of collection of charges or tolls§ 988a
- Functions of Corporation§ 983
- Creation of Corporation§ 981
- Identification and listing of hazardous waste§ 6921
- Effective date§ 6930
- Rule making§ 553
- Retention of State authority§ 6929
- Definitions§ 551
- Definitions§ 601
- Establishment, functions, and activities§ 272
- SHORT TITLE.§ 801
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Application of chapter and integration with other Acts§ 6905
- Statements or entries generally§ 1001
- Federal enforcement§ 6928
statutes-at-large
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17 references not yet in our index
- Pub. L. 89-695
- 80 Stat. 1028
- Pub. L. 101-73
- Pub. L. 104-208
- 12 CFR 544
- 12 CFR 552
- 14 CFR 39
- 33 CFR 402
- 49 USC 4321
- Pub. L. 104-4
- 109 Stat. 48
- 49 CFR 1.52
- 40 CFR 261
- 40 CFR 260.20(d)
- 40 CFR 260.22
- 40 CFR 261.31
- 40 CFR 260.11
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cites case law
Rules and Regulations
Notice of proposed rulemaking
Pub. L.Pub. L. 89-695
Stat.80 Stat. 1028
Pub. L.Pub. L. 101-73
Cites 53 · showing 12Cited by 0 across 0 sources