BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION

OF BFI WASTE SYSTEMS

OF NORTH AMERICA, INC. FOR AN

ADJUSTED STANDARD WASTE

DELISTING

NOTICE OF FILING

To:

Clerk of the Board

lllinois Pollution Control Board

James

R.

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago,IL 60601

AS 08-05

(Adjusted Standard - Land)

(Waste Delisting)

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph St., Suite 11-500

Chicago, IL 60601

Mary A. Gade, Regional Administrator

U.S. Environmental Protection Agency

Region 5

77 West Jackson Boulevard

Chicago,IL 60604

Paul Jagiello, Assistant Counsel

Division

of Legal Counsel

lllinois Environmental Protection Agency

9511 West Harrison Street

Des Plaines, IL 60016

Mr. William lngersoll, Manager

Enforcement Programs

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Post Office Box 19276

Springfield, IL 62794-9276

Please take notice that on May 6, 2008 the undersigned caused to be filed with the Clerk

ofthe Illinois Pollution Control Board Petitioner'sPre-Filed Testimony Responding to Questions

from Board's Technical Personnel, copies ofwhich are he ewith served upon you.

Patricia F. Sharkey

McGuireWoods LLP

77 West Wacker, Suite 4100

Chicago,

IL

60601

Telephone:

312/849-8100

PRINTED ON RECYCLED PAPER

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CERTIFICATE OF SERVICE

I,

Patricia F. Sharkey, hereby certify that I served a copy of the above-listed document upon

those listed on the attached Notice

of Filing on May 6, 2008 via email and First Class United

States Mail, postage prepaid.

McGuireWoods

LLP

77 West Wacker, Suite 4100

Chicago, Illinois 6060I

Telephone: 312/849-8100

\6243499.1

PRINTED ON RECYCLED PAPER

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION

OF BFI WASTE SYSTEMS

OF NORTH AMERICA, INC. FOR AN

ADJUSTED STANDARD WASTE

DELISTING

AS 08-05

(Adjusted Standard -Land)

(Waste Delisting)

PETITIONER'SPRE-FILED TESTIMONY

RESPONDING

TO QUESTIONS FROM BOARD'STECHNICAL PERSONNEL

NOW COMES BPI Waste Systems ofNorth America, Inc. ("BPI"), by its

attorneys McGuireWoods LLP, and provides the following response

to questions posed

by the Illinois Pollution Control Board ("Board") technical personnel in Attachment A to

the Hearing Officer's Order dated April 4, 2008:

1. Monitoring Frequency

Question: Please elaborate on the adequacy of quarterly and semi-annual

leachate monitoring to demonstrate that each batch of leachate meets the

proposed delisting levels.

The amended Adjusted Standard language filed with the Board on April 14, 2008

increased the initial monitoring based upon the recommendation

of the Illinois

Environmental Protection Agency (EPA).

It

states that the first three consecutive loads

ofleachate after approval

ofthe delisting petition will be tested for compliance with the

delisting levels. Thereafter quarterly sampling and analysis will

be conducted for the first

year. After the first year, a semi-annual sampling and analysis scheme will

be employed.

The more frequent sampling at the beginning is designed to confirm that the leachate

meets the delisting levels before significant volumes

of delisted leachate are hauled off-

site. The constituents monitored will include the "final list"

of constituents referenced in

1

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the petition (including constituents identified by the Board referenced below in our

response to Board Comments

#3 and #4).

BFI's proposed sampling frequency is sufficient on a technical basis and is also

consistent with the monitoring frequency required

by USEPA in its 2005 multi-year

delisting

of an F039 leachate for Shell Oil Company. See Proposed Rule in 69 Fed. Reg.

77690, which describes the delisting.

(Attachment

1.) In

the Shell delisting, USEPA

required eight samples to

be taken within the first 60 days following the delisting.

Thereafter, USEPA required Shell to sample quarterly for the remainder

of the first year.

If Shell demonstrated that its leachate consistently met the delisting levels, USEPA then

required only annual sampling. Although

BFI's Amended Petition proposes fewer

upfront sampling events, it also proposes more frequent sampling (semi-annual) over the

long term than USEPA required

of Shell.

It

should also be noted that Shell's leachate was not being generated in a closed

landfill. As it was derived from an active landfilling operation, Shell's leachate was

potentially subject to far more variation than is

BFI's leachate. The same is true of the

Delisting Petition

of Waste Management of Illinois, Inc. ("WMII"), cited by the Board,

which proposed to delist a filter cake that is generated on an on-going basis from batches

of differing waste streams received and treated at the WMII facility. As the Board noted

in its December 15, 2005

WMIl Opinion (p. 8), the basis for requiring more sampling for

a multi-year delisting is the fact that "the future waste may exhibit variability in

constituents and contaminant levels." That variability is not present in this case. Unlike

the Shell leachate and

WMII's filter cake, BFI's leachate will be generated in a closed

landfill that has not received any hazardous waste for over 25 years.

BFI's Phase I Unit

2

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has been covered with a low penneability cap that restricts infiltration for over ten years.

As demonstrated by the nine years

of monitoring data provided with the Petition, the

impenneable cap and the closed, static condition

of the landfill has resulted in a leachate

with very little variability in chemical character.

In

the case of BFI's petition, the large amount of analytical data and the lengthy

period over which it was obtained provides a high level

of assurance regarding which

specific chemicals are present in the leachate and the range

of concentrations at which

they are present. Specifically, the Petition includes fifteen individual sampling events

collected over a period

of nine years.

In

contrast, in the BP Amoco Petition, BP Amoco

presented the Board with data from just three sampling events ( three samples each) taken

over a six month period. Similarly, Shell only provided USEPA with data from four

monitoring events perfonned over a period

of approximately three months - yet USEPA

found that

to be a sufficient basis to allow periodic monitoring of the leachate.

BFI'swaste stream is not generated by a "multiple batch" operation,

as referred to

in USEPA's Manual and Technical Support Document. Rather, it is generated on a

continual basis from a single, static source. Thus, as USEPA found for Shell, periodic

sampling is appropriate and sufficient. As stated above, BFI has agreed with IEPA to

provide a program

of sampling that includes initial sampling of the first three truck loads

of waste, then quarterly sampling for one year, and finally semi-annual sampling

thereafter. BFI'sAdjusted Standard also requires confinnatory sampling

if a sample fails

to achieve the delisting limits.

Sampling and analysis

of every load of leachate has not been required by USEPA

itself, even for leachate with a higher probability

of variability than that cover by BFI's

3

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petition. Requiring so much sampling and analysis is extraordinarily onerous and costly

and will thwart many very appropriate and, as in this case, environmentally beneficial

delistings. Extending such a requirement to waste streams that are not associated with

"multi-batch" processes goes beyond the Manual and Technical Support Document's

guidance, and is simply unwarranted

by any practical concern.

2. DRAS Modeling: One Time Delisting v. Multi-year Delisting

Question: Explain

BFl's rationale for not utilizing the multi-year approach

to derive the delisting levels using the multi-year values

of 500,000

gallon/year

and 7-year anticipated closure period.

BFI's delisting petition seeks a "Conditional Delisting", as defined in the United

States Environmental Protection Agency's ("USEPA'') "National Policy for Hazardous

Waste Delistings," issued by Elizabeth

A.

Cotsworth, Acting Director, Office of Solid

Waste on July

1, 1998. (See

Attachment

1 hereto.)l

In

the case of BFI's petition, the

delisting language places strict requirements on how the leachate can be managed, once

delisted. The restrictions in the Adjusted Standard language do not allow any amount

of

leachate to be directly deposited on the land in either a landfill or a surface impoundment.

Thus, rather than modeling a prohibited scenario or a scenario that is impossible as a

practical matter, BFI used the DRAS model to derive risk-based limits for the potential

occurrence

of a "reasonable worst case" mismanagement scenario wherein the entire

contents

of a tanker truck were spilled during a catastrophic highway accident on route to

the wastewater treatment facility.

I

That Policy states:

"In

the Agency'sview, a conditionally delisted waste would exit the hazardous waste

management system at the point it meets the established delisling levels, and would remain outside of the

hazardous waste management system so long as the delisted waste generator complies with the conditions

placed on the disposal ofthe delisted waste."

4

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The leachate would not be deemed delisted and would be subject to RCRA

hazardous waste standards

if for any reason it did not reach the wastewater treatment

facility.2 Nonetheless, BFI took the conservative step

ofmodeling the risk associated with

the transportation

of the leachate to the wastewater treatment facility.

An

accidental spill

associated with a catastrophic highway accident resulting

in the release of the entire

contents

of a 5,000 gallon tanker truck was detennined to be a "reasonable worst case"

mismanagement scenario. The type

of tanker trucks used to transport leachate hold no

more than 5,000 gallons

of liquid. Thus, 5,000 gallons is deemed to be a "reasonable

worst case" maximum volume

of untreated leachate that has the potential to be released

to the environment at

anyone time. Five thousand gallons was therefore was used as the

input for the DRAS model.

As stated

in the Petition (at p. 23), BFI's selection of a spill of one tanker truck of

material as a "reasonable worst case" scenario is consistent with USEPA's worst case

discharge planning volumes for a tanker truck release, as stated

in 40 CFR 112,

Appendix D goveruing the "Detennination

of a Worst Case Discharge Planning Volume"

for purposes

of Spill Prevention Control and Countenneasure Plans (SPCC PLAN) under

the Federal Oil Pollution Prevention regulations.

2 BF!'s proposed Adjusted Standard is conditioned on the leachate being both sent and received by a

pennitted wastewater treatment facility located in Illinois which has a Pretreatment Program which has

been approved

by the USEPA. If the leachate is managed in any other way, it will still be considered a

RCRA hazardous waste. 100 DRAS model is limited in terms

of the scenarios it can model. The only two

options included in DRAS are to model disposal in an unlined landfill or a surface impoundment. Thus, the

DRAS model is not capable

of modeling risk (or lack thereof) associated with the treatment of the leachate

at a wastewater treatment facility. But this is not a problem since the Clean Water Act regulatory regime

will govern the treatment

of the leachate once it reaches the wastewater treatment facility. Like RCRA

treatment regulations, the Clean Water Act provides regulatory assurance that the leachate in this case will

be treated to non-hazardous levels at the wastewater treatment facility before discharge to the environment.

Therefore, there is no risk associated with the disposal

of the entire multi-year volume ofleachate.

5

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This approach is also consistent with connnon sense. While it is conceivable that

more than one tanker truck could be involved in a catastrophic accident over the

anticipated seven year post-closure period, there is no practical possibility that more than

one tanker truck

of leachate would be involved in a catastrophic accident at the same

location. Thus modeling the environmental impact

of a release of more than 5,000

gallons would not

be a "reasonable worst case." Moreover, there is clearly no possibility

that all

of the tanker trucks dispatched over the anticipated seven year post-closure period

would be involved in catastrophic accidents. Even more far-fetched would be a scenario

where all

of these tanker trucks were involved in accidents that resulted in the release of

all of this leachate at the same location.

BFI recognizes that this Petition does not fall squarely within the confines

of a

traditional land-based delisting scenario and the DRAS model's general use for those

traditional scenarios, but the Board should not assume that this difference dooms this

Petition.

It

is the underlying regulations that must be achieved. The USEPA Manual

recognizes that DRAS is one tool for demonstrating that the regulatory risk-based

delisting criteria are met, but it is not the only means for doing

so. USEPA recognized in

it's

1998 Policy memorandum that "Delisting was and will continue to be an evolving

program as substantive technical and policy issues continue to develop." That Policy

Memorandum goes on to

state"...the Agency realizes that for a relatively small number

of petitioned wastes that are not (or will not be) managed under a scenario our generic

delisting models can assess, Regions may have to consider site-specific circumstances or

consider adding specific conditions, on a case-by-case basis."

6

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In that Policy Memorandum, USEPA contrasts the relatively inflexible "worst

case" assumptions that must be placed on "unconditional delistings" versus the more case

specific requirements that can be built into a "conditional listing." For "unconditional

delistings," the regulatory agency loses control over how a waste is managed once it is

delisted, therefore the application

of conservative assumptions is warranted. One of those

conservative assumptions is that 100%

of the delisted waste ever generated will be

disposed

of in an unlined landfill or impoundment at a single location. That unrealistic

and overly conservative assumption is not required for a "conditional delisting," such as

is proposed

by BFI, under which the regulatory agency does not lose control over how

the waste is managed.

The thrust

of USEPA's Policy on "conditional delistings" is that the delisting

should contain "appropriate mechanisms ...that would help ensure that the waste was

being managed in accordance with the conditions." Thus, for disposal scenarios that do

not fall within the assumptions that apply to the land-based scenarios anticipated in its

Guidance Manual, it is appropriate for the Board to use its professional judgment to

fashion protective delisting conditions and to require the Petitioner to model the risk

associated with the "reasonable worst case" mismanagement scenario under those

conditions. That is what

BFI has proposed in this case. Under the protective conditions

proposed

by BFI and concurred in by Illinois EPA, BFI's delisted leachate will be

handled from "cradle-to-grave" under the RCRA hazardous waste program, the Illinois

Special Waste program, and the Clean Water Act program. Furthermore, BFI has

conservatively modeled the risk associated with the possibility that under these programs

there is nonetheless a release to the environment.

7

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The good news is that the very limited "conditional delisting" proposed in BFI's

Petition poses very little risk to the environment - indeed far less than do the land-based

disposal scenarios normally proposed

in

delisting petitions. The delisted leachate will be

treated to Clean Water Act standards and it will be transported over a shorter distance

than it is currently. In fact, the risk

of the catastrophic 5,000 gallon release scenario

modeled by BFI is more likely to occur without the delisting, given the fact that absent

the delisting BFI is required to transport this leachate a much further distance. We note

that since this Petition was filed

in

2007, the

cm

Treatment Facility in Calumet City,

Illinois has informed BFI that it cannot accept the Phase I Unit leachate. As a result, BFI

is now forced to haul this leachate over 350 miles away to the next closest liquid

hazardous waste treatment facility in Ohio. That is a 700 mile round trip. This fact makes

the Board'sprompt the issuance

ofthis delisting all the more important.

3. Constituents

of Concern

Question: Please elaborate

on the test results for those F039 constituents,

listed [in the Board's Attachment

A] that do not seem to appear in Appendix

D

[of

the

Petition.].

BFI apologizes for its misstatement in the Petition that all F039 constituents were

analyzed in its sampling events. What was meant was that all

of the normally analyzed

landfill constituents were analyzed. The F039 constituents referenced

by the Board are

not normally analyzed

in

landfill leachate. Indeed, BFI's RCRA hazardous waste landfill

permit requires that it analyze its leachate for the Appendix IX constituents, which do not

include these particular constituents. Appendix IX was intended to encompass all

8

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constituents likely to be found in hazardous waste landfill leachate or groundwater during

compliance monitoring.

In response to the Board's question, BFI consulted with a number of laboratories

in various locations throughout the country and found no single laboratory that currently

can analyze for the full list ofthese F039 constituents. As a result, leachate samples will

need to

be submitted to two different analytical laboratories to obtain the analyses for all

ofthese parameters cited by the Board.

Based

on the comprehensive records of all hazardous wastes that were disposed of

in the Phase I Unit of the Davis Junction Landfill, BFI has no reason to suspect that these

atypical constituents are present in the leachate. Nonetheless, to facilitate the Board's

positive action

on this Petition, BFI has taken steps to obtain additional leachate samples

which will be sent for analyses to the two laboratories with the capability to analyze for

these additional F039 constituents.

4. Final List of Constituents of Concern

Question: Please elaborate on

BFl's reasons for not including certain

specified constituents in the final list

of constituents.

BFI acknowledges that these constituents were detected and were inadvertently

left

off the list ofFinal Constituents.

In response to the Board's question, BFI re-ran the DRAS model, including the

following additional constituents:

9

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•

1,2,3,4,6,7,8,9-0CDD and 1,2,3,4,6,7,8-HpCDD

3

•

1,4-diochlorobenzene;

•

Heptachlor; and

•

Selenium.

The output from the new DRAS run is attached as

Auachment

3. These

constituents have also been added to a table summarizing the Delisting Levels. (See

Attachment

4.) The results indicate that the maximum concentration of the above

constituents are less than the delisting levels.

Three

of the constituents referenced in this question (1,2,4 Trimethyl benzene,

Fluoride, and Sulfide) are not included in the DRAS software and thus cannot

be

modeled using DRAS. Therefore, BFI reviewed the risk associated with each of these

constituents under other potentially available health-based standards (Class I

Groundwater Quality Standards, USEPA Secondary Contaminant Levels, and IRIS).

In

the case of 1,2,4 Trimethyl benzene, this constituent is not included in DRAS,

nor is a federal primary

or secondary drinking water standard available. However, the

maximum detected concentration

of this constituent in the leachate was 0.030 mgIL

(3/14/01). This concentration in the leachate is below the groundwater objective for

Class I groundwater listed in the table entitled "Groundwater Remediation Objectives for

Chemicals

Not Listed in TACO", prepared by the Illinois EPA Toxicity Assessment Unit,

dated

May 1, 2007. Therefore, this concentration in the leachate does not represent a

3 These constituents are dioxin congers that have been incorporated into the DRAS model by convertiog

the concentrations into a concentration of2,3,7,8-TCDD using the Toxicity Equivalent Quotient (TEQ)

calculation referenced at pg.

15 of the DRAS User Guide. (See calculations attached at the back of

Attachment 3.)

10

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significant threat to human health or the environment with respect to the groundwater

pathway.

Fluoride is also not included in DRAS, nor is there an Illinois groundwater

remediation objective under the TACO regulations. The concentration

of fluoride in the

specific leachate sample cited

by the Board (collected on 1114/99) is 0.29 mg/L. This

concentration is below the Secondary Maximum Contaminant Level established

by

USEPA of 2.0 mg/L. This concentration of fluoride in the leachate is therefore not

believed to represent a significant threat to human health or the environment with respect

to the groundwater pathway.

Sulfide is also not included in DRAS.

An internet research did not readily identify

any published groundwater standards for sulfide. Furthennore, sulfide is not listed in

USEPA's Integrated Risk Infonnation Systems (IRIS) database. Given that IRIS is one

of the more comprehensive databases of human health effects that may result from

exposure to various substances found

in

the environment, the fact the sulfide is not

present

in

the database suggests that evaluation of sulfide within a delisting petition is not

appropriate. The human health effects

of sulfide in water are either not severe enough, or

the data is too limited for

it to be included in detailed risk assessments, such as those

required for a delisting petition.

II

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5. Land Disposal Restrictions for F039 Constituents

Question: Please explain

whether USEPA delisting guidance or policy allows

delisting levels for constituents of concern to be higher than the

LDR

UTS.

Yes. At the time that USEPA adopted the Land Disposal Restriction ("LDR") program

Universal Treatment Standards ("UTS"), it recognized that in some instances those standards

were more stringent than the risk-based standards that are the basis for the listing and delisting

of

hazardous waste. UTS are technology-based standards that must be met before the waste can be

applied to the land.

In

contrast, listing and delisting levels are risk-based and focus on the

specific health and environmental criteria in

35 TIL

Adm. Code 721.111 (Criteria for Listing

Hazardous Waste) and

35 TIL

Adm.Code 720.122 (Waste Delisting).

That the LDR treatment standards were established

on a different basis and for a

different purpose is evident from the Preamble to the

EPA's LDR Third Third opinion

and its discussion

of the lawsuit in which industry plaintiffs challenged EPA's treatment

standards as being more stringent in some instances than human health and

environmental standards. EPA defended its LDR treatment standards in its June I, 1990

Final Rule adopting the Land Disposal Restrictions for Third Third Scheduled Wastes:

" ...a number

of commenters raised the issue of whether the treatment

standards being adopted are below levels at which threats to human health

and the environment are minimized, citing portions

of the recent opinion

in

Hazard Waste Treatment Council v. EPA,

886 F.2d

355

(D.C. Cir.

1989) (HWTC III).

In

that case, the Court upheld EPA's existing

tehcnology-based approach to establishing treatment standards as a

reasonable construction

of the statute, but remanded the case to the

Agency in order for the Agency to explain properly

why it had chosen this

approach. EPA's explanation was published in the Federal Register on

February 26, 1990, and was accepted by the Court, which dismissed all

petitions for review

on March 15, 1990. The standards EPA is adopting in

this rule are also technology-based, which the Agency believes is

12

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warranted at this time due to the uncertainties associated with hazardous

waste land disposal and the Agency's present inability to quantify

precisely

de minimis levels of hazardous constituents that would

determine when threats to human health and the environment from

disposal

of prohibited wastes are minimized. 55 FR 6642." (55 Fed. Reg.

22520, at 22535, June

1, 1990). (See excerpt in

Attachment

5 hereto).

In

discussing the relationship between the LDR treatment standards and health

and environmental standards, EPA confessed that it was unable to promulgate standards

prescribing acceptable levels

of risk for every hazardous constituent - a very broad and

difficult task. Therefore, it categorized types of waste and required a "best demonstrated

technology demonstration" for each category. Significantly, EPA distinguished this type

of broad generally applicable treatabilty standard from "standards that are applied in

particularized circumstances, such

as RCRA clean closures, no migration determinations,

and delistings."

55 Fed. Reg. 6640 (Feb.26, 1990). (See

Attachment

6 hereto).

It

is true that the constituents for which F039 leachate is listed as hazardous are

identified in Part 728.

It

is also true that Part 728 - Table T also lists the UTS for those

consitutents. However, nothing in USEPA or Board regulations states that the UTS are

to

be used as listing or delisting levels.

In

fact, UTS have an entirely different purpose. UTS

limits are based on the demonstrated availability

of treatment technologies to ensure safe

disposal in land units. Among other things, they are designed to ensure the integrity

of

the landfill liner. In contrast, EPA's and the Board's listing and delisting regulations

establish health and environmental risk-based criteria, and are not tied to land disposal.

Pursuant to

35 lAC 720.122(a), BFI's Petition must demonstrate that the leachate

does not meet any

of the criteria under which F039 was listed and the Board must

determine that there is a reasonable basis to believe that factors (including additional

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constituents) other than those for which the leachate was listed could cause the leachate

to

be a hazardous waste.

In

the case of a listed F039 waste, it was listed as a hazardous

based on toxicity. When a waste is listed as hazardous based on toxicity, Section

720.122(d) requires that a delistng petition must either: A) demonstrate that the waste

does not contain the constituent(s) that caused EPA to list it as hazardous or B)

demonstrate that although the waste contains those constituents, the waste does not meet

the criterion in

35

Ill.

Adm. Code 721.111(a)(3)(A) through (a)(3)(K) for which it was

listed. Those criteria focus on: the nature

of the toxicity, the concentration of the

constituent, the potential to migrate under imporper management, the potential to degrade

into nonharmful constituents, the pottential to bioaccumulate, plausible types

of improper

management, the quantities

of waste generated, the nature and severity of the human

health and environmental damage related to mismanagement, and action taken

by other

governmental agencies or regulatory programs based on the health or environmental

hazard posed

by the waste. Notably, the treatability of the waste is not a factor which is

considered in this long list

of delisting criteria.

This is not to say that LDR treatability standards have no applicability to a

delisted waste.

If a delisted waste is destined for land disposal, it is reasonable to

conclude that the delisted waste must meet the LDR universal treatment standards before

it can be land disposed. However,

BFI's "conditional delisting" does not allow the

delisted leachate to be land disposed. Therefore, the LDR standards are not applicable in

this case. Indeed, Illinois EPA has dropped its objection to BFI's delisting (which

suggested

an LDR limit for 1,4 dioxane) based on amendments to the Adjusted Standard

language which make it clear that the leachate will only

be considered delisted as long as

14

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it is transported to and received by a wastewater treatment facility. (See IEP

A'

s amended

recommendation, dated April 21, 2008.)

EPA's RCRA Delisting Manual does not address the relationship between the

delisting process and its risk-based criteria and the LDR process and its technology-based

treatment standards. The only EPA statement we have been able to identify on this

subject is a published answer

to a question posed to the RCRA Call Center. (See

Attachment

7.)

In

that answer, the Call Center stated:

"The generator must comply with the LDR requirements before disposing

of the delisted waste because LDR attaches at the point of generation. A

delisting only absolves the generator from his obligation

of handling the

waste

as hazardous. If a particular hazardous waste is eligible for a

delisting and is granted the delisting prior to generation, then LDR

requirements would not apply. Conversely,

if a waste is generated and

subsequently delisted, the generator would need

to comply with the

applicable Part 268 requirements before disposal."

This statement recognizes that obtaining a delisting and complying with LDR

requirements are two distinct steps, i.e. the generator

of a waste that

has been delisted

must comply with LDR

before disposal.

Apparently, EPA believes that LDR treatment

standards never apply

if a hazardous waste is delisted before it is generated - as would be

the case with a multi-year waste stream such

as the leachate in this case. But, in any case,

the LDR treatment standards are,

of course, only applicable to land disposal - which is

not allowed under BFI's proposed Adjusted Standard.

It

would defeat the LDR program

and the incentives it is designed

to create to require that wastes that could otherwise be

delisted under the regulatory risk-based delisting procedure and that are destined for

treatment, reuse or recycling must meet the land restriction treatment standards before

they can be delisted.

15

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BFI's proposed Adjusted Standard is consistent with the goal of the LDR

regulations to direct hazardous waste toward treatment rather than land disposal. Unlike

many delisting petitions, BFI's petition is designed to facilitate a treatment option rather

by-pass treatment.

6.

Delisting Levels

and Toxicity Characteristic Levels

Question: Please explain

BFl's rationale for not proposing the lower DRAS

valne as the delisting level for vinyl chloride.

The delisting level calculated

by DRAS required the input of the assumption that

the leachate will be disposed

of in a surface impoundment. However, as discussed above,

the proposed delisting language actually limits the management options for the delisted

waste to treatment at a wastewater treatment facility with a USEPA approved

pretreatment program. USEPA's 1998 Policy Memorandum indicates that the risk

assessment fate and transport modeling performed in support

of delisting petitions should

be specific to the type

of unit where the delisted waste will ultimately be disposed and

that site-specific circumstances should be considered when wastes will not be managed

under a scenario the generic delisting models can assess.

As the DRAS surface impoundment modeling is conservative and can be met for

the great majority

of constituents found in the Phase I leachate, BFI is willing to accept

DRAS calculated delisting levels as a general matter. However, with regard to a few

constituents, one

of which is vinyl chloride, the DRAS model appears to be overstating

the risk.

In

the case of vinyl chloride, the overstatement appears to be approximately an

order

of magnitude. DRAS calculated a delisting level of 0.0285 mg/L. Although this

very low number has been met in a majority

of the sampling events for the BFI leachate,

16

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there is a possibility it could be exceeded in the future. As noted in the Petition Technical

Support Document

(p. 33), even non-hazardous leachate has been found to exceed this

very low number on occasion.

Given the anomaly presented

by this low DRAS number and the fact that this

leachate will be treated before disposal, BFI believes it is appropriate to consider the

validity

of the DRAS number in light of USEPA's own extensive review of the toxicity

of vinyl chloride.

In

establishing the Section 261.24 toxicity characteristic list and

concentrations, EPA used a very similar approach

to the approach employed in the DRAS

model. See

55 Fed. Reg. 11798 (March 29, 1990). EPA began by identifying health-

based concentration thresholds. Where drinking water MCL's were available,

as was the

case for vinyl chloride, EPA used the MCL in the model, saying MCL's are "the most

appropriate health criterion to use" because they address the groundwater ingestion

pathway and were developed pursuant to a "rigorous methodology in which all available

health information

IS evaluated." Id.

11813-11814. EPA then applied a

dilution/attenuation factor that was developed using a subsurface fate and transport model

(EPACML),

incorporating an unlined landfill or surface impoundment as the worst-case

mismanagement scenano,

and using

a "Monte Carlo"

approach

for the

dilution/attenuation factors, which includes the full range and distribution

of values for

all parameters rather than made judgments as to "worst case" values.

EPA included vinyl chloride in the list

ofthe toxicity characteristic constituents in

Table 1 to Section 261.24 because it was recognized to be present in many wastes that are

not otherwise regulated as hazardous. Id. 11811. That EPA was correct about this is

proven true in this case

by the fact that vinyl chloride has been detected in the non-listed

17

---

leachate from the non-hazardous waste Phase II and III units at the Davis Junction

Landfill at as high as 0.2 mg/L. This make sense

in light of the fact that 98% ofthe

wastes that were actually disposed of at the Phase I unit were no different from the wastes

that were disposed

of at the non-hazardous Phase II and III units. Furthermore, of the 2

%

of listed hazardous that was disposed of in the Phase I Unit, the great majority was not

waste that would have contained vinyl chloride. There is substantial evidence that the

vinyl chloride in the Phase I

Unit leachate is not derived from the hazardous wastes

disposed

of in that landfill unit, but rather is representative ofthe level ofvinyl chloride

found in non-listed municipal landfill leachate.

While we are aware that USEPA reached a different conclusion

in the 2002

Nissan delisting,

we note that the constituents involved in that case were different

(metals) which

may not have received the historical scrutiny that vinyl chloride did when

it was placed on the toxic characteristic list. Furthermore, the Nissan delisting did not

involve a delisting that limited disposal to a wastewater treatment plant.

Based

on all ofthe above, we believe it is permissible and appropriate for the

Board to review the delisting level for vinyl chloride

in this case in light of the individual

listing/delisting criteria

in 35 Ill. Adm. Code 721.1 I l(a)(3) (A) through (K).

7.

Detection Limits

Question: Please provide a demonstration

that the detection limits do not

exceed delisting levels

at the target risk level.

BFI is unclear as to the Board's specific intent with respect to this question. In

particular, does the Board intend that delisting levels be calculated for all undetected

constituents or just carcinogenic constituents (i.e. those constituents where a target risk

18

---

level of 10-6 would be applicable)? Upon clarification from the Board, BFI will take the

necessary steps to provide the Board with the information requested.

As an aside, we note that for the USEPA Shell Oil Company delisting, Shell

collected analytical data for a similar number

of chemicals as BPI (the Appendix IX

constituents), and the majority

of them were never detected in the leachate. Shell's

delisting rule as published in the Federal Register included a Table with the applicable

delisting levels for only 19 chemicals, which USEPA described

as

summarizing the

"detected constituents." (See 69 Fed. Reg. 77690, at 77693.) Thus, it appears that

USEPA did not require Shell to model the effect

of "non-detect" levels in DRAS.

8.

User

Alert for DRAS Version 2

(1)

Dilution and Attenuation Factors

The User Alert included with the Board's comments indicates that various

dilution and attenuation factors (DAFs) for landfills are incorrect However, BFI's

DRAS analysis assumed that the materials were disposed in a surface impoundment

rather than a landfill.

It

is unclear from the copy of the User Alert included with the

Board's comments whether the DAFs for surface impoundments included in DRAS

Version 2 are correct (the actual User Alert is no longer available at the referenced web

site).

BFI sought clarification on this issue from Todd Ramaly

of USEPA. Mr. Ramaly

was initially contacted

by phone on April 28, 2008, but we did not speak with him until

May 6, 2008. Mr. Ramaly indicated that he would need to research the proper DAFs to

use for the surface impoundment scenario, as

he had limited experience with modeling

19

---

this scenario in DRAS. Mr. Ramaly indicated he would investigate this issue and provide

us with additional information as it became available.

However, for the four constituents that had a surface impoundment DAF

of zero,

the DAF used in BFI'sDRAS model was the lowest DAF for the metals modeled, which

is believed to be a conservative approach.

(2) CarcinogeniclNoncarcinogenic effects

A review of the COCs identified the following with both carcinogenic and

noncarcinogenic effects:

• TetracWoroethylene;

• Trichloroethylene;

• Vinyl cWoride;

• Arsenic;

• Benzene;

• Cadmium;

• Methylene chloride;

•

lA-Dichlorobenzene; and

• Heptachlor.

As indicated in the User Alert, the above COCs were entered twice into DRAS,

once time listed as a carcinogen and once

as a noncarcinogen. Upon rerunning the DRAS

model, the results indicated that the delisting levels under the carcinogenic and

20

---

noncarcinogenic scenarios were the same for the above COCs. (See output in

Attachment

2.)

The remaining items (3) through (6) listed in the User Alert are not believed to

impact BFI's DRAS evaluation because they relate to exposure pathways that are not

used as the basis for calculation

of the delisting levels. As shown on Table

ill

(Attachment

4), the limiting pathways for calculation of the delisting levels are limited to

pathways related to groundwater. Mr. Ramaly

of USEPA was also consulted relative to

this issue and he generally agreed with this conclusion, however suggested that the

correction equations

be investigated to confirm this. BFI will provide this additional

information within a supplemental filing.

3.

IRIS

Database

The Board also indicated that toxicity values recently updated in USEPA's IRIS

database are not reflected in DRAS Version 2.0. This version

of DRAS is dated April

2002. Therefore, the on-line USEPA IRIS database was reviewed to identify reference

does

or carcinogenic slope factors for the final list of constituents that have been updated

since April 2002.

In

sununary, reference doses for the following constituents were found

to have been updated since April 2002:

•

Xylenes;

•

Benzene;

•

Acetone;

•

Methyl ethyl ketone; and

•

Toluene.

21

---

The updated reference doses have been input into the revised DRAS model

included at

Attachment

2. The input values that have been modified are summarized in

the "List

of COCs with Altered Chemical Properties" output page from the DRAS

software. The revised delisting levels for the above constituents are greater than the

maximum detected concentrations in the historical leachate data presented in BRI's

petition.

BFI appreciates the opportunity to answer the Board's questions and will provide

witnesses at the May

15, 2008 hearing who will be prepared to discuss these matters

further.

Resp ctfully submitted,

Dated: May 6, 2008

Patricia

F. Sharkey

McGuireWoods LLP

Suite 4100

77 West Wacker Drive

Chicago, Illinois 60601

(312) 849-8100

\6238278.1

erica, Inc.

22

---

77690

Federal Register/Vol. 69, No. 248/Tuesday, December 28, 2004/Proposed Rules

"Rules and Regulations" section ofthis

Federal Register publication.

Dated: December 14, 2004,

Donald S. Welsh.

Regional Administrator, Region III.

[FR Doc. 04--28196 Filed 12-27-04; 8:45 am]

BILLING CODE. 656O-So-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[RME R03-0AR-2004-DC-0001; FRL-7855-

4]

Approval and Promulgation of Air

Quality Implementation Plans; District

of Columbia; Amendments to the Size

Thresholds for Defining Major Sources

and to the NSR Offset Ratios for

Sources of VOC and NO

x

AGENCY: Environmental Protection

Agency (EPA).

ACTION:

P~d~.

SUMMARY: EPA

proposes to approve

revisions to the District of Columbia (the

District) State Implementation Plan

(SIP), The revisions reduce the size

thresholds for defining major sources

and increase the new source review

(NSR) offset ratio requirements for

sources of ozone precursors to meet the

Clean Air Act (CAA) requirements for 1-

hour ozone nonattainment areas

classified as severe. These amendments

to the District'sSIP are required

pursuant to the reclassification of the

Metropolitan Washington, DC

l~hour

ozone nonattainment area from serious

to severe, In the Final Rules section of

this Federal Register, EPA is approving

the District's SIP submittal as a direct

final rule without prior proposal

because the Agency views this as a

noncontroversial submittal and

anticipates no adverse comments. A

detailed rationale for the approval is set

forth in the direct final rule. If no

adverse comments are received in

response to this action, no further

activity is contemplated.

If

EPA receives

adverse comments, the direct final rule

will be withdrawn and all public

comments received will be addressed in

a subsequent final rule based on this

proposed rule. EPA will not institute a

second comment period. Any parties

interested in commenting on this action

should do so at this time.

DATES:

Comments must be received in

writing by January 27, 2005.

ADDRESSES:

Submit your comments,

identified by Regional Material in

EDocket (RME) ID Number R03-0AR-

2004-DC-0001 by one of the following

methods:

A.

Federal eRulemaking Portal:

http://www.regulations.gov.

Follow the

on-line instructions for submitting

comments,

B.

Agency Web site:

http://

www.docket.epa.gav/rmepub/RME,

EPA's electronic public docket and

comment system, is EPA'spreferred

method for receiving comments. Follow

the

on~line

instructions for submitting

comments.

C. E-mail:

morris.makeba@epa,gov.

D. Mail: R03-0AR02004-DG-0001,

Makeba Morris, Chief, Air Quality

Planning Branch, Mailcode 3AP21, U,S.

Environmental Protection Agency,

Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103.

E.

Hand Delivery: At the previously-

listed EPA Region III address. Such

deliveries are only accepted during the

Docket's normal hours of operation, and

special arrangements should be made

for deliveries of boxed information.

Instructions:

Direct your comments to

RME ID No. R03-GAR-2004-DG-0001.

EPA's policy is that all comments

received will be included in the public

docket without change, and may be

made available online at

http://

www,docket.epa,gov/rmepub/,

including any personal information

provided, unless the comment includes

information claimed to be Confidential

Business Information (CBI) or other

information whose disclosure is

restricted by statute. Do not submit

information that you consider to be CBI

or otherwise protected through RME,

regulations,gov or e-maiL The EPA RME

and the Federal regulations,gov Web

sites are an "anonymous access"

system, which means EPA will not

know your identity or contact

information unless you provide it in the

body of your comment. If you send an

e-mail comment directly to EPA without

going through RME or regulations,gov,

your e-mail address will be

automatically captured and included as

part of the comment that is placed in the

public docket and made available on the

Internet. If you submit an electronic

comment, EPA recommends that you

include your name and other contact

information in the body of your

comment and with any disk or CD-ROM

you submit.

If

EPA cannot read your

comment due to technical difficulties

and cannot contact you for clarification,

EPA may not be able to consider your

comment. Electronic files should avoid

the use of special characters, any form

of encryption, and be free of any defects

or viruses,

Docket:

All documents in the

electronic docket are listed in the RME

index at

http://www.docket.epa.gov/

rmepub/,

Although listed in the index,

some information is not publicly

available,

i.e.,

eBI or other information

whose disclosure is restricted by statute,

Certain other material, such as

copyrighted material, is not placed on

the Internet and will be publicly

available only in hard copy form.

Publicly available docket materials are

available either electronically in RME or

in hard copy during normal business

hours at the Air Protection Division,

U.S, Environmental Protection Agency,

Region Ill, 1650 Arch Street,

Philadelphia, Pennsylvania 19103,

Copies of the District submittal are

available at the District of Columbia

Department of Public Health, Air

Quality Division, 51 N Street, NE"

Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT:

Linda Miller, (215) 814-2068, or by e-

mail at

miller.linda@epa.gov,

SUPPLEMENTARY INFORMATION:

For

further information on this proposed

approval of revisions to 20 DCMR

Chapters 1, 2, 7 and 8 which reduce the

major source size thresholds and

increase the offset ratio requirements in

order to satisfy the mandatory CAA

requirements pursuant to the

reclassification of the Metropolitan

Washington DC 1-hour ozone

nonattainment area from serious to

severe, please see the information

provided in the direct final action, with

the same title, that is located in the

"Rules and Regulations" section of this

Federal Register publication,

Dated: December 14, 2004.

Donald S, Welsh,

Regional Administrator, Region III.

[FRDoc. 04-28198 Filed 12-27-04; 8:45 am]

BILLING CODE 6560-5o-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[SW-FRL-7855-5]

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 Shell Oil

Company (Shell Oil Company) to

exclude (or delist) a certain liquid waste

generated by its Houston, TX Deer Park

---

Federal Register/Vol. 69, No. 248/Tuesday, December 28, 2004/Proposed Rules

77691

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

Shell Oil Company's petitioned waste is

nonhazardous with respect to the

original listing criteria. EPA would also

conclude that Shell Oil Company's

process minimizes short-term and long-

term threats from the petitioned waste

to

human health and the environment.

DATES:

EPA will accept comments until

February 11, 2005. 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 January 12, 2005. The request must

contain the information prescribed in 40

CFR 260.20(d).

ADDRESSES:

Please send three copies of

your comments. You should send two

copies to the Section Chief of the

Corrective Action and Waste

Minimization Section, Multimedia

Planning and Permitting Division (6PD-

C), Environmental Protection Agency,

1445 Ross Avenue, Dallas, Texas 75202.

You

should send a third copy to Nicole

Bealle, Waste

Team Leader, Texas

Commission

on Environmental Quality,

5425 Polk Avenue,

Suite A, Houston,

TX 77023. Identify

your comments at

the top with this regulatory docket

number: "F-04-TEXDEL-Shell Oil."

You

should address requests for a

hearing to Ben Banipal, Chief of the

Corrective Action and Waste

Minimization Section,

Multimedia

Planning and Permitting Division (6PD-

C), Environmental

Protection Agency,

1445 Ross Avenue, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT:

Comments may also be submitted

electronically to Michelle Peace at

peace,michelle@epa.gov.

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 Shell Oil Company Manage

the Waste,

if

it Is Delisted?

D. When Would the Proposed Delisting

Exclusion

be Finalized?

E.

How Would This Action Affect the

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'sEvaluation of the Waste

Infonnation and Data

A. What Wastes Did Shell Oil Company

Petition

EPA To Delist?

B. Who Is Shell Oil Company and What

Process

Does it use To Generate the

Petitioned

Waste?

C. How Did Shell Oil Company Sample

and Analyze the

Data in This Petition?

D. What Were the Results of Shell Oil

Company's Analysis?

E.

How did EPA Evaluate the Risk of

Delisting This Waste?

F, What Did EPA Conclude About Shell Oil

Company's Analysis?

G. What Other Factors Did EPA Consider

in its Evaluation?

H. What Is EPA'sEvaluation of This

Delisting Petition?

IV, Next Steps

A. With What Conditions Must the

Petitioner

Comply?

B. What Happens

if

Shell Oil Company

Violates the Tenns 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 Exclusions?

VI. Regulatory Impact

VII. Regulatory Flexibility Act

VIII. Paperwork Reduction Act

IX. Unfunded Mandates Reform Act

X. Executive Order 13045

XI. Executive Order 13084

XII. National Technology Transfer and

Advancements Act

XIII. Executive Order 13132 Federalism

I.

Overview

Information

A. What Action Is EPA Proposing?

EPA is proposing:

(1) To grant Shell Oil Company's

delisting petition to have its multisource

laudfillleachate underlying the

Minimum Technology Requirements

(MTR)

hazardous waste landfill

excluded, or delisted, from the

definition of a hazardous waste; and

subject to certain verification and

monitoring conditions,

(2) To use the Delisting Risk

Assessment Software (DRAS) to

evaluate

the potential impact of the

petitioned waste on human health and

the environment. The Agency used this

model to predict the concentration of

hazardous constituents released from

the petitioned waste, once it is

disposed.

B. Why Is EPA Proposing To Approve

This Delisting?

Shell Oil Company's petition requests

an exclusion from the F039 waste listing

pursuant to 40 CFR 260.20 and 260.22.

Shell Oil Company does

not believe that

the petitioned waste meets the criteria

for

which EPA listed it. Shell Oil

Company 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 of1984 (HSWA). See

section 3001(1] ofRCRA, 42 U.S.C.

6921(1],

and 40 CFR 260.22(d)(1)-(4)

(hereinafter all sectional references

are

to 40 CFR unless otherwise indicated).

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 nonhazardous with

respect to the original listing criteria. (If

EPA

had found, based on this review,

that the waste remained hazardous

based on the factors for which the waste

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

Shell Oil Company'sfacility is based on

the information submitted in support of

this rule, including descriptions of the

wastes and analytical data from the Deer

Park, TX facility.

C.

How Will Shell Oil Company Manage

the Waste ifit Is Delisted?

If

the leachate is delisted, Shell will

make piping modifications to allow the

leachate to be routed to the North

Effluent Treater (NET) for treatment.

The treated effluent will be discharged

through an Texas Pollutant Discharge

Elimination System (TPDES) permitted

outfall.

---

77692

Federal Register

I

Vol. 69, No. 248

I

Tuesday, December 28, 2004/Proposed Rules

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

until it addresses all timely public

comments (including those at public

hearings, if any) on this proposaL

RCRA section 3010(b)(l) at 42 USCA

6930(b)(1), allows rules to become

effective

in less than six months 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 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'swaste, EPA urges petitioners

to contact the state regulatory authority

to establish the status of their wastes

under the state law.

EPA

has also authorized some states

(for example, Louisiana, Oklahoma,

Georgia, Illinois) to

administer an RCRA

delisting program

in place of the Federal

program,

that is, to make state delisting

decisions. Therefore,

this exclusion

does not apply in those authorized

states unless that state makes the rule

part of its authorized program.

If

Shell

Oil Company transports the petitioned

waste to or manages the waste in any

state with delisting authorization, Shell

Oil Company must obtain delisting

authorization from that state before

it

can manage the waste as nonhazardous

in the state.

n. Background

A. What Is the History ofthe 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) The wastes 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). (2) the wastes meet the

criteria for listing contained in

§§ 261.11(a)(2) or (a)(3), or (3) the wastes

are

mixed with or derived from the

treatment, storage or disposal of such

characteristic and listed wastes and

which therefore become hazardous

under §§ 261.3(a)(2)(iv) or (c)(2)(I),

known as the "mixture" or

"derived~

from" rules, respectively.

Individual waste streams may vary,

however,

depending on raw materials,

industrial processes, and other factors.

Thus, while a waste described in these

regulations or resulting from the

operation of the mixture or derived-from

rules generally is hazardous, a specific

waste from an individual facility 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 consider the

wastes 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 (that is,

ignitability, reactivity, corrosivity,

and

toxicity) 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 nonhazardous 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

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 Shell Oil Company

Petition EPA To Delist?

On January 29, 2003, Shell Oil

Company petitioned EPA to exclude

from the lists of hazardous wastes

contained in § 261.31, multisource

landfill leachate (F039) generated from

its facility

located in Deer Park, Texas.

The waste falls under the classification

of listed waste pursuant to § 261.31.

Specifically,

in its petition, Shell Oil

Company requested that EPA grant a

standard exclusion for 3.36 million

gallons (16,619 cu. yards) per year of the

multisource landfill leachate.

B. Who Is Shell Oil Company and What

Process Does

it Use To Generate the

Petitioned Waste?

Shell Oil Company refines high sulfur

crude oil from Mexico into products

including gasoline, kerosene, jet fuel,

fuel oil, lube oil

and others. The

hazardous wastes included incinerator

ash,

spent catalysts and filters,

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77693

Chloronated Plate Interceptor (CPI)

sludge from the refinery wastewater

treatment plant, NET and primary solids

from Shell Chemical and the South

Effluent Treater (SET), The wastes

disposed of in the minimum

technological requirements (MTR)

landfill for the past four years have been

Class 1 and Class 2 nonhazardous

wastes. The landfill is designed to meet

the miIiimum technological

requirements specified in 40 CFR

§ 264.301. The design includes a

primary leachate collection system and

liner (underlying the deposited waste)

followed

by a secondary leachate

collection system. Leachate from this

landfill requires offsite disposal as an

F039 (multisource leachate) listed

waste. However, analytical data

collected monthly for this aqueous

stream shows that it is not a

characteristic waste

and contains little

to

no detectable concentrations of

organic constituents.

C.

How Did Shell Oil Company Sample

and Analyze the Data in This Petition?

To support its petition, Shell Oil

Company submitted:

(1) Historical information on past

waste generation and management

practices;

(2) Results of the total constituent list

for 40 CFR part 264 AppendiX IX

volatiles, semivolatiles, metals,

pesticides, herbicides, dioxins

and

PCBs;

(3) Results of the constituent list for

40 CFR part 264 Appendix IX on

Toxicity Characteristic Leaching

Procedure

(TCLP) extract for volatiles,

semivolatiles,

and metals;

(4) Analytical constituents of concern

for F039;

(5) Results from total oil and grease

analyses;

(6) Multiple pH testing for

the

petitioned waste.

D.

What Were the Results of Shell Oil

Company's Analyses?

EPA believes that the descriptions of

the

Shell Oil Company analytical

characterization provide a reasonable

basis to grant Shell Oil Company's

petition for an exclusion of the

multisource landfill leachate. EPA

believes

the data submitted in support

of the petition show the multisource

landfill leachate is non-hazardous.

Analytical data for the multisource

landfill leachate samples were

used in

the DRAS to develop delisting levels.

The data summaries for detected

constituents are presented

in Table

I.

EPA has reviewed the sampling

procedures

used by Shell Oil Company

and has determined that it satisfies EPA

criteria for collecting representative

samples

of the variations in constituent

concentrations

in the multisource

landfill leachate. In addition,

the data

submitted in support of the petition

show that constituents in Shell Oil

Company'swaste are presently below

health-based levels

used in the delisting

decision-making. EPA believes

that

Shell Oil Company has successfully

demonstrated that the multisource

landfill leachate is non-hazardous.

TABLE I.-MAXIMUM TCLP CONCENTRATIONS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATION OF THE

MULTISOURCE LANDFILL LEACHATE AT THE SHELL OIL COMPANY DEER PARK, TX FACILITY'

Constituent

Antimony

..

Arsenic

..

Barium

..

Copper

.

Chromium

.

Cobalt

.

Nickel

.

Selenium

..

Acetone

.

Acetophenone

.

Benzene

..

Dichloroethane, 1,2

..

Ethylbenzene

..

Napthalene

.

Phenanthrene 3

.

Phenol

..

TCDD.2.3.7.8

..

Trichloropropane

.

Xylenes (total)

.

TClP analyses

(mg/I)

0.0092

0.011

0.252

0.00553

0.0122

0.0128

0.0368

0.0128

0.033

0.0031

0.013

0.0014

0.00098

0.0061

0.0014

0.056

0.00000000325

0.00025

0.0016

Maximum allow-

able delisting con.

centration levels

(mgll)

0.0204

20.385

2.92

418.00

5.0

2.25

1.13

0.0863

1.46

1.58

0.022

0.0803

4.51

1.05

1.39

9.46

0.0000926

0.000574

97.60

1 These levels represent the hIghest concentrallOn of each constituent found in anyone sample. These levels do not necessarily represent the

specific levels found in one sample.

2 EPA defers to the maximum allowable delisting concentration based on the MCL. As a result, Shell Oil Company's analytical sampling results

and consequent DRAS analysis meet the criteria for the proposed delisting petition approval.

3The DRAS program does not have a delisting concentration for phenanthrene. Consequently EPA substituted anthracene into the DRAS pro-

gram to set a delistlng level for phenanthrene. Anthracene has similar toxicological and health based properties as phenanthrene. The DRAS

program contains a complete risk-based dataset for anthracene. Shell Oil Company's phenanthrene analytical sampling results and consequent

DRAS analysis using anthracene input parameters meet the criteria for the proposed phenanthrene delisting level.

4 Shell ran TClP analysis only for the liquid wastes, total analysis were excluding because similar analytical results would be provided.

E. How Did EPA Evaluate the Risk of

Delisting This Waste?

For this delisting determination, EPA

used such information gathered to

identify

plausible exposure routes

(i.e.,

groundwater, surface water, air) for

hazardous constituents present in the

petitioned waste. EPA determined that

disposal in a surface impoundment is

the most reasonable, worst-case disposal

scenario for Shell Oil Company's

petitioned waste. EPA applied the

Delisting Risk Assessment Software

(DRAS) described in 65 FR 58015

(September 27, 2000) and 65 FR 75637

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(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 Shell Oil

Company's petitioned waste on human

health and the environment. A copy of

this software can be found on the world

wide web at

http://www.epa.gov/

earth1r6/6pd/rcTQ_c/pd-oldras.htm.

In

assessing potential risks to groundwater,

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

groundwater 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

EPA health-based numbers. Using the

maximum compliance-point

concentrations and EPA's 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

groundwater.

EPA believes that the EPACMTP fate

and transport model represents a

reasonable worst-case scenario for

possible

groundwater contamination

resulting from disposal of the petitioned

waste in a surface impoundment, 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

ensures that the waste, once removed

from hazardous waste regulation, will

not pose a significant threat to human

health 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

from

the surface impoundment). As in

the above groundwater analyses, the

DRAS uses the risk level, the health-

based data and standard risk assessment

and exposure algorithms to predict

maximum complianceMpoint

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.

The waste must be disposed

in the type of unit the fate and transport

model evaluates.

EPA also

considers the applicability

of groundwater monitoring data during

the evaluation of delisting petitions. In

this case, Shell Oil Company will

dispose of its wastewater in its TPDES

permitted NET unit, with existing

groundwater contamination sources.

The groundwater contamination is

currently being addressed and managed

through a RCRA Corrective Actions

Program. Consequently

the groundwater

data would not be relevant to this

exclusion. Therefore, EPA has

determined that it would be

unnecessary to request groundwater

monitoring data.

EPA believes

that the descriptions of

Shell Oil

Company hazardous waste

process and analytical characterization

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 calculate the

maximum allowable concentration of

chemical constituents in the Waste are

presented in Table

I.

Based on the

comparison of results from the DRAS

and maximum TCLP concentrations

found

in Table I, the petitioned waste

should be delisted because no

constituents of concern tested are likely

to be

present or formed as reaction

products or by-products in Shell Oil

Company's waste.

F.

What Did EPA Conclude About Shell

Oil Company's Analysis?

EPA concluded, after reviewing Shell

Oil Company's processes that no other

hazardous constituents of concern, other

than those for which tested, are likely to

be

present or formed as reaction

products or by-products in the waste. In

addition, on the basis of explanations

and analytical data provided by Shell

Oil Company,

pursuant to § 260.22, EPA

concludes that the petitioned waste do

not exhibit any of the characteristics of

ignitability, corrosivity, reactivity or

toxicity. See

§§ 261.21,261.22261.23

and 261.24, respectively.

G.

What Other Factors Did EPA

Consider in Its Evaluation?

During the evaluation of Shell Oil

Company's petition, EPA also

considered the potential impact of the

petitioned waste via non-groundwater

routes

(j.e.,

air emission and surface

runoff).

With regard to airborne

dispersion in particular, EPA believes

that exposure to airborne contaminants

from Shell Oil

Company's petitioned

waste is unlikely. Therefore, no

appreciable air releases are likely from

Shell Oil

Company waste under any

likely disposal conditions. EPA

evaluated the potential hazards

resulting from

the unlikely scenario of

airborne

exposure to hazardous

constituents released from Shell Oil

Company'swaste

in an open surface

impoundment. 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 Shell Oil

Company's multisource

landfillleacbate.

H.

WhatIsEPA'sEvaJuation o/This

Delisting Petition?

The descriptions of Shell Oil

Company's

hazardous waste process

and analytical characterization, with the

proposed verification testing

requirements (as discussed later in this

notice), provide a reasonable basis for

EPA to

grant the exclusion. The data

submitted in support of the petition

show that constituents in the waste are

below the maximum allowable

leachable

concentrations

(see

Table I).

EPA helieves Sbell Oil Company's

process

will substantially reduce the

likelihood of migration of hazardous

constituents from the petitioned waste.

Shell Oil

Company's process also

minimizes short-term and long-term

threats from

the petitioned waste to

human health and the environment.

Thus, EPA

believes

Sbell Oil

Company should be granted an

exclusion for the multisource landfill

leachate. EPA believes

the data

submitted in support of the petition

show Shell Oil Company's multisource

landfill leachate is non-hazardous. EPA

has reviewed the sampling procedures

used by Sbell Oil Company and bas

determined that it satisfies EPA criteria

for collecting representative samples

of

variable constituent concentrations in

the multisource landfill leachate. The

data

submitted in support of the petition

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77695

show that constituents in Shell Oil

Company's

waste are presently below

the compliance point concentrations

used in the delisling decision and

would not pose a substantial hazard to

the environment. EPA believes that

Shell Oil Company has successfully

demonstrated that the multisource

landfill leachate is non-hazardous.

EPA

therefore, proposes to grant an

exclusion to Shell Oil Company, in Deer

Park, Texas, for

the multisource landfill

leachate described

in its petition. EPA's

decision to

exclude this waste is based

on descriptions of the treatment

activities associated

with the petitioned

waste and characterization of the

multisource landfill leachate.

If EPA finalizes

the proposed rule,

EPA

will no longer regulate the

petitioned waste 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, Shell Oil Company,

must comply with the requirements in

40 CFR part 261, Appendix IX, Table 1.

The text below gives the rationale and

details of those requirements.

(1) Delisting Levels

This

paragraph provides the levels of

constituents for which Shell Oil

Company must test the multisource

landfill leachate, below which these

wastes

would be considered non-

hazardous.

EPA selected

the set of inorganic and

organic constituents specified in

Paragrapb (1) of 40 CFR part 261,

Appendix IX, Table 1, (the exclusion

language)

based on information in the

petition. EPA compiled the inorganic

and organic constituents list from the

composition of the waste, descriptions

of Shell Oil Company's treatment

process, 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 total concentrations.

The limits described here do not relieve

Shell Oil Company of its duty to comply

with discharge limits in its TPDES

permit.

(2) Waste Holding and Handling

The purpose of this paragraph is to

ensure

that Shell Oil Company manages

and disposes of any multisource landfill

leachate

that contains hazardous levels

of inorganic

and organic constituents

according to Subtitle C of RCRA.

Managing

the multisource landfill

leachate as a

hazardous waste until

initial verification testing is performed

will protect against improper handling

of hazardous material.

If

EPA

determines

that the data collected under

this Paragraph do not support the data

provided for in the petition, the

exclusion will not cover the petitioned

waste. The exclusion is effective upon

publication in the Federal Register but

the disposal as

non~hazardous

cannot

begin until the verification sampling is

completed.

(3) Verification Testing Requirements

Shell Oil Company

must complete a

rigorous verification testing program

on

the multisource landfill leachate to

assure

that the treated multisource

landfill leachate does not exceed the

maximum levels specified in Paragraph

(1)

of the exclusion language. This

verification program operates on two

levels.

The first part of the verification

testing program consists

of testing the

multisource landfill leachate for

specified indicator parameters as

per

Paragraph (1) of the exclusion language.

If

EPA determines that the data

collected under this Paragraph do not

support the data provided for the

petition, the exclusion will not cover

the generated wastes.

If

the data from

the initial verification testing program

demonstrate

that the leachate meets the

delisting levels,

Shell Oil Company may

request quarterly testing. EPA will

notify Shell Oil Company, in writing, if

and when it may replace the testing

conditions

in paragraph (3)(A) with the

testing conditions in (3HB) of the

exclusion language.

The second part of the verification

testing program is

the quarterly testing

of representative samples of multisource

landfill leachate for all constituents

specified

in Paragraph (1) of the

exclusion language. EPA believes that

the concentrations of the constituents of

concern

in the multisource landfill

leachate

may vary over time.

Consequently

this program will ensure

that the leachate is evaluated in terms

of variation in constituent

concentrations in the waste over time.

The proposed subsequent testing

would verify that Shell Oil Company

operates a landfill where the constituent

concentrations of the multisource

landfill leachate do not exhibit

unacceptable temporal and spatial

levels of toxic constituents.

EPA is proposing to require Shell Oil

Company to analyze representative

samples

of the multisource landfill

leachate quarterly

during the first year

of waste generation. Shell Oil Company

would begin quarterly sampling 60 days

after

the final exclusion as described in

Paragraph (3)(B) of the exclusion

language.

EPA,

per Paragraph 3(C) of the

exclusion language, is proposing to

end

the subsequent testing conditions after

the first year, if Shell Oil Company has

demonstrated

that the waste

consistently meets

the delisting levels.

To confirm

that the characteristics of the

waste do not change significantly over

time, Shell Oil Company

must continue

to analyze a representative sample of

the

waste on an annual basis. Annual

testing requires analyzing the full list of

components in Paragraph (1) of the

exclusion language.

If

operating

conditions change as described

in

Paragraph (4) of the exclusion language;

Shell Oil Company must reinstate all

testing

in Paragraph (1) of the exclusion

language. Shell Oil

Company must

prove through a new demonstration that

their waste meets the conditions of the

exclusion.

If

the annual testing of the waste does

not meet the delisting requirements in

Paragraph 1, Shell Oil Company must

notify EPA according to the

requirements in Paragraph 6 of the

exclusion language.

The facility must

provide sampling results that support

the rationale that the delisting exclusion

should not be withdrawn.

(4) Changes in Operating Conditions

Paragraph

(4) of the exclusion

language

would allow Shell Oil

Company

the flexibility of modifying its

processes (for example, changes

in

equipment or change in operating

conditions) to improve its treatment

process. However, Shell Oil Company

must prove the effectiveness of the

modified process and request approval

from EPA. Shell Oil Company

must

manage wastes generated during the

new process demonstration as

hazardous waste until it has obtained

written approval and Paragraph (3) of

the exclusion language is satisfied.

(5) Data Submittals

To provide appropriate

documentation that Shell Oil

Company's multisource landfill leachate

is meeting

the delisting levels, Shell Oil

Company

must compile, summarize,

and keep delisting records on-site for a

minimum of five years.

It

should keep

all analytical data obtained through

Paragraph

(3) of the exclusion language

including quality control information

for five years. Paragraph

(5) of the

exclusion language requires that Shell

Oil Company

furnish these data upon

request for inspection by any employee

or representative

of EPA or the state of

Texas.

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If

the proposed exclusion is made

final, it will apply only to 3.36 million

gallons (16,619 cu, yards) per year of

multisource landfill leachate, generated

at the Shell Oil Company facility after

successful verification testing.

EPA

would require Shell Oil

Company to file a new delisting petition

under any of the following

circumstances:

(a)

If

it significantly alters the

manufacturing process treatment system

except as described in Paragraph (4) of

the exclusion language;

(b) If it uses any new manufacturing

or production process(esJ, or

significantly changes from

the Current

process(esJ described

in their petition;

or

(el

If

it makes any changes that could

affect the composition or type of waste

generated.

Shell Oil Company must manage

waste volumes greater than 3.36 million

gallons (16,619 cu, yards) per year of

multisource landfill leachate as

hazardous until EPA grants a new

exclusion.

When this exclusion becomes final,

Shell Oil Company's management of the

wastes covered by this petition would

be relieved from Subtitle C jurisdiction.

Shell Oil Company must either treat,

store, or

dispose of the waste in an on-

site facility.

if not, Shell Oil Company

must ensure that it delivers the waste to

an off-site storage, treatment, or disposal

facility that has a state permit, license,

or register to manage

municipal or

industrial solid waste.

(6) Reopener

The purpose of Paragraph (6) of the

exclusion language is to require Shell

Oil Company 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. Shell Oil Company 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

EPA 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

Shell Oil

Company 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. IfEPA

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

nOMmigration petitions

at § 268.6.

EPA believes

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 delistings is merited in light

of EPA's experience. See Reynolds

Metals Company

at 62 FR 37694 and 62

FR 63458

where the delisted waste

leached at greater concentrations in the

environment than the concentrations

predicted when conducting the TCLP,

thus 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 § 553 (b).

(7) Notification Requirements

In

order to adequately track wastes

that have been delisted, EPA is

requiring

that Shell Oil Company

provide a one-time notification to any

state regulatory agency through which

or to which the delisted waste is being

carried. Shell Oil Company must

provide this notification 60 days before

commencing this activity.

B. What Happens if Shell Oil Company

Violates the Terms and Conditions?

If Shen Oil Company 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

Shell

Oil Company to conduct the appropriate

waste analysis and comply with the

criteria explained above in Paragraph (1)

of the exclusion.

V.

Public

Comments

A. How Can 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 Section Chief of the

Corrective Action and Waste

Minimization Section (6PD-C),

Multimedia Planning and Permitting

Division, Environmental Protection

Agency (EPA), 1445 Ross Avenue,

Dallas, Texas 75202. Send a third copy

to Nicole Bealle, Waste Team Leader,

Texas Commission

on Environmental

Quality, 5425 Polk

Avenue Suite A,

Houston, TX 77023. Identify

your

comments at the top with this regulatory

docket number:

"F-04-TEXDEL-Shell

Oil." You may submit your comments

electronically to Michelle Peace at

peace.michelle@epa.gov.

You should submit requests for a

hearing to Ben Banipal, Section

Chief of

the Corrective Action and Waste

Minimization Section (6PD-C),

Multimedia Planning and Permitting

Division,

U. S. Environmental

Protection Agency, 1445 Ross Avenue,

Dallas, Texas 75202.

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

Environmental Protection Agency

Region 6, 1445 Ross Avenue, Dallas,

Texas 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.

Regulatory Impact

Under Executive Order 12866, EPA

must conduct an "assessment of the

potential costs and benefits" fCir all

"significant" regulatory actions.

The proposal to grant an exclusion is

not significant, since its effect, if

promulgated, would be to reduce the

overall costs and economic impact of

EPA's

hazardous waste management

regulations. This reduction would be

achieved by excluding waste generated

at a specific facility from EPA's lists of

hazardous wastes, thus enabling a

facility to manage its waste as

nonhazardous.

Because there is no additional impact

from this proposed rule, this proposal

would not be a significant regulation,

and no cost/benefit assessment is

required.

The Office of Management and

Budget (OMB) has also exempted this

rule from the requirement for OMB

review under Section (6) of Executive

Order 12866,

VII. Regulatory Flexibility

Act

Under the Regulatory Flexibility Act,

5 U.S,C. 601-612,

whenever an agency

is

required to publish a general notice

of rulemaking for

any proposed or final

rule,

it must prepare and make available

for

public comment a regulatory

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Federal Register/Vol. 69, No. 248/Tuesday, December 28, 2004/Proposed Rules

77697

flexibility analysis which describes the

impact of the rule on small entities (that

is, small businesses, small

organizations,

and small governmental

jurisdictions). No regulatory flexibility

analysis is required, however,

if the

Administrator or delegated

representative certifies that the rule will

not have any impact on a small entities.

This rule, if promulgated, will not

have an adverse economic impact on

small entities since its effect would be

to

reduce the overall costs of EPA's

hazardous waste regulations and would

be limited to one facility. Accordingly,

EPA

hereby certifies that this proposed

regulation, if promulgated, will not have

a significant economic impact on a

substantial number of small entities.

This regulation, therefore, does not

require a regulatory flexibility analysis.

VIII.

Paperwork Reduction Act

Information collection and record-

keeping

requirements associated with

this proposed rule have been approved

by the Office of Management and

Budget (OMB) under the provisions of

the Paperwork Reduction Act of 1980

(Public

Law 96-511, 44 U.S.C. 3501

et

seq.)

and have been assigned OMB

Control

Number 2050-0053.

IX.

Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (UMRAj,

Public Law 104-4, which was signed

into law on March 22,1995, EPA

generally

must prepare a written

statement for rules with Federal

mandates that may result in estimated

costs to state, local, and tribal

governments

in the aggregate, or to the

private sector, of $100 million or more

in anyone year.

When such a statement is reqUired for

EPA rules,

under section 205 of the

UMRA EPA must identify and consider

alternatives, including the least costly,

most

cost~effective,

or least burdensome

alternative that achieves the objectives

of

the rule. EPA must select that

alternative, unless the Administrator

explains in the final rule why it was not

selected or it is inconsistent with law.

Before EPA establishes regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

develop under section 203 of the UMRA

a

small government agency plan. The

plan must provide for notifying

potentially affected small governments,

giving

them meaningful and timely

input in the development of EPA

regulatory proposals

with significant

Federal intergovernmental mandates,

and informing, educating, and advising

them on compliance with the regulatory

requirements.

The UtvffiA generally defines a

Federal mandate for regulatory purposes

as one that imposes an enforceable duty

upon state, local, or tribal governments

or the private sector.

EPA finds

that this delisting decision

is deregulatory in nature and does not

impose any enforceable duty on any

state, local, or tribal governments or the

private sector. In addition, the proposed

delisting decision does not establish any

regulatory requirements for small

governments

and so does not requiTe a

small government agency plan under

UMRA section 203,

X. Executive

Order 13045

The Executive Order 13045 is entitled

"Protection of Children from

Environmental Health Risks and Safety

Risks" (62 FR 19885, April 23, 1997).

This order applies to any rule that EPA

determines (1) is economically

significant as

defined under Executive

Order 12866, and (2) the environmental

health or safety risk addressed by the

rule has a disproportionate effect on

children. If the regulatory action meets

both criteria, EPA must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other

potentially effective

and reasonably feasible alternatives

considered by EPA. This proposed rule

is not subject to E.O. 13045 because this

is not an economically significant

regulatory action as

defined by

Executive Order 12866.

XI. Executive

Order 13084

Because

this action does not involve

any requirements that affect Indian

Tribes, the requirements of section 3(b)

of Executive Order 13084 do not apply.

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or

uniquely affects the

communities of Indian tribal

governments,

and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments.

If

the mandate is unfunded, EPA must

provide to the Office Management and

Budget, in a separately identified

section of the preamble to the rule, a

description of the extent of EPA's prior

consultation with representatives of

affected tribal governments, a

summary

of the nature of their concerns, and a

statement supporting the need to issue

the regulation.

In addition, Executive Order 13084

requires EPA to develop

an effective

process

permitting elected and other

representatives of Indian tribal

governments to

have''meaningfuland

timely input" in the development of

regulatory policies

on matters that

significantly or uniquely affect their

communities of Indian tribal

governments.

This action does not

involve or impose any requirements that

affect Indian Tribes. Accordingly, the

requirements of section 3(b) of

Executive

Order 13084 do not apply to

this rule.

Xll. National Technology Transfer and

Advancement Act

Under Section 12(d) of the National

Technology Transfer

and Advancement

Act, EPA is directed to use voluntary

consensus standards in its regulatory

activities

unless to do so would be

inconsistent with applicable law or

otherwise impracticaL Voluntary

consensus standards are technical

standards

(e.g"

materials specifications,

test methods, sampling procedures,

business practices,

etc.)

developed or

adopted by voluntary consensus

standard bodies, Where available and

potentially applicable voluntary

consensus standards are not used by

EPA, the Act requires that EPA to

provide Congress, through the OMB, an

explanation of the reasons for not using

such standards.

This rule does not establish any new

technical standards and thus, EPA has

no need to consider the use of voluntary

consensus standards in developing this

final rule.

Xlli. Executive Order 13132 Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, August 10,

1999) requires EPA to develop

an

accountable process to ensure

"meaningful and timely input by state

and local officials in the development of

regulatory policies

that have federalism

implications." "Policies

that have

federalism

implications" is defined in

the Executive Order to include

regulations that 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."

Under section 6 of Executive Order

13132, EPA

may not issue a regulation

that has federalism implications, that

impose substantial direct compliance

costs,

and that is not reqUired by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by state and

local governments, or EPA consults with

---

77698

Federal Register

IVaI.

69, No.

2481

Tuesday, December 28, 2004/Proposed Rules

state and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts state

law unless EPA consults with state and

local officials early in the process of

developing the proposed regulation.

This action does not have federalism

implication.

It

will not have a

substantial direct effect on 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, because it

affects only one facility.

Lists

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(fj

Dated: November 9, 2004.

Carl E. Edlund,

Director, Multimedia Planning

and Permitting

Division, Region

6.

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 1 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

Exclnded Under §§ 260.20 aod 260.22.

TABLE 1.-WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility

Shell Oil Company

Address

Deer

Park, TX

Waste Description

Multisource landfill leachate (EPA Hazardous Waste

No. F039) generated at a maximum an-

nual rate of 3.36 million gallons (16,619

cu. yards) per calendar year after [insert publication

date of the final rule] and disposed in accordance with the TPDES permit.

The Delisting Levels set

do not relieve Shell Oil Company of its duty to comply with the limits

set in its TPDES permit. For the exclusion

to be valid, Shell Oil Company must implement a

verification testing program that meets the following Paragraphs:

(1) Delisting Levels:

All total concentrations for those constituents must not exceed the fol-

lowing levels (mgll). The petitioner must analyze the aqueous waste

on a total basis to meas-

ure constituents in the multisource landfill leachate.

Multisource landfill leachate (i) Inorganic Constituents Antimony-0.0204; Arsenic-0.385; Barium-

2.92; Copper-418.00; Chromium-5.0; Cobalt-2.25; Nickel-1.13; Selenium-0.0863;

Thallium~

0.005

(ii) Organic Constituents Acetone-1.46; Acrylonitrile-0.00745; Acetophenone-1.58; Benzene-

0.0222; Cresol, p-0.0788;

Bis(2~chlorethyl)ether~0.00583;

Bis(2-ethylhexyl)phthlate-15800.00;

Dichlorobenzene,

1,3-0.00478;

Dichloroethane,

1,2--0.0803;

Dimethoate-3.15;

Dimethyphenol, 2,4-0.405; Dinitrophenol-0.0293; Dinitrotoluene, 2,4-0.00451; Dinitrololuene,

2,6-0.00451; Diphenylthydrazine-0.00484; Dichloroethylene, 1,1--0.00719; Ethylbenzehe-

4.51;

Kepone-0.00407;

Methacrylonitrile-0.00146;

Methanol-7.32;

Napthalene-1.05;

Nitrobenzene

0.00788;

Nitrosodiethylamine-0.000258;

Nitrosodimethylamine~0.000076;

Nitrosodi-n-butylamine-0.000826;

N~Nitrosodi~n~propylamine-0.000553;

N-Njtrosopiperdine~

0.000102;

N-Nitrosopyrrolidine-0.000841;

N-Nitrosomethylethylamine-0.000176;

PCB's-

0.000841; Pentachlorophenol-1.58; Phenol-9A6; Pyridine-0.0146;

2,3,7,8~TCDD

equivalents

as TEQ-0.0000926; Trichloropropane-0.000574; Vinyl Chloride-0.0019; Xylenes

(total)~97.60

(2) Waste Management

(A) Shell Oil Company must manage as hazardous all multisource landfill leachate generated,

until it has completed initial verification testing described in Paragraph (3)(A)

and (B), as ap-

propriate, and valid analyses show that Paragraph(1) is satisfied.

(B) Levels of constituents measured in the samples of the multisource landfill leachate that do

not exceed the levels set forth in Paragraph (1) are non-hazardous. Shell Oil Company can

manage

and dispose of the non-hazardous multisource landfill leachate according to all appli-

cable solid waste regulations.

(C) If constituent levels in a sample exceed any of the Delisting Levels set in Paragraph (1),

Shell Oil Company can collect one additional sample and perform expedited analyses to

verify if the constituent exceeds the delisting level. If this sample confirms the exceedance,

Shell Oil Company must,

from that point forward, treat the waste as hazardous until it is dem-

onstrated that the waste again meets the levels in Paragraph (1).

(D) If the facility has not treated the waste, Shell Oil Company must manage and dispose of the

waste generated under Subtitle C of RCRA

from the time that it becomes aware of any ex-

ceedance.

(E) Upon completion of the Verification Testing described in Paragraph 3(A) and (8) as

appro~

priate and the transmittal of the results to EPA, and if the testing results meet the require-

ments of Paragraph (1), Shell Oil Company may proceed to manage its multisource landfill

leachate

as non-hazardous waste. If SUbsequent Verification Testing indicates an exceed-

ance of the Delisting Levels

in Paragraph (1), Shell Oil Company must manage the multi-

source landfill leachate as a hazardous waste until two consecutive quarterly testing samples

show levels below the Delisting Levels

in Table I.

---

Federal Register/Vol. 69, No. 248/Tuesday, December 28, 2004/Proposed Rules

TABLE 1.-WASTE EXCLUDED FROM NON-SPECIFIC SOURCEs-Continued

77699

Facility

Address

Waste Description

(3) Verification Testing Requirements:

Shell Oil Company must perform sample collection and

analyses, including quality control procedures, according to appropriate methods such as

those found in SW-846 or other reliable sources (with the exception of analyses requiring the

use of

SW-846 methods incorporated by reference in 40 CFR 260.11, which must be used

without substitution). If EPA judges the process to

be effective under the operating conditions

used during the initial verification testing, Shell Oil Company may replace the testing required

in Paragraph (3)(A) with the testing required in Paragraph (3)(B). Shell Oil Company must

continue to test

as specified in Paragraph (3)(A) until and unless notified by EPA in writing

that testing in Paragraph (3)(A) may be replaced by Paragraph (3)(B).

(A)

Initial Verification Testing.

After EPA grants the final exclusion, Shell Oil Company must do

the following:

(i) Within 60 days of this exclusion becoming final, collect eight samples, before disposal, of the

multisource landfill leachate.

(ii) The samples are to be analyzed and compared against the Delisting Levels

in Paragraph

(1 )

(iii) Within sixty (60) days after this exclusion becomes final, Shell Oil Company will report initial

verification analytical test data for the multisource landfill leachate, including analytical quality

control information for the first thirty (30) days of operation atter this exclusion becomes final.

If levels of constituents measured

in the samples of the multisource landfill leachate that do

not exceed the levels set forth

in Paragraph (1) are also non-hazardous in two consecutive

quarters after the first thirty (30) days of operation after this exclusion become effective, Shell

Oil Company can manage and dispose of the multisource landfill leachate according to all

applicable solid waste regulations.

(B)

Subsequent Verification Testing.

Following written notification by EPA, Shell Oil Company

may substitute the testing conditions

in (3)(8) for (3)(A). Shell Oil Company must continue to

monitor operating conditions, and analyze two representative samples of the multisource

landfill leachate for each quarter of operation during the first year of waste generation. The

samples must represent the waste generated during the quarter. After the first year of analyt-

ical sampling verification sampling can be performed

on a single annual sample of the multi-

source landfill leachate. The results are to

be compared to the Delisting Levels in Condition

(1).

(C)

Termination of Testing:

(i) After the first year of quarterly testing, if the Delisting Levels in Paragraph (1) are being met,

Shell Oil Company may then request that EPA not require quarterly testing. After EPA noti-

fies Shell Oil Company

in writing, the company may end quarterly testing.

(ii) Following cancellation of the quarterly testing, Shell Oil Company must continue to test a

representative sample for all constituents listed in Paragraph (1) annually.

(4) Changes in Operating Conditions:

If Shell Oil Company significantly changes the process

described

in its petition or starts any processes that generate(s) the waste that mayor could

significantly affect the composition

or type of waste generated as established under Para-

graph (1) (by illustration, but not limitation, changes in equipment or operating conditions of

the treatment process), it must notify EPA in writing; it may no longer handle the wastes gen-

erated from the new process as nonhazardous until the wastes meet the Delisting Levels set

in Paragraph (1) and it has received written approval to do so from EPA.

(5) Data Submittals:

Shell Oil Company must submit the information described below. If Shell

Oil Company fails to submit the required data within the specified time

or maintain the re-

quired 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. Shell Oil Company must:

(A) Submit the data obtained through Paragraph 3 to the Section Chief, Region 6 Corrective

Action and Waste Minimization Section, EPA, 1445 Ross Avenue, Dallas, Texas

75202-

2733, Mail Code, (6PD-C) within the time specified.

(B) Compile records of operating conditions and analytical data from Paragraph (3), summa-

rized, and maintained on-site for a minimum of five years.

(C) Furnish these records and data when EPA or the state of Texas request them for inspec-

tion.

(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 state-

ments 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 infor-

mation 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:

---

77700

Federal Register/Vol. 69, No. 248/Tuesday, December 28, 2004/Proposed Rules

TABLE 1.-WASTE EXCLUDED FROM NON-SPECIFIC SOURCES-Continued

Facility

Address

Waste Description

(A) If, anytime after disposal of the delisled waste, Shell Oil Company possesses or is other-

wise

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

groundwater 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.

(8) If the annual testing of the waste does not meet the delisting requirements

in Paragraph 1,

Shell Oil Company must report the data, in writing, to the Division Director within 10 days of

first possessing

or being made aware of that data.

(C) If Shell Oil Company fails

to submit the information described in Paragraphs (5),(6)(A). or

(6)(8)

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 re-

voking the exclusion, or other appropriate response necessary

to protect human health and

the environment.

(D) If the Division Director determines that the reported information does require action, EPA's

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 state-

ment of the proposed action and a statement providing the facility with an opportunity

to

present information as to why the proposed action by EPA 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)(0) or (if no

information is presented under Paragraph (6)(0» the initial receipt of information described in

Paragraphs (5), (6)(A) or (6)(8), the Division Director will issue a final written determination

describing EPA's 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.

(7) Notification Requirements:

Shell Oil Company must do the following before transporting the

delisted waste. Failure to provide this notification will result

in a violation of the delisting

peti~

tion and a possible revocation of the decision.

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

which it will transport the delisted waste described above for disposal, 60 days before begin-

ning such activities.

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

facility.

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

possible revocation

of the decision.

[FR Doc. 04-28199 Filed 12-27-04; 8:45 am]

BIl.L1NG CODE 656D-5D-P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU06

Endangered and Threatened Wildlife

and Plants: Proposed Critical Habitat

Designation

for Four Vernal Pool

Crustaceans and Eleven Vernal Pool

Plants in California and Southern

Oregon

AGENCY:

Fish and Wildlife Service,

Interior.

ACTION:

Proposed rule, reopening of

public comment period.

SUMMARY:

We, the U.S. Fish and

Wildlife Service (Service), announce

that we are soliciting additional

comments on certain areas included in

our September 24, 2002, proposed rule

(hereinafter referred to as the September

2002 proposal) to designate critical

habitat for 4 vernal pool crustaceans and

11 vernal pool plants in California and

southern Oregon (67 FR 59884). We

issued a final rule based on the

September 2002 proposal on August 6,

2003 (68 FR 46684).

In the final rule we

excluded certain specific lands that had

been included in the September 2002

proposal.

We excluded these lands

pursuantto section 4(b)(2) 01 the Act

based on either policy or economic

reasons. On October 28, 2004, a court

remanded the final designation to the

Service in part, ordering the Service to

make a

new determination as to whether

to designate the excluded areas

(Butte

Environmental Council

v.

Norton,

NO.

ClV. 5-04-0096 (KD. Cal. Oct. 28,

2004).

Tbe August 6, 2003, final rule is

still

in effect while we reconsider the

exclusions from the proposed rule and

make a new final determination.

Pursuant to the court order, we will

evaluate the exclusions made to our

proposal in two separate actions: (1) A

re-evaluation of exclusions

based on

policy or non-economic reasons

addressed herein; and (2) are.

evaluation of exclusions based on

economic concerns in a subsequent

Federal Register notice. Comments

previously submitted on the September

2002 proposal need not be resubmitted

because we will incorporate them into

the public record as part of this

reopening of the Comment period and

will fully consider them in development

of a new final rule.

OATES:

We will accept public comments

on the policy (non-economic)

exclusions to our September 2002

proposal and any new information

concerning

the 15 vernal pool species

addressed in this critical habitat

designation until January 27,2005.

ADDRESSES: If

you wish to comment,

you may submit your comments and

materials by anyone of several methods:

---

Federal Register

I

Vol. 70, No. 162

I

Tuesday, August 23, 2005/Rules and Regulations

49187

Issued in College Park, Georgia, on July 29,

2005.

Mark D. Ward,

ActingArea Director, Air Traffic Division,

Southern Region.

[FR Doc. 05-16746 Filed 8-22-05; 8:45

am]

BilliNG CODE 491D-13-M

ASO

KY E5

Marion,

KY

[NEW]

Marion-Crittenden County Airport,

ICY

(Lat. 37°20'04" N, long. 88°06'54" W)

That airspace extending upward from 700

feet above

the surface within a 6.7-radius of

Marion-Crittenden County Airport; excluding

that airspace within the Sturgis, ICY, Class E

airspace area.

SUMMARY:

Environmental Protection

Agency (EPA) is granting petitions

submitted by Shell Oil Company (Shell

Oil Company) to exclude (or delist)

certain wastes generated by its Houston,

TX Deer Park facility from the lists of

hazardous wastes. This final rule

responds to petitions submitted by Shell

Oil Company to delist F039 and F037

wastes. The F039 waste is generated

from the refinery wastewater treatment

plant, North Effluent Treater (NET) and

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part

261

[SW-FRl-7957-6l

Hazardous Waste Management

System; Identification and Listing

of

Hazardous Waste; Final Exclusion

AGENCY:

Environmental Protection

Agency.

ACTION:

Final rule.

•••

••

PART 71-DESIGNATION OF CLASS A,

CLASS

S, CLASS C, CLASS D, AND

CLASS E AIRSPACE AREAS;

AIRWAYS; ROUTES; AND REPORTING

POINTS

.1. The authority citation for Part 71

continues to read as follows:

Authority: 49

V.S.c.

106(g); 40103, 40113,

40120; E.G.

10854, 24 FR 9565, 3 CFR, 1959-

1963 Comp., p. 389.

§

71.1

[Amended]

• 2. The incorporation by reference in 14

CFR 71.1 of Federal Aviation

Administration Order 7400.9L, Airspace

Designations and Reporting Points,

dated September 2, 2003, and effective

September 16, 2003, is amended as

follows:

Paragraph 6005 Class E Airspace Areas

Extending Upward from 700 feet or More

Above the Surface

ofthe Earth.

*

*

*

*

*

History

On June 8, 2005, the FAA proposed to

amend part 71 of the Federal Aviation

Regulations

(14

CFR part

71)

by

establishing Class E airspace at Marion,

KY, (70 FR 33403). This action provides

adequate Class E airspace for IFR

operations at Marion-Crittenden County

Airport. Designations for Class E

airspace areas extending upward from

700 feet or more above the surface of the

earth are published in FAA Order

7400.9M, dated August 30, 2004, and

effective September 16, 2004, which is

incorporated by reference in 14 CFR

part 71.1. The Class E designations

listed in this document will be

published subsequently in this Order,

Interested parties were invited to

participate in this rulemaking

proceeding by submitting written

comments on the proposal to the FAA.

No comments objecting to the proposal

were received.

The Rule

This amendment to part 71 of the

Federal Aviation Regulations (14 CFR

part 71) establishes Class E airspace at

Marion, KY.

The FAA has determined that this

proposed regulation only involves an

established body of technical

regulations for which frequent and

routine amendments are necessary to

keep them operationally current.

It,

therefore, (1) is not a "significant

regulatory action" under Executive

Order 12866; (2) is not a "significant

rule" under DOT Regulatory Policies

and Procedures (44 FR 11034; February

26,1979); and (3) does not warrant

preparation of a Regulatory Evaluation

as the anticipated impact is so minimal.

Since this is a routine matter that will

only affect air traffic procedures and air

navigation,

it

is certified that this rule,

when promulgated, will not have a

significant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act,

List of Subjects

in

14 CFR Part

71

Airspace, Incorporation by reference,

Navigation (Air).

Adoption of the Amendment

• In consideration of the foregoing, the

Federal Aviation Administration

proposes to amend 14 CFR Part 71 as

follows:

Issued in Jamaica, New York, on August

17,2005.

John G. McCartney,

Acting Area Director, Eastern Terminal

Operations.

[FRDoc. 05-16740 Filed 8-22-05; 8:45

am]

BilLING CODE 491D-13-M

ANE MA D Worcester, MA [Revised]

Worcester Regional Airport, MA

(Lat. 42°16'02" N, long. 71 °52'32" W)

Spencer Airport, MA

(Lat. 42°17'26" N, long. 71 °57'53" W)

That airspace extending upward from the

surface to and including 3,500 feet MSL

within a 4.2-mile radius ofWmcester

Regional Airport, excluding that airspace

from

the surface up to but not including

1,900 feet MSL within a 1-mile radius of the

Spencer Airport. This Class D airspace area

is effective during

the specific dates and

times established in advance by a Notice to

Airmen.

The effective date and time will

thereafter be continuously published

in

the

Airport/Facility Directory.

"I<

*

*

*

*

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

SUMMARY:

This action establishes Class

E airspace at Marion, KY. Area

Navigation (RNAV) Global Positioning

System (GPS) Standard Instrnment

Approach Procedures (SlAP) Runway

(RWY) 7 and RWY 25 have been

developed for Marion-Crittenden

County Airport. As a result, controlled

airspace extending upward from 700

feet Above Ground Level (AGL) is

needed to contain the SIAPs and for

Instrument Flight Rules (IFR) operations

at Marion-Crittenden County Airport.

The operating status of the airport will

change from Visual Flight Rules (VFR)

to include IFR operations concurrent

with the publication of the SlAP.

EFFECTIVE DATE:

0901 UTC, October 27,

2005.

FOR FURTHER INFORMATION CONTACT:

Mark D, Ward, Manager, Airspace and

Operations Branch, Eastern En Route

and Oceanic Service Area, Federal

Aviation Administration, P,O. Box

20636, Atlanta, Georgia 30320;

telephone (404) 305-5586.

SUPPLEMENTARY INFORMATION:

14 CFR Part 71

[Docket No. FAA-2005-21226; Airspace

Docket No. 05-ASQ-B]

Establishment of Class E Airspace;

Marion, KY

AGENCY:

Federal Aviation

Administration (FAA), DOT,

ACTION:

Final

-

rule,

---

49188

Federal Register

IVaI.

70, No. 162/Tuesday, August 23, 2005/Rules and Regulations

primary solids from Shell Chemical and

the South Effluent Treatment (SET). The

F037 waste North Pond Sludge is

generated from the process wastewater,

gravel

and road base that has settled

from

storm water flow to the pond.

After careful analysis and use of the

Delisting Risk Assessment Software

(DRAS), EPA

has concluded the

petitioned wastes are not hazardous

waste. The F039 exclusion applies to

3.36

million gallons per year (16,619

cubic yards) of multi-source landfill

leachate.

The F037 exclusion is a one

time exclusion for 15,000 cubic yards of

the sludge. Accordingly, this final rule

excludes the petitioned wastes from the

requirements of hazardous waste

regulations

under the Resource

Conservation

and Recovery Act (RCRA).

EFFECTIVE

DATE:

August 23, 2005.

ADDRESSES:

The public docket for this

final rule is located at the

Environmental Protection Agency

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202,

and is available for

viewing in EPA Freedom of Information

Act

review room on the 7th floor from

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

Monday through

Friday, excluding Federal holidays. Call

(214)

665-6444 for appointments, The

reference

number for this docket is F-

04-TEXDEL--Shell Oil. The public may

copy material from any regulatory

docket at no cost for the first 100 pages

and at a cost of $0.15 per page for

additional copies.

FOR FURTHER INFORMATION CONTACT:

Ben

Banipal, Section Chief of the Corrective

Action and Waste Minimization

Section,

Multimedia Planning and

Permitting Division (6PD-C),

Environmental Protection Agency

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202.

For technical information

concerning this notice, contact Michelle

Peace,

Environmental Protection

Agency, 1445 Ross Avenue, Dallas,

Texas 75202,

at (214) 665-7430, or

peace.michelle@epa.gov.

SUPPLEMENTARY INFORMATION:

The

information in this section is organized

as follows:

I.

Overview Information

A. What action is EPA finalizing?

B.

Why is EPA approving this action?

C.

What are the limits of this exclusion?

D. How will Shell Oil Company manage

the wastes, if they are delisted?

E. When is the final delisting exclusion

effective?

F. How does this final rule affect states?

II. Background

A. What is a delisting?

B. What regulations allow facilities to

delist a waste?

C.

What information must the generator

supply?

III. EPA's Evaluation of the Waste

Information and Data

A. What waste did Shell Oil Company

petition EPA to deHst?

B. How much waste did Shell Oil

Company propose to delist?

A. How did Shell Oil Company sample and

analyze the waste data in these petitions?

IV. Public Comments Received on the

Proposed Exclusions

A. Who submitted comments on the

proposed rules?

B. Where were the comments and what are

EPA'sresponses to them?

V. Statutory and Executive Order Reviews

I.

Overview Information

A. What Action Is EPA Finalizing?

After evaluating the petitions for Shell

Oil Company. EPA proposed, on

December 28. 2004 and February 9.

2005. respectively, to

exclude the

wastes from the lists of hazardous waste

under § 261.31. EPA is finalizing:

(1) The decision to grant Shell Oil

Company's delisting petition to have its

F039 multi-source landfill leachate

underlying the Minimum Technology

Requirements (MTR)

hazardous waste

landfill excluded, or delisted, from the

definition of a hazardous waste; and

subject to certain verification and

monitoring conditions; and

(2) The decision to grant Shell Oil

Company's delisting petition to have its

North Pond F037 sludge excluded, or

delisted, from

the definition of a

hazardous waste, once it is disposed in

a Subtitle D landfill.

B. Why Is EPA Approving This Action?

Shell Oil Company's petitions request

a delisting from the F039 and F037

wastes listing under 40 CFR 260.20 and

260.22. Shell Oil Company does not

believe that the petitioned waste meets

the criteria for which EPA listed it.

Shell Oil

Company also believes no

additional constituents or factors could

cause the waste to be hazardous. EPA's

review of these petitions included

consideration of the original listing

criteria.

and the additional factors

required by the Hazardous and Solid

Waste Amendments of 1984 (HSWA).

See

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

6921(f),

and 40 CFR 260,22 (d)(1)-(4)

(hereinafter all sectional references are

to 40 CFR

unless otherwise indicated).

In making the final delisting

determination, EPA evaluated the

petitioned wastes 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 wastes are nonhazardous with

respect to the original listing criteria. (If

EPA had found, based on this review,

that the waste remained hazardous

based on the factors for which the waste

was originally listed, EPA would have

proposed to deny the petition.) EPA

evaluated the wastes with respect to

other factors or criteria to assess

whether there is a reasonable basis to

believe

that such additional factors

could cause the wastes to be hazardous.

EPA

considered whether the wastes are

acutely toxic,

the concentrations of the

constituents in the wastes, 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 wastes do not meet the listing

criteria

and thus should not be listed

wastes. EPA's final decision to delist

wastes from Shell Oil Company's

facility is

based on the information

submitted in support of this rule,

including descriptions of the wastes and

analytical data from the Deer Park, TX

facility.

C.

What Are the Limits of This

Exclusion?

This exclusion applies to the waste

described

in the Shell Oil Company

petitions only if the requirements

described

in 40 CFR part 261, Appendix

IX, Table 1 and the conditions

contained herein are satisfied,

D.

How Will Shell Oil Company

Manage

the Wastes, If They Are Delisted?

If

the multi-source landfill leachate is

delisted,

Shell Oil Company will make

piping modifications to allow the

leachate to

be

routed to the North

Effluent Treater (NET) for treatment.

After its treatment,

the multi-source

landfill leachate will be discharged

through a TPDES-permitted outfall in

compliance with its TPDES permit. If

F037

North Pond Sludge is delisted,

Shell Oil

Company will dispose of it in

a Subtitle D landfill which is permitted,

licensed, or registered by a state to

manage industrial waste.

E. When Is the Final Delisting Exclusion

Effective?

This rule is effective August 23, 2005,

The Hazardous and Solid Waste

Amendments of 1984 amended section

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

allow rules to become effective in less

than six months after the rule is

published when the regulated

community does not need the six-month

period to come into compliance. That is

the case here because this rule reduces.

rather than increases, the existing

requirements for persons generating

hazardous waste. This reduction in

existing requirements also provides a

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Federal Register IVaI. 70, No. 162

I

Tuesday, August 23, 2005

I

Rules and Regulations

49189

basis for making this rule effective

immediately. upon publication, under

the Administrative Procedure Act,

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

F.

How Does This Final Rule Affect

States?

Because EPA is issuing this exclusion

under the Federal

ReRA

delisting

program,

only states subject to Federal

RCRA delisting provisions

would be

affected.

This would exclude states

which have received authorization from

EPA to

make their own delisting

decisions.

EPA

allows states to impose their own

non-RCRA regulatory requirements that

are more stringent than EPA's, under

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

These more stringent requirements may

include a provision that prohibits a

Federally issued exclusion from taking

effect

in the state. Because a dual system

(that is,

both Federal (RCRA) and State

(non-ReRA) programs)

may regulate a

petitioner's waste,

EPA

urges petitioners

to

contact the State regulatory authority

to establish the status of their wastes

under the State law.

EPA

has also authorized some states

(for

example, Louisiana, Oklahoma,

Georgia, Illinois) to

administer a RCRA

delisting

program in place of the Federal

program, that is, to make state delisting

decisions. Therefore, this exclusion

does

not apply in those authorized

states unless that state makes the rule

part of its authorized program.

If

Shell

Oil

Company transports the petitioned

waste to or manages the waste in any

state with delisting authorization, Shell

Oil

Company must obtain delisling

authorization from that state before

it

can manage the waste as nonhazardous

in the state.

II.

Backgronnd

A. What Is

a

Delisting Petition?

A delisting petition is a request from

a generator to

EPA

or another agency

with jurisdiction to exclude or delist,

from

the

RCRA

list of hazardous waste,

waste the generator believes should not

be considered hazardous under RCRA.

B. What Regulations Allow Facilities To

Delist

a

Waste?

Under 40 CFR 260.20 and 260.22,

facilities

may petition

EPA

to remove

their wastes from hazardous waste

regulation by excluding them from the

lists of hazardous wastes contained in

§§ 261.31 and 261.32. Specifically,

§ 260.20 allows any person to petition

the Administrator to modify or revoke

any provision of 40 CFR parts 260

through 265 and 266. Section 260.22

provides generators the opportunity to

petition the Administrator to exclude a

waste from a particular generating

facility from

the hazardous waste lists.

C.

What Information Must the Generator

Supply?

Petitioners must provide sufficient

information to EPA to allow EPA to

determine that the waste to be excluded

does not meet any of the criteria under

which the waste was listed as a

hazardous waste. In addition, the

Administrator must determine, where

he/she has a reasonable basis to believe

that factors (including additional

constituents) other than those for which

the waste was listed could cause the

waste to be a hazardous waste and that

such factors do not warrant retaining the

waste as a hazardous waste.

III. EPA's Evaluation ofthe Waste

Information and Data

A.

What Wastes

Did

Shell Oil Compony

Petition EPA To Delist?

On January 29, 2003, Shell Oil

Company petitioned EPA to exclude

from the lists of hazardous waste

contained in § 261.31,

multi~source

landfill leachate (F039) generated

from

its facility located in Deer Park, TX.

Then on December 30, 2003, Shell Oil

Company petitioned EPA to exclude

from the lists of hazardous waste

contained in §§ 261.31 and 261.32, F037

North Pond Sludge.

B. How Much Waste

Did

Shell

OJ]

Company Propose To Delist?

Shell Oil Company requested that

EPA grant an exclusion for 3.36 million

gallons (16,619 cu. yards) per year of the

multi-source landfill leachate in its

January 29, 2003 petition. In

the

December 30, 2003 petition, Shell Oil

Company requested that EPA grant a

one time exclusion for 15,000 cubic

yards of the F037 North Pond Sludge.

C.

How

Did

Shell

OJ]

Company Sample

and Analyze the Waste Data in These

Petitions?

To support its petitions, Shell Oil

Company submitted:

(1) Historical information on past

waste generation and management

practices including analytical data from

eleven

samples collected in September

2003 for the F037 North Pond Sludge

and four samples of combined leachate

data for

the F039 multi-source landfill

leachate;

(2) Results of the total constituent list

for 40 CFR part 264, Appendix iX

volatiles, semivolatiles, metals,

pesticides, herbicides, dioxins

and PCBs

for

the F037 North Pond Sludge and the

F039 multi-source landfill leachate;

(3) Results of the constituent list for

40 CFR

part 264, Appendix IX on

Toxicity Characteristic Leaching

Procedure (TCLP) extract for volatiles,

semivolatiles,

and metals for the F037

North Pond Sludge and the F039

multi-

source landfill leachate;

(4) Analytical constituents of concern

for F037 and F039;

(5) Results from total oil and grease

analyses;

(6) Multiple pH testing for the

petitioned wastes.

IV.

Public Comments Received on the

Proposed Exclusions

A. Who Submitted Comments on the

Proposed Rules?

No comments were received on the

proposed rule for the F037 wastes.

Comments were submitted by Shell

Deer

Park Refining Company (Shell) to

correct

information contained in the

proposed rule for F039.

B. What Were the Comments and What

Are EPA'sResponses

to

Them?

Shell noted that

Chlaranated

Plate

Interceptor

should be

Corrugated

Plate

Interceptor. EPA

has noted this and

made appropriate changes in the final

rule and exclusion language to reflect

this change.

Shell noted that; (1) the compound p-

cresol (4-methlyphenol)

should be

added to Table I; and (2) the compound

trichloropropane should be deleted from

Table I as

this constituent was not

detected in any of the samples above the

reporting level.

The compound p-cresol (4-

methlyphenol) appears in Table 1.-

Waste Excluded From the Non-Specific

Sources as "Cresol,

p." EPA has made

the appropriate change to read p-Cresol.

The compound trichloropropane

estimated value of 0.00025 mgll was

reported in the revised analyses on

October 11,2004, Combined Leachate

Data,

and thus

it

will not be deleted.

Shell requested: (1) that the following

constituents be deleted from Table 1-

Wastes Excluded from Non-Specific

Sources

in the exclusion language to be

consistent with Table I in Section III. D

in the preamble of the proposed rule:

Thallium, Acrylonitrile, Bis (2-

chlorethyl) ether, Bis (2-ethylhexyl)

phthlate, Dichlorobenzene 1,3,

Dimethoate,

Dimethylphenol 2,4,

Dinitrophenol, Dinitrotoluene 2,6,

Diphenylhydrazine, Dichloroethylene

1,1, Kepone, Methacrylonitrile,

Methanol, Nitrobenzene,

Nitrosodiethylamine,

Nitrosodimethylamine, Nitrosodi-n-

butylamine, N-Nitrodi-n-propylamine,

N-Nitrosopiperdine, N-

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49190

Federal Register/Vol. 70, No. 162/Tuesday, August 23, 2005/Rules and Regulations

Nitrosopyrrolidine, N-

Nitrosomethylethylamine, PCBs,

Pentachlorophenol, Pyridine,

Trichloropropane, Vinyl Chloride; and

(2) that the compound phenanthrene

should be added with a delisting level

of

1.36

mg/L

to be consistent with Table

I

in Section III. D.

EPA has made the deletions as

prescribed. EPA

has added the

compound phenanthrene

with

a

delisting level of 1.36 mg/L to Table 1.-

Waste Excluded From Non-Specific

Sources. EPA also

added compounds

toluene. fluorene, and vanadium

because they were inadvertently left off

of Table 1-Wastes Excluded from Non-

Specific Sources.

Shell

noted that in the exclusion

language paragraph (3)(A)(i) ofTable

1-Waste Excluded from Non-Specific

Sources,

the number of samples to be

collected

within the first 60 days should

be changed from eight to four. Also in

paragraph (3)(B) for subsequent

verification sampling, Shell Oil

Company requested that the number of

samples

per quarter be changed from

two to one.

Previous discussions

between EPA and Shell Oil Company

were based on two different waste

streams.

Since this is one stream, EPA

will allow the changes in the number of

samples collected and the number of

samples

taken per quarter.

In addition,

on October 30, 2002, (67

FR 66251). EPA

proposed the Methods

Innovation

Rule to remove from the

regulations

unnecessary requirements

other than those considered to be

Method Defined Parameters (MDP). An

MDP is a method that, by definition or

design, is

the only one capable of

measuring the particular property

(e.g.

Method 1311-TCLP). Therefore, EPA is

no longer generally requiring the use of

only SW-846 methods for regulatory

applications

other than those involving

MDPs. The

general purpose of this rule

is to allow more flexibility when

conducting RCRA-related sampling and

analysis activities, We retained only

those methods considered to be MDPs

in the regulations and incorporate them

by reference in 40 CFR 260,11. EPA is

changing

Shell's delisting exclusion

language found in paragraph (3) of the

F039 exclusion language to reflect the

generic language placed in all delisting

exclusions as a

result of the Methods

Innovation Rule (70 FR 34537) which

was finalized on June 14, 2005.

V. Statutory and Executive Order

Reviews

Under Executive Order 12866,

"Regulatory

Planning and Review" (58

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

not of general applicability and

therefore is not a regulatory action

subject to review by the Office of

Management and Budget (OMB). This

rule does not impose an information

collection burden under the provisions

of

the Paperwork Reduction Act of 1995

(44 U.S.C. 3501

et seq.)

because

it

applies to a particular facility only.

Because

this rule is of particular

applicability relating to a particular

facility, it is not subject to the regulatory

flexibility provisions

of the Regulatory

Flexibility Act

(5 U.S.C. 601

et seq.).

or

to sections 202, 204, and 205 of the

Unfunded Mandates Reform Act of 1995

(UMRA). Because

this rule will affect

only a particular facility, it will not

significantly or uniquely affect small

governments, as specified

in section 203

of UMRA. Because this rule will affect

only a particular facility, this final rule

does not have federalism implications.

It

will not have substantial direct effects

on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government, as

specified

in Executive Order 13132,

"Federalism," (64 FR 43255, August 10,

1999).

Thus, Executive Order 13132

does

not apply to this rule. Similarly,

because this rule will affect only a

particular facility, this final rule does

not have tribal implications, as specified

in Executive Order 13175,

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 9, 2000).

Thus,

Executive Order 13175 does not apply

to this rule. This rule also is not subject

to Executive Order 13045, "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is not

economically significant as defined in

Executive Order 12866, and because the

Agency does not have reason to believe

the environmental health or safety risks

addressed by this action present a

disproportionate risk to children. The

basis for this belief is that the Agency

used the DRAS program, which

considers health and safety risks to

infants

and children, to calculate the

maximum allowable concentrations for

this rule. This rule is not subject to

Executive Order 13211,

"Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355 (May

22,2001)), because

it is not a significant

regulatory action

under Executive Order

12866. This rule does not involve

technical standards; thus, the

requirements of section 12(d) ofthe

National Technology Transfer and

Advancement Act of1995 (15 U.S.C.

272 note) do

not apply. As required by

section 3 of Executive Order 12988,

"Civil Justice Reform,"

(61 FR 4729,

February

7, 1996), in issuing this rule,

EPA

has taken the necessary steps to

eliminate drafting errors

and ambiguity,

minimize potential litigation, and

provide a clear legal standard for

affected conduct.

The Congressional

Review Act, 5 U.S.C. 801

et seq.,

as

added by the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides

that before a rule

may take effect, the agency

promulgating

the rule must submit a

rule report which includes a copy of the

rule to each House of the Congress and

to the Comptroller General of the United

States. Section 804 exempts from

section 801

the following types of rules

(1) rules of particular applicability; (2)

rules relating to agency management or

personnel;

and (3) rules of agency

organization, procedure, or practice

that

do not substantially affect the rights or

obligations of non-agency parties 5

U.S.C. 804(3). EPA is

not required to

submit a rule report regarding today's

action under section 801 because this is

a

rule of particular applicability,

List

of Subjects in 40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting

and

recordkeeping requirements,

Authority: Sec. 3001(f)

ReRA,

42 U.S.c.

6921(1]

Dated: August 10, 2005.

Carl E. Edlund,

Director, Multimedia Planning and Permitting

Division, Region 6.

• For the reasons set out in the preamble,

40 CFR

part 261 is 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 1 of Appendix IX ofParl

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

---

Federal Register/Vol. 70, No. 162/Tuesday, August 23, 2005/Rules and Regulations

TABLE I.-WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

49191

Shell Oil Company.... Deer Park, TX ,.

Facility

Shell Oil Company

Address

Deer Park, TX

..

Waste description

North Pond Sludge (EPA Hazardous Waste No. F037) generated one time at a volume of 15,000

cubic yards August 23, 2005 and disposed in a Subtitle 0 landfill. This is a one time exclusion and

applies to 15,000 cubic yards of North Pond Sludge.

(1) Reopener:

(A)

If, anytime after disposal of the delisted waste, Shell 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 Direc-

tor 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 Shell fails to submit the information described in paragraph (A) or if any other information is re-

ceived from any source, the Division Director will make a preliminary determination

as to whether

the reported information requires EPA action to protect human health or the environment. Further

action may include suspending, or revoking the exclusion,

or other appropriate response necessary

to protect human health and the environment.

(C) If the Division Director determines that the reported information does require EPA action, the Di-

vision Director will notify the facility in writing of the actions the Division Director believes are nec-

essary 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.

(D) Following the receipt of information from the facility described in paragraph

(C) or if no informa-

tion is presented under paragraph

(C),

the Division Director will issue a final written determination

describing the actions that are necessary

to protect human health or the environment. Any re-

quired action described in the Division Director's determination shall become effective immediately,

unless the Division Director provides otherwise.

(2) Notification Requirements: Shell must do the following before transporting the delisted waste:

Failure to provide this notification will result

in a violation of the delisting petition and a possible

revocation of the decision.

(A) Provide a one-time written notification to any state regulatory agency to which or through which

they will transport the delisted waste described above for disposal, 60 days before beginning such

activities.

(B) Update the one-time written notification, if they ship the delisted waste to a different disposal fa-

cility.

(C)

Failure to provide this notification will result in a violation of the delisting variance and a possible

revocation of the decision.

Multi-source landfill leachate (EPA Hazardous Waste

No. F039) generated at a maximum annual rate

of 3.36 million gallons (16,619 cu. yards) per calendar year after August 23, 200S and

disposedin

accordance with the TPDES permit.

The delisting levels set do not relieve Shell Oil Company of its duty to comply with the limits set

in its

TPDES permit. For the exclusion to be valid, Shell Oil Company must implement a verification test-

ing program that meets the following paragraphs:

(1) Delisting Levels: All total concentrations for those constituents must not exceed the following lev-

els (mgtl). The petitioner must analyze the aqueous waste on a total basis to measure constituents

in the multi-source landfill leachate.

Multi-source landfill leachate (i) Inorganic Constituents Antimony-0.0204; Arsenic-0.38S; Barium-2.92;

Copper-418.00; Chromium-S.O; Cobalt-2.25; Nickel-1.13; Selenium-0.0863; Thallium-O.005; Vana-

dium-0.838

(Ii) Organic Constituents Acetone-1.46; Acetophenone-1.S8; Benzene-0.0222; p-Cresol-0.0788; Bis(2-

ethylhexyl)phthlate-15800.00; Dichloroethane, 1,2-D.0803; Ethylbenzene-4.S1; Fluorene-1.87;

Napthalene-1.0S; Phenol-9.46; Phenanthrene-1.36; Pyridine-O.0146; 2,3,7,8-TCDD equivalents as

TEQ-D.0000926; To[uene-4.43; Trichloropropane-0.000574; Xylenes (total)-97.60

(2) Waste Management:

(A) Shell Oil Company must manage

as hazardous all multi-source landfill leachate generated, until it

has completed initial verification testing described

in paragraph (3)(A) and (B), as appropriate, and

valid analyses show that paragraph (1) is satisfied.

(B) Levels of constituents measured in the samples of the multi-source landflll leachate that do not

exceed the levels set forth

in paragraph (1) are non-hazardous. Shell Oil Company can manage

and dispose of the non-hazardous multi-source landfill leachate according to all applicable solid

waste regulations.

(C)

[f constituent levels in a sample exceed any of the delisting levels set in paragraph (1), Shell Oil

Company can collect one additional sample and perform expedited analyses

to verify if the con-

stituent exceeds the delisting level. If this sample confirms the exceedance, Shell Oil Company

must, from that point forward, treat the waste as hazardous until it is demonstrated that the waste

again meets the leve[s

in paragraph (1).

(D) If the facility has not treated the waste, Shell Oil Company must manage and dispose

of the

waste generated under Subtitle C of RCRA from the time that it becomes aware of any exceed-

ance.

---

49192

Federal Register/Vol. 70, No. 16Z/Tuesday, August Z3, ZOOS/Rules and Regulations

TABLE I.-WASTE EXCLUDED FROM NON-SPECIFIC SOURCEs-Continued

Facility

Address

Waste description

(E) Upon completion of the Verification Testing described

in paragraph 3(A) and (B) as appropriate

and the transmittal of the results to EPA, and if the testing results meet the requirements of para

w

graph (1), Shell Oil Company may proceed to manage its multi-source landfill leachate as non-haz-

ardous waste. If Subsequent Verification Testing indicates an exceedance of the delisling

levels in

paragraph (1), Shell Oil Company must manage the multi-source landfill leachate as a hazardous

waste until two consecutive quarterly testing samples show levels below the delisting levels in

Table I.

(3) Verification Testing Requirements: Shell Oil Company must perform sample collection and anal-

yses, including quality control procedures, using appropriate methods. As applicable

to the meth-

od-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 meth-

ods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061,

1010A, 1020B, 1l10A, 13108, 1311, 1312, 1320, 1330A, 90l0C, 9012B, 9040C, 9045D, 9060A,

9070A (uses EPA Method 1664, Rev. A), 90716, and 90956. Methods used must meet Perform-

ance Based Measurement System Criteria

in which the Data Quality Objectives demonstrate that

representative samples of the Shell-Deer Park multi-source landfill leachate are collected and meet

the delisting levels

in paragraph (1).

(A) Initial Verification Testing: After EPA grants the final exclusion, Shell Oil Company must do the

following:

(i) Within 60 days of this exclusions becoming final, collect four samples, before disposal, of the

multi-source landfill leachate.

(ii) The samples are

to be analyzed and compared against the delisting levels in paragraph (1).

(iii) Within sixty (60) days after this exclusion becomes final, Shell Oil Company will report initial

verification analytical test data for the multi-source landfill leachate, inclUding analytical quality con-

trol infonnation for the first thirty (30) days of operation after this exclusion becomes final. If levels

of constituents measured

in the samples of the multi-source landfill leachate that do not exceed

the levels set forth in paragraph (1) are also noil-hazardous

in two consecutive quarters after the

first thirty (30) days of operation after this exclusion become effective, Shell Oil Company can

manage and dispose of the multi-source landfill leachate according

to all applicable solid waste

regulations.

(6) Subsequent Verification Testing: Following written notification by EPA, Shell Oil Company may

substitute the testing conditions in (3)(6) for (3)(A). Shell Oil Company must continue to monitor

operating conditions, and analyze one representative sample of the multi-source landfill leachate

for each quarter of operation during the first year of waste generation. The sample must represent

the waste generated during the quarter. After the first year of analytical sampling verification

sam-

pling can

be performed on a single annual sample of the multi-source landfill leachate. The results

are to

be compared to the delisting levels in paragraph (1).

(C) Termination

of Testing:

(i) After the first year of quarterly testing, if the delisting levels in paragraph (1) are being met, Shell

Oil Company may then request that EPA not require quarterly testing. After EPA notifies Shell Oil

Company in writing, the company may end quarterly testing.

(ii) Following cancellation of the quarterly testing, Shell Oil Company must continue to test a rep-

resentative sample for all constituents listed

in paragraph (1) annually.

(4) Changes

in Operating Conditions: If Shell Oil Company significantly changes the process de-

scribed

in its petition or starts any processes that generate(s) the waste that mayor could signifi-

cantly affect the composition or type of waste generated as established under paragraph (1) (by il-

lustration, but not limitation, changes

in equipment or operating conditions of the treatment proc-

ess), it must notify EPA

in writing; it may no longer handle the wastes generated from the new

process as nonhazardous until the wastes meet the delisting levels set

in paragraph (1) and it has

received written approval to do so from EPA.

(5) Data Submittals: Shell Oil Company must submit the information described below.

If Shell Oil

Company fails

to submit the required data within the specified time or maintain the required

records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis

to re-

open the exclusion as described in paragraph 6. Shell Oil Company must:

(A) Submit the data obtained through paragraph 3 to the Section Chief, Region 6 Corrective Action

and Waste Minimization Section, EPA, 1445 Ross Avenue, Dallas, Texas 75202-2733, Mail Code,

(6PD-C) within the time specified.

(6) Compile records of operating conditions and analytical data from paragraph (3), summarized, and

maintained on-site for a minimum of five years.

(C) Furnish these records and data when EPA or the state of Texas request 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 per-

sons who, acting under my direct instructions, made the verification that this information

is true, ac-

curate and complete.

---

Federal Register

IVaI.

70, No. 162/Tuesday, August 23,

20051

Rules and Regulations

TABLE 1.-WASTE EXCLUDED FROM NON-SPECIFIC SOURCES-Continued

49193

Facility

Address

Waste description

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

plete, 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 com-

pany will be liable for any actions taken in contravention of the company's RCRA and CERCLA ob-

ligations premised upon the company's reliance on the void exclusion.

(6) Reopener:

(A) If, anytime after disposal of the delisted waste, Shell Oil Company possesses or is otherwise

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

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

identified for the delisting verification testing is at a level higher than the delisting level allowed by

the Division Director in granting the petition, then the facility must report the data, in writing, to the

Division Director within

10

days of first possessing or being made aware of that data.

(B) If the annual testing of the waste does not meet the delisting requirements in paragraph 1, Shell

Oil Company must report the data, in writing, to the Division Director within

10

days of first pos-

sessing or being made aware of that data.

(C) If Shell Oil Company fails to submit the information described in paragraphs (5),(6)(A) or (6)(B) or

if any other information is received from any source, the Division Director will make a preliminary

determination as to whether the reported information requires EPA action to protect human health

and/or the environment. Further action may include suspending, or revoking the exclusion, or other

appropriate response necessary to protect human health and the environment

(D) If the Division Director determines that the reported information does require action, he 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

action by EPA is not necessary. The facility shall have

10

days from the date of the Division Direc-

tor's notice to present such information.

(E) Following the receipt of information from the facility described in paragraph (6)(0) or if no infor-

mation is presented under paragraph (6)(0), the Division Director will issue a final written deter-

mination describing the actions that are necessary to protect human health and/or the environ-

ment. Any required action described in the Division Director's determination shall become effective

immediately, unless the Division Director provides otherwise.

(7) Notification Requirements: Shell Oil Company must do the following before transporting the

delisted waste. Failure to provide this notification will result in a violation of the delisting petition

and a possible revocation of the decision.

(A) Provide a one-time written notification to any state regulatory agency to which or through which it

will transport the delisted waste described above for disposal,

60

days before beginning such ac-

tivities.

(8) Update the one-time written notification if it ships the delisted waste into a different disposal facil-

ity.

(C)

Failure to provide this notification will result in a violation of the delisting exclusion and a possible

revocation of the decision.

[FR

Doc.

05-16688 Filed 8-22-05; 8:45

am]

BILLING CODE 656o-S0-P

COMMISSION OF FINE ARTS

45 CFR

Pari 2102

Procedures and Policies Amendment

AGENCY:

The Commission of Fine Arts.

ACTION:

Final rule.

SUMMARY:

This document amends the

procedures and policies governing the

administration of the U.S, Commission

of Fine Arts. This document serves to

establish a Consent Calendar and to

clarify the functions and requirements

of a Consent Calendar and Appendices

for the review of projects submitted to

the Commission in order to address

more efficiently the needs of the Federal

government and the public,

DATES:

Effective September

1, 2005,

FOR FURTHER INFORMATION CONTACT:

Thomas Luebke, Secretary, (202) 504-

2200,

SUPPLEMENTARY INFORMATION:

As

established by Congress in

1910,

the

Commission of Fine Arts is a small

independent advisory body made up of

seven Presidentially appointed "well

qualified judges of the arts" whose

primary role is architectural review of

designs for buildings, parks, monuments

and memorials erected by the Federal or

District of Columbia governments

in

Washington, DC. In addition to

architectural review, the Commission

considers and advises on the designs for

coins, medals and

u.s.

memorials on

foreign soil. The Commission also

advises the District of Columbia

government on private building projects

within the Georgetown Historic District,

the Rock Creek Park perimeter and the

Monumental Core area. The

Commission advises Congress, the

President, Federal agencies, and the

District of Columbia government on the

general subjects of design, historic

preservation and on orderly planning on

matters within its jurisdiction.

The regulations amended with this

rule were last published in the Federal

Register on January 31, 1997 (45

CFR

Parts

2101, 2102, 2103).

Specific items

this document amends include

providing the current address and

telephone number of the agency, and

clarifying a series of procedural

functions. Therefore, as these changes

clarify established and new procedures,

and are minor in nature, the

Commission determines that notice and

comment are unnecessary and that, in

accordance with 5 U,S.c. 553(b)(B),

good cause to waive notice and

comment is established.

---

TO:

Regional RCRA Senior Policy Advisors

As you know, the Administrator redelegated the delisting program to the Regional Administrators

on October 25, 1995. I understand that the redelegation has proceeded smoothly and am very pleased

with this result. You and your staffshould be congratulated for this successful transition. Delisting was

and will continue to be an evolving program as substantive technical and policy issues continued to

develop. While working jointly with the Regions on a number of issues, we found it is important to have

and maintain an appropriate level of national consistency among the Regional delisting programs.

The purpose of this memorandum is to transmit to you a national policy for the hazardous waste

delisting program. It covers two important elements. First, the policy contains a "conditional delisting"

element, designed to ensure that delisted wastes are managed in a manner consistent with the risk

evaluation that

supports the delisting decision. Second, the policy provides a delisting "reopener"

element, designed to provide the Agency with a mechanism for immediate response to new information

or data indicating conditions exist that may alter the Agency'sposition on the approval ofa delisting. I

recommend the application of each ofthese elements ofthis national policy to ensure the EPA delisting

program remains safe and effective in protecting human health and the environment and at the same time

achieves the goal ofallowing the exit ofcertain wastes from the hazardous waste management system.

The principles of this policy have been discussed among the Regional delisting coordinators during a

series ofmonthly conference calls.

Background

In

considering whether to exclude a particular solid waste from the list of hazardous wastes

contained in 40 CFR 261.31 and 261.32, the Agency has historically considered disposal in an unlined

landfill or surface impoundment to be representative ofthe reasonable worst-case

---

management scenarios for such waste. The Agency believes that it is appropriate to consider the

worst-case management scenario because it is extremely difficult to project all potential management

scenarios that can occur once the waste is delisted. Thus, the Agency generally has only modeled the

risks related to these two disposal practices. The generic risk assessment model currently used (i.e.,

EPACML) or the model delisting may soon adopt (i.e., EPACMTP) are designed only to predict

groundwater impacts for these two disposal scenarios (i.e., an unlined landfill and an unlined surface

impoundment). These two models, as adapted to delisting, cannot predict risks resulted from exposures

to wastes that are managed in other non-disposal scenarios, including uses constituting disposal and

other recycling practices.

However, the Agency has generally not restricted how a delisted waste could subsequently be

managed, provided it was managed in accordance with the applicable state'snonhazardous waste

management requirements. Therefore, generators could decide to manage their waste in another,

perhaps riskier, manner, and so the potential exposure from another and different naanagement practice

could pose greater environmental risks than the exposure scenarios modeled. For unconditionally

delisted wastes, there is typically no legal impediment to these changes in management.

Conditional Delisring Policy

To reduce the uncertainty caused by the potential unrestricted use or management to delisted

waste, it is important that new delistings apply only to wastes managed in the type of unit (e.g., "a

landfill") modeled in the delisting risk assessment. For example, ifthe delisting determination modeled

risks associated with disposal in landfills, the delisting would specil)- that the waste is delisted

conditioned on disposal solely in a landfill.

If

the generator places the waste anywhere other than a

landfill, the waste is a "hazardous waste" subject to RCRA Subtitle C regulation, unless otherwise

exempted from regulation (i.e., 40CFR 266.20). The regulations in 40 CFR 266.20, which apply to

recyclable materials (i.e., hazardous waste) used in a manner constituting disposal, impose certain

requirements on such uses.

In

the Agency'sview, a conditionally delisted waste would exit the hazardous waste management

system at the point it meets the established delisting levels, and would remain outside ofthe hazardous

waste management system so long as the delisted waste generator complies with the conditions placed

on the disposal of the delisted waste. The Regions should consider including appropriate mechanisms in

conditional delistings that would help ensure that the waste was being managed in accordance with the

conditions. For example, the Regions may consider adding a condition that the generator keep records,

such as those they keep for business purposes, as to where they sent the waste.

EPA'spolicy of not considering site-specific factors when applying the fate and transport models

remains unchanged. Therefore, at this time. Regions should not conditionally delist a waste based on

consideration ofprotective site-specific hydrogeologic conditions (e.g., underlying clay) or specific

landfill designs (e.g., liners, or covers). We would not be

2

---

comfortable at this time delisting a waste based on consideration ofsite-specific hydrogeologic

conditions and specific landfill designs that would not be delisted based on a less site-specific analysis.

While the Agency may consider a site-specific approach in the future, the Agency is not currently in a

position to commit the necessary time and resources such site specific modeling evaluations would

require and has not determined that this is an appropriate policy direction to take.

Nevertheless, the Agency realizes that for a relatively small number of petitioned wastes that are

not (or will not be) managed under a scenario our generic delisting models can assess, Regions may

have to consider site-specific circumstances or consider adding specific conditions, on a case-by-case

basis. These cases are likely to raise issues of national significance, therefore, the Region should consult

with the Office of Solid Waste.

Delisting Reopener Policy

In

light ofa recent experience that required the Agency to repeal an existing delisting, we

recommend that the Regions include in future delistings, a provision that establishes a mechanism to

review the delisting when additional data beoome available indicating the initial delisting decision was

inappropriate or wrong. This is particularly important ifthe additional data shows that the delisted waste

is not behaving in the disposal site as was predicted by the delisting risk assessment model. Therefore,

Regions should include the following or similar language in future delisting decisions, unless there are

clear rationales not to:

(a)

If, anytime after disposal of the delisted waste, [insert facility name] possesses or is

otherwise made aware ofany environmental data (including but not limited to leachate

data or groundwater monitoring data) or any other data relevant to the delisted waste

indicating that any constituent identified in Condition (x) is at a level in the environment

(such as in the leachate or in the ground water) higher than the delisting level established

in Condition (x), then [insert facility name] must report such data, in writing, to the

Regional Administrator within 10 days offirst possessing or being made aware ofthat

data.

(b)

Based on the information described in paragraph (a) and any other information received

from any source, the Regional Administrator will make a preliminary determination as to

whether the reported information requires Agency action to protect human health or the

environment. Further action may include suspending, or revoking the exclusion, or other

appropriate response necessary to protect human health and the environment.

(

c)

Ifthe Regional Administrator determines that the reported information does require

Agency action, the Regional Administrator will notiJY the fucility in writing ofthe actions

the Regional Administrator believes are necessary to protect human health and the

environment. The notice shall include a statement ofthe

3

---

proposed action and a statement providing the facility with an opportunity to present

information

as to why the proposed Agency action is not necessary or to suggest an

alternative action. The facility shall have 10 days from the date ofthe Regional

Administrator'snotice to present such information.

(d)

Following the receipt ofinformation from the facility described in paragraph (c) or (ifno

information is presented under paragraph (c)) the initial receipt of information described

in paragraph (a), the Regional Administrator wil\ issue a final written determination

describing the Agency actions that are necessary to protect human health or the

environment. Any required action described in the Regional Administrator's

determination shall become effective immediately, unless the Regional Administrator

provides otherwise.

This

language is intended to provide the Agency with a mechanism to review and act expeditiously

on information that a previously granted delisting may be causing a threat to human health or the

environment that was unknown at the time the Agency acted initially. Use ofthis language wil\ provide

you the ability to reopen, revoke, or otherwise suspend the delisting in a timely manner. Please share

this national policy with the states within your Region that axe authorized to administer their own

delisting programs

This memorandum provides guidance to EPA personnel. The guidance is designed to communicate

national policy regarding the RCRA delisting program. The memorandum does not, however, substitute

for EPA's statutes or regulations, nor is it a regulation itself Thus, it cannot impose legally-binding

requirements on EPA, States, or the regulated community, and may not apply to a particular situation

based upon the circumstances. EPA may change this guidance in the future, as appropriate.

Ifyou

have any question regarding this policy, please feel free to contact David Bussard, Director,

Hazardous Waste Identification Division, at (703) 308-8887 or have your staff contact Rick Brandes,

Chief, Waste Identification Branch, at

(703) 308-8890.

cc:

Regional Counsels David Nielsen. OECA

4

---

55 FR 22520-01

55 FR 22520-01, 1990WL 341871 (F.R.)

(Cite as: 55 FR 22520)

RULES and REGULATIONS

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 148, 261, 262, 264, 265, 268, 270,

271,

and 302

[EPA/OSW-FR-90-010;

SWH-FRL-3751-1]

RIN 2050-AC73

Page 2 of650

A-T-rACJI-MENI

?

Page 1

Land Disposal Restrictions for Third Third Scheduled Wastes

Friday, June 1, 1990

*22520

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection Agency (EPA) today is promulgating

regulations implementing the last of five Congressionally mandated prohibitions on

land disposal of hazardous wastes (the third one-third of the schedule of

restricted hazardous wastes, hereafter referred to as the Third Third).

This

action is taken in response to amendments to the Resource Conservation and

Recovery Act (RCRA), enacted in the Hazardous and Solid Waste Amendments (HSWA) of

1984.

When fully effective in May 1992, this rule, combined with the previous

ru1emakings, is expected to require treatment of a total of seven million tons of

hazardous waste managed in RCRA-regulated facilities.

EFFECTIVE DATE: This final rule is effective on May 8, 1990.

ADDRESSES: The official record for this rulemaking is identified as Docket Number

F-90-LD13-FFFFF, and is located in the ,EPA RCRA Docket, room 2427, 401 M Street

SW., Washington, DC 20460.

The docket is open from 9 a.m. to 4 p.m., Monday

through Friday, except on Federal holidays.

The public must make an appointment

to review docket materials by calling (202) 475-9327.

The public may copy a

maximum of 100 pages from any regulatory document at no cost. Additional copies

cost $.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information contact the RCRA Hotline

at:

(800) 424-9346 (toll-free) or (202) 382-3000 locally.

For information on specific aspects of this final rule, contact Richard Kinch or

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71212007

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55 FR 22520-01

55 FR 22520-01, 1990 WL 341871 (F.R.)

(Cite as: 55 FR 22520)

Page 40 of 650

Page 39

Today's rule defines waste treatability groups by waste code, and identifies the

Best Demonstrated Available Technology (BDAT) for each waste code within the

treatability group (see section III.A.!).

Treatment standards are based on the

performance levels achievable by the BDAT identified for each waste code. Any

technology not otherwise prohibited (e.g., impermissible dilution) may be used to

meet the concentration-based treatment standards.

Where treatment standards are

expressed as a technology, the waste must be treated using the specified

technology prior to land disposal.

s. Reformatting

of

Treatment Standard Tables and Addition of Appendix VIr

to

Part

268, Effective Dates for Prohibited Wastes

The Agency is reformatting all of the tables of treatment standards in 40 CFR

part 268 subtitle D and is providing the subpart D treatment standard tables in

their entirety, including both previously promulgated standards and the treatment

standards being promulgated today.

The reformatted tables (i.e., 40 CFR 268.41,

268.42, and 268.43) are arranged according to waste code in alphanumeric order and

include the CAS number identifying each regulated constituent, whether the

standard is based on analyses of grab or composite samples, cross-references, and

several other clarifying features that will make determining applicable treatment

standards easier for the reader. The treatment standards finalized for the first

time today are included in the tables.

No substantive changes are being made to

the treatment standards that were previously promulgated in the November 7, 1986,

the July 8, 1987, the August 17, 1988, and the June 23, 1989, final rules except

as discussed in other preamble sections of today's rule. (As an example, regulated

constituents are being added to the wastes K048-KOS2, as well as F002 and FOOS,

wastes for which certain treatment standards were previously promulgated.

See

preamble section III.A.4.a. for a discussion of F002 and FOOS and section

III.A.4.o. for a discussion of K048-KOS2.)

In addition, the Agency is providing a complete list of waste codes regulated to

date under the land disposal restrictions (including the waste codes included in

today's rulemaking), as appendix VII to part 268.

The appendix is provided for

the reader's convenience; no substantive changes have been made to the dates,

except as discussed in the preamble of today's rule.

T.

Relationship of Hazardous Waste Treatment Council

v. EPA to Treatment Standards

Promulgated in Today's Final Rule

A number of commenters raised the issue of whether the treatment standards being

adopted are below levels at which threats to human health and the environment are

minimized, citing portions of the recent opinion Hazardous Waste Treatment Council

v. EPA, 886 F.2d 355 (D.C. Cir. 1989) (HWTC III). In that case, the Court upheld

EPA's existing technology-based approach to establishing treatment standards as a

reasonable construction of the statute, but remanded the case to the Agency in

order for the Agency to explain properly why it had chosen this approach.

EPA's

explanation was published in the Federal Register on February 26, 1990, and was

accepted by the Court, which dismissed all petitions for review on March 15, 1990

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71212007

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55 FR 22520-01

55 FR 22520-01, 1990 WL 341871 (F.R.)

(Cite as: 55 FR 22520)

Page 41 of 650

Page 40

The standards EPA is adopting in this rule are also technology-based, which the

Agency believes is warranted at this time due to the uncertainties associated with

hazardous waste land disposal and

th~

Agency's present inability to quantify

precisely de minimis levels of hazardous constituents that would determine when

threats to human health and the environment from disposal of prohibited wastes are

minimized. 55 FR 6642.

Further discussion of this point may be found in section

III.A.l.i of today's preamble.

As discussed in section III.D, EPA believes that

HWTC III is not dispositive on the issue of appropriate treatment standards for

characteristic wastes.

III.A. Detailed Discussion of Today's Final Rule

1. Development and Identification of

Treabnent

Standards

Today's rule promulgates treatment standards for the remaining Third Third

scheduled wastes, and for the First Third and Second Third wastes which heretofore

were subject to the "soft hammer" provisions of 40 CFR 268.8.

*2:2:536

Development

and identification of the treatment standards are presented on a waste code basis

in sections III.A.2. through III.A.5. of today's notice.

Section III.A.6.

presents the development of treatment standards for wastes identified as F039,

multi-source leachate.

Section III.A.7. discusses the applicability of today's

treatment standards to contaminated soil and debris.

Section III.A.B. presents

the Agency's approach to regulating radioactive waste that

is

mixed with hazardous

wastes.

The following discussion has appeared in previous preambles and is being repeated

here as an aid to the reader's understanding of the land disposal restrictions

program.

Comments were not solicited in the proposed rule on the following

discussion; however, comments were received pertaining to various issues

discussed below.

These comments, and the Agency's responses, are found in the

Response to BDAT-Related Comments Document, Volume I,

in

the RCRA Docket.

a. The BDAT Methodology

The first step in the development of treatment standards is to divide the wastes

to be regulated into groups based on similar physical and chemical properties.

These waste treatability groups take into account differences in the applicability

and effectiveness of treatment for those particular wastes. The Agency initially

decides how wastes should be grouped by examining whether the wastes are generated

by similar industries or from similar processes. This is a valid starting point

because the waste characteristics that affect treatment performance are expected

to be similar for these wastes even though the wastes themselves are somewhat

different.

The next step in the development of treabment standards

is

to identify the Best

Demonstrated Available Technology (BDAT) for each treatability group.

A

treatment technology is considered to be "demonstrated" primarily based on data

from full-scale treatment operations that are currently being used to treat the

© 2007 Thomson/West. No Claim to Orig.

u.s.

Govt. Works.

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71212007

---

55 FR 6640-01, 1990 WL 336308 (F.R.)

RULES and REGULATIONS

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 264, 265, 268, 270 and

271

[SWH-FRL-3725-8]

Hazardous Waste Management System: Land Disposal Restrictions

Monday, February

26, 1990

AGENCY: Environmental Protection Agency (EPA).

ACTION: Response

to court remand.

SUMMARY:

On November 7, 1986, EPA promulgated the first set of land disposal

restriction regulations, Including treatment standards based on the Best Demonstrated

Available Technology (BDAT).

In doing so, the Agency rejected a proposed approach in

which

treatment standards would be capped by risk-based screening levels. A number of

groups filed petitions for review which challenged EPA's choice of technology-based

standards

over risk-based screening levels. On September 15, 1989, a panel from the

Court of Appeals for the District of Columbia Circuit found that EPA's selection of

technology-based treatment standards was reasonable based upon Interpretation of

section 3004(m) of the Resource Conservation and Recovery Act (RCRA). However, the

panei also concluded that EPA failed to adequately explain Its policy preference for

technology-based standards over risk-based screening levels and the Court remanded the

rule to the Agency to either clarify the selection or withdraw the final rule. This notice is

the response to the Court's order.

EFFECTIVE DATE: This response is effective on February 26, 1990.

ADDRESSES: The OSW docket is located at the following address, and is open from 9: 00

to 4:00, Monday through Friday, exclUding Federal holidays: EPA RCRA Docket (M-2427)

(05-305),401 M Street, SW., Washington, DC 20460. The public must make an

appointment to review docket materials by calling (202) 475-9327. The public may copy

a

maximum of 100 pages from any regulatory docket at no cost. Additional copies cost

$0.20 per page.

FOR FURTHER INFORMATION:Contact the RCRA Hotline for general Information at (800)

424-9346 (toll-free) or (202) 382-3000 locally.

For

information on specific aspects of this notice, contact Steven Silverman, Office of

Solid Waste (05-333), U.S. Environmental Protection Agency, 401 M Street, SW.,

Washington,

DC 20460, (202) 382-7706.

SUPPLEMENTARY INFORMATION:

1.

Background

---

On November 7, 1986, EPA promulgated the first set of land disposai restrictions and

treatment standards, and further set out the framework of regulations that explained and

implemented the Land Disposal Restrictions Program. See 51 FR 40572. Perhaps the

most important feature of these regulations was the Agency's determination to base

section

3004(m) treatment standards for prohibited hazardous wastes on performance of

the Best Demonstrated Available Technoiogy (BOAT), i.e., to adopt treatment standards

that are technology-based. At proposal, the Agency had solicited comment on an

alternative whereby technology-based treatment standards would be capped by risk-

based screening levels, which Incorporated initial

toxicity levels for hazardous

constituents plus predictive modeiing based on assumptions of migration to a point of

exposure. See 51 FR 1610-12. In rejecting this screening level approach in the final rule,

the Agency alluded to the many adverse comments It had received which stressed the

uncertainties associated

with EPA's proposed screening ievel approach which wouid have

capped hazardous waste

treatment levels with risk-based ievels reflecting predictive

modeling

of waste behavior in land disposal environments. The Agency also referred to

legislative history that indicated that the section 3004(m) treatment standards were to be

technology-based. EPA then adopted a final rule and methodology whereby treatment

standards are to be based on performance of BOAT and are not to be capped in the land

disposai restriction regulations by

the proposed screening levels. See 51 FR 40578. The

Agency stated

that "the technology-based approach adopted in the final rule, although

not the only approach allowable under the law, better mirrors the intent of Congress."

See

Administrative Record p. 36, 316 (Response to Comment Background Document).

A

number of industry petitioners filed petitions for review which challenged the choice of

technoiogy-based treatment standards as being contrary to section 3004(m)'s command

to establish treatment standards "which substantially diminish the toxicity of the waste or

substantially reduce the likelihood of migration of hazardous constituents from the waste

so

that short-term and long-term threats to human health and the environment are

minimized." In a recent opinion, a panel from the Court of Appeais for the District of

Columbia Circuit held that the iiteral language of section 3004(m) does not mandate a

risk-based approach, and

that the Agency's interpretation that the treatment standards

were to be technology-based was reasonable. See Hazardous Waste Treatment Council v.

EPA, 886 F.2d 355 (D.C. Cir, Sept, 15, 1989) ("HWTC III"), id, at 361-64. The Court

concluded

further, however, that EPA had failed to adequately explain its policy

preference

for technology-based treatment standards, over the proposed approach based

on screening levels,

Id, at 364-66. Judge Silberman, concurring, also found that section

3004(m) does not mandate risk-based treatment standards (id, at 371-72), but wouid

not have addressed the further issue of whether EPA's choice of a technology-based

regime was reasonable given the inadequacy of the Agency's explanation of its choice. Id.

at 373-74.

The Court consequently remanded the rule to the Agency in order that the Agency either

"clarify its reasons for adopting the Final Rule in preference to the Proposed Ruie", or to

withdraw the Final Ruie, Id, at 371. The present Federal Register Notice constitutes EPA's

response to the Court's opinion,

*6641

II. EPA's Uitlmate Preferred Resolution

Before addressing

the issue of justification of EPA's choice of technology-based BOAT in

the final solvents and dioxin rule, EPA wishes to address the ultimate resolution it

envisions for the section 3004(m) treatment standards. EPA accepts, and agrees with,

the Court's admonition that EPA may not establish treatment standards "wholly without

regard to whether there might be a threat to man or nature," See 886 F.2d at 362: aiso

concurring opinion, id,

at 372, EPA believes that the best way ultimately to achieve this

objective Is not to require further treatment of prohibited hazardous wastes containing

threshold levels

of hazardous constituents at which listed wastes themselves would no

longer be deemed hazardous, within the broad meaning of RCRA section 3001. [FN1]

---

FN1 EPA also agrees with the Court [886 F.2d at 362-64 and 375 (concurring opinion)],

that standards developed under statutory provisions that differ from section 3004(m) in

that they direct EPA to determine acceptable levels of risk do not automatically

circumscribe the permissible level for the section 3004(m) treatment standards. Nor are

standards

that are applied in particularized circumstances, such as RCRA clean closures,

no

migration determinations, and delistings, necessarily the same levels that EPA would

conclude on a generally-applicable basis

minimize threats to human health and the

environment.

EPA notes further, that in construing the language of section 3004(m), which requires

that treatment assure that "short-term and long-term threats to human health and the

environment are minimized", the Agency does not believe that this standard requires the

elimination of every conceivable threat posed by disposal of a prohibited hazardous

waste. Rather, Congress intended

that the treatment standards have some flexibility. See

Sen. Chafee's

floor statement introducing the amendment that became section 3004(m):

"It

is not intended that every waste receive repetitive or ultimate levels of treatment, nor

must all inorganic constituents be reclaimed." See 130 Congo Rec. S. 9178 (daily ed. July

25,

1984). (EPA notes in addition, however, the Congressional preference for destruction

of organic constituents, see Congo Rec. S. 9179 (daily ed. July 25, 1984) (statement of

Sen. Chaffee), and believes that treatment standards based on thermal destruction of

organics properly reflect this preference.)

EPA is presently unable to promulgate such levels, however. This is an issue that has

bedeviled

the Agency for years and one that remains an Agency priority. Many of the

very uncertainties discussed below that determine the Agency's policy preference for

technology based standards instead of the screening level approach proposed initially

likewise have not been resoived fully enough to promulgate threshold concentration

levels.

EPA's eventual intention to use threshold hazardous waste levels concurrently under

development to cap the section 3004(m) treatment standards still leaves the question of

which standards to apply in the interim. (If no treatment standards are in effect, then the

various statutory prohibitions in sections 3004 (d), (e), and (on May 8, 1990) (g)

("hammers") would take effect, and most hazardous waste disposal would thus be

prohibited unless it occurs in a land disposal unit determined by EPA to satisfy the

statutory "no migration" test. Since this would leave most hazardous waste without a

legai

management option, EPA believes it imperative to have treatment standards in

piace.) The specific issue requiring resolution

is for EPA to explain why in the solvent and

dioxin rule

it preferred technology-based standards to the proposed screening level

approach,

or to withdraw the promulgated regulation. See 886 F.2d at 371. EPA has

determined that the soundest choice for the interim is to retain its original choice of

technology-based teratment standards based on performance of BDAT. The Agency's

reasons are based on both legal analysis and

the Agency's determination that its choice

of options is consistent with and furthers the Congressional intent and policy objectives in

promulgating the land disposal restrictions provisions. These points are discussed below.

III. Choice of BDAT Versus the Proposed Screening Level Approach

A. Legal Analysis

It

is now established that section 3004(m) does not dictate that treatment standards be

either technology-based or risk-based. See 886 F.2d at 361- 64. Clearly, the requirement

in section 3004(m) that treatment standards minimize threats to human health and the

environment is ambiguous as to the precise extent of treatment.

Even more Important in the Agency's view, is the indication that Congress expected the

Agency to adopt a different approach in establishing treatment standards than the

approach used heretofore by the Agency in establishing subtitle C regulatory standards.

Those

standards implement the statutory directive to establish hazardous waste

---

management standards at a level "as may be necessary to protect human health and the

environment." See, e.g., section 3004(a).

EPA

has implemented this statutory standard

by developing regulations

that are based on ascertaining a level of risk that

EPA

deems

acceptable and crafting controls

that seek to ensure that this level of risk is not

exceeded.

Section

3004(m), in contrast, does not require that treatment standards be protective of

human health and the environment, but rather commands that those standards

ultimately substantially diminish waste toxicity or mobility in order that "short-term and

long-term threats to human health and the environment be minimized."

EPA

believes that

this language can reasonably be interpreted to require more than the normal subtitle C

regulatory command that standards be those necessary to protect human health and the

environment. This conclusion is reinforced by the many statutory provisions that were

part of the 1984 amendments stressing the inherent uncertainties associated with

assessing

the safety of land disposal of hazardous wastes, RCRA sections 1002(b)(7),

3004(d)(l)(A), 3004(e)(1)(A), 3004(g)(5), and the Congressional determination that the

only protective land disposal units are those for which

EPA

has determined, with a

"reasonabie degree

of certainty," that "there will be no migration of hazardous

constituents from the disposal unit for as long as the wastes remain hazardous."

The iegislative

history of section 3004(m) also provides support for the interpretation that

Congress intended something other than treatment standards reflecting EPA-determined

acceptable leveis

of risk normally used in establishing subtitle C regulations. Section

3004(m) was adopted as an amendment to the Senate bill (S. 757). It replaced a

provision in

the House bill (H.R. 2867) that specifically authorized

EPA

to mek risk-based

determinations in deciding whether particular hazardous wastes should be prohibited

from land disposal. It also replaced the Senate Committee bill which would have required

the Agency to establish methods of treatment "whnich are necessary before such method

or methods of disposal of * * * hazardous waste would be protective of human health

and

the environment." See S. 757, section 3004(b)(7), printed at S. Rep. No. 284, 98th

Congo 2d Sess. 86. The legislative history to the amendment ultimately adopted states

instead

that "the requisite levels of [sic] methods of treatment established by the Agency

should be

the best that has [sic] been demonstrated to be achievable * * * The intent

here is to require utilization of available technology in lieu of continued land disposal

without prior treatment." See 130 Congo Rec. S. 9178 (daily ed. July 25, 1984)

(statement of Sen. Chaffee).

It is true that some of the legislative history is not always specific regarding the extent of

pretreatment to be required as a precondition to land disposal. Nowhere in the legislative

history,

*6642

however, is

EPA

directed to rely on the normal subtitle C levels of

acceptable risk. At a minimum, the materials described here show that Congress did not

provide clear guidance on the meaning of 'minimize threats'. Hence,

EPA

believes that it

has discretion to adopt an Interpretation that emphasizes the need for certainty in

reducing the risks of and disposal of hazardous wastes and that allows

EPA

to prefer

technology-based standards over capping levels that incorporate unacceptable levels of

uncertainty.

B. EPA's Policy Preference

EPA's interpretation of section 3004(m) also serves Congress' goals.

EPA

views Congress'

objectives

in adopting the Land Disposal Restrictions Program as seeking to assure safety

by removing as many of the uncertainties associated with land disposal of hazardous

waste as possible, and

to a lesser degree as forcing use of existing treatment capacity.

See

RCRA sections 1002(b)(7), 3004(d)(1), (e)(l), (g)(l), and S. Rep. No. 284, 98th

Congo 1st Sess. at 19. Congress also intended that "reliance on land disposal should be

minimized

or eliminated, and land disposal, particularly landfill and surface impoundment,

should be the least favored method for managing hazardous wastes." See section

1002(b)(7).

These objectives are well served by retaining the technology-based treatment standards

---

that the Agency has implemented until EPA can establish acceptability certain threshold

levels

that identify constituent concentration levels at which wastes are not hazardous.

The

"long-term uncertainties associated with land disposal" (section 3004(d)(llCAl) are

reduced by using

treatment technologies whose performance is objective rather than

predictive. Technology-based standards also better further the Congressional goal of

using existing treatment capacity. This is because the risk-based screening level

approach proposed

initially would have served to cap treatment, and thus at least to

some extent, decreased use of treatment capacity. See 51 FR 1612- 13. For the same

reason, use

of the screening ievel approach would not have minimized hazardous waste

land disposal

to the same extent as technology-based standards because more wastes

could permissibly be land disposed

without treatment (or with less treatment).

The legislative history also shows that another of Congress' objectives was the

promulgation of treatment standards that were at least roughly equivalent (in terms of

stringency of control) to standards required under the Clean Water Act and the Clean Air

Act. The Senate Report provides:

A

requirement for treatment of hazardous constituents under other statutes is another

factor that may be considered. For example, the Administrator should impose, as a

condition

of land disposal, a treatment requirement that is consistent with categorical

pretreatment standards required pursuant to the Clean Water Act. Increased regulation

under the Solid Waste Disposal Act should complement and reciprocally re-enforce

regulations

under the Clean Water and Clean Air Acts. It make little sense to improve or

accelerate regulations under those statutes only to have environmental goals frustrated

by loopholes allowing less stringent treatment under the Solid Waste Disposal act.

S. Rep. No. 284 at 16.

The categorical

pretreatment standards under the Clean Water Act cited above are

technology-based regulations. [FN2] The Clean

Air Act also establishes regulatory

programs--the New Source Performance Standards and Prevention of Significant

Deterioration--that are technology based. EPA is concerned that the screening levels

proposed

in 1986, with their reliance on predictive modelling to simulate dispersion and

attenuation in the environment, might result in levels of control that are significantly less

stringent than the levels imposed under either of these other programs. Such a result

would clearly fail

to serve this particular objective.

FN2 Senator Chafee later clarified, however, that section 3004(m) does not mandate a

technology-forcing approach such

as the Best Available Technology approach of the Clean

Water Act. 130 Congo Rec. S. 9178 (daily ed. July 25, 1984).

There are also other problems with the proposed approach which cause EPA to prefer the

technology-based rule adopted. The proposed rule attempted to take into account the

waste's behavior In the land disposal environment after it is land disposed. Since

promulgation of the final rule in November 1986, EPA has in fact abandoned the

predictive model that was used as the basis for screening levels due to inadequacies

relating

to wastes' migratory potential in landfill environments, and aquifer dispersion

characteristics. Because

the screening levels proposed in 1986 incorporated a modeling

approach

to dilution and attenuation in the environment based on a model which EPA

now believes is superseded, EPA views promulgation of those levels as insufficiently

certain

at this time to satisfy Congress' immediate goals for land disposal treatment

standards.

Even

without predictive modeling, uncertainties currently remain relating to assessing

wastes'

toxicity. See generally 51 FR at 1714-20 (January 14, 19861. These problems,

while

not Insurmountable over a long term have posed difficulties in developing threshold

levels

in the short-term that could be used to assess when threats of hazardous waste

land disposal are

minimized with enough assurance to cap treatment standards. The

difficulties

that remain involve dealing with the large number of hazardous constituents

controlled

under the RCRA subtitle C program (which exceed by several times even the

extensive list of priority pollutants under the Clean Water Act), assessing and possibly

devising exposure scenarios

for the air and environmental (rather than human) exposure

---

pathways, developing analytical detection methods for over 100 hazardous

consti,;,:tu=e",n~t",s!--,

_

and

determining an approach when threshold levels are less than the pollutant's limit of

detection.

EPA must grapple with each of these issues, determining which are substantial enough to

playa significant role in the selection of any capping levels, and how to work with the

factors that it finds to be significant. Although EPA has begun work on a rule that will

consider these issues,

that rule is not yet ready for proposal, much less promulgation.

EPA prefers to further the statutory objective of assuring safety by eliminating as much of

the inherent uncertainty of hazardous waste land disposal by retaining the current

approach of technology-based treatment standards until it develops concentration

thresholds

for determining when wastes are hazardous. It therefore is the Agency's

decision

to retain treatment standards that are based on performance of BDAT until it

develops acceptably certain threshold concentration levels. This approach not only better

mirrors Congressional intent, but better fulfills the Congressional objectives in

promulgating

the land disposal restrictions provisions. [FN3]

FN3 EPA notes further that even if it were to choose to switch immediately to a risk-

based approach

to establishing treatment standards, the eXisting treatment standards for

solvent and dioxin wastes were not established "wholly without regard to whether there

might be a threat to human health and the environment" (886 F.2d at 362), and thus

would be permissible. To

the best of the Agency's present knowledge, the standards are

not established below levels at which there are threats to human health and the

environment. The standards for both solvent and dioxin nonwastewaters reflect the level

of potentially leachable constituent in the waste (as measured by the Toxicity

Characteristic Leaching Procedure (TCLP) protocol). Thus, the standards couid allow

disposal

of wastes containing high concentrations of solvents and dioxins, and futher,

nonredundant minimization of threats could be achieved by actually destroying the

hazardous constitutents and removing them from the environment. In addition, with

respect

to solvents, EPA continues to find that these standards are warranted because

solvents

(by definition) mobilize other hazardous constituents. In fact, EPA's most Widely

applicable tool

for assessing the hazardousness of toxic wastes, the EP toxicity

characteristic (as well as the proposed TCLP), assumes disposai in an environment where

a waste is

not exposed to solvents (or to chemicals with solvent properties). If solvents in

the land disposal environment are not minimized, a fundamental premise of the

characteristic is undermined, and land disposed wastes will be exposed to higher

concentrations of mobilizing chemicals. See 51 FR 21532 (June 13. 1986). A further

factor warranting minimization of land disposed solvents is that they can damage land

disposal

unit liner systems. See 51 FR 1621. Although the concentration levels, and

conditions

under which the FOOI-F005 solvents (either singly or as a group) could

mobilize

other co-disposed waste constituents or damage land disposal unit liner systems

is

not reliably established, EPA believes it would be warranted in retaining the present

controls

to guard against these concerns. Thus, EPA finds that the technology-based

treatment standards for solvents do not force treatment below levels at which there is no

threat to human health and the environment.

EPA notes further that its existing rules (40 CFR 260.20) allow persons to petition the

Agency to amend or promulgate new regulations. These procedures are open to persons

believing

they can demonstrate that the standards for solvents are established "wholly

without regard to whether there might be a threat to human health and the

environment. "

With respect

to the dioxins, the treatment levels are orders of magnitude above levels

that warrant listing the wastes as hazardous. See 51 FR 30271 (July 25, 1985); 53 FR

7903 (March 11. 1899); 53 FR 20103 (June 2, 1988); 54 FR 27167 (June 28, 1989), and

are

thus obviously greater than levels at which the Agency could reasonably determine

that threats to human health and the environment are minimized,

*6643

IV. Opportunity for Notice and Comment

---

Although EPA is issuing this notice without having afforded all interested persons an

opportunity for comment, the Agency does not believe that such an opportunity is

required or warranted. In the first place, EPA directly solicited comment from all of the

parties to the litigation, received their written (and, in some cases, orai) comments, and

considered these

comments in preparing this response. Second, the Agency does not

believe that this notice is a "rule" subject to the Administrative Procedure Act's (APA)

notice and

comment requirements. The notice creates no new requirements, but

reaffirms existing standards and supplies a more fully explicated basis for those

standards. Moreover, even

if this notice should be considered an APA rule, EPA considers

further opportunity to comment to be unnecessary, within the meaning of 5 U.S.c.

553(bl(31(Bl, because there was ample opportunity to comment on all of these issues in

the underlying 1986 rulemaking. In addition, EPA would be unable to meet the deadline

afforded

by the Court were it to formally solicit comment and respond to the comment

before issuing this notice. Failure to meet the deadline could result in suspension of

existing treatment standards and activating the statutory hammer provisions for at least

dioxin and solvent wastes, leaving no legal means

of land disposing these wastes (except

in no-migration land disposal units, presently a virtually null set). RCRA section

3004(el(l1. Consequently, the Agency finds that even if this Notice should constitute a

rule,

there is a good cause for issuing it without opportunity for prior comment.

Dated: February 12, 1990.

William

K. Reilly,

Administrator.

[FR Doc. 90-4287 Filed 2-23-90; 8:45 am]

BILLING CODE 6560-50-M

55 FR 6640-01, 1990 WL 336308 (F.R.)

END OF DOCUMENT

---

EPA530-R-04-003a

RCRA,

SUPERFUND

&

EPCRA CALL CENTER MONTHLY REPORT

January 2004

1. Application of LDR to Delisted Wastes

An electroplatingfacility generates a wastewater treatment sludge that meets the F006 listing

description in 40 CFR

§261.31

and accumulates it on site in accordance with the Part 262

generator requirements. However, the generator demonstrates that the F006 sludge does not

contain any

ofthe Part

261,

Appendix VII constituents for which it is listed (i.e., cadmium,

hexavalent chromium, nickel,

and cyanide). Additionally, the waste does not exhibit a hazardous

waste characteristic

and is not hazardous for any other reason. Thus, the generator applies for

and is granted a site-specific delistingfor the F006 sludge per §260.22. Must the generator

comply with the land disposal restrictions (LDR) requirements before disposing

ofthe delisted

waste?

The generator must comply with the LDR requirements before disposing of the delisted waste

because LDR attaches at the point

of generation. A delisting only absolves the generator from

his obligation

ofhandling the waste as hazardous. If a particular hazardous waste is eligible for

a delisting and

is granted the delisting prior to generation, then LDR requirements would not

apply. Conversely,

if a waste is generated and subsequently delisted, the generator would need

to comply with the applicable Part 268 requirements before disposal.

Although the generator

ofthe wastewater treatment sludge remains subject to LDR, he or she

may file a petition to receive a variance from the LDR requirements per §§268.42(b) or 268.44.

For example, the generator may receive a variance from a treatment standard

ifhe or she

demonstrates that the waste cannot be treated to the specified LDR treatment standard levels

because its physical or chemical properties differ significantly from the waste used to establish

the LDR treatment standard (§268.44).

RO 14699

---

Site and WMU Information

Delisting Petition Number:

DL-

File Name:

Davis Junction LF Only Detects

Petitioner's Name:

BFI Waste Systems of North America, Inc.

Address 1:

26 West 580 Schick Rd.

Address 2:

City, State:

Hanover Park,

Zip Code:

60103

Analysis Performed by:

MBM

Date of Analysis:

May-06-2008

Waste.Description:

Phase I Landfill Leachate

Waste Code:

F039

WMU Type:

Surface Impoundment

Waste Volume (yd

3

):

24.75

Active Life (years):

Risk Factor:

1.00E-06

HQ Factor:

1.00E+OO

---

1'!Dtrllein~rpryen:O\!;j-2',$'·

..';t1.Q?,e'7

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Select Chemicals of Concern to be Modeled (Steps 4 5)

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Results for Analysis: Davis Junction LF Only Detects

1

---

Select Chemicals of Concern to be Modeled (Steps 4 5).

I

:.-.---.R.-e.~f

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(SOL)

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(D~LF)

Results for Analysis: Davis Junction LFOnly Detects

1

---

3.98E+OO

Surface Water:

Partition

Coefficient

:

(Kdsw) (Llkg) :

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Results for Analysis: Davis Junction LFOnly Dete.cts

1

---

i

,

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......._..

_~,_.i...'_,,:.::.:,

..'. ,.; ._.;... ..;._..;..:_ .

.__J .._. __._.,.. "M..,,,._:':'••• _, , •. ;_,

.~

• .;

1.75E-01

O.OOE+OO

O.OOE+OO

1.00E-01

O.OOE+OO

O,OOE+OO

...:~~;

__

~:._._.:

- .. --1.,-•.. _"

O.OOE+OO

O.OOE+OO.

1,20E-01

'1:00E~02

:"6:1'0I~~02

,1·'O'!OOE+OO<::I(/·).O~06~+OO

1.20E-01

.1,OOF02

._,..l;;,._':_._._.._

"'::"...::..::L,':':.L-'::'"

7440-47-4

10061-01-5

Select Chemicals of Concern to be Modeled (Steps 4 5)

I .

'c;~'ti~'le~j~~~m~

......

:VG'~~~W~f

,.,

------.--...------__+_

I

I'

I Tetrachloroethylene

'Chromium

[Cadmium

i

!M~thyre~Wqt1I~'riq~

!Dichloropropene.

~t'j",

..

J_.3=_c.._,

~,~:_._~_,"':':c...:l~,~;)

;."'",:...:.c..:.;

!

iCarbdn<di's~'1fjde.

-

.

' '.

"1'75£1:5~O"

.'...'.

Results for Analysis: Davis Junction LF Only Detects

2

---

1.53E;-03

.::'~

i.7.0EfI"on

.

..

,.i

.... 1

1,8QE+08

.

~

"

5.90E;-OO

-4.20E;-OO

1:JOE+03 ..'!.':,::1:;905+'01:"

.4,j30E+'on•• ...•

- Solubility

---.-....

--~--;

..-------r---.----_.--.--

Landfill

......----.-.- ...r..--..-.

Surfacelmpoundmenti

.. .......

·----·--:~··

.... -

.i

(SOL) (mglL), Dilution

. Dilution Attenuation .

Attenuation

FaCtar (DAFSI)

Factor

(DAFLF)

'Toxicity

characteristtc

Level

(Tq

(mgIL)

------.-------

-----·----::-H;n.;y;;;-~-;W:l

i<-Oiffusion'

•. . Diffusion

Coefflcienf(flj" ';t:;oeffidletltin...Coefficient

in

(atm;;m3Imol·~·'Wateri~(.J;>.w)..

.. Air (Da)

.

(¢1112~~~Cr

(cm

2

Isec)

Soil.

Saturation

Level'

(SOILS'~T)

(mgl~g)

BiG-concentration

. -Factor (8CFt

(bJ!<~

O.OOE+OO

O:OQE4-otl

Select Chemicals of Concern to be Modeled (Steps 4 5)

-r----.---..--,

!--~R~fere'~~~;-­

loose.

! IIihalati-on

! (RFC::;) (l11glm

3

)

Resultsfof Analysis: Davis Junction LF Only Detects

2

---

Select Chemicals of Concern to be Modeled (Steps 4 S)

":9,4:0E:~,91'/'):;

Surface Water

Partition

Coefficient

(Kdswj(Llkgj i

... ,

~'.,

2.42E-02

1.99E+01

O:OeE+00) ..2":90E+crr

8.33E-01

:::fi2'5E

2

01,j4:,65E+'OO'

'I

Carcinogen! I Molecl:Jlar I

Vapor

NoncarcinogenW.eight (MWj.. Pressure (Vpj

(grnlmol)

(atm)

Chronic

Ecological

Threshhold

(Aquatic TRVj

(mg!Lj

Bio. accumulatio'n

Factor (BAF)

(Ukgj

...._._,... ,---,-_..

_-

.

." Organic!

inorgcmic

...........-

.............•..........

Skin

---.-'.:.:",.,-

.

.. ".--.

··I·_·_····~_·c-"_·_·····-····-:-···:I·_····_·········'-

.

rauJT)(hrs) .BIlAge

,

.

Permeability

'.'

.

. Coefficient (8)

Coefficient..

.

(unitieS's) .

(Kpw)(cm~!lr)

i

jim~)~:~~~qh'

: steady'state

!

(T*)'(hrs)

Results for Analysis: Davis Junction LF Only Detects

2

---

Select Chemicals

of Concern

to be Modeled (Steps 4 5)

,

r-'---'-

ChEmlical

.:..-.:-'.C.--.--.-

Name

---."T

I' 'GA'SNumbe-r

:-C~-.,'

.'. ..:...-.-----:---r--------;--:-:-.-.

TCLP '..

'.':1.

-,-c-

.

TCLp.,

--....•..

- :-

,.'.-

..-

...•

.

.

·:Can·~ent(aJi~J1:J:>~~ecti()~

Results for Analysis: Davis Junction

LF

Only Detects

3

~----_·_·····_·_····I-······_··

.Ma)(.imum

.' Carcinogenic Slope

..

C

'.on

...

~~min.

a.nt... Factor-Oral (CSFol.

;"'ei'lel~:IVICL)..

(kg-day/mg)

'{fflgfL)

------.

CarcinogElnic

-'--'-"'---.-'.'--,

Slope'

.-

.....-. :.1--.-.----....-

Reference..!

......

.... .-...

Fa~tor

- Inhalation

Dose - Oral

(CSFi) (kg-day/mg)

(RFDo)

(ing/kg-day)

6.00E-02

i

I

!

I

---

Select Chemicals of Concern to be Modeled (Steps 4 5)

I

'R~f~r~'ife~/:'<;Bi~ic~,j~~'~-''"'''''P''

."'.~.,·.u/

..

·~· ~ .~~

.•.• '•.

~".""

•

>'

v.

.,.Ld'

',(30'S-e";...

';Factdr-

1(~:;;~~~~~~~),}:'<2·

...:'I'!

I

Results for Analysis: Davis Junction LF Only Detects

3

---

n

,

i

4:13E-01

3,00E"02

O.OOE+OO

9.00E+02

.1.00E+05'''.

3,20E+01

:":2:'O'l'E'i;02'.

'Mol.ecular'

".'

"..............•............. '1'-..-,--,.:._-.-

Vapor,

..".--',""- ..7-.--.'

Surface

- _--.

Water'

__..

~

.._ _,

,:"'JYeigh.if.i'illwr ,Pressure

('J,p')'.' .

Partition

i

(gm/rtiol)"

.'

(atm)

CoeffiCient

I

(Kdsw) (L/kg)

_.

,.1,~~~~~?;~":'~'~~:~::]:···;'."~iOiJE:+OO

'NonCarCi/lo:genl

,1;21'E+.''01

>'1'

:UOE

2

bl' -

,1.1'OE-0g;;:;;~,,:,:>~2;4@~..Q1f;I,.

'1:,99E;'0'4,":1 (4:o.0E\F'OO:1 .... ,

Skin.

-_,•. :raU(1;)!C1iIfS}\/•• ."

,>!e;~gg~~!V

'CYf;~~'ii'tdi

"'A:~jO-~a€l;:Li,li1ulatlCirj,

.,

.

,perm

Ceef6l;j~,n:t"

....

..e

.• ...

a

bi.l,i.!Y.~.'

.....

.

'

> ••

.•.

> .....

.'

.....

..•..

<.·'b~fm

';(.u·nitl'~s~~;·:§",:"':;.:

..".:.Cie.-rit{(a.

~."

.".'lri.'diiJ."a."tl'c:

'.:/;

':.'

!F.·a.·titor(BAF~(i:ak9~"

,

....,.i'.

'i'

j

(Kpw}(cmllh:)

'. .

.,!' ..

.

".

•

.:

,

Select

Chemicals of

Concern

to be

Modeled (Steps 4 5)

r

' '"" :.j,. ",.1."

',~~'

/'''''"'''.:'',

,,~

Results for Analysis: Davis JunctionLF Only Detects

3

---

M.odified

Value

Original

Value

.Jparameter Units

75-34-3

.

t[Ji~QI~~9'~!.h~ne,.:·t,2~:·:

-

...

'Dichloroethane, 1,1-

i

:Acetone

;<~::~

:Ars:enic

..:..:.....

~--------:~-

List

..

of

_--.,.....

COCs

----...-- .....-

with

..-...-...

----~--.-.--__r-

Altered Chemical

...

-~-·-·

__..__

--T-..--.

Properties

...

------·-·-:--·-~

..- ...--..-.....---....--

IChemicalName .'.

ICAS Numberl

ParameterMOdified

Results for Analysis: Davis Junction

LF

Only Detects

1

---

List of COCs with Altered Chemical Properties

!Chemical Name

. ....- ...

····ICASN·~·~b~rl···

..

--.P~~ameterModified

~I

'iM-e-th-y-1e-t-hy-l-ke-to-n-e------+I-y-a-.9-3-.3-.-I

Inhalation Refere

Results for Analysis: Davis JunctionLF Only Detects

Parameter

IParameter unitsl

Original

Symbol

.

Value

2

Modified

Value

---

.

NofAppli~able

1.01E+04

Air Volatile Inhalation

=:t~;~4~~!r!!~{f~J~{~~~~ti~~t::::t~e~~~tib~---

106-46-7

2.91 E-01

Groundwater Ingestion

j.

iDichlorobenzene, 1,4-

Results for Analysis: Davis Junction LF Only Detects

1

---

iNil'iket •.

Selenium

!Vinyl chloride

i

t~~nzeia;e}

ijllrise~j'c

':-

iBenzene

i

V©re§of;p~"'i

~Phenol

Resultsfor Analysis: Davis Junction LF Only Detects

2

AirV{)tatil~.ln~~ialio!i"

__.... _" .,'...• _...

.,..•

_:;..:..:,:~~:,~':'::~;,::':.L.c;::.

---

r--.------:-.----.----.-

Limiting Pathways

..

~-'-----.--.--------

..--..-..--.---_.-

!

DetectidniiriiifA~~i-y~T~~-Tojjaij-ofip~iffd~~d-

W;~t~ can~oi"be-

conf;nnedif-D~tectio~

- -

--

--

limits falibeloMii'rlaxlmum allowable concentration

.

',j

I

i

.;

___._.__J

,:,j

Air Volatile Inhalation

Maximum Allow.ableTotal

Pathway

1.26E+05

Maximum

AII6wabie lotal

~C:oncentration

(mg/Kg)

Maximum- AIIQw<ible TCL.P

PathWay

'.-t

".}

.~:.:<?;.::..

.'-

4.89E-02

Groundwater Ingestion

MaXimum

Allqwable TCLp

C~n_centration

- -,

(mg/l}

CAS

Number

,Tetrachloroethylene

127-18-4

Toluene

Chemical Name

!Heptachlor- --

iCobalt

IDiethyl phthalate

Results for Analysis: Davis Junction

LF

Only Detects

3

---

Maximum Allowable Tbtal

Pathway

"MaxirnumAHowable TeLP

I

Maximum

Pathway

Allowable Total

,'. 'Co'ncE!ntration

(mgIKg)

---Q~iectionii~tAnalysiS-~T~;;;iCifiofP~titi(fr.~tl-W~~te

cannot be confirmed if Oetection

,Limits

:-;::-:-

-_~

•

fall

•

below

.'

,~,_

maximum

• - -.: <..

'>,

~

allowable concentration

~

i.

"

. :'"

~

. :<.:

'.·~~ximum

Allowable TCLP

. .C:oncentration"

J'" .

(mgIL)

CAS

Number

Limiting

.....

_._-".

_

Pathways

.._..

_-_. _

...

-

.

...,...--.__

.~_."

.....

iChemicalNaf'l'l~

Results for Analysis: Davis Junction LF Only Detects

4

---

_

..

_---_

---

.. _------'_.-

.- _. -----

.. -,..

4.12E+04

"', 2.02E+OO

8.98E+04

';<'i'e:19E::01..

4.33E+02

I

4,87E+02

2.24E+02

.1.53E"O{'

M'aX.-A;llowable

Max. Allowable

Max. Allowable

"OonGenlration'.

. Concentration

,Concentration',

.'

'Bas~donBas~d)~ri'AdUlt

Based on Child

.,

~wate"

.. GfoundwaterDermal Groundwater Dermal:

ih2."j

j';::.'i'rTt"l;Itio,ry,i,t,

;~b~o~PtiOI1

Pathway Absorption Pathway,

._ ••• ,.

~,.

'Y-'

•• ,',

''''"-:L'L--la_V~-.';;~i>:-:;'

'."

':•. :.;;;

..

~

'. :;

I

iEndrin

1.50E-03

2.40E+06

1.64E+07

3.27E+04

1.84E+05

Results for Analysis: Davis Junction

LF

Only Detects

1

---

Maximum Allowable TCLP Concentrations. Groundwater Exposure Pathways

1M1i~;*~iJ~~b"~

;(

7.16E+01

i

:~-----:=.1:--":;3"""3=Ec"""'fiJT'17:"",

~'I

I

!'4iaiEi'Efi;"

':1

1.74E-01

8.86E+02

! ..

4.02E-01

4.02E~Ol

3.27E+04

Results for Analysis: Davis Junction LF Only Detects

1

---

"

.

Ma~.~il'bwa~ie-~':·6"

. Max.

All~;abJ~'-~

,Concentration. . . "Concentration

~~edd~.AdUlt

'.. 'Based on Child .:

Gr()undV'(~ter

.D.ermal.Groundwater Dermal i

Absorptidn, Pathway ,.Absorption Pathway f

·MaX.~noWaQle

Concentration

iBasedon

Groundwater

'Inl'1alatipn

Pathway

;M~){;P:flbwii8~­

~G:O~Centl(~tioll

:;~~~wti~~er

<;'I,,!g~stior1

;;;P.afI'1Wll'i(

'--,-~b~"..:-,c:=.;;==~,.,-::-+,.,-,.,-,.,-."...,

.

Maximum Allowable

TCLP

Concentrations - Groundwater Exposure Pathways

---cr-.-.

•Mercury

iTin

lCh'~-~'i~~r~a~~-'--'---­

[Risk'Fatt6r=1

;OGE-'(I'i,

iRg

Factor=1.{)~E+OG

i'"

i

*:\li)etectio'n'1,imit

. <

•

I

1;4irsenic'

!NiCk~1

Results for Analysis: Davis Junction LF Only Detects

2

---

Maximum Allowable

TCLPConcentrations - Groundwater Exposure Pathways

r

Max.-JiJib;';;:ible--'

Concentration

BasedonMCL

4.03E-01

2.62E+OO

5.25E-01

1.51E+02

4.09E-01

4.09E-01

1.04E+03

2.47E+04

Results for Analysis: Davis Junction LF Only Detects

2

---

Maximum AlloWable TCLP Concentrations - Groundwater Exposure Pathways

:

I

Risk

Ch~~i~~1

FactoT

N;~~'

=1.00E-06

---.- ------

-was1~~~;~~'1~~:~~~:'T

Concentration

Pactor(BAF)' .

'Atljl!l~te'd

::~:::~1--':'~~~~~

" 'Concentratibn,

-"~rDL

-

~~~~~~:~~~

.'Ba"sed on

-~~x.~·c.··~.·.'~.·.I~;::."~'.~

Based on

-.-.--Mc.:-.,,...:,

Bas-ed-on

x."..:

..e.-

..•.•• ':

..I

..

'~- ~.~:

Adult

..•

~

..

~~.-

,

..,.

..

·.··.·.·_~.,·

Bas.ed

•.·~.·.x.·~..

~A.e.·.. ·.·~i~.

on Child:

-~.~,.~

-.

HCl Factor =

1.00E+OO

(mg7L) ,

,

DAF ,;

(mglL).

Groundwater'Groundwater

Grouiidwater'DermalGroundwaterDermall

1*

=

I:>etection Limit .

'"

'.' .- :", . .

'

:Ingestion

Inhalation

AbsdrptioiiPathway Absolption Pathway i

•' :, '"

. '.

• Pathway

'Pathwav

,',<'. .'

!

5.53E+06

3.22E+08

Results for Analysis: Davis Junction

LF

Only Detects

3

---

Maximum Allowable TCLP Concentrations - Groundwater Exposure Pathways

-~Ma"f:

'Ait~~-;liI;;l

'con'¢e'n(ratr~rr'

i

'Eia#c~~~.I1:'~~·.·:~

1.36E+08

i

!;:;!!:~·1

1.

86

i

E+OO

i

:.:.Lj:.., :..

1

Results for Analysis: Davis Junction LF Only Detects

3

---