[Federal Register Volume 65, Number 79 (Monday, April 24, 2000)]
[Rules and Regulations]
[Pages 21651-21657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10038]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-6583-6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is granting a
petition submitted by DuraTherm, Inc., (DuraTherm) to exclude from
hazardous waste control (or delist) a certain solid waste. This action
responds to the petition submitted by DuraTherm to delist the desorber
solids on a ``generator specific'' basis from the lists of hazardous
waste.
After careful analysis, the EPA has concluded that the petitioned
waste is not hazardous waste when disposed of in subtitle D landfills.
This exclusion applies to desorber solids generated at DuraTherm's San
Leon, Texas, facility. Accordingly, this final rule excludes the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA) when disposed
of in subtitle D landfills but imposes testing conditions to ensure
that the future-generated wastes remain qualified for delisting.
EFFECTIVE DATE: April 24, 2000.
ADDRESSES: The public docket for this final rule is located at the
U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue,
Dallas, Texas 75202, and is available for viewing in the EPA Freedom of
Information Act review room on the 7th floor from 9:00 a.m. to 4:00
p.m., Monday through Friday, excluding Federal holidays. Call (214)
665-6444 for appointments. The reference number for this docket is ``F-
99-TXDEL-DURATHERM.'' 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: For general information, contact Bill
Gallagher, at (214) 665-6775. For technical information concerning this
document, contact Michelle Peace, U.S. Environmental Protection Agency,
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.
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 delisting?
C. What are the limits of this exclusion?
D. How will DuraTherm manage the waste if it is delisted?
E. When is the final delisting exclusion effective?
F. How does this action 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 Data
A. What wastes did DuraTherm petition EPA to delist?
B. How much wastes did DuraTherm propose to delist?
C. How did DuraTherm sample and analyze the waste data in this
petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. How will DuraTherm segregate the petitioned waste from the
other wastes accepted and processed in the thermal desorption unit?
C. Why is EPA applying the Land Disposal Restrictions to the
petitioned wastes?
V. Regulatory Impact
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Congressional Review Act
X. Executive Order 12875
XI. Executive Order 13045
XII. Executive Order 13084
XIII. National Technology Transfer and Advancements Act
XIV. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is EPA Finalizing?
The EPA is finalizing:
(1) the decision to grant DuraTherm's petition to have their
desorber solids excluded, or delisted, from the definition of a
hazardous waste; and
(2) the use of the EPA Composite Model for Landfills as the fate
and transport model 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.
After evaluating the petition, EPA proposed, on August 18, 1999 to
exclude the DuraTherm waste from the lists of hazardous wastes under
Secs. 261.31 and 261.32 (see 64 FR 44866).
B. Why Is EPA Approving This Delisting?
DuraTherm petitioned to exclude the desorber solids because it does
not believe that the petitioned waste meets the criteria for which it
was listed.
DuraTherm also believes that the waste does not contain any other
constituents that would render it hazardous. Review of this petition
included consideration of the original listing criteria, as well as the
additional listing criteria and the additional factors required by the
Hazardous and Solid Waste Amendments (HSWA) of 1984. See section 222 of
HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).
For reasons stated in both the proposal and this document, EPA
believes that DuraTherm's desorber solids should be excluded from
hazardous waste control. The EPA therefore is granting a final
exclusion to DuraTherm, located in San Leon, Texas, for its Desorber
Solids.
C. What Are the Limits of This Exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in Table 1 of part 261 and the conditions
contained herein are satisfied. The maximum annual volume of the
Desorber Solids is 20,000 cubic yards.
D. How Will DuraTherm Manage the Waste if It Is Delisted?
The Desorber Solids is currently disposed of in an off-site
hazardous
[[Page 21652]]
waste landfill. When delisted, the waste will be disposed of in an off-
site subtitle D industrial landfill.
E. When Is the Final Delisting Exclusion Effective?
This rule is effective April 24, 2000. The HSWA of 1984 amended
section 3010 of RCRA to allow rules to become effective in less than
six months 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 wastes. These reasons also provide a basis for
making this rule effective immediately, upon publication, under the
Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).
F. How Does This Action Affect States?
Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude two categories of
States: States having a dual system that includes Federal RCRA
requirements and their own requirements, and States who have received
our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA
regulatory requirements that are more stringent than EPA's, under
section 3009 of RCRA. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, we urge petitioners to contact the State regulatory authority to
establish the status of their wastes under the State law.
The EPA has also authorized some States (for example, Louisiana,
Georgia, Illinois) to administer a 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. If DuraTherm
transports the petitioned waste to or manages the waste in any State
with delisting authorization, DuraTherm must obtain delisting
authorization from that State before they can manage the waste as
nonhazardous in the State.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a request from a generator to EPA or
another agency with jurisdiction to exclude from the list of hazardous
wastes, wastes the generator does not consider hazardous under RCRA.
B. What Regulations Allow Facilities To Delist a Waste?
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control by excluding them from
the lists of hazardous wastes contained in Secs. 261.31 and 261.32.
Specifically, section 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
265 and 268 of Title 40 of the Code of Federal Regulations. Section
260.22 provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists.
C. What Information Must the Generator Supply?
Petitioners must provide sufficient information to EPA to allow the
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, that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Data
A. What Waste Did DuraTherm Petition EPA To Delist?
On November 6, 1998, DuraTherm in San Leon, Texas, petitioned the
EPA for a standard exclusion of 20,000 cubic yards of desorber solids,
per calendar year, resulting from its thermal desorption treatment
process. The Agency has presently listed the resulting waste under
Sec. 261.3(c)(2)(I) (the ``derived from'' rule), as EPA Hazardous Waste
No. F037, F038, K048, K049, K050 and K051. Table 1 lists the
constituents of concern for these waste codes.
Table 1.--Hazardous Waste Codes Associated With Waste Streams
------------------------------------------------------------------------
Waste code Basis for characteristics/listing
------------------------------------------------------------------------
F037............................ Benzene, benzo (a) pyrene, Chrysene,
lead, chromium.
F038............................ Benzene, benzo (a) pyrene, Chrysene,
lead, chromium.
K048............................ Hexavalent Chromium, Lead.
K049............................ Hexavalent Chromium, Lead.
K050............................ Hexavalent Chromium.
K051............................ Hexavalent Chromium, Lead.
------------------------------------------------------------------------
B. How Much Waste Did DuraTherm Propose To Delist?
Specifically, in its petition, DuraTherm requested that EPA grant a
standard exclusion for 20,000 cubic yards of desorber solids generated
per calender year.
C. How Did DuraTherm Sample and Analyze the Waste Data in This
Petition?
To support its petition, DuraTherm submitted:
(1) Descriptions of its thermal desorption processes associated
with petitioned wastes;
(2) Results of the total constituent list for 40 CFR part 264
appendix IX volatiles, semivolatiles, and metals except pesticides,
herbicides, and PCBs;
(3) Results of the constituent list for appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract for volatiles,
semivolatiles, and metals;
(4) Results for reactive sulfide;
(5) Results for reactive cyanide;
(6) Results for pH;
(7) Results of the metals concentrations in the Multiple Extraction
Procedure extract; and
(8) Results of ignitability.
DuraTherm tested and analyzed the waste stream under five
conditions to properly account for variables in the waste stream:
During start-up operations, shut-down operations, slow feed rates, fast
feed rates, and normal operations. For wastes that failed to meet the
estimated delisting levels, DuraTherm stabilized the wastes to prevent
leaching metal constituents from the wastes. The facility submitted
results from the Multiple Extraction Procedure run on the stabilized
materials.
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
The EPA received public comments on August 18, 1999, proposal from
one interested party, Environmental Issues Management.
[[Page 21653]]
B. How Will DuraTherm Segregate the Petitioned Waste From the Other
Wastes Accepted and Processed in the Thermal Desorption Unit?
Environmental Issues Management comments that the Agency failed to
identify the rationale and method to isolate listed waste streams under
consideration for delisting from other listed waste streams processed
by DuraTherm which were not included within DuraTherm's delisting
demonstration. DuraTherm may accept several other waste streams in
addition to the waste streams being delisted. DuraTherm's acceptable
waste streams include chlorinated organics, vinyl chloride and ethylene
dichloride. The facility runs different batches of waste for different
facilities. Initially, DuraTherm generates a waste profile for the
material. They return the waste profile to the generator. When the
wastes are accepted by DuraTherm, they must meet the profile identified
by DuraTherm. To ensure that no cross contamination of these batches
occur, the first batch of the petitioned wastes processed after a batch
of chlorinated organics for instance, will be designated as ``Hazardous
Wastes.'' To ensure that subsequent batches are free of any remaining
waste codes, DuraTherm must analyze the first batch for constituents
for which the waste codes are listed. Subsequent batches of the
F037,F038, K049, K050, K051 wastes are eligible for delisting if they
meet the criteria described in Table 1 of appendix IX, part 261 and no
constituents of the previously processed residues are detected. The EPA
has amended the conditions in Table 1, Paragraph 2(B) to reflect the
change.
C. Why Is EPA Applying the Land Disposal Restrictions to the Petitioned
Wastes?
Environmental Issues Management believes that the Agency's use of
the Land Disposal Restrictions (LDR) to establish Maximum Allowable
Concentrations is overly conservative and results in redundant
regulation. The Agency used to the LDR treatment concentrations as
delisting limits for three of the 12 metals constituents and all 25 of
the organic constituents. The maximum concentration of the three metals
detected in petitioned waste was less than the calculated delisting
levels and the LDR treatment standards for the metals. For example, for
chromium the calculated delisting level was 2.70
mg/l and the LDR treatment standard was 0.6 mg/l; However, the maximum
concentration of chromium detected in the samples was 0.18 mg/l. This
concentration is less than the calculated delisting level and the LDR
treatment standard for chromium. The maximum concentrations of the
semi-volatile and volatile organic constituents in the petitioned
wastes were also less than the LDR treatment standards. For example,
the maximum concentration of phenol detected in the waste was 0.2437
mg/l and the LDR treatment standard was 6.2 mg/l. The maximum
concentration of xylene in the waste streams was 0.0017 mg/l and the
LDR treatment standard was 0.032 mg/l. DuraTherm's treatment process
did not have any problems achieving the more protective levels, in fact
no additional treatment was needed to meet the LDR treatment standards.
The proposed delisting levels for this petition allow for further
protection of human health and the environment with very little impact
on DuraTherm's operation of their treatment process.
V. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions. The final 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, thereby enabling this
facility to manage its waste as nonhazardous. There is no additional
impact therefore, due to today's final rule. Therefore, 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.
VI. Regulatory Flexibility Act
Pursuant to 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 flexibility analysis which
describes the impact of the rule on small entities (i.e., 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. Accordingly, I hereby certify
that this 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.
VII. Paperwork Reduction Act
Information collection and recordkeeping requirements associated
with this proposed rule have been approved by the 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.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
EPA 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 any one 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. The
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 UMRA 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. The EPA
finds that today's proposed delisting decision is deregulatory in
nature and does not impose any enforceable duty upon State, local, or
tribal governments or the private sector. In addition, the delisting
does not establish any regulatory requirements for small governments
and so does not
[[Page 21654]]
require a small government agency plan under UMRA section 203.
IX. Congressional Review Act
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 Congress and to the Comptroller General of the United
States. The EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, the Comptroller General of the United States prior to
publication of the final rule in the Federal Register. This rule is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will become
effective on the date of publication in the Federal Register.
X. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the OMB a
description of the extent of EPA's prior consultation with
representatives of affected state, local, and tribal governments, the
nature of their concerns, copies of written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of Executive Order 12875 do not apply to
this rule.
XI. 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, the Agency 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 the Agency. This rule is
not subject to Executive Order 13045 because this is not an
economically significant regulatory action as defined by Executive
Order 12866.
XII. Executive Order 13084
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 OMB, 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
meaningful and timely input'' in the development of regulatory policies
on matters that significantly or uniquely affect their communities of
indian tribal governments. Today's rule does not significantly or
uniquely affect the communities of indian tribal governments.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
XIII. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), directs the EPA 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 NTTAA requires that Agency 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,
the Agency has no need to consider the use of voluntary consensus
standards in developing this final rule.
XIV. 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 State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency 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.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
[[Page 21655]]
Dated: April 11, 2000.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
2. In Tables 1 and 2 in appendix IX add the following waste stream
in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and
260.22
Table 1.--Wastes Excluded From Non-Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * *
* * *
DuraTherm, Incorporated San Leon, Texas........ Desorber solids, (at a
maximum generation of
20,000 cubic yards
per calendar year)
generated by
DuraTherm using the
thermal desorption
treatment process,
(EPA Hazardous Waste
No. F037 and F038)
and that is disposed
of in subtitle D
landfills after April
24, 2000.
For the exclusion to
be valid, DuraTherm
must implement a
testing program that
meets the following
Paragraphs:
(1) Delisting Levels:
All leachable
concentrations for
those constituents
must not exceed the
following levels
(ppm). The petitioner
must use an
acceptable leaching
method, for example
SW-846, Method 1311
to measure
constituents in the
waste leachate.
Desorber solids (i)
Inorganic
Constituents Arsenic--
1.35; Antimony--
0.162; Barium--54.0;
Beryllium--0.108;
Cadmium--0.135;
Chromium--0.6; Lead--
0.405; Nickel--2.7;
Selenium--1.0;
Silver--5.0;
Vanadium--5.4; Zinc--
270.
(ii) Organic
Constituents
Anthracene--0.28;
Benzene--0.135;
Benzo(a) anthracene--
0.059;
Benzo(b)fluoranthene-
-0.11;
Benzo(a)pyrene--0.061
; Bis-
ethylhexylphthalate--
0.28; Carbon
Disulfide--3.8;
Chlorobenzene--0.057;
Chrysene--0.059;
o,m,p Cresols--54;
Dibenzo (a,h)
anthracene--0.055;
2,4 Dimethyl phenol--
18.9; Dioctyl
phthalate--0.017;
Ethylbenzene--0.057;
Fluoranthene--0.068;
Fluorene--0.059;
Naphthalene--0.059;
Phenanthrene--0.059;
Phenol--6.2; Pyrene--
0.067; Styrene--2.7;
Trichloroethylene--0.
054; Toluene--0.08;
Xylene--0.032
(2) Waste Holding and
Handling: (A)
DuraTherm must store
the desorber solids
as described in its
RCRA permit, or
continue to dispose
of as hazardous all
desorber solids
generated, until they
have completed
verification testing
described in
Paragraph (3)(A) and
(B), as appropriate,
and valid analyses
show that paragraph
(1) is satisfied.
(B) In order to
isolate wastes that
have been processed
in the unit prior to
one of the waste
codes to be delisted,
DuraTherm must
designate the first
batch of F037, F038,
K048, K049, K050, or
K051 wastes as
hazardous. Subsequent
batches of these
wastes which satisfy
paragraph (1) are
eligible for
delisting if they
meet the criteria in
paragraph (1) and no
additional
constituents (other
than those of the
delisted waste
streams) from the
previously processed
wastes are detected.
(C) Levels of
constituents measured
in the samples of the
desorber solids that
do not exceed the
levels set forth in
Paragraph (1) are
nonhazardous.
DuraTherm can manage
and dispose the
nonhazardous desorber
solids according to
all applicable solid
waste regulations.
(D) If constituent
levels in a sample
exceed any of the
delisting levels set
in Paragraph (1),
DuraTherm must
retreat or stabilize
the batches of waste
used to generate the
representative sample
until it meets the
levels in
paragraph(1).
DuraTherm must repeat
the analyses of the
treated waste.
(E) If the facility
has not treated the
waste, DuraTherm must
manage and dispose
the waste generated
under subtitle C of
RCRA.
(3) Verification
Testing Requirements:
DuraTherm must
perform sample
collection and
analyses, including
quality control
procedures, according
to SW-846
methodologies. If EPA
judges the process to
be effective under
the operating
conditions used
during the initial
verification testing,
DuraTherm may replace
the testing required
in Paragraph (3)(A)
with the testing
required in Paragraph
(3)(B). DuraTherm
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,
DuraTherm must do the
following:
(i) Collect and
analyze composites of
the desorber solids.
(ii) Make two
composites of
representative grab
samples collected.
(iii) Analyze the
waste, before
disposal, for all of
the constituents
listed in Paragraph
1.
(iv) Sixty (60) days
after this exclusion
becomes final, report
the operational and
analytical test data,
including quality
control information.
(v) Submit the test
plan for conducting
the multiple pH
leaching procedure to
EPA for approval at
least 10 days before
conducting the
analysis.
(vi) Conduct a
multiple pH leaching
procedure on 10
samples collected
during the sixty-day
test period.
(vii) The ten samples
should include both
non-stabilized and
stabilized residual
solids. If none of
the samples collected
during the sixty-day
test period need to
be stabilized,
DuraTherm should
provide multiple pH
data on the first
sample of stabilized
wastes generated.
(vii) Perform the
toxicity
characteristic
leaching procedure
using three different
pH extraction fluids
to simulate disposal
under three
conditions and submit
the results within 60
days of completion.
Simulate an acidic
landfill environment,
basic landfill
environment, and a
landfill environment
similar to the pH of
the waste.
(B) Subsequent
Verification Testing:
Following written
notification by EPA,
DuraTherm may
substitute the
testing conditions in
(3)(B) for (3)(A)(i).
DuraTherm must
continue to monitor
operating conditions,
and analyze
representative
samples each quarter
of operation during
the first year of
waste generation. The
samples must
represent the waste
generated in one
quarter. DuraTherm
must run the multiple
pH procedure on these
waste samples.
[[Page 21656]]
(C) Termination of
Organic Testing: (i)
DuraTherm must
continue testing as
required under
Paragraph (3)(B) for
organic constituents
in Paragraph
(1)(A)(ii), until the
analytical results
submitted under
Paragraph (3)(B) show
a minimum of two
consecutive samples
below the delisting
levels in Paragraph
(1)(A)(i), DuraTherm
may then request that
EPA stop quarterly
organic testing.
After EPA notifies
DuraTherm in writing,
the company may end
quarterly organic
testing.
(ii) Following
cancellation of the
quarterly testing,
DuraTherm must
continue to test a
representative
composite sample for
all constituents
listed in Paragraph
(1) annually (by
twelve months after
final exclusion).
(4) Changes in
Operating Conditions:
If DuraTherm
significantly changes
the process described
in its petition or
starts any processes
that generate(s) the
waste that may or
could affect the
composition or type
of waste generated as
established under
Paragraph (1) (by
illustration, but not
limitation, changes
in equipment or
operating conditions
of the treatment
process), they must
notify EPA in
writing; they 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
they have received
written approval to
do so from EPA.
(5) Data Submittals:
DuraTherm must submit
the information
described below. If
DuraTherm fails to
submit the required
data within the
specified time or
maintain the required
records on-site for
the specified time,
EPA, at its
discretion, will
consider this
sufficient basis to
reopen the exclusion
as described in
Paragraph 6.
DuraTherm must:
(A) Submit the data
obtained through
Paragraph 3 to Mr.
William Gallagher,
Chief, Region 6
Delisting Program,
EPA, 1445 Ross
Avenue, Dallas, Texas
75202-2733, Mail
Code, (6PD-O) within
the time specified.
(B) 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 persons who,
acting under my
direct instructions,
made the verification
that this information
is true, accurate and
complete.
If any of this
information is
determined by EPA in
its sole discretion
to be false,
inaccurate or
incomplete, and upon
conveyance of this
fact to the company,
I recognize and agree
that this exclusion
of waste will be void
as if it never had
effect or to the
extent directed by
EPA and that the
company will be
liable for any
actions taken in
contravention of the
company's RCRA and
CERCLA obligations
premised upon the
company's reliance on
the void exclusion.
(6) Reopener Language:
(A) If, anytime after
disposal of the
delisted waste,
DuraTherm 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 level higher
than the delisting
level allowed by the
Regional
Administrator or his
delegate in granting
the petition, then
the facility must
report the data, in
writing, to the
Regional
Administrator or his
delegate 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,
DuraTherm must report
the data, in writing,
to the Regional
Administrator or his
delegate within 10
days of first
possessing or being
made aware of that
data.
(C) If DuraTherm 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 Regional
Administrator or his
delegate 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.
(D) If the Regional
Administrator or his
delegate determines
that the reported
information does
require Agency
action, the Regional
Administrator or his
delegate will notify
the facility in
writing of the
actions the Regional
Administrator or his
delegate 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 Agency
action is not
necessary. The
facility shall have
10 days from the date
of the Regional
Administrator or his
delegate's notice to
present such
information.
(E) Following the
receipt of
information from the
facility described in
paragraph (6)(D) or
(if no information is
presented under
paragraph (6)(D)) the
initial receipt of
information described
in paragraphs (5),
(6)(A) or (6)(B), the
Regional
Administrator or his
delegate will 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 or his
delegate's
determination shall
become effective
immediately, unless
the Regional
Administrator or his
delegate provides
otherwise.
(7) Notification
Requirements:
DuraTherm must do
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.
[[Page 21657]]
(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 into a
different disposal
facility.
* * * *
* * *
------------------------------------------------------------------------
Table 2.--Wastes Excluded From Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * * *
* *
DuraTherm, Incorporated San Leon, Texas........ Desorber Solids, (at a
maximum generation of
20,000 cubic yards
per calendar year)
generated by
DuraTherm using the
treatment process to
treat the Desorber
solids, (EPA
Hazardous Waste No.
K048, K049, K050, and
K051 and disposed of
in a subtitle D
landfill.
DuraTherm must
implement the testing
program found in
Table 1. Wastes
Excluded From Non-
Specific Sources, for
the petition to be
valid.
* * * *
* * *
------------------------------------------------------------------------
[FR Doc. 00-10038 Filed 4-21-00; 8:45 am]
BILLING CODE 6560-50-P