[Federal Register Volume 69, Number 78 (Thursday, April 22, 2004)]
[Rules and Regulations]
[Pages 21754-21760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9138]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7651-4]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is granting a
petition submitted by OxyVinyls, LP (OxyVinyls) to exclude (or delist)
a certain liquid waste generated by its Houston, TX Deer Park VCM Plant
from the lists of hazardous wastes. This final rule responds to the
petition submitted by OxyVinyls to delist K017, K019, and K020
Incinerator Offgas Treatment Scrubber Water generated from treating and
neutralizing gasses generated in the firebox during the incineration
process.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS) EPA has concluded the petitioned waste is not hazardous
waste. This exclusion applies to 919,990 cubic yards per year of the
Incinerator Offgas Treatment Scrubber Water. 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 accordance with TPDES regulations.
[[Page 21755]]
DATES: Effective Date: April 22, 2004.
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 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-02-TX-
OXYVINYLS]. 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, 1445
Ross Avenue, Dallas, Texas 75202. For technical information concerning
this notice, contact James A. Harris, Jr., U.S. Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202, at (214) 665-
8302.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What rule is EPA finalizing?
B. Why is EPA approving this delisting?
C. What are the limits of this exclusion?
D. How will OxyVinyls manage the waste if it is delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a delisting?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did OxyVinyls petition EPA to delist?
B. How much waste did OxyVinyls propose to delist?
C. How did OxyVinyls 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?
I. Overview Information
A. What Action Is EPA Finalizing?
After evaluating the petition, EPA proposed, on October 1, 2003 to
exclude the OxyVinyls waste from the lists of hazardous waste under
Sec. Sec. 261.31 and 261.32 (see 65 FR 75897). EPA is finalizing:
(1) The decision to grant OxyVinyls' delisting petition to have its
Incinerator Offgas Treatment Scrubber Water generated from treating and
neutralizing gasses generated in the firebox during the incineration
process subject to certain continued verification and monitoring
conditions.
B. Why Is EPA Approving This Delisting?
OxyVinyls' petition requests a delisting from the K017, K019, and
K020, waste listings under 40 CFR 260.20 and 260.22. OxyVinyls does not
believe that the petitioned waste meets the criteria for which EPA
listed it, primarily because the Off-gas Scrubber Waste Water could be
considered ``derived from'' a listed waste that has been incinerated to
destroy the hazardous constituents of the listed waste. OxyVinyls also
believes no additional constituents or factors could cause the waste to
be hazardous. EPA's review of this petition included consideration of
the original listing criteria, and the additional factors required by
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4)
(hereinafter all sectional references are to 40 CFR unless otherwise
indicated). In making the final delisting determination, EPA evaluated
the petitioned waste against the listing criteria and factors cited in
Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with
the petitioner that the waste is nonhazardous with respect to the
original listing criteria. (If EPA had found, based on this review,
that the waste remained hazardous based on the factors for which the
waste 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 final decision to delist
waste from OxyVinyls' 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 petition only
if the requirements described in 40 CFR part 261, appendix IX, table 2
and the conditions contained herein are satisfied.
D. How Will OxyVinyls Manage the Waste if It Is Delisted?
The delisted waste stream will continue to be piped and disposed of
at Shell's TPDES-permitted system.
E. When Is the Final Delisting Exclusion Effective?
This rule is effective April 22, 2004. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA, 42 USCA
6930(b)(1), 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 basis for making this rule
effective immediately, upon publication, under the Administrative
Procedure Act, pursuant to 5 USCA 553(d).
F. How Does This Final Rule Affect States?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law.
EPA has also authorized some States (for example, Louisiana,
Oklahoma, Georgia, 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
[[Page 21756]]
OxyVinyls transports the petitioned waste to or manages the waste in
any state with delisting authorization, OxyVinyls must obtain delisting
authorization from that state before it 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 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 Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of 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 from a particular generating facility
from the hazardous waste lists.
C. What Information Must the Generator Supply?
Petitioners must provide sufficient information to EPA to allow EPA
to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste and that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did OxyVinyls Petition EPA To Delist?
On October 11, 2002, OxyVinyls petitioned EPA to exclude from the
lists of hazardous waste contained in Sec. 261.32, Incinerator Offgas
Treatment Scrubber Water generated from its facility located in Deer
Park, Texas. The waste falls under the classification of listed waste
under Sec. 261.30.
B. How Much Waste Did OxyVinyls Propose To Delist?
Specifically, in its petition, OxyVinyls requested that EPA grant a
standard exclusion for 919,990 cubic yards per year of the Incinerator
Offgas Treatment Scrubber Water.
C. How Did OxyVinyls Sample and Analyze the Waste Data in This
Petition?
To support its petition, OxyVinyls 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) Analytical constituents of concern for K017, K019 and K020
(4) Results from total oil and grease analyses
(5) Multiple pH testing for the petitioned waste.
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
No comments were received on the Proposed Rule.
V. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for 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.
VI. 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 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 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.
VII. 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 (Pub. L. 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 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 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. 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
[[Page 21757]]
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.
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 require a small government agency plan
under UMRA section 203.
IX. 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.
X. 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 ``meaningful and 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.
XI. National Technology Transfer and Advancement Act
Under section 12(d) if 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.
XII. 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. 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 implications. 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(f).
Dated: April 7, 2004.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.
0
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
0
1. The authority citation for Part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
0
2. In Table 1 of appendix IX of part 261 add the following waste stream
in alphabetical order by facility to read as follows:
[[Page 21758]]
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1.--Waste Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
OxyVinyls, L.P................. Deer Park, TX.................. Incinerator Offgas Scrubber Water (EPA
Hazardous Waste Nos. K017, K019 and K020)
generated at a maximum annual rate of 919,990
cubic yards per calendar year after April 22,
2004, and disposed in accordance with the
TPDES permit.
For the exclusion to be valid, OxyVinyls must
implement a testing program that meets the
following Paragraphs:
(1) Delisting Levels: All total concentrations
for those constituents must not exceed the
following levels (mg/kg) in the incinerator
offgas scrubber water.
Incinerator offgas treatment scrubber water
(i) Inorganic Constituents Antimony-0.0204;
Arsenic-0.385; Barium-2.92; Beryllium-0.166;
Cadmium-0.0225; Chromium-5.0; Cobalt-13.14;
Copper-418.00; Lead-5.0; Nickel-1.13; Mercury-
0.0111; Vanadium-0.838; Zinc-2.61
(ii) Organic Constituents Acetone-1.46;
Bromoform-0.481; Bromomethane-8.2;
Bromodichloromethane-0.0719; Chloroform-
0.683; Dibromochloromethane-0.057;
Iodomethane-0.19; Methylene Chloride-0.029;
2,3,7,8-TCDD equivalents as TEQ-0.0000926
(2) Waste Management:
(A) OxyVinyls must manage as hazardous all
incinerator offgas treatment scrubber water
generated, until it has completed initial
verification testing described in Paragraph's
(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 incinerator offgas treatment
scrubber water that do not exceed the levels
set forth in Paragraph (1) are non-hazardous.
OxyVinyls can manage and dispose the non-
hazardous incinerator offgas treatment
scrubber water according to all applicable
solid waste regulations.
(C) If constituent levels in a sample exceed
any of the delisting levels set in Paragraph
(1), OxyVinyls must collect one additional
sample and perform expedited analyses to
confirm if the constituent exceeds the
delisting level. If this sample confirms the
exceedance, OxyVinyls must, from that point
forward, treat the waste as hazardous until
it is demonstrated that the waste again meets
the levels set in Paragraph (1). OxyVinyls
must notify EPA of the exceedance and
resampling analytical results prior to
disposing of the waste.
(D) If the waste exceeds the levels in
paragraph (1) OxyVinyls must manage and
dispose of the waste generated under Subtitle
C of RCRA from the time that it becomes aware
of any exceedance.
(E) Upon completion of the Verification
Testing described in Paragraph's 3(A) and (B)
as appropriate and the transmittal of the
results to EPA, and if the testing results
meet the requirements of Paragraph (1),
OxyVinyls may proceed to manage its
incinerator offgas treatment scrubber water
as non-hazardous waste. If Subsequent
Verification Testing indicates an exceedance
of the Delisting Levels in Paragraph (1),
OxyVinyls must manage the incinerator offgas
treatment scrubber water as a hazardous waste
until two consecutive quarterly testing
samples show levels below the Delisting
Levels.
(3) Verification Testing Requirements:
OxyVinyls 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,
OxyVinyls may replace the testing required in
Paragraph (3)(A) with the testing required in
Paragraph (3)(B). OxyVinyls 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, OxyVinyls must do
the following:
(i) Within 60 days of this exclusion becoming
final, collect four samples, before disposal,
of the incinerator offgas treatment scrubber
water.
(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, OxyVinyls will
report initial verification analytical test
data, including analytical quality control
information for the first thirty (30) days of
operation after this exclusion becomes final
of the incinerator offgas treatment scrubber
water. If levels of constituents measured in
the samples of the incinerator offgas
treatment scrubber water that do not exceed
the levels set forth in Paragraph (1) and are
also non-hazardous in two consecutive
quarters after the first thirty (30) days of
operation after this exclusion, OxyVinyls can
manage and dispose of the incinerator offgas
treatment scrubber water according to all
applicable solid waste regulations after
reporting the analytical results to EPA.
(B) Subsequent Verification Testing: Following
written notification by EPA, OxyVinyls may
substitute the testing conditions in
Paragraph (3)(B) for (3)(A). OxyVinyls must
continue to monitor operating conditions, and
analyze representative samples 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 analytical sampling
verification sampling can be performed on a
single annual composite sample of the
incinerator offgas treatment scrubber water.
The results are to be compared to the
delisting levels in Condition (1).
[[Page 21759]]
(C) Termination of Testing: (i) After the
first year of quarterly testing, if the
Delisting Levels in Paragraph (1) are being
met, OxyVinyls may then request that EPA stop
requiring quarterly testing. After EPA
notifies OxyVinyls in writing, the company
may end quarterly testing.
(ii) Following cancellation of the quarterly
testing, OxyVinyls must continue to test a
representative sample for all constituents
listed in Paragraph (1) annually.
(4) Changes in Operating Conditions: If
OxyVinyls significantly changes the process
described in its petition or starts any
processes that generate(s) the waste that may
or could significantly 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), it must
notify EPA in writing; OxyVinyls 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: OxyVinyls must submit the
information described below. If OxyVinyls
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. OxyVinyls must:
(A) Submit the data obtained through Paragraph
3 to the Section Chief, EPA Region 6
Corrective Action and Waste Minimization
Section, 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),
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
(A) If, anytime after disposal of the delisted
waste OxyVinyls 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 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, OxyVinyls 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 OxyVinyls 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 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.
(D) If the Regional Administrator or his
delegate determines that the reported
information does require action by EPA's
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 EPA 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 EPA 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:
[[Page 21760]]
OxyVinyls must do the following before
transporting the delisted waste. Failure to
provide this notification will result in a
violation of the delisting petition and a
possible revocation of the decision.
(A) Provide a one-time written notification to
any State Regulatory Agency to which or
through which it will transport the delisted
waste described above for disposal, 60 days
before beginning such activities.
(B) Update the one-time written notification
if it ships the delisted waste into a
different disposal facility.
(C) Failure to provide this notification will
result in a violation of the delisting
variance and a possible revocation of the
decision.
* * * * * *
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[FR Doc. 04-9138 Filed 4-21-04; 8:45 am]
BILLING CODE 6560-50-P