[Federal Register Volume 70, Number 26 (Wednesday, February 9, 2005)]
[Proposed Rules]
[Pages 6811-6819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2454]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7870-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: EPA is proposing to grant a petition submitted by Shell Oil 
Company in Deer Park, Texas (Shell) to exclude (or delist) a certain 
sludge waste generated by its Houston, TX Deer Park 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, we would conclude that Shell's petitioned waste is 
nonhazardous with respect to the original listing criteria. EPA would 
also conclude that Shell's waste concentrations are such that short-
term and long-term threats from the petitioned waste to human health 
and the environment are minimized.

DATES: We will accept comments until March 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 February 24, 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/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

[[Page 6812]]

the top with this regulatory docket number: ``F-04-TX-Shell.''
    You should address requests for a hearing to Ben Banipal, Section 
Chief of the Corrective Action/Waste Minimization Section, Multimedia 
Planning and Permitting Division (6PD-C), Environmental Protection 
Agency, 1445 Ross Avenue, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT: Michelle Peace (214) 665-7430.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will Shell manage the waste if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did Shell petition EPA to delist?
    B. How did Shell generate this waste?
    C. What information and analyses did Shell submit to support its 
petition?
    D. What were the results of Shell's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Shell's analysis?
    G. What other factors did EPA consider?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if Shell violates the terms and conditions?
V. Public Comments
    A. How can I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
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 Advancement Act
XIII. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is EPA Proposing?

    EPA is proposing to grant the petition submitted by Shell 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. This 
is a one-time exclusion for 15,000 cubic yards of sludge.

B. Why Is EPA Proposing To Approve This Delisting?

    Shell's petition requests a delisting from the North Pond sludge 
derived from the treatment of F037 waste. Shell does not believe that 
the petitioned waste meets the criteria for which EPA listed it. Shell 
also believes no additional constituents or factors could cause the 
waste to be hazardous. EPA's review of this petition included 
consideration of the original listing criteria, and the additional 
factors required by the Hazardous and Solid Waste Amendments of 1984 
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(d)(1)-(4). In making the initial delisting determination, EPA 
evaluated the petitioned waste against the listing criteria and factors 
cited in 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 proposed decision to 
delist waste from Shell'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. How Will Shell Manage the Waste if It Is Delisted?

    If the petitioned waste is delisted, Shell must dispose of it in a 
Subtitle D landfill which is permitted, licensed, or registered by a 
state to manage industrial waste.

D. When Would the Proposed Delisting Exclusion Be Finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion unless and until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1) at 42 U.S.C. 6930(b)(1), allows rules to 
become effective in less than six months when the regulated community 
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 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 who have 
received authorization from EPA to make their own delisting decisions.
    We allow states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the State. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the State regulatory authority 
to establish the status of their wastes under the State law. Delisting 
petitions approved by the EPA Administrator or his delegate under 40 
CFR 260.22 are effective in the State of Texas after the final rule has 
been published in the Federal Register.

II. Background

A. What Is the History of the Delisting Program?

    EPA published an amended list of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final

[[Page 6813]]

regulations implementing section 3001 of RCRA. EPA has amended this 
list several times and published it in 40 CFR 261.31 and 261.32. EPA 
lists these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in Subpart C of Part 261 (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in Sec.  261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations 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, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does it Require of a 
Petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude waste from the list of hazardous wastes. 
The facility petitions EPA because it does not consider the waste 
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that waste 
generated at a particular facility does not meet any of the criteria 
for which the waste was listed. The criteria for which EPA lists a 
waste are in Part 261 and further explained in the background documents 
for the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (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 40 CFR Sec.  260.22(a) and in 
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 we 
listed the waste if a reasonable basis exists to conclude that these 
additional factors could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous waste and waste derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii and iv) 
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

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

A. What Waste Did Shell Petition EPA To Delist?

    On December 30, 2003, Shell petitioned EPA to exclude from the 
lists of hazardous waste contained in Sec. Sec.  261.31 and 261.32, 
F037 North Pond Sludge generated from its facility located in Deer 
Park, Texas. The F037 listing is for a petroleum refinery primary oil/
water sludge. The sludge has collected in the bottom of the North Pond 
since the early 1970s and is between 2 to 5 feet deep. The sludge 
consists of solids settled from the process wastewater, gravel and road 
base that has settled from storm water flow to the pond. The waste 
falls under the classification of listed waste under Sec.  261.3. 
Specifically, in its petition, Shell requested that EPA grant a one 
time exclusion for 15,000 cubic yards of the F037 North Pond Sludge.

B. How Did Shell Generate This Waste?

    Shell generates hazardous and nonhazardous industrial solid wastes 
as a result of refinery and chemical processes, wastewater treatment, 
refinery/chemical plant feed, product storage and distribution. 
Hazardous and nonhazardous wastewaters from the refinery are treated at 
the North Effluent Treater (NET) along with storm water flow. One of 
the units in the NET is the North Pond. Past practices allowed dry 
weather flow of process wastewater to the North Pond resulting in the 
settled sludge being classified as an F037 listed waste. Dry weather 
flow to the North Pond was discontinued in September of 2001. The 
sludge has collected in the bottom of the North Pond since the early 
1970s and is between 2 to 5 feet deep. The sludge consists of solids 
from the process wastewater, gravel and road base that has settled from 
storm water flow to the pond. The North Pond was built in the 1950s as 
a small rectangular pond. A companion pond, the South Pond, was built 
contiguous to the North Pond and hydraulically connected by a flume. 
The ponds were preceded by three Corrugated Plate Interceptors. These 
ponds were located hydraulically down gradient of the refinery and 
received the refinery process wastewater. In the mid to late 1970s, the 
North Pond was enlarged and reconfigured to an ``L'' shape. This 
project was done concurrently with construction of the North Effluent 
Treater (NET). The pond was enlarged to approximately 103,000 square 
feet in size and about 7.5 feet deep. The working volume of the pond 
was 5.97 million gallons. The pond was lined with a 3-foot compacted 
clay liner. Three large discharge pumps located on the northeast side 
of the pond pumped storm water and wastewater to the Storm Water 
Impoundment Basin (SWIB) at a rate of 50,000 gallons per minute each 
during high flow conditions. Between 1988 and 1990, the South Pond was 
clean closed by removing all the sludges and affected liner and 
decontaminating all the ancillary equipment. Sludge was removed from 
the North Pond during the 1977 enlargement project; however, the volume 
and characteristics of the sludge were not recorded. Since 1977, there 
have been no other sludge removal efforts. The water storing capacity 
of the pond has decreased over time with the current remaining capacity 
estimated at 2.5 to 3.0 million gallons.

C. What Information and Analyses Did Shell Submit To Support Its 
Petition?

    To support its petition, Shell submitted:
    (1) Historical information on past waste generation and management 
practices including analytical data from eleven samples collected in 
September 2003;
    (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 Appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for volatiles, 
semivolatiles, and metals;
    (4) Analytical constituents of concern for F037;
    (5) Results from total oil and grease analyses;
    (6) Multiple pH testing for the petitioned waste.

[[Page 6814]]

D. What Were the Results of Shell's Analyses?

    EPA believes that the Shell analytical characterization 
demonstrates that the North Pond Sludge is nonhazardous. Analytical 
data for the F037 North Pond Sludge samples were used in the Delisting 
Risk Assessment Software. The data summaries for detected constituents 
are presented in Table I. EPA has reviewed the sampling procedures used 
by Shell and has determined that they satisfy EPA criteria for 
collecting representative samples of the variations in constituent 
concentrations in the F037 North Pond Sludge. The data submitted in 
support of the petition show that constituents in Shell's waste are 
presently below health-based levels used in the delisting decision-
making. EPA believes that Shell has successfully demonstrated that the 
F037 North Pond Sludge is nonhazardous.

Table I.--Maximum Total and TCLP Concentrations and Maximum Allowable Delisting Concentration Levels, North Pond
                                F037 Sludge, Shell Oil Company, Deer Park, Texas
----------------------------------------------------------------------------------------------------------------
                                                                                               Maximum allowable
                                                           Maximum total       Maximum TCLP        delisting
                      Constituent                           constituent        constituent       concentration
                                                         analysis  (mg/kg)   analysis  (mg/L)     level (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene...........................................               4.80             0.0011               27.6
Acetophenone...........................................               <1.6             0.0013               46.0
Antimony...............................................               4.02             0.0275              0.332
Anthracene.............................................                1.2             0.0002                131
Arsenic................................................               19.8             0.0326             0.0604
Barium.................................................                294              0.572               47.2
Benzene................................................               4.30              0.026              0.436
Benz(a)anthracene......................................               3.90            <0.0002              0.116
Benzo(a)pyrene.........................................               2.30            <0.0002             0.0116
Benzo(b)fluoranthene...................................               1.40            <0.0002              0.123
Benzo(g,h,i)perylene...................................               0.68            <0.0002              0.123
Benzo(k)fluoranthene...................................               0.15            <0.0002               1.23
Beryllium..............................................              0.641             0.0009               5.04
Bis(2-ethylhexyl)phthalate.............................               1.90              <0.01                9.2
Cadmium................................................               2.98            0.00163              0.363
Chromium...............................................              332.0             0.0539                5.0
Chrysene...............................................              15.00            <0.0002               12.3
Cobalt.................................................               9.92             0.0252  .................
Copper.................................................                100             0.0445               6780
4,4' DDD...............................................             0.0065           <0.00005              0.353
4,4' DDE...............................................             0.0044           <0.00005              0.250
4,4' DDT...............................................             0.0083             0.0015              0.218
Di-n-butyl phthalate...................................               3.80              <0.01               48.4
Ethylbenzene...........................................               5.60             <0.100               46.0
Fluoranthene...........................................               3.60            <0.0002               18.4
Fluorene...............................................              20.00             0.0016               18.4
Indeno(1,2,3-cd)pyrene.................................               1.40            <0.0002              0.123
Lead...................................................             127.00             0.0147                5.0
Mercury................................................               6.57            0.00015              0.180
2-Methylnaphthalene....................................              40.00              <0.01  .................
Naphthalene............................................              33.00               0.13                9.2
Nickel.................................................              91.80              0.142               18.2
Phenanthrene...........................................              12.00             0.0018                131
Phenol.................................................               <8.0              0.300                276
Pyrene.................................................              17.00            <0.0002               13.8
Selenium...............................................              34.60              <0.05               1.40
Silver.................................................              0.409              <0.05               2.48
Styrene................................................                1.1             <0.200               92.0
2,3,7,8-TCDD Equivalent................................           0.000332      0.00000000976        0.000000566
Thallium...............................................              <1.19          0.0000382             0.0852
Tin....................................................               6.55            0.00156  .................
Toluene................................................                1.4             <0.100               92.0
Vanadium...............................................               53.9             0.0214               13.6
Xylenes, Total.........................................                5.8              0.044                920
Zinc...................................................               3650               2.15               181
----------------------------------------------------------------------------------------------------------------
Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
(B) Based on DRAS modeling with a target risk of 10-5 and a target HI of 0.1. One-time sludge volume of 15,000
  cy.

E. How Did EPA Evaluate the Risk of Delisting the Waste?

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e., ground water, 
surface water, air) for hazardous constituents present in the 
petitioned waste. EPA determined that disposal in an unlined Subtitle D 
landfill is the most reasonable, worst-case disposal scenario for 
Shell's petitioned waste. EPA applied the Delisting Risk Assessment 
Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 
75637

[[Page 6815]]

(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's petitioned waste on human health and the environment. A copy of 
this software can be found on the Internet at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. In assessing potential risks to 
ground water, EPA used the maximum estimated waste volumes and the 
maximum reported extract concentrations as inputs to the DRAS program 
to estimate the constituent concentrations in the ground water at a 
hypothetical receptor well down gradient from the disposal site. Using 
the risk level (carcinogenic risk of 10-5 and non-cancer 
hazard index of 0.1), the DRAS program can back-calculate the 
acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and EPA 
health-based numbers. Using the maximum compliance-point concentrations 
and the EPA Composite Model for Leachate Migration with Transformation 
Products (EPACMTP) fate and transport modeling factors, the DRAS 
further back-calculates the maximum permissible waste constituent 
concentrations not expected to exceed the compliance-point 
concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from disposal of the petitioned waste in an unlined landfill, 
and that a reasonable worst-case scenario is appropriate when 
evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of some reasonable 
worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and 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 or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance-point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, Shell 
had not disposed of the waste in a Subtitle D landfill, so no 
representative data exists. Although, ground water contamination does 
exists in the area of this pond, the sludges are not considered a 
source of ground water contamination. The ground water contamination 
and remediation is addressed in the compliance plan of the facility's 
RCRA permit.
    EPA believes that the descriptions of Shell hazardous waste process 
and analytical characterization, which illustrate the presence of toxic 
constituents at lower concentrations in these waste streams, provide a 
reasonable basis to conclude that the likelihood of migration of 
hazardous constituents from the petitioned waste will be substantially 
reduced so that short-term and long-term threats to human health and 
the environment are minimized.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of the DRAS results and maximum TCLP 
and Totals 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 above the 
delisting levels.

F. What Did EPA Conclude About Shell's Analysis?

    EPA concluded, after reviewing Shell's processes, that no other 
hazardous constituents of concern, other than those for which Shell 
tested, are likely to be present or formed as reaction products or by-
products in the wastes. In addition, on the basis of explanations and 
analytical data provided by Shell, pursuant to Sec.  260.22, EPA 
concludes that the petitioned waste does not exhibit any of the 
characteristics of ignitability, corrosivity, or reactivity. See 
Sec. Sec.  261.21, 261.22 and 261.23, respectively. Neither did it show 
the toxicity characteristic.

G. What Other Factors Did EPA Consider?

    During the evaluation of Shell's petition, EPA also considered the 
potential impact of the petitioned waste via non-ground water routes 
(i.e., air emissions and surface runoff). EPA evaluated the potential 
hazards resulting from the unlikely scenario of airborne exposure to 
hazardous constituents released from Shell's waste in an open landfill. 
The results of this worst-case analysis indicated that there is no 
substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from Shell's F037 
North Pond Sludge. A description of EPA's assessment of the potential 
impact of Shell's waste, regarding airborne dispersion of waste 
contaminants, is presented in the RCRA public docket for this proposed 
rule, F-04-TX-Shell. With regard to airborne dispersion in particular, 
EPA believes that exposure to airborne contaminants from Shell's 
petitioned waste is unlikely. Therefore, no appreciable air releases 
are likely from Shell waste under the modeled disposal conditions.
    EPA also considered the potential impact of the petitioned waste 
via a surface water route. EPA believes that containment structures at 
Class I Landfills can effectively control surface water runoff, as the 
Subtitle D regulations (See 56 FR 50978, October 9, 1991) prohibit 
pollutant discharges into surface waters. Furthermore, the 
concentrations of any hazardous constituents dissolved in the runoff 
will tend to be lower than the levels in the TCLP leachate analyses 
reported in this notice due to the aggressive acidic medium used for 
extraction in the TCLP. EPA believes that, in general, the F037 North 
Pond Sludge is unlikely to directly enter a surface water body without 
first traveling through the saturated subsurface where dilution and 
attenuation of hazardous constituents will also occur.
    Based on the reasons discussed above, EPA believes that the 
contamination of surface water through runoff from the waste disposal 
area is very unlikely. Nevertheless, EPA evaluated the potential 
impacts on surface water if Shell's waste were released from a Class I 
Landfill through runoff and erosion. See the RCRA public docket for 
this proposed rule for further information on the potential surface 
water impacts from runoff and erosion. The estimated levels

[[Page 6816]]

of the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). EPA therefore concluded that Shell F037 North Pond Sludge is not 
a present or potential substantial hazard to human health and the 
environment via the surface water exposure pathway.

H. What Is EPA's Evaluation of This Delisting Petition?

    The descriptions of Shell's hazardous waste process and analytical 
characterization 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). We believe the short-term and long-term 
threats posed to human health and the environment are minimized from 
the petitioned waste due to the low levels of hazardous constituents 
present in the waste.
    It is EPA's position that we should grant Shell an exclusion for 
the F037 North Pond Sludge. The data submitted to EPA in support of the 
petition show Shell's F037 North Pond Sludge is nonhazardous.
    We have reviewed the sampling procedures used by Shell and have 
determined they satisfy EPA criteria for collecting representative 
samples of variable constituent concentrations in the F037 North Pond 
Sludge. The data submitted in support of the petition show that 
constituents in Shell's waste are presently below the compliance point 
concentrations used in the delisting decision-making and would not pose 
a substantial hazard to the environment. EPA believes that Shell has 
successfully demonstrated that the F037 North Pond Sludge is 
nonhazardous.
    EPA therefore proposes to grant an exclusion to Shell Oil Company, 
Deer Park, Texas, for the F037 North Pond Sludge 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 F037 North Pond Sludge.
    If we finalize 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, 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) Reopener
    The purpose of Paragraph 1 is to require Shell 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. 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 we 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 to report differing site 
conditions or assumptions used in the petition ( i.e., if the wastes 
begin to leach at higher concentrations than predicted) within 10 days 
of discovery. If EPA discovers such information itself or from a third 
party, it can act on it as appropriate. The language being proposed is 
similar to those provisions found in RCRA regulations governing no-
migration petitions at Sec.  268.6.
    It is EPA's position that we have the authority under RCRA and the 
Administrative Procedure Act (APA), 5 U.S.C. Sec.  551 (1978) et seq., 
to reopen a delisting decision. We may reopen a delisting decision when 
we receive 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 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 case by case. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA Sec.  553 (b).
(2) Notification Requirements
    In order to adequately track wastes that have been delisted, EPA is 
requiring that Shell provide a one-time notification to any State 
regulatory agency through which or to which the delisted waste is being 
carried. Shell must provide this notification within 60 days of 
commencing this activity.

B. What Happens if Shell Violates the Terms and Conditions?

    If Shell 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 to conduct the appropriate waste analysis and 
comply with the criteria explained above in Condition 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/Waste Minimization Section, Multimedia Planning 
and Permitting Division (6PD-C), Environmental Protection Agency, 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-TX-Shell.''
    You should submit requests for a hearing to Ben Banipal, Section 
Chief of the Corrective Action/Waste Minimization Section, Multimedia 
Planning and Permitting Division (6PD-C), 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 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202. It is available for viewing in EPA's 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'' for all ``significant'' regulatory 
actions.
    The proposal to grant an exclusion is not significant, since its 
effect, if promulgated, would be to reduce the

[[Page 6817]]

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 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, I hereby certify 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 (Pub. L. 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 
(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 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.

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 ``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.

XII. 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.

[[Page 6818]]

XIII. 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 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(f).

    Dated: January 28, 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 
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 it is proposed to add the 
following waste stream in alphabetical order by facility to read as 
follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22

                               Table 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Shell Oil Company....................  Deer Park, TX..........  North Pond Sludge (EPA Hazardous Waste No. F037)
                                                                 generated one time at a volume of 15,000 cubic
                                                                 yards [insert publication date of the final
                                                                 rule] and disposed in a Subtitle D 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
                                                                 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 Shell fails to submit the information
                                                                 described in paragraph (A) 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 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 Division Director will notify the facility
                                                                 in writing of the actions the Division Director
                                                                 believes are necessary to protect human health
                                                                 and the environment. The notice shall include a
                                                                 statement of the proposed action and a
                                                                 statement providing the facility with an
                                                                 opportunity to present information as to why
                                                                 the proposed EPA action is not necessary. The
                                                                 facility shall have 10 days from the date of
                                                                 the Division Director's notice to present such
                                                                 information.
                                                                (D) Following the receipt of information from
                                                                 the facility described in paragraph (C) or (if
                                                                 no information is presented under paragraph (C)
                                                                 the initial receipt of information described in
                                                                 paragraphs (A) or (B), the Division Director
                                                                 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 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 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. 05-2454 Filed 2-8-05; 8:45 am]
BILLING CODE 6560-50-P