[Federal Register Volume 73, Number 97 (Monday, May 19, 2008)]
[Proposed Rules]
[Pages 28768-28786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11004]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0418; SW-FRL-8566-6]
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: The EPA is proposing to use the Delisting Risk Assessment
Software (DRAS) Version 3.0 in the evaluation of a delisting petition.
Based on waste specific information provided by the petitioner, EPA is
proposing to use the
[[Page 28769]]
DRAS to evaluate the impact of the petitioned waste on human health and
the environment. This proposal provides background information on the
updates and revisions made to the DRAS, and the use of the DRAS in
delisting decision-making. The EPA is also proposing to grant petitions
submitted by Bayer Material Science in Baytown, Texas; Lockheed Martin
Aeronautics Company in Ft. Worth, Texas; and ConnocoPhillips Company
Borger Refinery in Borger, Texas, to exclude (or delist) certain solid
wastes generated by these facilities from the lists of hazardous
wastes.
DATES: We will accept comments until June 18, 2008. We will stamp
comments postmarked after the close of the comment period as ``late.''
These ``late'' comments may not be considered in formulating a final
decision.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0418 by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov: Follow
the on-line instructions for submitting comments.
2. E-mail: [email protected].
3. Mail: Michelle Peace, Environmental Protection Agency,
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code:
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier: Deliver your comments to: Michelle
Peace, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0418. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket. All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2008-0418, is available for viewing from 8 a.m. to 5 p.m., Monday
through Friday, excluding Federal holidays. The public may copy
material from the regulatory docket at $0.15 per page. EPA requests
that you contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The interested persons
wanting to examine these documents should make an appointment with the
office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket or the
Bayer facility petition, contact Michelle Peace, Environmental
Protection Agency, Multimedia Planning and Permitting Division, RCRA
Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by
calling 214-665-7430 or by e-mail at [email protected].
For technical information regarding the ConocoPhillips Company
petition, contact Youngmoo Kim at 214-665-6788 or by e-mail at
[email protected].
For information regarding the Lockheed Martin petition, contact
Wendy Jacques at (214) 665-7395 or by e-mail at [email protected].
Your requests for a hearing must reach EPA by June 3, 2008. The
request must contain the information described in Sec. 260.20(d).
SUPPLEMENTARY INFORMATION: Each company listed in the SUMMARY submitted
a petition under 40 CFR 260.20 and 260.22(a). Section 260.20 allows any
person to petition the Administrator to modify or revoke any provision
of Sec. Sec. 260 through 266, 268 and 273. Section 260.22(a)
specifically provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator specific'' basis from
the hazardous waste lists.
The Agency 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 conditionally exclude the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA).
If finalized, we would conclude the petitioned wastes from these
facilities are nonhazardous with respect to the original listing
criteria and that the waste process used will substantially reduce the
likelihood of migration of hazardous constituents from this waste. We
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the
environment.
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 these delistings?
C. What is unique about these delistings?
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?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
III. EPA's Evaluation of the Individual Waste Information and Data
A. Bayer Material Science LLC, Baytown, Texas--TDI Residue
1. What waste did Bayer petition EPA to delist?
2. Who is Bayer and what process does it use to generate the
petitioned waste?
3. What information did the facility submit to support this
petition?
4. What were the results of Bayer's analyses?
5. What did EPA conclude about the facility's analysis?
6. What other factors did EPA consider in its evaluation?
7. What is EPA's evaluation of this delisting petition?
[[Page 28770]]
8. What is the final disposition of the waste?
B. ConnocoPhillips Company, Borger, Texas--Thermal Desorber
Residual Solids
1. What waste did ConnocoPhillips Company petition EPA to
delist?
2. Who is ConnocoPhillips Company and what process does it use
to generate the petitioned waste?
3. How did ConnocoPhillips Company sample and analyze the data
in this petition?
4. What were the results of ConnocoPhillips Company's analysis?
5. What did EPA conclude about the facility's analysis?
6. What other factors did EPA consider in its evaluation?
7. What is EPA's evaluation of this delisting petition?
8. What is the final disposition of the waste?
C. Lockheed Martin Aeronautics Company, Fort Worth, Texas--F019
Waste Water Treatment Sludge
1. What waste did Lockheed Martin Aeronautics Company petition
EPA to delist?
2. Who is Lockheed Martin Aeronautics Company and what process
do they use to generate the petition waste?
3. What information did Lockheed Martin Aeronautics Company
submit to support this petition?
4. What were the results of Lockheed Martin Aeronautics
Company's analysis?
5. What did EPA conclude about the facility's analysis?
6. What other factors did EPA consider in its evaluation?
7. What is EPA's evaluation of this delisting petition?
IV. The Risk Evaluation
A. How did EPA evaluate the risk of delisting these wastes?
B. What Changes have been made to the DRAS model?
V. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if the petitioners violates the terms and
conditions?
VI. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VII. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to grant the delisting petitions submitted by
Bayer, ConnocoPhillips Company, and Lockheed Martin Aeronautics Company
(Lockheed Martin Aeronautics Company) to have their petitioned wastes
excluded, or delisted, from the definition of a hazardous waste.
B. Why is EPA proposing to approve these delistings?
Each individual petition requests a delisting for the waste stream
be delisted. They do not believe that their petitioned wastes meet the
criteria for which EPA listed them. They also believe no additional
constituents or factors could cause the wastes to be hazardous. EPA's
review of these petitions included consideration of the original
listing criteria, and the additional factors required by the Hazardous
and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA,
42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the initial
delisting determination, EPA evaluated each of the petitioned wastes
against the listing criteria and factors cited in Sec. Sec.
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the
petitioners that the wastes are non-hazardous with respect to the
original listing criteria. If EPA had found, based on these reviews,
that the wastes remained hazardous based on the factors for which the
waste was originally listed, EPA would have proposed to deny the
petitions. EPA evaluated the wastes with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
such additional factors could cause the wastes to be hazardous. EPA
considered whether the wastes were acutely toxic, the concentration of
the constituents in the wastes, their tendencies to migrate and to
bioaccumulate, their persistence in the environment once released from
the wastes, plausible and specific types of management of the
petitioned waste, the quantities of wastes generated, and waste
variability. EPA believes that the each petitioned waste does not meet
the listing criteria and thus should not be a listed waste. EPA's
proposed decision to delist these individual waste streams from the
facilities above is based on the information submitted in support of
this rule, including descriptions of the waste and analytical data from
each facility.
C. What is unique about these delistings?
Each of the petitioned wastes has been submitted by individual
facilities. Each waste stream has been evaluated on its own merit. The
proposed rule is being combined because each of these petitions have
been evaluated using the new provisional delisting numbers generated by
DRAS Version 3.0.
II. Background
A. What is the history of the delisting program?
EPA published an amended list of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing section 3001 of RCRA. EPA has
amended this list several times and published it in Sec. Sec. 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 generally is hazardous, a specific waste
from an individual facility meeting the listing description 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 wastes from the list of hazardous wastes.
The facility petitions EPA because it does not believe the wastes
should be hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in Part 261 and further explained in the background documents for
the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics and
present sufficient information for EPA to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste. See Part 261 and the background documents for the
listed waste.
Generators remain obligated under RCRA to confirm whether their
waste remains non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in Sec. 260.22(a) and section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those
[[Page 28771]]
for which EPA listed the waste, if a reasonable basis exists to
determine that these additional factors could cause the waste to be
hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 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).
D. When would the proposed delisting exclusions 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 USCA 6930(b)(1), allows rules to
become effective in less than six months after EPA addresses public
comments when the regulated facility does not need the six-month period
to come into compliance. That is the case here, because this rule, if
finalized, would reduce the existing requirements for persons
generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How would this action affect the states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows the states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the state regulatory authority
to establish the status of their wastes under the state law. Delisting
petitions approved by the EPA Administrator (or his designee) under 40
CFR 260.22 are effective in the State of Texas only after the final
rule has been published in the Federal Register.
III. EPA's Evaluation of the Individual Waste Information and Data
A. Bayer Material Science LLC, Baytown Texas--TDI Residue
1. What waste did Bayer petition EPA to delist?
On September 2, 2004, Bayer petitioned EPA to exclude from the
lists of hazardous waste contained in Sec. 261.32, toluene
diisocyanate (TDI) residues generated from its facility located in
Baytown, Texas. The waste falls under the classification of a listed
waste under Sec. 261.30. The waste is listed as K027 hazardous wastes.
These are centrifuge and distillation residues from TDI production.
Specifically, in its petition, Bayer requested that EPA grant a
conditional exclusion for 9,780 cubic yards per year of the TDI
residues.
2. Who is Bayer and what process does it use to generate the petitioned
waste?
Bayer as a facility has four manufacturing groups: Plastics,
Coatings, Polyurethanes, and Industrial Chemicals. They manufacture six
products within the manufacturing groups. Hydrazine Hydrate; Maleic
Anhydride; Coatings; Makrolon Polycarbonate; Methane Diisocyanate; and
Toluene Diisocyanate (TDI) which is used in flexible foam applications
such as auto seating, furniture and bedding.
TDI is produced by a reaction of toluene diamine (TDA) and
phosgene. The reaction takes place in a solvent (orthodichlorobenzene,
ODB). The reaction produces TDI, HCL gas and a small amount of high
boiling impurities, which are removed in the TDI residue stream. The
HCL gas is recovered and re-used, all the phosgene is stripped from the
product stream and returned to the process in the reaction step. The
TDI, ODB, and the residue stream are processed further by separating
the residue from the TDI and ODB through a distillation process. The
stream resulting from the distillation process contains bottom residues
mixed with TDI and solvent. The residue separation step removes the TDI
and ODB, leaving the residue waste. ODB is separated from TDI and
recycled back into the process and pure TDI is sold as product.
3. What information did the facility submit to support this petition?
To support its petition, Bayer submitted:
Analytical results of the toxicity characteristic leaching
procedure (TCLP) and total constituent analysis for volatile and
semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and
metals for five TDI samples;
Analytical results from multiple pH leaching of metals;
and
A description of the TDI production process.
4. What were the results of Bayer's analyses?
EPA believes that the descriptions of the Bayer analytical
characterization provide a reasonable basis to grant Bayer's petition
for an exclusion of the TDI residues. EPA believes the data submitted
in support of the petition show the TDI residues are non-hazardous.
Analytical data for the residue samples were used in the DRAS to
develop delisting levels. The data summaries for compounds of concern
(COC)s are presented in Table 1. EPA has reviewed the sampling
procedures used by Bayer and has determined that it satisfies EPA
criteria for collecting representative samples of the variations in
constituent concentrations in the TDI residues. In addition, the data
submitted in support of the petition show that constituents in Bayer's
waste are presently below risk-based levels used in the delisting
decision-making. EPA believes that Bayer has successfully demonstrated
that the TDI residues are non-hazardous.
[[Page 28772]]
Table 1.--Analytical Results and Maximum Allowable Delisting Concentrations of the TDI Residues at Bayer
Polymers LLC In Baytown, TX
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Maximum
Maximum total Maximum TCLP (mg/ allowable TCLP
Constituents (mg/kg) L) delisting level
(mg/L)
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Arsenic.................................................. 1.0 0.011 0.10
Barium................................................... 0.17 0.837 36.0
Chloromethane (Methyl Chloride).......................... 0.09 0.033 6.06
Chromium................................................. 30.2 0.0034 2.27
Cobalt................................................... 0.42 0.0007 13.6
Copper................................................... 0.64 0.00610 25.9
Cyanide.................................................. 0.265 0.0133 3.08
Dichlorophenoxyacetic acid............................... 0.0310 0.0020 1.08
Diethyl phthalate........................................ 8.90 0.0010 1000.0
Endrin................................................... 0.28 0.0002 0.02
Lead..................................................... 0.18 0.00210 0.702
Nickel................................................... 24.8 0.0525 13.5
Selenium................................................. 88.0 0.0209 0.89
Tin...................................................... 1.70 0.0196 22.5
2-4 Toluenediamine....................................... 1.80 0.020 0.0459
Vanadium................................................. 8.40 0.0225 0.976
Zinc..................................................... 2.20 0.0628 197.0
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Note: 1. These levels represent the highest constituent concentration found in any one sample and do not
necessarily represent the specific level found in one sample.
5. What did EPA conclude about the facility's analysis?
EPA concluded, after reviewing Bayer's processes that no other
hazardous constituents of concern, other than those for which Bayer
tested, are likely to be present or formed as reaction products or by-
products in Bayer's wastes. In addition, on the basis of explanations
and analytical data provided by Bayer, pursuant to Sec. 260.22, EPA
concludes that the petitioned waste, sludge, does not exhibit any of
the characteristics of ignitability, corrosivity, reactivity, or
toxicity. See Sec. Sec. 261.21, 261.22, 261.23, and 261.24
respectively.
6. What other factors did EPA consider in its evaluation?
During the evaluation of this petition, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the sludge. With
regard to airborne dispersion in particular, EPA believes that exposure
to airborne contaminants from the petitioned waste is unlikely. No
appreciable air releases are likely from the sludge under any likely
disposal conditions. EPA evaluated the potential hazards resulting from
the unlikely scenario of airborne exposure to hazardous constituents
released from the waste water in an open landfill. The results of this
worst-case analysis indicated that there is no substantial present or
potential hazard to human health and the environment from airborne
exposure to constituents from the sludge.
7. What is EPA's evaluation of this delisting petition?
The descriptions by Bayer's of the hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this notice), provide a reasonable
basis for EPA to grant the petition. The data submitted in support of
the petition show that constituents in the waste are below the maximum
allowable concentrations (See Table 1). EPA believes that the sludge
generated by Bayer contains hazardous constituents at levels which will
present minimal short-term and long-term threats from the petitioned
waste to human health and the environment.
Thus, EPA believes that it should grant to Bayer an exclusion from
the list of hazardous wastes for the TDI residue. EPA believes that the
data submitted in support of the petition show the Bayer's TDI residue
to be non-hazardous.
EPA has reviewed the sampling procedures used by Bayer and has
determined they satisfy EPA's criteria for collecting representative
samples of variable constituent concentrations in the TDI residue. The
data submitted in support of the petition show that constituents in
Bayer's wastes are presently below the compliance-point concentrations
used in the delisting decision-making process and would not pose a
substantial hazard to the environment and the public. EPA believes that
Bayer has successfully demonstrated that the TDI residue is non-
hazardous.
EPA, therefore, proposes to grant an exclusion to Bayer for the TDI
residue described in its July 2004 petition. EPA's decision to exclude
this waste is based on analysis performed on samples taken of the TDI
residue.
If EPA finalizes the proposed rule, EPA will no longer regulate
9,780 cubic yards per year of TDI residue from Bayer's Baytown facility
under parts 262 through 268 and the permitting standards of part 270.
8. What is the final disposition of the waste?
If EPA finalizes the proposed rule, the TDI residue will be
disposed of in a Subtitle D landfill.
B. ConocoPhillips Company, Borger, Texas--Thermal Desorber Residual
Solids
1. What waste did ConocoPhillips Company petition EPA to delist?
On August 26, 2005, ConocoPhillips Company, (now WRB Refining LLC)
petitioned EPA to exclude from the lists of hazardous wastes contained
in Sec. Sec. 261.31, thermal desorber residual solids from processing
oil-bearing hazardous secondary materials including F037, F038, K048,
K049, K050 and K051 generated by its facility located in Borger, Texas.
The waste falls under the classification of listed waste pursuant to
Sec. 261.31. Specifically, in its petition, ConocoPhillips Company
requested that EPA grant a conditional exclusion for 1500 cubic yards
per year
[[Page 28773]]
of thermal desorber residual solids for a period of 10 years.
2. Who is ConocoPhillips Company and what process does it use to
generate the petitioned waste?
Effective, January 1, 2007, ConocoPhillips and EnCana Corporation
of Canada created an integrated North American heavy oil business
consisting of both upstream and downstream assets. The downstream
venture, WRB Refining LLC, consists of ConocoPhillips Company's Wood
River Refinery located in Roxana, IL and Borger Refinery, located in
Borger, TX. ConocoPhillips Company remains the operator of both
refineries.
ConocoPhillips Company operates the WRB Refining LLC (formerly
ConocoPhillips Company Borger Refinery which processes crude oil into
unleaded gasoline, furnace oil, jet fuels, stove oil, kerosene, dual-
purpose fuel oil, isobutene, propane, butane, hexane, heptane,
propylene and sulfur. Processes used in the refining of these products
are atmospheric distillation, vacuum distillation, desalting, fluid
catalytic cracking, hydrotreating, hydrogen fluoride alkylation
reforming. The use of the thermal desorption enables ConocoPhillips
Company Borger Refinery to process its oil-bearing hazardous secondary
materials in a manner that allows oil recovered from the desorption
process to be recycled back into the refining process. The thermal
desorber residual solids are currently disposed into the Texas
Commission for Environmental Quality (TCEQ) Class I-H hazardous waste
landfill, and the waste to be delisted will be disposed in the TCEQ
Class I/II proposed non-hazardous landfill location on site. The Class
I/II landfill is located within the facility and the nearest property
line is located more than 500 feet from the area of landfill
operations. The landfill is equipped with a 3-foot bentonite-amended
clay liner and a 60-mil geomembrane on its bottom and side slopes, and
a leachate collection system.
3. How did ConocoPhillips Company sample and analyze the data in this
petition?
To support its petition, ConocoPhillips Company submitted:
Historical information on waste generation and management
practices;
Results of the total constituents list for 40 CFR part
264, Appendix IX volatile and semi-volatile organic compounds and
metals. These wastes are also analyzed for cyanide and sulfide.
Results of the constituent list for appendix IX on
Toxicity Characteristic Leaching Procedure(TCLP) extract for volatiles,
semi-volatiles, and metals.
Results from total oil and grease analyses and multiple pH
measurements and;
Results from a total of ten composite samples including
two duplicates, representing 60 discrete thermal desorber residual
solids samples.
4. What were the results of ConocoPhillips Company's analyses?
EPA believes that the descriptions of the ConocoPhillips Company
analytical characterization provide a reasonable basis to grant
ConocoPhillips Company's petition for an exclusion of the thermal
desorber residual solids. EPA believes the data submitted in support of
the petition show the thermal desorber residual solids are non-
hazardous. Analytical data for the thermal desorber solid samples were
used in the DRAS to develop delisting levels. The data summaries for
compounds of concern (COC)s are presented in Table 2. EPA has reviewed
the sampling procedures used by ConocoPhillips Company and has
determined that it satisfies EPA criteria for collecting representative
samples of the variations in constituent concentrations in the thermal
desorber residual solids. In addition, the data submitted in support of
the petition show that constituents in ConocoPhillips Company's waste
are presently below risk-based levels used in the delisting decision-
making. EPA believes that ConocoPhillips Company has successfully
demonstrated that the thermal desorber residual solids are non-
hazardous.
Table 2.--Analytical Results and Maximum Allowable Delisting Concentration of the Thermal Desorber Residual
Solids at ConocoPhillips Refinery Company, Borger, Texas
----------------------------------------------------------------------------------------------------------------
Maximum allowable
Constituents Maximum total Maximum TCLP (mg/ TCLP delisting
(mg/kg) L) level (mg/L)
----------------------------------------------------------------------------------------------------------------
Benzene................................................ 0.047 <0.05 0.5
Carbon Disulfide....................................... 0.040 <0.05 552.00
Ethylbenzene........................................... 0.008 <0.05 106.00
Methylene Chloride..................................... 0.016 <0.05 0.077
Trichlorofluoromethane................................. 0.005 <0.05 151.00
Toluene................................................ 0.150 <0.05 148.00
Xylenes................................................ 0.040 <0.05 93.40
Acenapthene............................................ 2.60 <0.10 104.00
Anthracene............................................. 0.44 <0.10 253.00
2-chlorophenol......................................... 0.73 <0.10 28.10
1,4-Dichlorobenzene.................................... 1.90 <0.10 90.90
Dibenzofuran........................................... 0.59 <0.10 0.14
Fluoranthene........................................... 0.066 <0.10 24.00
Napthalene............................................. 0.94 <0.10 0.32
Phenol................................................. 1.20 <0.10 1690.00
Pyrene................................................. 1.10 <0.10 43.40
1,2,4-Trichlorobenzene................................. 2.30 <0.10 9.68
Silver................................................. 8.70 <0.10 5.0
Barium................................................. 734.00 2.60 100.0
Beryllium.............................................. 1.80 <0.05 0.76
Cobalt................................................. 70.30 <0.10 130.00
Chromium............................................... 320.00 <0.10 5.0
Copper................................................. 1090.00 0.23 234.00
Nickel................................................. 864.00 0.14 129.00
Tin.................................................... 22.60 0.015 379000.00
[[Page 28774]]
Vanadium............................................... 267.00 0.24 6.93
Zinc................................................... 1940.00 0.52 1930.00
Antimony............................................... 186.00 1.69 2.65
Arsenic................................................ 64.10 0.25 1.69
Cadmium................................................ 1.55 0001 1.0
Lead................................................... 135.00 0.007 5.00
Selenium............................................... 2280.00 0.37 1.0
Chromium+6............................................. 0.06 0.10 5.0
Mercury................................................ 0.05 0.002 0.20
Cyanide................................................ 1.30 0.012 30.10
----------------------------------------------------------------------------------------------------------------
5. What did EPA conclude about the facility's analysis?
EPA concluded, after reviewing ConocoPhillips Company's processes
that no other hazardous constituents of concern, other than those for
which ConocoPhillips Company tested, are likely to be present or formed
as reaction products or by-products in ConocoPhillips Company's wastes.
In addition, on the basis of explanations and analytical data provided
by ConocoPhillips Company, pursuant to Sec. 260.22, EPA concludes that
the petitioned waste, sludge, does not exhibit any of the
characteristics of ignitability, corrosivity, reactivity, or toxicity.
See Sec. Sec. 261.21, 261.22, 261.23, and 261.24 respectively.
6. What other factors did EPA consider in its evaluation?
During the evaluation of this petition, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the sludge. With
regard to airborne dispersion in particular, EPA believes that exposure
to airborne contaminants from the petitioned waste is unlikely. No
appreciable air releases are likely from the sludge under any likely
disposal conditions. EPA evaluated the potential hazards resulting from
the unlikely scenario of airborne exposure to hazardous constituents
released from the waste water in an open landfill. The results of this
worst-case analysis indicated that there is no substantial present or
potential hazard to human health and the environment from airborne
exposure to constituents from the sludge.
7. What is EPA's evaluation of this delisting petition?
The descriptions by ConocoPhillips Company of the hazardous waste
process and analytical characterization, with the proposed verification
testing requirements (as discussed later in this notice), provide a
reasonable basis for EPA to grant the petition. The data submitted in
support of the petition show that constituents in the waste are below
the maximum allowable concentrations (See Table 2). EPA believes that
the thermal desorber residual solids generated by ConocoPhillips
Company contain hazardous constituents at levels which will present
minimal short-term and long-term threats from the petitioned waste to
human health and the environment.
Thus, EPA believes that it should grant to WRB Refining LLC
(formerly ConocoPhillips Company Borger Refinery) an exclusion from the
list of hazardous wastes for the thermal desorber residual solids. EPA
believes that the data submitted in support of the petition show the
ConocoPhillips Company's thermal desorber residual solids to be non-
hazardous.
EPA has reviewed the sampling procedures used by ConocoPhillips
Company and has determined they satisfy EPA's criteria for collecting
representative samples of variable constituent concentrations in the
thermal desorber residual solids. The data submitted in support of the
petition show that constituents in ConocoPhillips Company's thermal
desorber residual solids are presently below the compliance-point
concentrations used in the delisting decision-making process and would
not pose a substantial hazard to the environment and the public. EPA
believes that ConocoPhillips Company has successfully demonstrated that
the thermal desorber residual solids are non-hazardous.
EPA, therefore, proposes to grant an exclusion to WRB Refining LLC
(formerly ConocoPhillips Company Borger Refinery) for the thermal
desorber residual solids described in its 2005 petition. EPA's decision
to exclude this waste is based on analysis performed on samples taken
of the solids.
If EPA finalizes the proposed rule, EPA will no longer regulate
1500 cubic yards per year of thermal desorber residual solids from WRB
Refining LLC (formerly ConocoPhillips Company Borger Refinery), Borger,
TX facility under Parts 262 through 268 and the permitting standards of
Part 270.
8. What is the final disposition of the waste?
If EPA finalizes the proposed rule, the thermal desorber residual
solids will be disposed of in an onsite non-hazardous industrial solid
waste landfill.
C. Lockheed Martin Aeronautics Company, Fort Worth, Texas--F019 Waste
Water Treatment Sludge
1. What waste did Lockheed Martin Aeronautics Company petition EPA to
delist?
Lockheed Martin Aeronautics Company petitioned EPA on February 21,
2006, to exclude from the lists of hazardous waste contained in
Sec. Sec. 261.31 and 261.32, the sludge from its waste water treatment
plant. The sludge waste stream is generated from the Lockheed Martin
Aeronautics Company facility located in Fort Worth, Texas. The sludge
is listed under EPA Hazardous Waste No. F019, because it is derived
from the treatment of listed waste water which is treated at the
facility's waste water treatment plant. Specifically, in its petition,
Lockheed Martin Aeronautics Company requested that EPA grant an
exclusion for 90 cubic yards per calendar year of sludge resulting from
the treatment of waste waters from the manufacturing processes at its
facility.
[[Page 28775]]
2. Who is Lockheed Martin Aeronautics Company and what process do they
use to generate the petition waste?
Lockheed Martin Aeronautics Company is engaged in design,
development, production and full system support of fighter/attack
aircraft for the United States Air Force and foreign governments. The
United States Air Force Plant No. 4 (AFP4), operated by Lockheed Martin
Aeronautics Company, consists of over seven million square feet of
advanced tactical fighter aircraft manufacturing, research,
development, and office area on a six hundred acre site. Manufacturing
advanced aircraft requires typical metal finishing techniques such as
aqueous cleaning, sulfuric acid anodizing, and chromate conversion
coating. Waste water from these processes is routed to a centralized
pre-treatment industrial waste water pre-treatment facility through
segregated waste collection lines. Industrial waste water is primarily
generated from the sulfuric acid anodize and chromated conversion
coating process line. This line consists of fourteen, 8,000 gallon
tanks arranged in linear fashion for the etch-clean-rinse-clean-rinse-
anodize-rinse-seal process.
Lockheed Martin Aeronautics Company intends to dispose of the
delisted sludge at a Subtitle D Landfill.
Treatment of the waste waters, which result from the manufacturing
process generates the sludge that is classified as F019 listed
hazardous waste pursuant to 40 CFR 261.31. The 40 CFR Part 261,
Appendix VII hazardous constituents which are the basis for listing
F019 hazardous waste are: Hexavalent chromium and cyanide.
3. What information did Lockheed Martin Aeronautics Company submit to
support this petition?
To support its petition, Lockheed Martin Aeronautics Company
submitted:
Analytical results of the toxicity characteristic leaching
procedure and total constituent analysis for volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for
six sludge samples;
Analytical results from multiple pH leaching of metals;
and
Descriptions of the waste water treatment process.
4. What were the results of Lockheed Martin Aeronautics Company's
analysis?
EPA believes that the descriptions of Lockheed Martin Aeronautics
Company's waste, and the analytical data submitted in support of the
petition show that the sludge is non-hazardous. Analytical data from
Lockheed Martin Aeronautics Company's sludge samples were used in the
Delisting Risk Assessment Software. The data summaries for detected
constituents are presented in Table 3. EPA has reviewed the sampling
procedures used by Lockheed Martin Aeronautics Company and has
determined that they satisfy EPA's criteria for collecting
representative samples of the variations in constituent concentrations
in the sludge. The data submitted in support of the petition show that
constituents in Lockheed Martin Aeronautics Company's wastes are
presently below health-based risk levels used in the delisting
decision-making. EPA believes that Lockheed Martin Aeronautics Company
has successfully demonstrated that the sludge is non-hazardous.
Table 3.--Maximum TCLP and Total Constituent Concentrations of the Sludge and Corresponding Delisting Limits \1\
----------------------------------------------------------------------------------------------------------------
Waste stream Waste stream
total TCLP Delisting
Chemical name concentration concentration concentration
(mg/kg) (mg/l) (mg/l)
----------------------------------------------------------------------------------------------------------------
Acetone................................................... 3.40E+00 5.00E-02 4.06E+04
Acetonitrile.............................................. 2.20E-02 <1.00E-02 7.66E+02
Antimony.................................................. 6.30E+02 1.30E-01 8.45E+00
Arsenic................................................... 9.30E+01 <5.00E-02 6.57E-01
Barium.................................................... 3.40E+02 6.80E-01 1.00E+02
Bis(2-Ethylhexyl) Phthalate............................... 3.20E+03 <1.00E-01 4.68E+29
Cadmium................................................... <1.20E+01 6.10E-02 1.00E+00
Carbon Disulfide.......................................... 1.00E-02 <1.00E-02 4.40E+03
Chromium.................................................. 2.50E+04 1.60E+00 5.00E+00
Chromium, Hexavalent...................................... 4.00E+2 <2.00E-02 5.00E+00
Cobalt.................................................... 8.50E+01 5.60E-01 1.04E+03
Copper.................................................... 4.00E+03 2.10E+01 1.81E+03
Cyanide................................................... 3.00E+02 9.90E-01 2.40E+02
Ethylbenzene.............................................. 2.20E-02 <1.00E-02 8.46E+02
Formaldehyde.............................................. 1.20E+02 1.40E+03 6.76E+03
Lead...................................................... 3.80E+03 1.40E-01 5.00E+00
Mercury................................................... 1.90E+00 <2.00E-02 2.00E-01
Methyl Ethyl Ketone (2-butanone).......................... 7.80E-01 2.50E-02 2.00E+02
Methyl Isobutyl Ketone.................................... <4.80E-02 <5.00E-02 3.61E+03
Methylene Chloride........................................ 3.90E-01 6.00E-02 6.16E+00
Nickel.................................................... 4.90E+03 3.00E+01 3.00E+01
Selenium.................................................. <6.00E+01 2.20E-02 1.00E+00
Silver.................................................... 3.30E+02 4.00E-02 5.00E+00
Toluene................................................... 1.10E-02 <1.00E-02 1.18E+03
Vanadium.................................................. 1.10E+03 1.30E-02 5.15E+01
Xylenes, Total............................................ 6.70E-02 <2.50E-02 7.45E+02
Zinc...................................................... 2.50E+03 1.50E+01 1.58E+04
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
[[Page 28776]]
5. What did EPA conclude about the facility's analysis?
EPA concluded, after reviewing Lockheed Martin Aeronautics
Company's processes that no other hazardous constituents of concern,
other than those for which Lockheed Martin Aeronautics Company tested,
are likely to be present or formed as reaction products or by-products
in Lockheed Martin Aeronautics Company's wastes. In addition, on the
basis of explanations and analytical data provided by Lockheed Martin
Aeronautics Company, pursuant to Sec. 260.22, EPA concludes that the
petitioned waste, sludge, does not exhibit any of the characteristics
of ignitability, corrosivity, reactivity, or toxicity. See Sec. Sec.
261.21, 261.22, 261.23, and 261.24 respectively.
6. What other factors did EPA consider in its evaluation?
During the evaluation of this petition, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the sludge. With
regard to airborne dispersion in particular, EPA believes that exposure
to airborne contaminants from the petitioned waste is unlikely. No
appreciable air releases are likely from the sludge under any likely
disposal conditions. EPA evaluated the potential hazards resulting from
the unlikely scenario of airborne exposure to hazardous constituents
released from the waste water in an open landfill. The results of this
worst-case analysis indicated that there is no substantial present or
potential hazard to human health and the environment from airborne
exposure to constituents from the sludge.
7. What is EPA's evaluation of this delisting petition?
The descriptions by Lockheed Martin Aeronautics Company of the
hazardous waste process and analytical characterization, with the
proposed verification testing requirements (as discussed later in this
notice), provide a reasonable basis for EPA to grant the petition. The
data submitted in support of the petition show that constituents in the
waste are below the maximum allowable concentrations (See Table 3). EPA
believes that the sludge generated by Lockheed Martin Aeronautics
Company contains hazardous constituents at levels which will present
minimal short-term and long-term threats from the petitioned waste to
human health and the environment.
Thus, EPA believes that it should grant to Lockheed Martin
Aeronautics Company an exclusion from the list of hazardous wastes for
the sludge. EPA believes that the data submitted in support of the
petition show the Lockheed Martin Aeronautics Company's sludge to be
non-hazardous.
EPA has reviewed the sampling procedures used by Lockheed Martin
Aeronautics Company and has determined they satisfy EPA's criteria for
collecting representative samples of variable constituent
concentrations in the sludge. The data submitted in support of the
petition show that constituents in Lockheed Martin Aeronautics
Company's wastes are presently below the compliance-point
concentrations used in the delisting decision-making process and would
not pose a substantial hazard to the environment and the public. EPA
believes that Lockheed Martin Aeronautics Company has successfully
demonstrated that the sludge is non-hazardous.
EPA, therefore, proposes to grant an exclusion to Lockheed Martin
Aeronautics Company for the sludge described in its February 2006
petition. EPA's decision to exclude this waste is based on analysis
performed on samples taken of the sludge.
If EPA finalizes the proposed rule, EPA will no longer regulate
242,000 pounds per year of sludge from Lockheed Martin Aeronautics
Company's Fort Worth facility under Parts 262 through 268 and the
permitting standards of Part 270.
IV. The Risk Evaluation
A. How did EPA evaluate the risk of delisting this waste?
The worst case scenario for management of the sludge was modeled
for disposal in a landfill. EPA used such information gathered to
identify plausible exposure routes (i.e., ground water, surface water,
soil, air) for hazardous constituents present in the sludge. EPA
determined that disposal in a Subtitle D landfill is the most
reasonable, worst-case disposal scenario for the wastes. In assessing
potential risks to ground water, EPA used the maximum estimated waste
volumes and the maximum reported extract concentrations as inputs to
the DRAS program to estimate the constituent concentrations in the
ground water at a hypothetical receptor well down gradient from the
disposal site. Using the risk level (carcinogenic risk of
10-5 and non-cancer hazard index of 0.1), the DRAS program
can back-calculate the acceptable receptor well concentrations
(referred to as compliance-point concentrations) using standard risk
assessment algorithms and Agency health-based numbers. Using the
maximum compliance-point concentrations and EPA Composite Model for
Leachate Migration with Transformation Products (EPACMTP) fate and
transport modeling factors, the DRAS further back-calculates the
maximum permissible waste constituent concentrations not expected to
exceed the compliance-point concentrations in ground water.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensured that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health and/or
the environment. The DRAS also uses the maximum estimated waste volumes
and the maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-based data and standard risk assessment and exposure algorithms
to predict maximum compliance-point concentrations of waste
constituents at a hypothetical point of exposure. Using fate and
transport equations, the DRAS uses the maximum compliance-point
concentrations and back-calculates the maximum allowable waste
constituent concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, the
facilities have never directly disposed of this material in a solid
waste landfill, so no representative data exists. Therefore, EPA has
[[Page 28777]]
determined that it would be unnecessary to request ground water
monitoring data.
EPA believes that the descriptions of the wastes and analytical
characterization which illustrate the presence of toxic constituents at
lower concentrations in these waste streams provide a reasonable basis
to conclude that the likelihood of migration of hazardous constituents
from the petitioned waste will be substantially reduced so that short-
term and long-term threats to human health and the environment are
minimized.
The DRAS results, which calculated the maximum allowable
concentration of chemical constituents in the wastes are presented in
Tables 1, 2 and 3. Based on the comparison of the DRAS results and
maximum TCLP concentrations found in Tables 1, 2, and 3, the petitioned
wastes should be delisted because no constituents of concern are likely
to be present or formed as reaction products or by products in the
wastes.
B. What changes have been made to the DRAS model?
In July 2007, U.S. EPA prepared an update of the Delisting Risk
Assessment Software (DRAS) by releasing version 3.0. The update
addressed a number of issues with version 2 and improved the fate and
transport modeling.
To estimate the downgradient concentrations of waste leachate
constituents released into groundwater, the DRAS utilizes conservative
dilution-attenuation factors (DAFs) taken from Monte-Carlo applications
of U.S. EPA's Composite Model for Leachate Migration with
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new
CMTP modeling runs. The new modeling takes advantage of: Updated
saturated flow and transport modules; a new surface impoundment module
and database; model corrections for unrealistic scenarios (like water
tables modeled above the ground surface); new isotherms for metals; and
a revised recharge and infiltration database. As a result, many of the
DAFs used in previous versions of DRAS have changed.
Further affecting the groundwater calculation, the relationships
for determining scaling factors used to scale the DAFs to account for
very small waste streams have been updated to reflect the new database
information on landfills and surface impoundments and were also
corrected for a metric conversion of cubic meters to cubic yards. The
new scaling factors are generally higher than those of previous
versions of DRAS, resulting in higher estimated dilution and
attenuation at lower waste volumes for both landfills and surface
impoundments.
The new metals DAFs, based on MINTEQA2 isotherms, can vary as a
function of the landfill leachate concentration. This means that the
effective DAF (including a scaling factor adjustment, if necessary) for
an input concentration may differ significantly with the effective DAF
that corresponds to the allowable leachate concentration. DRAS 3.0 now
displays the DAFs in both the forward calculated risk tables and the
tables of maximum allowable concentrations so that the difference is
evident to the user. The isotherms that vary by leachate concentration
are represented in DRAS by a look-up table with leachate concentrations
paired with DAFs. In the event that an actual concentration input to
DRAS lies between two values in the table, or an allowable receptor
concentration lies between two calculated receptor concentrations from
the table, DRAS 3.0 will linearly and proportionally extrapolate
between the two values to determine the corresponding exposure or
allowable leachate concentration.
EPA changed the calculation for particle emissions caused by
vehicles driving over the waste at the landfill to provide a more
realistic estimate. The estimate depends upon the number of trips per
day landfill vehicles make back and forth over the waste. In previous
versions of DRAS, this value was conservatively set at a 100 trips per
day, corresponding with an extremely high annual waste volume. In DRAS
3.0, a minimum number of trips per day was conservatively assumed from
the Subtitle D landfill survey (7.4 trips per day at the 95th
percentile of values reported). The number of trips per day specific to
the actual waste volume is then added to the minimum to reflect the
impact of very large waste streams. This will considerably reduce the
particle emission estimate for wastes generated at all but the largest
annual volumes.
EPA added a conversion from English to metric tons to the
calculation of particle emissions from waste unloading, resulting in a
decrease of roughly 10% over previous versions of DRAS. We also made a
unit-conversion factor correction to part of the air-volatile pathway
which will reduce the impact to the receptor.
An error in the back-calculation for fish ingestion pathway was
corrected to reflect the difference between freely dissolved and total
water column waste constituent concentrations.
For the estimation of risk and hazard, we made a number of updates
to the forward and back calculations. Previous versions of DRAS assumed
that only 12.5% of particles are absorbed by the receptor's respiratory
system. This is no longer necessary as toxicity reference values for
inhalation currently recommended by U.S. EPA relate risk or hazard
directly to exposure concentration. DRAS 3.0 does not include the 12.5%
reduction. This change significantly increases estimated risks due to
particle inhalation and lowers corresponding allowable concentrations.
DRAS Version 3.0.47 has a reformulated back calculation of the
allowable leachate concentrations from exposure due to contaminants
volatilized during household water use to match the forward calculation
of risk. In previous versions of DRAS, the forward calculation summed
the risks from exposure to all three evaluated household compartments
(the shower, the bathroom, and the whole house) while the back
calculation based the maximum allowable level on the single most
conservative compartment. The DRAS 3.0 maximum allowable leachate
concentrations are now based on the combined impact of all three
compartments. The house exposure was also expanded to a 900 minute (15
hour) daily exposure to reflect non-working residents who have an
overall 16 hour in-house exposure (the other 1 hour is spent in the
shower and bathroom).
EPA resolved the inconsistencies with the way DRAS chooses limiting
pathways for specific waste constituents in DRAS 3.0.
EPA checked all toxicity reference values in DRAS and updated where
necessary. Approximately 180 changes were made to the toxicity
reference values in DRAS based on data in IRIS, PPRTV, HEAST, NCEA,
CalEPA and other sources. Some route-to-route extrapolations of oral
toxicity data to inhalation exposure have been returned to DRAS 3.0 if
consistent with Agency policy. See U.S. EPA 2006 for full accounting of
this methodology. The same reference also includes discussions of
toxicity reference choices where the multiple values were available or
where the toxicity reference values were specific to particular species
of constituents.
V. Next Steps
A. With What Conditions Must the Petitioners Comply?
The petitioners must comply with the requirements in 40 CFR Part
261, Appendix IX, Tables 1 and 2 as amended by this notice. The text
below
[[Page 28778]]
gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituent concentrations
for which the facility must test in the petitioned wastes, below which
these wastes would be considered non-hazardous.
EPA selected the set of inorganic and organic constituents
specified in paragraph (1) and listed in 40 CFR Part 261, Appendix IX,
Tables 1 and 2, based on information in the petition. EPA compiled the
inorganic and organic constituents list from descriptions of the
manufacturing processes used by the facilities, previous test data
provided for the wastes, and the respective health-based levels used in
delisting decision-making. These delisting levels correspond to the
allowable levels measured in the leachable concentrations of the
petitioned wastes.
(2) Waste Holding and Handling
Waste classification as non-hazardous cannot begin until compliance
with the limits set in paragraph (1) has occurred for two consecutive
quarterly sampling events. For example, if the facility is issued a
final exclusion in August, the first quarter samples are due in
November and the second quarter samples are due in February. If EPA
deems that both the first and second quarter samples (a total of four)
meet all the delisting limits, classification of the waste as non-
hazardous can begin in March. If constituent levels in any sample taken
by the facility exceed any of the delisting levels set in paragraph
(1), the facility must: (i) notify EPA in accordance with paragraph
(6), and; (ii) manage and dispose of the petitioned waste as hazardous
waste generated under Subtitle C of RCRA.
(3) Verification Testing Requirements
The petitioner must complete a verification testing program on the
wastes to assure that they do not exceed the maximum levels specified
in paragraph (1). If EPA determines that the data collected under this
paragraph does not support the data provided in the petition, the
exclusion will not cover the tested waste. This verification program
operates on two levels.
The first part of the quarterly verification testing program
consists of testing a batch of sludge for specified indicator
parameters as described in paragraph (1). Each quarterly sampling event
will consist of at least two samples of the waste. Levels of
constituents measured in the samples of the waste that do not exceed
the levels set forth in paragraph (1) can be considered non-hazardous
after two consecutive quarters of sampling data meet the levels listed
in paragraph (1).
The second part of the verification testing program is the annual
testing of two representative composite samples of the wastes for all
constituents specified in paragraph (1).
If the petitioner demonstrates for two consecutive quarters
complete attainment of all specified limits, then the facility may
request approval of EPA to reduce the frequency of testing to annually.
If, after review of performance of the treatment system, EPA finds that
annual testing is adequately protective of human health and the
environment, then EPA may authorize the facility to reduce the
quarterly comprehensive sampling frequency to an annual basis. If the
annual testing of the wastes does not meet the delisting levels in
paragraph (1), the facility must notify EPA according to the
requirements in paragraph (6). EPA will then take the appropriate
actions necessary to protect human health and the environment as
described in paragraph (6). The facility must provide sampling results
that support the rationale that the delisting exclusion should not be
withdrawn.
The exclusion is effective upon publication in the Federal Register
but the change in waste classification as ``non-hazardous'' cannot
begin until two consecutive quarters of verification sampling comply
with the levels specified in paragraph (1). The waste classification as
``non-hazardous'' is also not authorized, if the facility fails to
perform the quarterly and yearly testing as specified herein. Should
the facility fail to conduct the quarterly/yearly testing as specified
herein, then disposal of sludge as delisted waste may not occur in the
following quarter(s)/year(s) until the facility obtains the written
approval of EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow the facility the flexibility of modifying
its processes (for example, changes in equipment or change in operating
conditions) to improve its treatment processes. However, the facility
must prove the effectiveness of the modified process and request
approval from EPA. The facility must manage wastes generated during the
new process demonstration as hazardous waste through verification
sampling within 30 days of start-up.
(5) Data Submittals
To provide appropriate documentation that the facility is correctly
managing the waste, the facility must compile, summarize, and keep
delisting records on-site for a minimum of five years. It should keep
all analytical data obtained pursuant to paragraph (3), including
quality control information, for five years. Paragraph (5) requires
that the facility furnish these data upon request for inspection by any
employee or representative of EPA or the State of Texas.
If the proposed exclusion is made final, then it will apply only to
amount of wastes designated by the exclusion per calendar year.
EPA would require a petitioner to submit additional verification
data under any of the following circumstances:
(a) If the facility significantly alters the manufacturing process
treatment system except as described in paragraph (4).
(b) If the facility uses any new manufacturing or production
process(es), or significantly changes the current process(es) described
in its petition; or
(c) If the facility makes any changes that could affect the
composition or type of waste generated.
The facility must submit a modification to the petition complete
with full sampling and analysis for circumstances where the waste
volume changes and/or additional waste codes are added to the waste
stream. EPA will publish an amendment to the exclusion if the changes
are acceptable.
The facility must manage waste volumes greater than those
designated by the exclusion as hazardous waste until EPA grants a
revised exclusion. When this exclusion becomes final, the management by
the facility of the wastes covered in this petition would be relieved
from Subtitle C jurisdiction. The facility may not classify the waste
as non-hazardous until the revised exclusion is finalized.
(6) Reopener
The purpose of paragraph (6) is to require the facility 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. The
petitioner must also use this procedure if the waste sample in the
annual testing fails to meet the levels found in paragraph (1). This
provision will allow EPA to reevaluate the exclusion, if a source
provides new or additional information to EPA. EPA will evaluate the
information on which it based the decision to see if it is still
correct or if circumstances have changed so that the information is no
longer correct or would cause EPA to deny the petition, if presented.
This provision expressly requires the petitioner to report
differing site
[[Page 28779]]
conditions or assumptions used in the petition in addition to failure
to meet the annual testing conditions within 10 days of discovery. If
EPA discovers such information itself or from a third party, it can act
on it as appropriate. The language being proposed is similar to those
provisions found in RCRA regulations governing no-migration petitions
at Sec. 268.6.
It is EPA's position that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. EPA may reopen a delisting decision when
it receives new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delisting is
merited in light of EPA's experience. See the Federal Register notice
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62
FR 63458 (December 1, 1997) where the delisted waste leached at greater
concentrations into the environment than the concentrations predicted
when conducting the TCLP, leading EPA to repeal the delisting. If an
immediate threat to human health and the environment presents itself,
EPA will continue to address these situations on a case-by-case basis.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA section 553 (b)(3)(B).
B. What happens if the petitioner violates the terms and conditions?
If the petitioner 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 the petitioner to conduct the appropriate waste
analysis and comply with the criteria explained above in paragraph (1)
of the exclusion.
VI. Public Comments
A. How may I as an interested party submit comments?
EPA is requesting public comments on this proposed decision. You
may submit comments on one of the three petitions or the decision as a
whole. Please send three copies of your comments. Send two copies to
the Chief, Corrective Action and Waste Minimization Section, Multimedia
Permitting and Planning Division, U.S. Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to
the Industrial Hazardous Waste Permits Division, Technical Evaluation
Team, Texas Commission on Environmental Quality, P.O. Box 13087,
Austin, TX 78711-3087. Identify your comments at the top with this
regulatory docket number. You may submit your comments electronically
to Michelle Peace at [email protected].
B. How may I review the docket or obtain copies of the proposed
exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue,
Dallas, TX 75202. It is available for viewing in the EPA Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The public may copy material from any regulatory docket
at no cost for the first 100 pages and at fifteen cents per page for
additional copies.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules (1) rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties, 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
[[Page 28780]]
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: May 2, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
2. In Table 1 of Appendix IX of part 261 add the following waste
streams 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
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Lockheed Martin Aeronautics Company........ Fort Worth, TX...................... Sludge (EPA Hazardous Waste
Number F019) generated at a
maximum rate of 90 cubic
yards per calendar year
after [insert publication
date of the final rule].
For the exclusion to be
valid, Lockheed Martin
Aeronautics Company must
implement a verification
testing program that meets
the following Paragraphs:
(1) Delisting Levels: All
concentrations for those
constituents must not exceed
the maximum allowable
concentrations in mg/l
specified in this paragraph.
Sludge Leachable
Concentrations (mg/l):
Antimony--8.45; Arsenic--
0.657; Barium--100.0;
Cadmium--1.00; Chromium--
5.0; Chromium, Hexavalent--
5.0; Cobalt--1040; Copper--
1810; Cyanide--240; Lead--
5.0; Mercury--0.20; Nickel--
1040; Selenium--1.0; Silver--
5.0; Vanadium--51.5; Zinc--
15800; Acetone--40600;
Acetonitrile--766; Carbon
Disulfide--4400;
Ethylbenzene--846; Methyl
Ethyl Ketone--200.0; Methyl
Isobutyl Ketone--3610;
Methylene Chloride--6.16;
Toluene--1180; Xylenes--745.
(2) Waste Holding and
Handling:
(A) Waste classification as
non-hazardous can not begin
until compliance with the
limits set in paragraph (1)
for sludge has occurred for
two consecutive quarterly
sampling events.
(B) If constituent levels in
any sample taken by Lockheed
Martin Aeronautics Company
exceed any of the delisting
levels set in paragraph (1)
for the sludge, Lockheed
Martin Aeronautics Company
must do the following:
(i) Notify EPA in accordance
with paragraph (6) and
(ii) Manage and dispose of
the sludge as hazardous
waste generated under
Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming
final, Lockheed Martin
Aeronautics Company may
perform quarterly analytical
testing by sampling and
analyzing the sludge as
follows:
(A) Quarterly Testing:
(i) Collect two
representative composite
samples of the sludge at
quarterly intervals after
EPA grants the final
exclusion. The first
composite samples may be
taken at any time after EPA
grants the final approval.
Sampling should be performed
in accordance with the
sampling plan approved by
EPA in support of the
exclusion.
(ii) Analyze the samples for
all constituents listed in
paragraph (1). Any composite
sample taken that exceeds
the delisting levels listed
in paragraph (1) for the
sludge must be disposed as
hazardous waste in
accordance with the
applicable hazardous waste
requirements.
(iii) Within thirty (30) days
after taking each quarterly
sample, Lockheed Martin
Aeronautics Company will
report its quarterly
analytical test data to EPA.
If levels of constituents
measured in the samples of
the sludge do not exceed the
levels set forth in
paragraph (1) of this
exclusion for two
consecutive quarters or
sampling events, Lockheed
Martin Aeronautics Company
can manage and dispose the
non-hazardous sludge
according to all applicable
solid waste regulations.
(B) Annual Testing:
(i) If Lockheed Martin
Aeronautics Company
completes the quarterly
testing specified in
paragraph (3) above and no
sample contains a
constituent at a level which
exceeds the limits set forth
in paragraph (1), Lockheed
Martin Aeronautics Company
may begin annual testing as
follows: Lockheed Martin
Aeronautics Company must
test two representative
composite samples of the
sludge for all constituents
listed in paragraph (1) at
least once per calendar
year.
(ii) The samples for the
annual testing shall be a
representative composite
sample according to
appropriate methods. As
applicable to the method-
defined parameters of
concern, analyses requiring
the use of SW-846 methods
incorporated by reference in
40 CFR 260.11 must be used
without substitution. As
applicable, the SW-846
methods might include
Methods 0010, 0011, 0020,
0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061,
1010A, 1020B,1110A, 1310B,
1311, 1312, 1320, 1330A,
9010C, 9012B, 9040C, 9045D,
9060A, 9070A (uses EPA
Method 1664, Rev. A), 9071B,
and 9095B. Methods must meet
Performance Based
Measurement System Criteria
in which the Data Quality
Objectives are to
demonstrate that samples of
the Lockheed Martin
Aeronautics Company sludge
are representative for all
constituents listed in
paragraph (1).
[[Page 28781]]
(iii) The samples for the
annual testing taken for the
second and subsequent annual
testing events shall be
taken within the same
calendar month as the first
annual sample taken.
(iv) The annual testing
report should include the
total amount of waste in
cubic yards disposed during
the calendar year.
(4) Changes in Operating
Conditions: If Lockheed
Martin Aeronautics Company
significantly changes the
process described in its
petition or starts any
processes that generate(s)
the waste that may or could
affect the composition or
type of waste generated (by
illustration, but not
limitation, changes in
equipment or operating
conditions of the treatment
process), it must notify EPA
in writing and it may no
longer handle the wastes
generated from the new
process as non-hazardous
until the wastes meet the
delisting levels set in
paragraph (1) and it has
received written approval to
do so from EPA.
Lockheed Martin Aeronautics
Company must submit a
modification to the petition
complete with full sampling
and analysis for
circumstances where the
waste volume changes and/or
additional waste codes are
added to the waste stream.
(5) Data Submittals:
Lockheed Martin Aeronautics
Company must submit the
information described below.
If Lockheed Martin
Aeronautics Company fails to
submit the required data
within the specified time or
maintain the required
records on-site for the
specified time, EPA, at its
discretion, will consider
this sufficient basis to
reopen the exclusion as
described in paragraph (6).
Lockheed Martin Aeronautics
Company must:
(A) Submit the data obtained
through paragraph (3) to the
Chief, Corrective Action and
Waste Minimization Section,
Multimedia Planning and
Permitting Division, U.S.
Environmental Protection
Agency Region 6, 1445 Ross
Ave., Dallas, Texas, 75202,
within the time specified.
All supporting data can be
submitted on CD-ROM or some
comparable electronic media.
(B) Compile records of
analytical data from
paragraph (3), summarized,
and maintained on-site for a
minimum of five years.
(C) Furnish these records and
data when either EPA or the
State of Texas requests them
for inspection.
(D) Send along with all data
a signed copy of the
following certification
statement, to attest to the
truth and accuracy of the
data submitted:
``Under civil and criminal
penalty of law for the
making or submission of
false or fraudulent
statements or
representations (pursuant to
the applicable provisions of
the Federal Code, which
include, but may not be
limited to, 18 U.S.C. 1001
and 42 U.S.C. 6928), I
certify that the information
contained in or accompanying
this document is true,
accurate and complete.
As to the (those) identified
section(s) of this document
for which I cannot
personally verify its
(their) truth and accuracy,
I certify as the company
official having supervisory
responsibility for the
persons who, acting under my
direct instructions, made
the verification that this
information is true,
accurate and complete.
If any of this information is
determined by EPA in its
sole discretion to be false,
inaccurate or incomplete,
and upon conveyance of this
fact to the company, I
recognize and agree that
this exclusion of waste will
be void as if it never had
effect or to the extent
directed by EPA and that the
company will be liable for
any actions taken in
contravention of the
company's RCRA and CERCLA
obligations premised upon
the company's reliance on
the void exclusion.''
(6) Reopener:
(A) If, anytime after
disposal of the delisted
waste Lockheed Martin
Aeronautics Company
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 a level higher
than the delisting level
allowed by the Division
Director in granting the
petition, then the facility
must report the data, in
writing, to the Division
Director within 10 days of
first possessing or being
made aware of that data.
(B) If either the quarterly
or annual testing of the
waste does not meet the
delisting requirements in
paragraph 1, Lockheed Martin
Aeronautics Company must
report the data, in writing,
to the Division Director
within 10 days of first
possessing or being made
aware of that data.
(C) If Lockheed Martin
Aeronautics Company fails to
submit the information
described in paragraphs (5),
(6)(A) or (6)(B) or if any
other information is
received from any source,
the Division Director will
make a preliminary
determination as to whether
the reported information
requires EPA action to
protect human health and/or
the environment. Further
action may include
suspending, or revoking the
exclusion, or other
appropriate response
necessary to protect human
health and the environment.
[[Page 28782]]
(D) If the Division Director
determines that the reported
information requires action
by EPA, the Division
Director will notify the
facility in writing of the
actions the Division
Director believes are
necessary to protect human
health and the environment.
The notice shall include a
statement of the proposed
action and a statement
providing the facility with
an opportunity to present
information as to why the
proposed EPA action is not
necessary. The facility
shall have 10 days from the
date of the Division
Director's notice to present
such information.
(E) Following the receipt of
information from the
facility described in
paragraph (6)(D) or (if no
information is presented
under paragraph (6)(D)) the
initial receipt of
information described in
paragraphs (5), (6)(A) or
(6)(B), the Division
Director will issue a final
written determination
describing EPA actions that
are necessary to protect
human health and/or the
environment. Any required
action described in the
Division Director's
determination shall become
effective immediately,
unless the Division Director
provides otherwise.
----------------------------------------------------------------------------------------------------------------
* * * * *
2. In Table 1of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
WRB Refining LLC........................... Borger, TX.......................... Thermal desorber residual
solids (Hazardous Waste No.
F037, F038, K048, K049,
K050, K051) generated at a
maximum annual rate of 1,500
cubic yards per calendar
year after [insert
publication date of the
final rule] and disposed in
Subtitle D Landfill.
For the exclusion to be
valid, WRB Refining LLC must
implement a verification
testing program that meets
the following Paragraphs:
(1) Delisting Levels: All
concentrations for those
constituents must not exceed
the maximum allowable
concentrations in mg/l
specified in this paragraph.
Thermal Desorber Residual
Solid Leachable
Concentrations (mg/l):
Antimony--2.65; Arsenic--
1.69; Barium--100;
Beryllium--0.76; Cadmium--
1.00; Chromium--5.0;
Chromium, Hexavalent--5.0;
Cobalt--130.0; Copper--
234.0; Cyanide--30.10; Lead--
5.0; Mercury--0.20; Nickel--
129.0; Selenium--1.0;
Silver--5.0; Tin--3790.00;
Vanadium--6.93; Zinc--
1930.0;
Acenapthene--104.0;
Anthracene--253.0; Benzene--
0.5; Carbon Disulfide--
552.0; Dibenzofuran--0.14;
1,4-Dichlororbenzene--7.50;
Ethylbenzene--106.0;
Fluoranthene--24.00;
Methylene Chloride--0.077;
Naphthalene--0.32; Phenol--
1690.00; Pyrene--43.40;
Toluene--148.0; 1,2,4-
Trichlorobenzene--9.68;
Trichlorofluoromethane--151.
0; Xylenes--93.40.
(2) Waste Holding and
Handling:
(A) Waste classification as
non-hazardous cannot begin
until compliance with the
limits set in paragraph (1)
for thermal desorber
residual solids has occurred
for two consecutive
quarterly sampling events.
(B) If constituent levels in
any sample taken by WRB
Refining LLC exceed any of
the delisting levels set in
paragraph (1) for the
thermal desorber residual
solids, WRB Refining LLC
must do the following:
(i) Notify EPA in accordance
with paragraph (6) and
(ii) Manage and dispose the
thermal desorber residual
solids as hazardous waste
generated under Subtitle C
of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming
final, WRB Refining LLC may
perform quarterly analytical
testing by sampling and
analyzing the desorber
residual solids as follows:
(A) Quarterly Testing:
(i) Collect two
representative composite
samples of the sludge at
quarterly intervals after
EPA grants the final
exclusion. The first
composite samples may be
taken at any time after EPA
grants the final approval.
Sampling should be performed
in accordance with the
sampling plan approved by
EPA in support of the
exclusion.
(ii) Analyze the samples for
all constituents listed in
paragraph (1). Any composite
sample taken that exceeds
the delisting levels listed
in paragraph (1) for the
sludge must be disposed as
hazardous waste in
accordance with the
applicable hazardous waste
requirements.
(iii) Within thirty (30) days
after taking its first
quarterly sample, WRB
Refining LLC will report its
first quarterly analytical
test data to EPA. If levels
of constituents measured in
the samples of the sludge do
not exceed the levels set
forth in paragraph (1) of
this exclusion for two
consecutive quarters, WRB
Refining LLC can manage and
dispose the non-hazardous
thermal desorber residual
solids according to all
applicable solid waste
regulations.
[[Page 28783]]
(B) Annual Testing:
(i) If WRB Refining LLC
completes the quarterly
testing specified in
paragraph (3) above and no
sample contains a
constituent at a level which
exceeds the limits set forth
in paragraph (1), WRB
Refining LLC may begin
annual testing as follows:
WRB Refining LLC must test
two representative composite
samples of the thermal
desorber residual solids for
all constituents listed in
paragraph (1) at least once
per calendar year.
(ii) The samples for the
annual testing shall be a
representative composite
sample according to
appropriate methods. As
applicable to the method-
defined parameters of
concern, analyses requiring
the use of SW-846 methods
incorporated by reference in
40 CFR 260.11 must be used
without substitution. As
applicable, the SW-846
methods might include
Methods 0010, 0011, 0020,
0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061,
1010A, 1020B, 1110A, 1310B,
1311, 1312, 1320, 1330A,
9010C, 9012B, 9040C, 9045D,
9060A, 9070A (uses EPA
Method 1664, Rev. A), 9071B,
and 9095B. Methods must meet
Performance Based
Measurement System Criteria
in which the Data Quality
Objectives are to
demonstrate that samples of
the WRB Refining LLC thermal
desorber residual solids are
representative for all
constituents listed in
paragraph (1).
(iii) The samples for the
annual testing taken for the
second and subsequent annual
testing events shall be
taken within the same
calendar month as the first
annual sample taken.
(iv) The annual testing
report should include the
total amount of waste in
cubic yards disposed during
the calendar year.
(4) Changes in Operating
Conditions: If WRB Refining
LLC significantly changes
the process described in its
petition or starts any
processes that generate(s)
the waste that may or could
affect the composition or
type of waste generated (by
illustration, but not
limitation, changes in
equipment or operating
conditions of the treatment
process), it must notify EPA
in writing and it may no
longer handle the wastes
generated from the new
process as non-hazardous
until the wastes meet the
delisting levels set in
paragraph (1) and it has
received written approval to
do so from EPA.
WRB Refining LLC must submit
a modification to the
petition complete with full
sampling and analysis for
circumstances where the
waste volume changes and/or
additional waste codes are
added to the waste stream.
(5) Data Submittals:
WRB Refining LLC must submit
the information described
below. If WRB Refining LLC
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). WRB Refining
LLC must:
(A) Submit the data obtained
through paragraph (3) to the
Chief, Corrective Action and
Waste Minimization Section,
Multimedia Planning and
Permitting Division, U. S.
Environmental Protection
Agency Region 6, 1445 Ross
Ave., Dallas, Texas, 75202,
within the time specified.
All supporting data can be
submitted on CD-ROM or some
comparable electronic media.
(B) Compile records of
analytical data from
paragraph (3), summarized,
and maintained on-site for a
minimum of five years.
(C) Furnish these records and
data when either EPA or the
State of Texas requests them
for inspection.
(D) Send along with all data
a signed copy of the
following certification
statement, to attest to the
truth and accuracy of the
data submitted:
``Under civil and criminal
penalty of law for the
making or submission of
false or fraudulent
statements or
representations (pursuant to
the applicable provisions of
the Federal Code, which
include, but may not be
limited to, 18 U.S.C. 1001
and 42 U.S.C. 6928), I
certify that the information
contained in or accompanying
this document is true,
accurate and complete.
As to the (those) identified
section(s) of this document
for which I cannot
personally verify its
(their) truth and accuracy,
I certify as the company
official having supervisory
responsibility for the
persons who, acting under my
direct instructions, made
the verification that this
information is true,
accurate and complete.
If any of this information is
determined by EPA in its
sole discretion to be false,
inaccurate or incomplete,
and upon conveyance of this
fact to the company, I
recognize and agree that
this exclusion of waste will
be void as if it never had
effect or to the extent
directed by EPA and that the
company will be liable for
any actions taken in
contravention of the
company's RCRA and CERCLA
obligations premised upon
the company's reliance on
the void exclusion.''
(6) Reopener
(A) If, anytime after
disposal of the delisted
waste WRB Refining LLC
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.
[[Page 28784]]
(B) If either the quarterly
or annual testing of the
waste does not meet the
delisting requirements in
paragraph 1, WRB Refining
LLC must report the data, in
writing, to the Division
Director within 10 days of
first possessing or being
made aware of that data.
(C) If WRB Refining LLC fails
to submit the information
described in paragraphs (5),
(6)(A) or (6)(B) or if any
other information is
received from any source,
the Division Director will
make a preliminary
determination as to whether
the reported information
requires EPA action to
protect human health and/or
the environment. Further
action may include
suspending, or revoking the
exclusion, or other
appropriate response
necessary to protect human
health and the environment.
(D) If the Division Director
determines that the reported
information requires action
by EPA, the Division
Director will notify the
facility in writing of the
actions the Division
Director believes are
necessary to protect human
health and the environment.
The notice shall include a
statement of the proposed
action and a statement
providing the facility with
an opportunity to present
information as to why the
proposed EPA action is not
necessary. The facility
shall have 10 days from the
date of the Division
Director's notice to present
such information.
(E) Following the receipt of
information from the
facility described in
paragraph (6)(D) or (if no
information is presented
under paragraph (6)(D)) the
initial receipt of
information described in
paragraphs (5), (6)(A) or
(6)(B), the Division
Director will issue a final
written determination
describing EPA actions that
are necessary to protect
human health and/or the
environment. Any required
action described in the
Division Director's
determination shall become
effective immediately,
unless the Division Director
provides otherwise.
----------------------------------------------------------------------------------------------------------------
* * * * *
3. In Table 2 of Appendix IX of Part 261 add the following waste
streams 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 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
Bayer Material Science LLC................. Baytown, TX......................... Toluene Diisocyanate (TDI)
Residue (EPA Hazardous Waste
Nos. K027) generated at a
maximum rate of 9,780 cubic
yards per calendar year
after [insert publication
date of the final rule]. For
the exclusion to be valid,
Bayer must implement a
verification testing program
that meets the following
Paragraphs:
(1) Delisting Levels:
All concentrations for those
constituents must not exceed
the maximum allowable
concentrations in mg/l
specified in this paragraph.
TDI Residue Leachable
Concentrations (mg/l):
Arsenic--0.10, Barium--36.0;
Chloromethane--6.06;
Chromium--2.27; Cobalt--
13.6; Copper--25.9; Cyanide--
3.08; Dichlorophenoxyacetic
acid--1.08; Diethyl
phthalate--1000.0; Endrin--
0.02; Lead--0.702; Nickel--
13.5; Selenium--0.89; Tin--
22.5; Vanadium--0.976; Zinc--
197.0; 2,4-Toluenediamine--
0.0459.
(2) Waste Holding and
Handling:
(A) Waste classification as
non-hazardous can not begin
until compliance with the
limits set in paragraph (1)
for the TDI residue has
occurred for two consecutive
quarterly sampling events
and the reports have been
approved by EPA.
(B) If constituent levels in
any sample taken by Bayer
exceed any of the delisting
levels set in paragraph (1)
for the TDI residue, Bayer
must do the following:
(i) Notify EPA in accordance
with paragraph (6) and
(ii) Manage and dispose of
the TDI residue as hazardous
waste generated under
Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming
final, Bayer must perform
quarterly analytical testing
by sampling and analyzing
the TDI residue as follows:
(A) Quarterly Testing:
(i) Collect two
representative composite
samples of the TDI residue
at quarterly intervals after
EPA grants the final
exclusion. The first
composite samples may be
taken at any time after EPA
grants the final approval.
Sampling should be performed
in accordance with the
sampling plan approved by
EPA in support of the
exclusion.
(ii) Analyze the samples for
all constituents listed in
paragraph (1). Any composite
sample taken that exceeds
the delisting levels listed
in paragraph (1) for the TDI
residue must be disposed as
hazardous waste in
accordance with the
applicable hazardous waste
requirements.
(iii) Within thirty (30) days
after taking its first
quarterly sample, Bayer will
report its first quarterly
analytical test data to EPA.
If levels of constituents
measured in the samples of
the TDI residue do not
exceed the levels set forth
in paragraph (1) of this
exclusion for two
consecutive quarters, Bayer
can manage and dispose the
non-hazardous TDI residue
according to all applicable
solid waste regulations.
(B) Annual Testing:
[[Page 28785]]
(i) If Bayer completes the
quarterly testing specified
in paragraph (3) above and
no sample contains a
constituent at a level which
exceeds the limits set forth
in paragraph (1), Bayer can
begin annual testing as
follows: Bayer must test two
representative composite
samples of the TDI residue
for all constituents listed
in paragraph (1) at least
once per calendar year.
(ii) The samples for the
annual testing shall be a
representative composite
sample according to
appropriate methods. As
applicable to the method-
defined parameters of
concern, analyses requiring
the use of SW-846 methods
incorporated by reference in
40 CFR 260.11 must be used
without substitution. As
applicable, the SW-846
methods might include
Methods 0010, 0011, 0020,
0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061,
1010A, 1020B, 1110A, 1310B,
1311, 1312, 1320, 1330A,
9010C, 9012B, 9040C, 9045D,
9060A, 9070A (uses EPA
Method 1664, Rev. A), 9071B,
and 9095B. Methods must meet
Performance Based
Measurement System Criteria
in which the Data Quality
Objectives are to
demonstrate that samples of
the Bayer spent carbon are
representative for all
constituents listed in
paragraph (1).
(iii) The samples for the
annual testing taken for the
second and subsequent annual
testing events shall be
taken within the same
calendar month as the first
annual sample taken.
(iv) The annual testing
report must include the
total amount of waste in
cubic yards disposed during
the calendar year.
(4) Changes in Operating
Conditions: If Bayer
significantly changes the
process described in its
petition or starts any
process that generates the
waste that may or could
affect the composition or
type of waste generated (by
illustration, but not
limitation, changes in
equipment or operating
conditions of the treatment
process), it must notify EPA
in writing and it may no
longer handle the wastes
generated from the new
process as non-hazardous
until the wastes meet the
delisting levels set in
paragraph (1) and it has
received written approval to
do so from EPA. Bayer must
submit a modification to the
petition complete with full
sampling and analysis for
circumstances where the
waste volume changes and/or
additional waste codes are
added to the waste stream.
(5) Data Submittals:
Bayer must submit the
information described below.
If Bayer fails to submit the
required data within the
specified time or maintain
the required records on-site
for the specified time, EPA,
at its discretion, will
consider this sufficient
basis to reopen the
exclusion as described in
paragraph (6). Bayer must:
(A) Submit the data obtained
through paragraph 3 to the
Chief, Corrective Action and
Waste Minimization Section,
Multimedia Planning and
Permitting Division, U. S.
Environmental Protection
Agency Region 6, 1445 Ross
Ave., Dallas, Texas 75202,
within the time specified.
All supporting data can be
submitted on CD-ROM or some
comparable electronic media.
(B) Compile records of
analytical data from
paragraph (3), summarized,
and maintained on-site for a
minimum of five years.
(C) Furnish these records and
data when either EPA or the
State of Texas requests them
for inspection.
(D) Send along with all data
a signed copy of the
following certification
statement, to attest to the
truth and accuracy of the
data submitted.'' Under
civil and criminal penalty
of law for the making or
submission of false or
fraudulent statements or
representations (pursuant to
the applicable provisions of
the Federal Code, which
include, but may not be
limited to, 18 U.S.C. 1001
and 42 U.S.C. 6928), I
certify that the information
contained in or accompanying
this document is true,
accurate and complete. As to
the (those) identified
section(s) of this document
for which I cannot
personally verify its
(their) truth and accuracy,
I certify as the company
official having supervisory
responsibility for the
persons who, acting under my
direct instructions, made
the verification that this
information is true,
accurate and complete. If
any of this information is
determined by EPA in its
sole discretion to be false,
inaccurate or incomplete,
and upon conveyance of this
fact to the company, I
recognize and agree that
this exclusion of waste will
be void as if it never had
effect or to the extent
directed by EPA and that the
company will be liable for
any actions taken in
contravention of the
company's RCRA and CERCLA
obligations premised upon
the company's reliance on
the void exclusion.''
(6) Reopener:
(A) If, anytime after
disposal of the delisted
waste Bayer possesses or is
otherwise made aware of any
environmental data
(including but not limited
to leachate data or ground
water monitoring data) or
any other data relevant to
the delisted waste
indicating that any
constituent identified for
the delisting verification
testing is at a level higher
than the delisting level
allowed by EPA in granting
the petition, then the
facility must report the
data, in writing, to EPA
within 10 days of first
possessing or being made
aware of that data.
(B) If either the quarterly
or annual testing of the
waste does not meet the
delisting requirements in
paragraph 1, Bayer must
report the data, in writing,
to EPA within 10 days of
first possessing or being
made aware of that data.
[[Page 28786]]
(C) If Bayer fails to submit
the information described in
paragraphs (5), (6)(A) or
(6)(B) or if any other
information is received from
any source, EPA will make a
preliminary determination as
to whether the reported
information requires action
to protect human health and/
or the environment. Further
action may include
suspending, or revoking the
exclusion, or other
appropriate response
necessary to protect human
health and the environment.
(D) If EPA determines that
the reported information
requires action, EPA will
notify the facility in
writing of the actions it
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
explaining why the proposed
EPA action is not necessary.
The facility shall have 10
days from the date of EPA'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), EPA will issue a
final written determination
describing the actions that
are necessary to protect
human health and/or the
environment. Any required
action described in EPA's
determination shall become
effective immediately,
unless EPA provides
otherwise.
----------------------------------------------------------------------------------------------------------------
* * * * *
4. In Table 2 of Appendix IX of part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
WRB Refining LLC (formerly ConocoPhillips Borger, TX.......................... Thermal desorber residual
Company). solids (Hazardous Waste No.
F037, F038, K048, K049,
K050, K051) generated at a
maximum annual rate of 1,500
cubic yards per calendar
year after [insert
publication date of the
final rule] and disposed in
Subtitle D Landfill.
ConocoPhillips must
implement the testing
program described in Table
1.--Waste Excluded From Non-
Specific Sources for the
petition to be valid.
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[FR Doc. E8-11004 Filed 5-16-08; 8:45 am]
BILLING CODE 6560-50-P