[Federal Register: February 9, 2005 (Volume 70, Number 26)]
[Proposed Rules]
[Page 6811-6819]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe05-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7870-5]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: EPA is proposing to grant a petition submitted by Shell Oil
Company in Deer Park, Texas (Shell) to exclude (or delist) a certain
sludge waste generated by its Houston, TX Deer Park facility from the
lists of hazardous wastes.
EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would exclude the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
If finalized, we would conclude that Shell's petitioned waste is
nonhazardous with respect to the original listing criteria. EPA would
also conclude that Shell's waste concentrations are such that short-
term and long-term threats from the petitioned waste to human health
and the environment are minimized.
DATES: We will accept comments until March 11, 2005. EPA will stamp
comments received after the close of the comment period as late. These
late comments may not be considered in formulating a final decision.
Your requests for a hearing must reach EPA by February 24, 2005. The
request must contain the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Please send three copies of your comments. You should send
two copies to the Section Chief of the Corrective Action/Waste
Minimization Section, Multimedia Planning and Permitting Division (6PD-
C), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas
75202. You should send a third copy to Nicole Bealle, Waste Team
Leader, Texas Commission on Environmental Quality, 5425 Polk Avenue,
Suite A, Houston, TX 77023. Identify your comments at
[[Page 6812]]
the top with this regulatory docket number: ``F-04-TX-Shell.''
You should address requests for a hearing to Ben Banipal, Section
Chief of the Corrective Action/Waste Minimization Section, Multimedia
Planning and Permitting Division (6PD-C), Environmental Protection
Agency, 1445 Ross Avenue, Dallas, Texas 75202.
FOR FURTHER INFORMATION CONTACT: Michelle Peace (214) 665-7430.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Shell manage the waste if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Shell petition EPA to delist?
B. How did Shell generate this waste?
C. What information and analyses did Shell submit to support its
petition?
D. What were the results of Shell's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about Shell's analysis?
G. What other factors did EPA consider?
H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if Shell violates the terms and conditions?
V. Public Comments
A. How can I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancement Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is EPA Proposing?
EPA is proposing to grant the petition submitted by Shell to have
its North Pond F037 Sludge excluded or delisted from the definition of
a hazardous waste, once it is disposed in a Subtitle D Landfill. This
is a one-time exclusion for 15,000 cubic yards of sludge.
B. Why Is EPA Proposing To Approve This Delisting?
Shell's petition requests a delisting from the North Pond sludge
derived from the treatment of F037 waste. Shell does not believe that
the petitioned waste meets the criteria for which EPA listed it. Shell
also believes no additional constituents or factors could cause the
waste to be hazardous. EPA's review of this petition included
consideration of the original listing criteria, and the additional
factors required by the Hazardous and Solid Waste Amendments of 1984
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22(d)(1)-(4). In making the initial delisting determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA
agrees with the petitioner that the waste is nonhazardous with respect
to the original listing criteria. (If EPA had found, based on this
review, that the waste remained hazardous based on the factors for
which the waste was originally listed, EPA would have proposed to deny
the petition.) EPA evaluated the waste with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
such additional factors could cause the waste to be hazardous. EPA
considered whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. EPA
believes that the petitioned waste does not meet the listing criteria
and thus should not be a listed waste. EPA's proposed decision to
delist waste from Shell's facility is based on the information
submitted in support of this rule, including descriptions of the wastes
and analytical data from the Deer Park, TX facility.
C. How Will Shell Manage the Waste if It Is Delisted?
If the petitioned waste is delisted, Shell must dispose of it in a
Subtitle D landfill which is permitted, licensed, or registered by a
state to manage industrial waste.
D. When Would the Proposed Delisting Exclusion Be Finalized?
RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 U.S.C. 6930(b)(1), allows rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here, because this rule, if finalized, would reduce the existing
requirements for persons generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How Would This Action Affect States?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude States who have
received authorization from EPA to make their own delisting decisions.
We allow states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law. Delisting
petitions approved by the EPA Administrator or his delegate under 40
CFR 260.22 are effective in the State of Texas after the final rule has
been published in the Federal Register.
II. Background
A. What Is the History of the Delisting Program?
EPA published an amended list of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final
[[Page 6813]]
regulations implementing section 3001 of RCRA. EPA has amended this
list several times and published it in 40 CFR 261.31 and 261.32. EPA
lists these wastes as hazardous because: (1) They typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in Subpart C of Part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in Sec. 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations or resulting from the operation of the
mixture or derived-from rules generally is hazardous, a specific waste
from an individual facility may not be hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does it Require of a
Petitioner?
A delisting petition is a request from a facility to EPA or an
authorized State to exclude waste from the list of hazardous wastes.
The facility petitions EPA because it does not consider the waste
hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that waste
generated at a particular facility does not meet any of the criteria
for which the waste was listed. The criteria for which EPA lists a
waste are in Part 261 and further explained in the background documents
for the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. See Part 261 and the background documents for the
listed waste.
Generators remain obligated under RCRA to confirm whether their
waste remains nonhazardous based on the hazardous waste characteristics
even if EPA has ``delisted'' the waste.
C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in 40 CFR Sec. 260.22(a) and in
section 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background
documents for the listed wastes, EPA must consider any factors
(including additional constituents) other than those for which we
listed the waste if a reasonable basis exists to conclude that these
additional factors could cause the waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous waste and waste derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii and iv)
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Shell Petition EPA To Delist?
On December 30, 2003, Shell petitioned EPA to exclude from the
lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32,
F037 North Pond Sludge generated from its facility located in Deer
Park, Texas. The F037 listing is for a petroleum refinery primary oil/
water sludge. The sludge has collected in the bottom of the North Pond
since the early 1970s and is between 2 to 5 feet deep. The sludge
consists of solids settled from the process wastewater, gravel and road
base that has settled from storm water flow to the pond. The waste
falls under the classification of listed waste under Sec. 261.3.
Specifically, in its petition, Shell requested that EPA grant a one
time exclusion for 15,000 cubic yards of the F037 North Pond Sludge.
B. How Did Shell Generate This Waste?
Shell generates hazardous and nonhazardous industrial solid wastes
as a result of refinery and chemical processes, wastewater treatment,
refinery/chemical plant feed, product storage and distribution.
Hazardous and nonhazardous wastewaters from the refinery are treated at
the North Effluent Treater (NET) along with storm water flow. One of
the units in the NET is the North Pond. Past practices allowed dry
weather flow of process wastewater to the North Pond resulting in the
settled sludge being classified as an F037 listed waste. Dry weather
flow to the North Pond was discontinued in September of 2001. The
sludge has collected in the bottom of the North Pond since the early
1970s and is between 2 to 5 feet deep. The sludge consists of solids
from the process wastewater, gravel and road base that has settled from
storm water flow to the pond. The North Pond was built in the 1950s as
a small rectangular pond. A companion pond, the South Pond, was built
contiguous to the North Pond and hydraulically connected by a flume.
The ponds were preceded by three Corrugated Plate Interceptors. These
ponds were located hydraulically down gradient of the refinery and
received the refinery process wastewater. In the mid to late 1970s, the
North Pond was enlarged and reconfigured to an ``L'' shape. This
project was done concurrently with construction of the North Effluent
Treater (NET). The pond was enlarged to approximately 103,000 square
feet in size and about 7.5 feet deep. The working volume of the pond
was 5.97 million gallons. The pond was lined with a 3-foot compacted
clay liner. Three large discharge pumps located on the northeast side
of the pond pumped storm water and wastewater to the Storm Water
Impoundment Basin (SWIB) at a rate of 50,000 gallons per minute each
during high flow conditions. Between 1988 and 1990, the South Pond was
clean closed by removing all the sludges and affected liner and
decontaminating all the ancillary equipment. Sludge was removed from
the North Pond during the 1977 enlargement project; however, the volume
and characteristics of the sludge were not recorded. Since 1977, there
have been no other sludge removal efforts. The water storing capacity
of the pond has decreased over time with the current remaining capacity
estimated at 2.5 to 3.0 million gallons.
C. What Information and Analyses Did Shell Submit To Support Its
Petition?
To support its petition, Shell submitted:
(1) Historical information on past waste generation and management
practices including analytical data from eleven samples collected in
September 2003;
(2) Results of the total constituent list for 40 CFR Part 264
Appendix IX volatiles, semivolatiles, metals, pesticides, herbicides,
dioxins and PCBs;
(3) Results of the constituent list for Appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract for volatiles,
semivolatiles, and metals;
(4) Analytical constituents of concern for F037;
(5) Results from total oil and grease analyses;
(6) Multiple pH testing for the petitioned waste.
[[Page 6814]]
D. What Were the Results of Shell's Analyses?
EPA believes that the Shell analytical characterization
demonstrates that the North Pond Sludge is nonhazardous. Analytical
data for the F037 North Pond Sludge samples were used in the Delisting
Risk Assessment Software. The data summaries for detected constituents
are presented in Table I. EPA has reviewed the sampling procedures used
by Shell and has determined that they satisfy EPA criteria for
collecting representative samples of the variations in constituent
concentrations in the F037 North Pond Sludge. The data submitted in
support of the petition show that constituents in Shell's waste are
presently below health-based levels used in the delisting decision-
making. EPA believes that Shell has successfully demonstrated that the
F037 North Pond Sludge is nonhazardous.
Table I.--Maximum Total and TCLP Concentrations and Maximum Allowable Delisting Concentration Levels, North Pond
F037 Sludge, Shell Oil Company, Deer Park, Texas
----------------------------------------------------------------------------------------------------------------
Maximum allowable
Maximum total Maximum TCLP delisting
Constituent constituent constituent concentration
analysis (mg/kg) analysis (mg/L) level (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene........................................... 4.80 0.0011 27.6
Acetophenone........................................... < 1.6 0.0013 46.0
Antimony............................................... 4.02 0.0275 0.332
Anthracene............................................. 1.2 0.0002 131
Arsenic................................................ 19.8 0.0326 0.0604
Barium................................................. 294 0.572 47.2
Benzene................................................ 4.30 0.026 0.436
Benz(a)anthracene...................................... 3.90 < 0.0002 0.116
Benzo(a)pyrene......................................... 2.30 < 0.0002 0.0116
Benzo(b)fluoranthene................................... 1.40 < 0.0002 0.123
Benzo(g,h,i)perylene................................... 0.68 < 0.0002 0.123
Benzo(k)fluoranthene................................... 0.15 < 0.0002 1.23
Beryllium.............................................. 0.641 0.0009 5.04
Bis(2-ethylhexyl)phthalate............................. 1.90 < 0.01 9.2
Cadmium................................................ 2.98 0.00163 0.363
Chromium............................................... 332.0 0.0539 5.0
Chrysene............................................... 15.00 < 0.0002 12.3
Cobalt................................................. 9.92 0.0252 .................
Copper................................................. 100 0.0445 6780
4,4' DDD............................................... 0.0065 < 0.00005 0.353
4,4' DDE............................................... 0.0044 < 0.00005 0.250
4,4' DDT............................................... 0.0083 0.0015 0.218
Di-n-butyl phthalate................................... 3.80 < 0.01 48.4
Ethylbenzene........................................... 5.60 < 0.100 46.0
Fluoranthene........................................... 3.60 < 0.0002 18.4
Fluorene............................................... 20.00 0.0016 18.4
Indeno(1,2,3-cd)pyrene................................. 1.40 < 0.0002 0.123
Lead................................................... 127.00 0.0147 5.0
Mercury................................................ 6.57 0.00015 0.180
2-Methylnaphthalene.................................... 40.00 < 0.01 .................
Naphthalene............................................ 33.00 0.13 9.2
Nickel................................................. 91.80 0.142 18.2
Phenanthrene........................................... 12.00 0.0018 131
Phenol................................................. < 8.0 0.300 276
Pyrene................................................. 17.00 < 0.0002 13.8
Selenium............................................... 34.60 < 0.05 1.40
Silver................................................. 0.409 < 0.05 2.48
Styrene................................................ 1.1 < 0.200 92.0
2,3,7,8-TCDD Equivalent................................ 0.000332 0.00000000976 0.000000566
Thallium............................................... < 1.19 0.0000382 0.0852
Tin.................................................... 6.55 0.00156 .................
Toluene................................................ 1.4 < 0.100 92.0
Vanadium............................................... 53.9 0.0214 13.6
Xylenes, Total......................................... 5.8 0.044 920
Zinc................................................... 3650 2.15 181
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Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
(B) Based on DRAS modeling with a target risk of 10-5 and a target HI of 0.1. One-time sludge volume of 15,000
cy.
E. How Did EPA Evaluate the Risk of Delisting the Waste?
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., ground water,
surface water, air) for hazardous constituents present in the
petitioned waste. EPA determined that disposal in an unlined Subtitle D
landfill is the most reasonable, worst-case disposal scenario for
Shell's petitioned waste. EPA applied the Delisting Risk Assessment
Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR
75637
[[Page 6815]]
(December 4, 2000), to predict the maximum allowable concentrations of
hazardous constituents that may be released from the petitioned waste
after disposal and determined the potential impact of the disposal of
Shell's petitioned waste on human health and the environment. A copy of
this software can be found on the Internet at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm.
In assessing potential risks to
ground water, EPA used the maximum estimated waste volumes and the
maximum reported extract concentrations as inputs to the DRAS program
to estimate the constituent concentrations in the ground water at a
hypothetical receptor well down gradient from the disposal site. Using
the risk level (carcinogenic risk of 10-5 and non-cancer
hazard index of 0.1), the DRAS program can back-calculate the
acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and EPA
health-based numbers. Using the maximum compliance-point concentrations
and the EPA Composite Model for Leachate Migration with Transformation
Products (EPACMTP) fate and transport modeling factors, the DRAS
further back-calculates the maximum permissible waste constituent
concentrations not expected to exceed the compliance-point
concentrations in ground water.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in an unlined landfill,
and that a reasonable worst-case scenario is appropriate when
evaluating whether a waste should be relieved of the protective
management constraints of RCRA Subtitle C. The use of some reasonable
worst-case scenarios resulted in conservative values for the
compliance-point concentrations and ensures that the waste, once
removed from hazardous waste regulation, will not pose a significant
threat to human health or the environment.
The DRAS also uses the maximum estimated waste volumes and the
maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-based data and standard risk assessment and exposure algorithms
to predict maximum compliance-point concentrations of waste
constituents at a hypothetical point of exposure. Using fate and
transport equations, the DRAS uses the maximum compliance-point
concentrations and back-calculates the maximum allowable waste
constituent concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, Shell
had not disposed of the waste in a Subtitle D landfill, so no
representative data exists. Although, ground water contamination does
exists in the area of this pond, the sludges are not considered a
source of ground water contamination. The ground water contamination
and remediation is addressed in the compliance plan of the facility's
RCRA permit.
EPA believes that the descriptions of Shell hazardous waste process
and analytical characterization, which illustrate the presence of toxic
constituents at lower concentrations in these waste streams, provide a
reasonable basis to conclude that the likelihood of migration of
hazardous constituents from the petitioned waste will be substantially
reduced so that short-term and long-term threats to human health and
the environment are minimized.
The DRAS results which calculate the maximum allowable
concentration of chemical constituents in the waste are presented in
Table I. Based on the comparison of the DRAS results and maximum TCLP
and Totals concentrations found in Table I, the petitioned waste should
be delisted because no constituents of concern tested are likely to be
present or formed as reaction products or by-products above the
delisting levels.
F. What Did EPA Conclude About Shell's Analysis?
EPA concluded, after reviewing Shell's processes, that no other
hazardous constituents of concern, other than those for which Shell
tested, are likely to be present or formed as reaction products or by-
products in the wastes. In addition, on the basis of explanations and
analytical data provided by Shell, pursuant to Sec. 260.22, EPA
concludes that the petitioned waste does not exhibit any of the
characteristics of ignitability, corrosivity, or reactivity. See
Sec. Sec. 261.21, 261.22 and 261.23, respectively. Neither did it show
the toxicity characteristic.
G. What Other Factors Did EPA Consider?
During the evaluation of Shell's petition, EPA also considered the
potential impact of the petitioned waste via non-ground water routes
(i.e., air emissions and surface runoff). EPA evaluated the potential
hazards resulting from the unlikely scenario of airborne exposure to
hazardous constituents released from Shell's waste in an open landfill.
The results of this worst-case analysis indicated that there is no
substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from Shell's F037
North Pond Sludge. A description of EPA's assessment of the potential
impact of Shell's waste, regarding airborne dispersion of waste
contaminants, is presented in the RCRA public docket for this proposed
rule, F-04-TX-Shell. With regard to airborne dispersion in particular,
EPA believes that exposure to airborne contaminants from Shell's
petitioned waste is unlikely. Therefore, no appreciable air releases
are likely from Shell waste under the modeled disposal conditions.
EPA also considered the potential impact of the petitioned waste
via a surface water route. EPA believes that containment structures at
Class I Landfills can effectively control surface water runoff, as the
Subtitle D regulations (See 56 FR 50978, October 9, 1991) prohibit
pollutant discharges into surface waters. Furthermore, the
concentrations of any hazardous constituents dissolved in the runoff
will tend to be lower than the levels in the TCLP leachate analyses
reported in this notice due to the aggressive acidic medium used for
extraction in the TCLP. EPA believes that, in general, the F037 North
Pond Sludge is unlikely to directly enter a surface water body without
first traveling through the saturated subsurface where dilution and
attenuation of hazardous constituents will also occur.
Based on the reasons discussed above, EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, EPA evaluated the potential
impacts on surface water if Shell's waste were released from a Class I
Landfill through runoff and erosion. See the RCRA public docket for
this proposed rule for further information on the potential surface
water impacts from runoff and erosion. The estimated levels
[[Page 6816]]
of the hazardous constituents of concern in surface water would be well
below health-based levels for human health, as well as below EPA
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS,
1987). EPA therefore concluded that Shell F037 North Pond Sludge is not
a present or potential substantial hazard to human health and the
environment via the surface water exposure pathway.
H. What Is EPA's Evaluation of This Delisting Petition?
The descriptions of Shell's hazardous waste process and analytical
characterization provide a reasonable basis for EPA to grant the
exclusion. The data submitted in support of the petition show that
constituents in the waste are below the maximum allowable leachable
concentrations (see Table I). We believe the short-term and long-term
threats posed to human health and the environment are minimized from
the petitioned waste due to the low levels of hazardous constituents
present in the waste.
It is EPA's position that we should grant Shell an exclusion for
the F037 North Pond Sludge. The data submitted to EPA in support of the
petition show Shell's F037 North Pond Sludge is nonhazardous.
We have reviewed the sampling procedures used by Shell and have
determined they satisfy EPA criteria for collecting representative
samples of variable constituent concentrations in the F037 North Pond
Sludge. The data submitted in support of the petition show that
constituents in Shell's waste are presently below the compliance point
concentrations used in the delisting decision-making and would not pose
a substantial hazard to the environment. EPA believes that Shell has
successfully demonstrated that the F037 North Pond Sludge is
nonhazardous.
EPA therefore proposes to grant an exclusion to Shell Oil Company,
Deer Park, Texas, for the F037 North Pond Sludge described in its
petition. EPA's decision to exclude this waste is based on descriptions
of the treatment activities associated with the petitioned waste and
characterization of the F037 North Pond Sludge.
If we finalize the proposed rule, EPA will no longer regulate the
petitioned waste under Parts 262 through 268 and the permitting
standards of Part 270.
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
The petitioner, Shell, must comply with the requirements in 40 CFR
Part 261, Appendix IX, Table 1. The text below gives the rationale and
details of those requirements.
(1) Reopener
The purpose of Paragraph 1 is to require Shell to disclose new or
different information related to a condition at the facility or
disposal of the waste, if it is pertinent to the delisting. This
provision will allow EPA to reevaluate the exclusion, if a source
provides new or additional information to EPA. EPA will evaluate the
information on which we based the decision to see if it is still
correct, or if circumstances have changed so that the information is no
longer correct or would cause EPA to deny the petition, if presented.
This provision expressly requires Shell to report differing site
conditions or assumptions used in the petition ( i.e., if the wastes
begin to leach at higher concentrations than predicted) within 10 days
of discovery. If EPA discovers such information itself or from a third
party, it can act on it as appropriate. The language being proposed is
similar to those provisions found in RCRA regulations governing no-
migration petitions at Sec. 268.6.
It is EPA's position that we have the authority under RCRA and the
Administrative Procedure Act (APA), 5 U.S.C. Sec. 551 (1978) et seq.,
to reopen a delisting decision. We may reopen a delisting decision when
we receive new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delistings is
merited in light of EPA experience. See Reynolds Metals Company at 62
FR 37694 and 62 FR 63458, where the delisted waste leached at greater
concentrations in the environment than the concentrations predicted
when conducting the TCLP, thus leading EPA to repeal the delisting. If
an immediate threat to human health and the environment presents
itself, EPA will continue to address these situations case by case.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA Sec. 553 (b).
(2) Notification Requirements
In order to adequately track wastes that have been delisted, EPA is
requiring that Shell provide a one-time notification to any State
regulatory agency through which or to which the delisted waste is being
carried. Shell must provide this notification within 60 days of
commencing this activity.
B. What Happens if Shell Violates the Terms and Conditions?
If Shell violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Shell to conduct the appropriate waste analysis and
comply with the criteria explained above in Condition 1 of the
exclusion.
V. Public Comments
A. How Can I as an Interested Party Submit Comments?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to Section Chief of
the Corrective Action/Waste Minimization Section, Multimedia Planning
and Permitting Division (6PD-C), Environmental Protection Agency, 1445
Ross Avenue, Dallas, Texas 75202. Send a third copy to Nicole Bealle,
Waste Team Leader, Texas Commission on Environmental Quality, 5425 Polk
Avenue Suite A, Houston, TX 77023 Identify your comments at the top
with this regulatory docket number: ``F-04-TX-Shell.''
You should submit requests for a hearing to Ben Banipal, Section
Chief of the Corrective Action/Waste Minimization Section, Multimedia
Planning and Permitting Division (6PD-C), U. S. Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
B. How May I Review the Docket or Obtain Copies of the Proposed
Exclusion?
You may review the RCRA regulatory docket for this proposed rule at
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing in EPA's Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The public may copy material from any regulatory docket
at no cost for the first 100 pages, and at fifteen cents per page for
additional copies.
VI. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the
[[Page 6817]]
overall costs and economic impact of EPA's hazardous waste management
regulations. This reduction would be achieved by excluding waste
generated at a specific facility from EPA's lists of hazardous wastes,
thus enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this
proposal would not be a significant regulation, and no cost/benefit
assessment is required. The Office of Management and Budget (OMB) has
also exempted this rule from the requirement for OMB review under
Section (6) of Executive Order 12866.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a general notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis which describes the impact of
the rule on small entities (that is, small businesses, small
organizations, and small governmental jurisdictions). No regulatory
flexibility analysis is required, however, if the Administrator or
delegated representative certifies that the rule will not have any
impact on small entities.
This rule, if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, I hereby certify that this proposed regulation,
if promulgated, will not have a significant economic impact on a
substantial number of small entities. This regulation, therefore, does
not require a regulatory flexibility analysis.
VIII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050-0053.
IX. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
EPA generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year.
When such a statement is required for EPA rules, under section 205
of the UMRA EPA must identify and consider alternatives, including the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. EPA must select that alternative,
unless the Administrator explains in the final rule why it was not
selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must develop under section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, giving them meaningful and timely input in
the development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising them
on compliance with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon state, local, or
tribal governments or the private sector.
EPA finds that this delisting decision is deregulatory in nature
and does not impose any enforceable duty on any State, local, or tribal
governments or the private sector. In addition, the proposed delisting
decision does not establish any regulatory requirements for small
governments and so does not require a small government agency plan
under UMRA section 203.
X. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA. This proposed rule is not
subject to E.O. 13045 because this is not an economically significant
regulatory action as defined by Executive Order 12866.
XI. Executive Order 13084
Because this action does not involve any requirements that affect
Indian Tribes, the requirements of section 3(b) of Executive Order
13084 do not apply.
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments.
If the mandate is unfunded, EPA must provide to the Office
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation.
In addition, Executive Order 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments to have ``meaningful and timely input'' in
the development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
action does not involve or impose any requirements that affect Indian
Tribes. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under Section 12(d) if the National Technology Transfer and
Advancement Act, EPA is directed to use voluntary consensus standards
in its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices, etc.) developed or adopted by
voluntary consensus standard bodies. Where available and potentially
applicable voluntary consensus standards are not used by EPA, the Act
requires that EPA to provide Congress, through the OMB, an explanation
of the reasons for not using such standards.
This rule does not establish any new technical standards and thus,
EPA has no need to consider the use of voluntary consensus standards in
developing this final rule.
[[Page 6818]]
XIII. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
Policies that have federalism implications is defined in the Executive
Order to include regulations that have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that impose substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless EPA
consults with State and local officials early in the process of
developing the proposed regulation.
This action does not have federalism implication. It will not have
a substantial direct effect on States, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, because it affects only one facility.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: January 28, 2005.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 1 of Appendix IX of Part 261 it is proposed to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Shell Oil Company.................... Deer Park, TX.......... North Pond Sludge (EPA Hazardous Waste No. F037)
generated one time at a volume of 15,000 cubic
yards [insert publication date of the final
rule] and disposed in a Subtitle D landfill.
This is a one time exclusion and applies to
15,000 cubic yards of North Pond Sludge.
(1) Reopener.
(A) If, anytime after disposal of the delisted
waste, Shell possesses or is otherwise made
aware of any environmental data (including but
not limited to leachate data or ground water
monitoring data) or any other data relevant to
the delisted waste indicating that any
constituent identified for the delisting
verification testing is at level higher than
the delisting level allowed by the Division
Director in granting the petition, then the
facility must report the data, in writing, to
the Division Director within 10 days of first
possessing or being made aware of that data.
(B) If Shell fails to submit the information
described in paragraph (A) or if any other
information is received from any source, the
Division Director will make a preliminary
determination as to whether the reported
information requires EPA action to protect
human health or the environment. Further action
may include suspending, or revoking the
exclusion, or other appropriate response
necessary to protect human health and the
environment.
(C) If the Division Director determines that the
reported information does require EPA action,
the Division Director will notify the facility
in writing of the actions the Division Director
believes are necessary to protect human health
and the environment. The notice shall include a
statement of the proposed action and a
statement providing the facility with an
opportunity to present information as to why
the proposed EPA action is not necessary. The
facility shall have 10 days from the date of
the Division Director's notice to present such
information.
(D) Following the receipt of information from
the facility described in paragraph (C) or (if
no information is presented under paragraph (C)
the initial receipt of information described in
paragraphs (A) or (B), the Division Director
will issue a final written determination
describing EPA actions that are necessary to
protect human health or the environment. Any
required action described in the Division
Director's determination shall become effective
immediately, unless the Division Director
provides otherwise.
(2) Notification Requirements: Shell must do the
following before transporting the delisted
waste: Failure to provide this notification
will result in a violation of the delisting
petition and a possible revocation of the
decision.
(A) Provide a one-time written notification to
any State Regulatory Agency to which or through
which they will transport the delisted waste
described above for disposal, 60 days before
beginning such activities.
(B) Update the one-time written notification, if
they ship the delisted waste to a different
disposal facility.
(C) Failure to provide this notification will
result in a violation of the delisting variance
and a possible revocation of the decision.
[[Page 6819]]
* * * * * * *
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[FR Doc. 05-2454 Filed 2-8-05; 8:45 am]
BILLING CODE 6560-50-P