Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 6811-6819 [05-2454]
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Federal Register / Vol. 70, No. 26 / Wednesday, February 9, 2005 / Proposed Rules
the state submittal does not affect its
state-enforceability. Moreover, EPA’s
disapproval of the submittal does not
impose a new Federal requirement.
Therefore, the Administrator certifies
that this proposed disapproval action
does not have a significant impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Because this rule
proposes to approve pre-existing
requirements under state law and does
not impose any additional enforceable
duty beyond that required by state law,
it does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
(UMRA) of 1995 (Pub. L. 104–4).
Sections 202 and 205 of UMRA do not
apply to the proposed disapproval
because the proposed disapproval of the
SIP submittal would not, in and of itself,
constitute a Federal mandate because it
would not impose an enforceable duty
on any entity. In addition, the Act does
not permit EPA to consider the types of
analyses described in section 202 in
determining whether a SIP submittal
meets the CAA. Finally, section 203
does not apply to the proposed
disapproval because it would affect only
the District of Columbia, the State of
Maryland and the Commonwealth of
Virginia, which are not small
governments. This proposed rule also
does not have a substantial direct effect
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will
it 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 (64 FR 43255,
August 10, 1999), because it merely
proposes to approve a state rule
implementing a Federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the Clean
Air Act. This proposed rule also is not
subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not
economically significant.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Clean Air Act. In this context, in the
absence of a prior existing requirement
for the State to use voluntary consensus
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standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the Clean Air Act. 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 (61
FR 4729, February 7, 1996), in issuing
this proposed 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. EPA
has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the Executive
order.
This proposed rule to approve the
District of Columbia’s, and Virginia’s 1hour ozone attainment plan
demonstration for the Washington area;
and to approve Maryland’s 1-hour ozone
attainment plan demonstration for the
Washington area, and in the alternative,
to disapprove Maryland’s 1-hour ozone
attainment plan demonstration for the
Washington area with a protective
finding for the 2005 motor vehicle
emissions budgets does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 31, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05–2508 Filed 2–8–05; 8:45 am]
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6811
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SW–FRL–7870–5]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
Environmental Protection
Agency (EPA).
ACTION: Proposed rule and request for
comment.
AGENCY:
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
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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
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
§ 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.
I. Overview Information
C. How Will Shell Manage the Waste if
It Is Delisted?
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
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.
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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
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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
§ 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, §§ 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 § 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 § 260.22(a) and in section 3001(f) of
RCRA, 42 U.S.C. 6921(f), and in the
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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
§ 261.3(a)(2)(iii and iv) and (c)(2)(i),
called the ‘‘mixture’’ and ‘‘derivedfrom’’ 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
§§ 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
§ 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
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6813
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.
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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 total
constituent
analysis
(mg/kg)
Constituent
Acenaphthene ............................................................................................................
Acetophenone ............................................................................................................
Antimony ....................................................................................................................
Anthracene .................................................................................................................
Arsenic .......................................................................................................................
Barium ........................................................................................................................
Benzene .....................................................................................................................
Benz(a)anthracene ....................................................................................................
Benzo(a)pyrene .........................................................................................................
Benzo(b)fluoranthene ................................................................................................
Benzo(g,h,i)perylene ..................................................................................................
Benzo(k)fluoranthene .................................................................................................
Beryllium ....................................................................................................................
Bis(2-ethylhexyl)phthalate ..........................................................................................
Cadmium ....................................................................................................................
Chromium ..................................................................................................................
Chrysene ....................................................................................................................
Cobalt .........................................................................................................................
Copper .......................................................................................................................
4,4′ DDD ....................................................................................................................
4,4′ DDE ....................................................................................................................
4,4′ DDT .....................................................................................................................
Di-n-butyl phthalate ....................................................................................................
Ethylbenzene .............................................................................................................
Fluoranthene ..............................................................................................................
Fluorene .....................................................................................................................
Indeno(1,2,3-cd)pyrene ..............................................................................................
Lead ...........................................................................................................................
Mercury ......................................................................................................................
2-Methylnaphthalene .................................................................................................
Naphthalene ...............................................................................................................
Nickel .........................................................................................................................
Phenanthrene ............................................................................................................
Phenol ........................................................................................................................
Pyrene ........................................................................................................................
Selenium ....................................................................................................................
Silver ..........................................................................................................................
Styrene .......................................................................................................................
2,3,7,8-TCDD Equivalent ...........................................................................................
Thallium .....................................................................................................................
Tin ..............................................................................................................................
Toluene ......................................................................................................................
Vanadium ...................................................................................................................
Xylenes, Total ............................................................................................................
Zinc ............................................................................................................................
4.80
<1.6
4.02
1.2
19.8
294
4.30
3.90
2.30
1.40
0.68
0.15
0.641
1.90
2.98
332.0
15.00
9.92
100
0.0065
0.0044
0.0083
3.80
5.60
3.60
20.00
1.40
127.00
6.57
40.00
33.00
91.80
12.00
<8.0
17.00
34.60
0.409
1.1
0.000332
<1.19
6.55
1.4
53.9
5.8
3650
Maximum TCLP
constituent
analysis
(mg/L)
0.0011
0.0013
0.0275
0.0002
0.0326
0.572
0.026
<0.0002
<0.0002
<0.0002
<0.0002
<0.0002
0.0009
<0.01
0.00163
0.0539
<0.0002
0.0252
0.0445
<0.00005
<0.00005
0.0015
<0.01
<0.100
<0.0002
0.0016
<0.0002
0.0147
0.00015
<0.01
0.13
0.142
0.0018
0.300
<0.0002
<0.05
<0.05
<0.200
0.00000000976
0.0000382
0.00156
<0.100
0.0214
0.044
2.15
Maximum allowable delisting concentration level
(mg/L)
27.6
46.0
0.332
131
0.0604
47.2
0.436
0.116
0.0116
0.123
0.123
1.23
5.04
9.2
0.363
5.0
12.3
..............................
6780
0.353
0.250
0.218
48.4
46.0
18.4
18.4
0.123
5.0
0.180
..............................
9.2
18.2
131
276
13.8
1.40
2.48
92.0
0.000000566
0.0852
..............................
92.0
13.6
920
181
Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent
the specific levels found in one sample.
(B) Based on DRAS modeling with a target risk of 10–5 and a target HI of 0.1. One-time sludge volume of 15,000 cy.
E. How Did EPA Evaluate the Risk of
Delisting the Waste?
For this delisting determination, EPA
used such information gathered to
identify plausible exposure routes (i.e.,
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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-
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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
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(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
https://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
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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 sitespecific 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 § 260.22,
EPA concludes that the petitioned waste
does not exhibit any of the
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characteristics of ignitability,
corrosivity, or reactivity. See §§ 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
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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
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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 § 268.6.
It is EPA’s position that we have the
authority under RCRA and the
Administrative Procedure Act (APA), 5
U.S.C. § 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 § 553 (b).
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.
(2) Notification Requirements
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.
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.
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
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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 recordkeeping 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
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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.
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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.
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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 §§ 260.20 and 260.22
TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Facility
*
Shell Oil Company ......
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Address
Waste description
*
*
*
*
*
*
Deer Park, TX ............. North Pond Sludge (EPA Hazardous Waste No. F037) generated one time at a volume of
15,000 cubic yards [insert publication date of the final rule] and disposed in a Subtitle D
landfill. This is a one time exclusion and applies to 15,000 cubic yards of North Pond
Sludge.
(1) Reopener.
(A) If, anytime after disposal of the delisted waste, Shell possesses or is otherwise made
aware of any environmental data (including but not limited to leachate data or ground water
monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting
level allowed by the Division Director in granting the petition, then the facility must report
the data, in writing, to the Division Director within 10 days of first possessing or being
made aware of that data.
(B) If Shell fails to submit the information described in paragraph (A) or if any other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health or
the environment. Further action may include suspending, or revoking the exclusion, or
other appropriate response necessary to protect human health and the environment.
(C) If the Division Director determines that the reported information does require EPA action,
the Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include
a statement of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed EPA action is not necessary. The facility shall have 10 days from the date of the Division Director’s notice to present such information.
(D) Following the receipt of information from the facility described in paragraph (C) or (if no
information is presented under paragraph (C) the initial receipt of information described in
paragraphs (A) or (B), the Division Director will issue a final written determination describing EPA actions that are necessary to protect human health or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise.
(2) Notification Requirements: Shell must do the following before transporting the delisted
waste: Failure to provide this notification will result in a violation of the delisting petition and
a possible revocation of the decision.
(A) Provide a one-time written notification to any State Regulatory Agency to which or
through which they will transport the delisted waste described above for disposal, 60 days
before beginning such activities.
(B) Update the one-time written notification, if they ship the delisted waste to a different disposal facility.
(C) Failure to provide this notification will result in a violation of the delisting variance and a
possible revocation of the decision.
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TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
*
Address
Waste description
*
*
[FR Doc. 05–2454 Filed 2–8–05; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[FRL–7870–3]
South Carolina: Final Authorization of
State Hazardous Waste Management
Program Revisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: South Carolina has applied to
EPA for Final authorization of the
changes to its hazardous waste program
under the Resource Conservation and
Recovery Act (RCRA). EPA proposes to
grant final authorization to South
Carolina. In the ‘‘Rules and
Regulations’’ section of this Federal
Register, EPA is authorizing the changes
by an immediate final rule. EPA did not
make a proposal prior to the immediate
final rule because we believe this action
is not controversial and do not expect
comments that oppose it. We have
explained the reasons for this
authorization in the preamble to the
immediate final rule. Unless we get
written comments which oppose this
authorization during the comment
period, the immediate final rule will
become effective on the date it
establishes, and we will not take further
action on this proposal. If we get
comments that oppose this action, we
will withdraw the immediate final rule
and it will not take effect. We will then
respond to public comments in a later
final rule based on this proposal. You
may not have another opportunity for
comment. If you want to comment on
this action, you must do so at this time.
DATES: Send your written comments by
March 11, 2005.
ADDRESSES: Send written comments to
Thornell Cheeks, South Carolina
Authorization Coordinator, RCRA
Programs Branch, Waste Management
Division, U.S. Environmental Protection
Agency, Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, GA 30303–
3104; (404) 562–8479. You may also email your comments to
Cheeks.Thornell@epa.gov or submit
your comments at www.regulation.gov.
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*
*
You can examine copies of the materials
submitted by South Carolina during
normal business hours at the following
locations: EPA Region 4 Library, Atlanta
Federal Center, Library, 61 Forsyth
Street, SW., Atlanta, Georgia 30303;
(404) 562–8190; or South Carolina
Department of Health and
Environmental Control, 2600 Bull
Street, Columbia, South Carolina 29201,
(803) 896–4174.
FOR FURTHER INFORMATION CONTACT:
Thornell Cheeks, South Carolina
Authorization Coordinator, RCRA
Programs Branch, Waste Management
Division, U.S. Environmental Protection
Agency, 61 Forsyth Street, SW., Atlanta,
GA 30303–3104; (404) 562–8479.
SUPPLEMENTARY INFORMATION: For
additional information, please see the
immediate final rule published in the
‘‘Rules and Regulations’’ section of this
Federal Register.
Dated: January 18, 2004.
A. Stanley Meiburg,
Deputy Regional Administrator, Region 4.
[FR Doc. 05–2456 Filed 2–8–05; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AI80
Endangered and Threatened Wildlife
and Plants; Establishment of a
Nonessential Experimental Population
of Northern Aplomado Falcons in New
Mexico and Arizona and Availability of
Draft Environmental Assessment
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; notice of
availability; notice of public hearing.
AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), propose to
reintroduce northern aplomado falcons
(Falco femoralis septentrionalis) (falcon)
into their historic habitat in southern
New Mexico and Arizona with the
purpose of establishing a viable resident
population. If this proposed rule is
finalized, we may release captive-raised
falcons as early as the summer of 2005
and release up to 150 additional falcons
annually in the summer and/or fall for
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Fmt 4702
Sfmt 4702
*
*
10 or more years thereafter until a selfsustaining population is established. We
propose to designate this reintroduced
population as a nonessential
experimental population (NEP)
according to section 10(j) of the
Endangered Species Act of 1973 (Act),
as amended. The geographic boundary
of the proposed NEP includes all of New
Mexico and Arizona. A draft
environmental assessment (EA) has
been prepared on this proposed action
and is available for comment (see
ADDRESSES section below).
This proposed action is part of a
series of reintroductions and other
recovery actions that the Service,
Federal and State agencies, and other
partners are conducting throughout the
species’ historical range. This proposed
rule provides a plan for establishing the
NEP and provides for limited allowable
legal taking of the northern aplomado
falcon within the defined NEP area.
DATES: We will consider all comments
on this proposed rule received from
interested parties by April 11, 2005. We
will also hold one public hearing on this
proposed rule; we have scheduled the
hearing for March 15, 2005 at 7 p.m.
(see ADDRESSES section of this proposed
rule for the location).
ADDRESSES: You may submit comments
and other information by any of the
following methods (please see ‘‘Public
Comments Solicited’’ section below for
additional guidance):
• Mail or Hand Delivery: Field
Supervisor, New Mexico Ecological
Services Field Office, 2105 Osuna Road
NE., Albuquerque, New Mexico 87113.
• Fax: (505) 346–2542
• E-mail: R2FWE_AL@fws.gov.
You may obtain copies of the
proposed rule and the draft EA from the
above address or by calling (505) 346–
2525. The proposed rule and draft EA
are also available from our Web site at
https://ifw2es.fws.gov/Library/.
The complete file for this proposed
rule will be available for public
inspection, by appointment, during
normal business hours at the New
Mexico Ecological Services Field Office,
2105 Osuna Road NE, Albuquerque,
New Mexico 87113.
The public hearing will be held
March 15, 2005, at the Corbett Center
Student Union, New Mexico State
University, Las Cruces, New Mexico,
88003. The Corbett Center Student
E:\FR\FM\09FEP1.SGM
09FEP1
]]>Agencies
[Federal Register Volume 70, Number 26 (Wednesday, February 9, 2005)]
[Proposed Rules]
[Pages 6811-6819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2454]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to grant a petition submitted by Shell Oil
Company in Deer Park, Texas (Shell) to exclude (or delist) a certain
sludge waste generated by its Houston, TX Deer Park facility from the
lists of hazardous wastes.
EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would exclude the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
If finalized, we would conclude that Shell's petitioned waste is
nonhazardous with respect to the original listing criteria. EPA would
also conclude that Shell's waste concentrations are such that short-
term and long-term threats from the petitioned waste to human health
and the environment are minimized.
DATES: We will accept comments until March 11, 2005. EPA will stamp
comments received after the close of the comment period as late. These
late comments may not be considered in formulating a final decision.
Your requests for a hearing must reach EPA by February 24, 2005. The
request must contain the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Please send three copies of your comments. You should send
two copies to the Section Chief of the Corrective Action/Waste
Minimization Section, Multimedia Planning and Permitting Division (6PD-
C), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas
75202. You should send a third copy to Nicole Bealle, Waste Team
Leader, Texas Commission on Environmental Quality, 5425 Polk Avenue,
Suite A, Houston, TX 77023. Identify your comments at
[[Page 6812]]
the top with this regulatory docket number: ``F-04-TX-Shell.''
You should address requests for a hearing to Ben Banipal, Section
Chief of the Corrective Action/Waste Minimization Section, Multimedia
Planning and Permitting Division (6PD-C), Environmental Protection
Agency, 1445 Ross Avenue, Dallas, Texas 75202.
FOR FURTHER INFORMATION CONTACT: Michelle Peace (214) 665-7430.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Shell manage the waste if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Shell petition EPA to delist?
B. How did Shell generate this waste?
C. What information and analyses did Shell submit to support its
petition?
D. What were the results of Shell's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about Shell's analysis?
G. What other factors did EPA consider?
H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if Shell violates the terms and conditions?
V. Public Comments
A. How can I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancement Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is EPA Proposing?
EPA is proposing to grant the petition submitted by Shell to have
its North Pond F037 Sludge excluded or delisted from the definition of
a hazardous waste, once it is disposed in a Subtitle D Landfill. This
is a one-time exclusion for 15,000 cubic yards of sludge.
B. Why Is EPA Proposing To Approve This Delisting?
Shell's petition requests a delisting from the North Pond sludge
derived from the treatment of F037 waste. Shell does not believe that
the petitioned waste meets the criteria for which EPA listed it. Shell
also believes no additional constituents or factors could cause the
waste to be hazardous. EPA's review of this petition included
consideration of the original listing criteria, and the additional
factors required by the Hazardous and Solid Waste Amendments of 1984
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22(d)(1)-(4). In making the initial delisting determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA
agrees with the petitioner that the waste is nonhazardous with respect
to the original listing criteria. (If EPA had found, based on this
review, that the waste remained hazardous based on the factors for
which the waste was originally listed, EPA would have proposed to deny
the petition.) EPA evaluated the waste with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
such additional factors could cause the waste to be hazardous. EPA
considered whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. EPA
believes that the petitioned waste does not meet the listing criteria
and thus should not be a listed waste. EPA's proposed decision to
delist waste from Shell's facility is based on the information
submitted in support of this rule, including descriptions of the wastes
and analytical data from the Deer Park, TX facility.
C. How Will Shell Manage the Waste if It Is Delisted?
If the petitioned waste is delisted, Shell must dispose of it in a
Subtitle D landfill which is permitted, licensed, or registered by a
state to manage industrial waste.
D. When Would the Proposed Delisting Exclusion Be Finalized?
RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 U.S.C. 6930(b)(1), allows rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here, because this rule, if finalized, would reduce the existing
requirements for persons generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How Would This Action Affect States?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude States who have
received authorization from EPA to make their own delisting decisions.
We allow states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law. Delisting
petitions approved by the EPA Administrator or his delegate under 40
CFR 260.22 are effective in the State of Texas after the final rule has
been published in the Federal Register.
II. Background
A. What Is the History of the Delisting Program?
EPA published an amended list of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final
[[Page 6813]]
regulations implementing section 3001 of RCRA. EPA has amended this
list several times and published it in 40 CFR 261.31 and 261.32. EPA
lists these wastes as hazardous because: (1) They typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in Subpart C of Part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in Sec. 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations or resulting from the operation of the
mixture or derived-from rules generally is hazardous, a specific waste
from an individual facility may not be hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does it Require of a
Petitioner?
A delisting petition is a request from a facility to EPA or an
authorized State to exclude waste from the list of hazardous wastes.
The facility petitions EPA because it does not consider the waste
hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that waste
generated at a particular facility does not meet any of the criteria
for which the waste was listed. The criteria for which EPA lists a
waste are in Part 261 and further explained in the background documents
for the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. See Part 261 and the background documents for the
listed waste.
Generators remain obligated under RCRA to confirm whether their
waste remains nonhazardous based on the hazardous waste characteristics
even if EPA has ``delisted'' the waste.
C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in 40 CFR Sec. 260.22(a) and in
section 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background
documents for the listed wastes, EPA must consider any factors
(including additional constituents) other than those for which we
listed the waste if a reasonable basis exists to conclude that these
additional factors could cause the waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous waste and waste derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii and iv)
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Shell Petition EPA To Delist?
On December 30, 2003, Shell petitioned EPA to exclude from the
lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32,
F037 North Pond Sludge generated from its facility located in Deer
Park, Texas. The F037 listing is for a petroleum refinery primary oil/
water sludge. The sludge has collected in the bottom of the North Pond
since the early 1970s and is between 2 to 5 feet deep. The sludge
consists of solids settled from the process wastewater, gravel and road
base that has settled from storm water flow to the pond. The waste
falls under the classification of listed waste under Sec. 261.3.
Specifically, in its petition, Shell requested that EPA grant a one
time exclusion for 15,000 cubic yards of the F037 North Pond Sludge.
B. How Did Shell Generate This Waste?
Shell generates hazardous and nonhazardous industrial solid wastes
as a result of refinery and chemical processes, wastewater treatment,
refinery/chemical plant feed, product storage and distribution.
Hazardous and nonhazardous wastewaters from the refinery are treated at
the North Effluent Treater (NET) along with storm water flow. One of
the units in the NET is the North Pond. Past practices allowed dry
weather flow of process wastewater to the North Pond resulting in the
settled sludge being classified as an F037 listed waste. Dry weather
flow to the North Pond was discontinued in September of 2001. The
sludge has collected in the bottom of the North Pond since the early
1970s and is between 2 to 5 feet deep. The sludge consists of solids
from the process wastewater, gravel and road base that has settled from
storm water flow to the pond. The North Pond was built in the 1950s as
a small rectangular pond. A companion pond, the South Pond, was built
contiguous to the North Pond and hydraulically connected by a flume.
The ponds were preceded by three Corrugated Plate Interceptors. These
ponds were located hydraulically down gradient of the refinery and
received the refinery process wastewater. In the mid to late 1970s, the
North Pond was enlarged and reconfigured to an ``L'' shape. This
project was done concurrently with construction of the North Effluent
Treater (NET). The pond was enlarged to approximately 103,000 square
feet in size and about 7.5 feet deep. The working volume of the pond
was 5.97 million gallons. The pond was lined with a 3-foot compacted
clay liner. Three large discharge pumps located on the northeast side
of the pond pumped storm water and wastewater to the Storm Water
Impoundment Basin (SWIB) at a rate of 50,000 gallons per minute each
during high flow conditions. Between 1988 and 1990, the South Pond was
clean closed by removing all the sludges and affected liner and
decontaminating all the ancillary equipment. Sludge was removed from
the North Pond during the 1977 enlargement project; however, the volume
and characteristics of the sludge were not recorded. Since 1977, there
have been no other sludge removal efforts. The water storing capacity
of the pond has decreased over time with the current remaining capacity
estimated at 2.5 to 3.0 million gallons.
C. What Information and Analyses Did Shell Submit To Support Its
Petition?
To support its petition, Shell submitted:
(1) Historical information on past waste generation and management
practices including analytical data from eleven samples collected in
September 2003;
(2) Results of the total constituent list for 40 CFR Part 264
Appendix IX volatiles, semivolatiles, metals, pesticides, herbicides,
dioxins and PCBs;
(3) Results of the constituent list for Appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract for volatiles,
semivolatiles, and metals;
(4) Analytical constituents of concern for F037;
(5) Results from total oil and grease analyses;
(6) Multiple pH testing for the petitioned waste.
[[Page 6814]]
D. What Were the Results of Shell's Analyses?
EPA believes that the Shell analytical characterization
demonstrates that the North Pond Sludge is nonhazardous. Analytical
data for the F037 North Pond Sludge samples were used in the Delisting
Risk Assessment Software. The data summaries for detected constituents
are presented in Table I. EPA has reviewed the sampling procedures used
by Shell and has determined that they satisfy EPA criteria for
collecting representative samples of the variations in constituent
concentrations in the F037 North Pond Sludge. The data submitted in
support of the petition show that constituents in Shell's waste are
presently below health-based levels used in the delisting decision-
making. EPA believes that Shell has successfully demonstrated that the
F037 North Pond Sludge is nonhazardous.
Table I.--Maximum Total and TCLP Concentrations and Maximum Allowable Delisting Concentration Levels, North Pond
F037 Sludge, Shell Oil Company, Deer Park, Texas
----------------------------------------------------------------------------------------------------------------
Maximum allowable
Maximum total Maximum TCLP delisting
Constituent constituent constituent concentration
analysis (mg/kg) analysis (mg/L) level (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene........................................... 4.80 0.0011 27.6
Acetophenone........................................... <1.6 0.0013 46.0
Antimony............................................... 4.02 0.0275 0.332
Anthracene............................................. 1.2 0.0002 131
Arsenic................................................ 19.8 0.0326 0.0604
Barium................................................. 294 0.572 47.2
Benzene................................................ 4.30 0.026 0.436
Benz(a)anthracene...................................... 3.90 <0.0002 0.116
Benzo(a)pyrene......................................... 2.30 <0.0002 0.0116
Benzo(b)fluoranthene................................... 1.40 <0.0002 0.123
Benzo(g,h,i)perylene................................... 0.68 <0.0002 0.123
Benzo(k)fluoranthene................................... 0.15 <0.0002 1.23
Beryllium.............................................. 0.641 0.0009 5.04
Bis(2-ethylhexyl)phthalate............................. 1.90 <0.01 9.2
Cadmium................................................ 2.98 0.00163 0.363
Chromium............................................... 332.0 0.0539 5.0
Chrysene............................................... 15.00 <0.0002 12.3
Cobalt................................................. 9.92 0.0252 .................
Copper................................................. 100 0.0445 6780
4,4' DDD............................................... 0.0065 <0.00005 0.353
4,4' DDE............................................... 0.0044 <0.00005 0.250
4,4' DDT............................................... 0.0083 0.0015 0.218
Di-n-butyl phthalate................................... 3.80 <0.01 48.4
Ethylbenzene........................................... 5.60 <0.100 46.0
Fluoranthene........................................... 3.60 <0.0002 18.4
Fluorene............................................... 20.00 0.0016 18.4
Indeno(1,2,3-cd)pyrene................................. 1.40 <0.0002 0.123
Lead................................................... 127.00 0.0147 5.0
Mercury................................................ 6.57 0.00015 0.180
2-Methylnaphthalene.................................... 40.00 <0.01 .................
Naphthalene............................................ 33.00 0.13 9.2
Nickel................................................. 91.80 0.142 18.2
Phenanthrene........................................... 12.00 0.0018 131
Phenol................................................. <8.0 0.300 276
Pyrene................................................. 17.00 <0.0002 13.8
Selenium............................................... 34.60 <0.05 1.40
Silver................................................. 0.409 <0.05 2.48
Styrene................................................ 1.1 <0.200 92.0
2,3,7,8-TCDD Equivalent................................ 0.000332 0.00000000976 0.000000566
Thallium............................................... <1.19 0.0000382 0.0852
Tin.................................................... 6.55 0.00156 .................
Toluene................................................ 1.4 <0.100 92.0
Vanadium............................................... 53.9 0.0214 13.6
Xylenes, Total......................................... 5.8 0.044 920
Zinc................................................... 3650 2.15 181
----------------------------------------------------------------------------------------------------------------
Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
(B) Based on DRAS modeling with a target risk of 10-5 and a target HI of 0.1. One-time sludge volume of 15,000
cy.
E. How Did EPA Evaluate the Risk of Delisting the Waste?
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., ground water,
surface water, air) for hazardous constituents present in the
petitioned waste. EPA determined that disposal in an unlined Subtitle D
landfill is the most reasonable, worst-case disposal scenario for
Shell's petitioned waste. EPA applied the Delisting Risk Assessment
Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR
75637
[[Page 6815]]
(December 4, 2000), to predict the maximum allowable concentrations of
hazardous constituents that may be released from the petitioned waste
after disposal and determined the potential impact of the disposal of
Shell's petitioned waste on human health and the environment. A copy of
this software can be found on the Internet at https://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
