Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 49187-49193 [05-16688]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 162 (Tuesday, August 23, 2005)]
[Rules and Regulations]
[Pages 49187-49193]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16688]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7957-6]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Environmental Protection Agency (EPA) is granting petitions 
submitted by Shell Oil Company (Shell Oil Company) to exclude (or 
delist) certain wastes generated by its Houston, TX Deer Park facility 
from the lists of hazardous wastes. This final rule responds to 
petitions submitted by Shell Oil Company to delist F039 and F037 
wastes. The F039 waste is generated from the refinery wastewater 
treatment plant, North Effluent Treater (NET) and

[[Page 49188]]

primary solids from Shell Chemical and the South Effluent Treatment 
(SET). The F037 waste North Pond Sludge is generated from the process 
wastewater, gravel and road base that has settled from storm water flow 
to the pond.
    After careful analysis and use of the Delisting Risk Assessment 
Software (DRAS), EPA has concluded the petitioned wastes are not 
hazardous waste. The F039 exclusion applies to 3.36 million gallons per 
year (16,619 cubic yards) of multi-source landfill leachate. The F037 
exclusion is a one time exclusion for 15,000 cubic yards of the sludge. 
Accordingly, this final rule excludes the petitioned wastes from the 
requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA).

EFFECTIVE DATE: August 23, 2005.

ADDRESSES: The public docket for this final rule is located at the 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in EPA Freedom of Information 
Act review room on the 7th floor from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The reference number for this docket is F-04-TEXDEL-Shell 
Oil. The public may copy material from any regulatory docket at no cost 
for the first 100 pages and at a cost of $0.15 per page for additional 
copies.

FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the 
Corrective Action and Waste Minimization Section, Multimedia Planning 
and Permitting Division (6PD-C), Environmental Protection Agency Region 
6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information 
concerning this notice, contact Michelle Peace, Environmental 
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202, at (214) 665-
7430, or peace.michelle@epa.gov.

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

I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this action?
    C. What are the limits of this exclusion?
    D. How will Shell Oil Company manage the wastes, if they are 
delisted?
    E. When is the final delisting exclusion effective?
    F. How does this final rule affect states?
II. Background
    A. What is a delisting?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did Shell Oil Company petition EPA to delist?
    B. How much waste did Shell Oil Company propose to delist?
    A. How did Shell Oil Company sample and analyze the waste data 
in these petitions?
IV. Public Comments Received on the Proposed Exclusions
    A. Who submitted comments on the proposed rules?
    B. Where were the comments and what are EPA's responses to them?
V. Statutory and Executive Order Reviews

I. Overview Information

A. What Action Is EPA Finalizing?

    After evaluating the petitions for Shell Oil Company, EPA proposed, 
on December 28, 2004 and February 9, 2005, respectively, to exclude the 
wastes from the lists of hazardous waste under Sec.  261.31. EPA is 
finalizing:
    (1) The decision to grant Shell Oil Company's delisting petition to 
have its F039 multi-source landfill leachate underlying the Minimum 
Technology Requirements (MTR) hazardous waste landfill excluded, or 
delisted, from the definition of a hazardous waste; and subject to 
certain verification and monitoring conditions; and
    (2) The decision to grant Shell Oil Company's delisting petition 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.

B. Why Is EPA Approving This Action?

    Shell Oil Company's petitions request a delisting from the F039 and 
F037 wastes listing under 40 CFR 260.20 and 260.22. Shell Oil Company 
does not believe that the petitioned waste meets the criteria for which 
EPA listed it. Shell Oil Company also believes no additional 
constituents or factors could cause the waste to be hazardous. EPA's 
review of these petitions included consideration of the original 
listing criteria, and the additional factors required by the Hazardous 
and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 
42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated). In 
making the final delisting determination, EPA evaluated the petitioned 
wastes 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 wastes are 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 wastes with respect to other factors or 
criteria to assess whether there is a reasonable basis to believe that 
such additional factors could cause the wastes to be hazardous. EPA 
considered whether the wastes are acutely toxic, the concentrations of 
the constituents in the wastes, 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 wastes do not meet the listing criteria 
and thus should not be listed wastes. EPA's final decision to delist 
wastes from Shell Oil Company'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. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the Shell Oil 
Company petitions only if the requirements described in 40 CFR part 
261, Appendix IX, Table 1 and the conditions contained herein are 
satisfied.

D. How Will Shell Oil Company Manage the Wastes, If They Are Delisted?

    If the multi-source landfill leachate is delisted, Shell Oil 
Company will make piping modifications to allow the leachate to be 
routed to the North Effluent Treater (NET) for treatment. After its 
treatment, the multi-source landfill leachate will be discharged 
through a TPDES-permitted outfall in compliance with its TPDES permit. 
If F037 North Pond Sludge is delisted, Shell Oil Company will dispose 
of it in a Subtitle D landfill which is permitted, licensed, or 
registered by a state to manage industrial waste.

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective August 23, 2005. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 
6930(b)(1), allow rules to become effective in less than six months 
after the rule is published when the regulated community does not need 
the six-month period to come into compliance. That is the case here 
because this rule reduces, rather than increases, the existing 
requirements for persons generating hazardous waste. This reduction in 
existing requirements also provides a

[[Page 49189]]

basis for making this rule effective immediately, upon publication, 
under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

F. How Does This Final Rule Affect States?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the State regulatory authority 
to establish the status of their wastes under the State law.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in 
place of the Federal program, that is, to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states unless that state makes the rule part of its authorized program. 
If Shell Oil Company transports the petitioned waste to or manages the 
waste in any state with delisting authorization, Shell Oil Company must 
obtain delisting authorization from that state before it can manage the 
waste as nonhazardous in the state.

II. Background

A. What Is a Delisting Petition?

    A delisting petition is a request from a generator to EPA or 
another agency with jurisdiction to exclude or delist, from the RCRA 
list of hazardous waste, waste the generator believes should not be 
considered hazardous under RCRA.

B. What Regulations Allow Facilities To Delist a Waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste regulation by excluding them 
from the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of 40 CFR parts 260 
through 265 and 268. Section 260.22 provides generators the opportunity 
to petition the Administrator to exclude a waste from a particular 
generating facility from the hazardous waste lists.

C. What Information Must the Generator Supply?

    Petitioners must provide sufficient information to EPA to allow EPA 
to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste and that such factors do not 
warrant retaining the waste as a hazardous waste.

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

A. What Wastes Did Shell Oil Company Petition EPA To Delist?

    On January 29, 2003, Shell Oil Company petitioned EPA to exclude 
from the lists of hazardous waste contained in Sec.  261.31, multi-
source landfill leachate (F039) generated from its facility located in 
Deer Park, TX. Then on December 30, 2003, Shell Oil Company petitioned 
EPA to exclude from the lists of hazardous waste contained in 
Sec. Sec.  261.31 and 261.32, F037 North Pond Sludge.

B. How Much Waste Did Shell Oil Company Propose To Delist?

    Shell Oil Company requested that EPA grant an exclusion for 3.36 
million gallons (16,619 cu. yards) per year of the multi-source 
landfill leachate in its January 29, 2003 petition. In the December 30, 
2003 petition, Shell Oil Company requested that EPA grant a one time 
exclusion for 15,000 cubic yards of the F037 North Pond Sludge.

C. How Did Shell Oil Company Sample and Analyze the Waste Data in These 
Petitions?

    To support its petitions, Shell Oil Company submitted:
    (1) Historical information on past waste generation and management 
practices including analytical data from eleven samples collected in 
September 2003 for the F037 North Pond Sludge and four samples of 
combined leachate data for the F039 multi-source landfill leachate;
    (2) Results of the total constituent list for 40 CFR part 264, 
Appendix IX volatiles, semivolatiles, metals, pesticides, herbicides, 
dioxins and PCBs for the F037 North Pond Sludge and the F039 multi-
source landfill leachate;
    (3) Results of the constituent list for 40 CFR part 264, Appendix 
IX on Toxicity Characteristic Leaching Procedure (TCLP) extract for 
volatiles, semivolatiles, and metals for the F037 North Pond Sludge and 
the F039 multi-source landfill leachate;
    (4) Analytical constituents of concern for F037 and F039;
    (5) Results from total oil and grease analyses;
    (6) Multiple pH testing for the petitioned wastes.

IV. Public Comments Received on the Proposed Exclusions

A. Who Submitted Comments on the Proposed Rules?

    No comments were received on the proposed rule for the F037 wastes. 
Comments were submitted by Shell Deer Park Refining Company (Shell) to 
correct information contained in the proposed rule for F039.

B. What Were the Comments and What Are EPA's Responses to Them?

    Shell noted that Chloronated Plate Interceptor should be Corrugated 
Plate Interceptor. EPA has noted this and made appropriate changes in 
the final rule and exclusion language to reflect this change.
    Shell noted that: (1) the compound p-cresol (4-methlyphenol) should 
be added to Table I; and (2) the compound trichloropropane should be 
deleted from Table I as this constituent was not detected in any of the 
samples above the reporting level.
    The compound p-cresol (4-methlyphenol) appears in Table 1.--Waste 
Excluded From the Non-Specific Sources as ``Cresol, p.'' EPA has made 
the appropriate change to read p-Cresol. The compound trichloropropane 
estimated value of 0.00025 mg/l was reported in the revised analyses on 
October 11, 2004, Combined Leachate Data, and thus it will not be 
deleted.
    Shell requested: (1) that the following constituents be deleted 
from Table 1--Wastes Excluded from Non-Specific Sources in the 
exclusion language to be consistent with Table I in Section III. D in 
the preamble of the proposed rule: Thallium, Acrylonitrile, Bis (2-
chlorethyl) ether, Bis (2-ethylhexyl) phthlate, Dichlorobenzene 1,3, 
Dimethoate, Dimethylphenol 2,4, Dinitrophenol, Dinitrotoluene 2,6, 
Diphenylhydrazine, Dichloroethylene 1,1, Kepone, Methacrylonitrile, 
Methanol, Nitrobenzene, Nitrosodiethylamine, Nitrosodimethylamine, 
Nitrosodi-n-butylamine, N-Nitrodi-n-propylamine, N-Nitrosopiperdine, N-

[[Page 49190]]

Nitrosopyrrolidine, N-Nitrosomethylethylamine, PCBs, Pentachlorophenol, 
Pyridine, Trichloropropane, Vinyl Chloride; and (2) that the compound 
phenanthrene should be added with a delisting level of 1.36 mg/L to be 
consistent with Table I in Section III. D.
    EPA has made the deletions as prescribed. EPA has added the 
compound phenanthrene with a delisting level of 1.36 mg/L to Table 1.--
Waste Excluded From Non-Specific Sources. EPA also added compounds 
toluene, fluorene, and vanadium because they were inadvertently left 
off of Table 1--Wastes Excluded from Non-Specific Sources.
    Shell noted that in the exclusion language paragraph (3)(A)(i) of 
Table 1--Waste Excluded from Non-Specific Sources, the number of 
samples to be collected within the first 60 days should be changed from 
eight to four. Also in paragraph (3)(B) for subsequent verification 
sampling, Shell Oil Company requested that the number of samples per 
quarter be changed from two to one. Previous discussions between EPA 
and Shell Oil Company were based on two different waste streams. Since 
this is one stream, EPA will allow the changes in the number of samples 
collected and the number of samples taken per quarter.
    In addition, on October 30, 2002, (67 FR 66251), EPA proposed the 
Methods Innovation Rule to remove from the regulations unnecessary 
requirements other than those considered to be Method Defined 
Parameters (MDP). An MDP is a method that, by definition or design, is 
the only one capable of measuring the particular property (e.g. Method 
1311-TCLP). Therefore, EPA is no longer generally requiring the use of 
only SW-846 methods for regulatory applications other than those 
involving MDPs. The general purpose of this rule is to allow more 
flexibility when conducting RCRA-related sampling and analysis 
activities. We retained only those methods considered to be MDPs in the 
regulations and incorporate them by reference in 40 CFR 260.11. EPA is 
changing Shell's delisting exclusion language found in paragraph (3) of 
the F039 exclusion language to reflect the generic language placed in 
all delisting exclusions as a result of the Methods Innovation Rule (70 
FR 34537) which was finalized on June 14, 2005.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA). Because this rule will 
affect only a particular facility, it will not significantly or 
uniquely affect small governments, as specified in section 203 of UMRA. 
Because this rule will affect only a particular facility, this final 
rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, ``Federalism,'' (64 FR 43255, 
August 10, 1999). Thus, Executive Order 13132 does not apply to this 
rule. Similarly, because this rule will affect only a particular 
facility, this final rule does not have tribal implications, as 
specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. The basis for this 
belief is that the Agency used the DRAS program, which considers health 
and safety risks to infants and children, to calculate the maximum 
allowable concentrations for this rule. This rule is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules (1) rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding today's action under section 801 because this is a rule of 
particular applicability.

List 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: August 10, 2005.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.

0
For the reasons set out in the preamble, 40 CFR part 261 is to be 
amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for Part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.


0
2. In Table 1 of Appendix IX of Part 261 add the following waste stream 
in alphabetical order by facility to read as follows:

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

[[Page 49191]]



           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
                                                     August 23, 2005 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
                                                     Division Director
                                                     will issue a final
                                                     written
                                                     determination
                                                     describing the
                                                     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.
Shell Oil Company..........  Deer Park, TX........  Multi-source
                                                     landfill leachate
                                                     (EPA Hazardous
                                                     Waste No. F039)
                                                     generated at a
                                                     maximum annual rate
                                                     of 3.36 million
                                                     gallons (16,619 cu.
                                                     yards) per calendar
                                                     year after August
                                                     23, 2005 and
                                                     disposed in
                                                     accordance with the
                                                     TPDES permit.
                                                    The delisting levels
                                                     set do not relieve
                                                     Shell Oil Company
                                                     of its duty to
                                                     comply with the
                                                     limits set in its
                                                     TPDES permit. For
                                                     the exclusion to be
                                                     valid, Shell Oil
                                                     Company must
                                                     implement a
                                                     verification
                                                     testing program
                                                     that meets the
                                                     following
                                                     paragraphs:
                                                    (1) Delisting
                                                     Levels: All total
                                                     concentrations for
                                                     those constituents
                                                     must not exceed the
                                                     following levels
                                                     (mg/l). The
                                                     petitioner must
                                                     analyze the aqueous
                                                     waste on a total
                                                     basis to measure
                                                     constituents in the
                                                     multi-source
                                                     landfill leachate.
                                                    Multi-source
                                                     landfill leachate
                                                     (i) Inorganic
                                                     Constituents
                                                     Antimony-0.0204;
                                                     Arsenic-0.385;
                                                     Barium-2.92; Copper-
                                                     418.00; Chromium-
                                                     5.0; Cobalt-2.25;
                                                     Nickel-1.13;
                                                     Selenium-0.0863;
                                                     Thallium-0.005;
                                                     Vanadium-0.838
                                                    (ii) Organic
                                                     Constituents
                                                     Acetone-1.46;
                                                     Acetophenone-1.58;
                                                     Benzene-0.0222; p-
                                                     Cresol-0.0788;
                                                     Bis(2-
                                                     ethylhexyl)phthlate-
                                                     15800.00;
                                                     Dichloroethane, 1,2-
                                                     0.0803;
                                                     Ethylbenzene-4.51;
                                                     Fluorene-1.87;
                                                     Napthalene-1.05;
                                                     Phenol-9.46;
                                                     Phenanthrene-1.36;
                                                     Pyridine-0.0146;
                                                     2,3,7,8-TCDD
                                                     equivalents as TEQ-
                                                     0.0000926; Toluene-
                                                     4.43;
                                                     Trichloropropane-
                                                     0.000574; Xylenes
                                                     (total)-97.60
                                                    (2) Waste
                                                     Management:
                                                    (A) Shell Oil
                                                     Company must manage
                                                     as hazardous all
                                                     multi-source
                                                     landfill leachate
                                                     generated, until it
                                                     has completed
                                                     initial
                                                     verification
                                                     testing described
                                                     in paragraph (3)(A)
                                                     and (B), as
                                                     appropriate, and
                                                     valid analyses show
                                                     that paragraph (1)
                                                     is satisfied.
                                                    (B) Levels of
                                                     constituents
                                                     measured in the
                                                     samples of the
                                                     multi-source
                                                     landfill leachate
                                                     that do not exceed
                                                     the levels set
                                                     forth in paragraph
                                                     (1) are non-
                                                     hazardous. Shell
                                                     Oil Company can
                                                     manage and dispose
                                                     of the non-
                                                     hazardous multi-
                                                     source landfill
                                                     leachate according
                                                     to all applicable
                                                     solid waste
                                                     regulations.
                                                    (C) If constituent
                                                     levels in a sample
                                                     exceed any of the
                                                     delisting levels
                                                     set in paragraph
                                                     (1), Shell Oil
                                                     Company can collect
                                                     one additional
                                                     sample and perform
                                                     expedited analyses
                                                     to verify if the
                                                     constituent exceeds
                                                     the delisting
                                                     level. If this
                                                     sample confirms the
                                                     exceedance, Shell
                                                     Oil Company must,
                                                     from that point
                                                     forward, treat the
                                                     waste as hazardous
                                                     until it is
                                                     demonstrated that
                                                     the waste again
                                                     meets the levels in
                                                     paragraph (1).
                                                    (D) If the facility
                                                     has not treated the
                                                     waste, Shell Oil
                                                     Company must manage
                                                     and dispose of the
                                                     waste generated
                                                     under Subtitle C of
                                                     RCRA from the time
                                                     that it becomes
                                                     aware of any
                                                     exceedance.

[[Page 49192]]

 
                                                    (E) Upon completion
                                                     of the Verification
                                                     Testing described
                                                     in paragraph 3(A)
                                                     and (B) as
                                                     appropriate and the
                                                     transmittal of the
                                                     results to EPA, and
                                                     if the testing
                                                     results meet the
                                                     requirements of
                                                     paragraph (1),
                                                     Shell Oil Company
                                                     may proceed to
                                                     manage its multi-
                                                     source landfill
                                                     leachate as non-
                                                     hazardous waste. If
                                                     Subsequent
                                                     Verification
                                                     Testing indicates
                                                     an exceedance of
                                                     the delisting
                                                     levels in paragraph
                                                     (1), Shell Oil
                                                     Company must manage
                                                     the multi-source
                                                     landfill leachate
                                                     as a hazardous
                                                     waste until two
                                                     consecutive
                                                     quarterly testing
                                                     samples show levels
                                                     below the delisting
                                                     levels in Table I.
                                                    (3) Verification
                                                     Testing
                                                     Requirements: Shell
                                                     Oil Company must
                                                     perform sample
                                                     collection and
                                                     analyses, including
                                                     quality control
                                                     procedures, using
                                                     appropriate
                                                     methods. As
                                                     applicable to the
                                                     method-defined
                                                     parameters of
                                                     concern, analyses
                                                     requiring the use
                                                     of SW-846 methods
                                                     incorporated by
                                                     reference in 40 CFR
                                                     260.11 must be used
                                                     without
                                                     substitution. As
                                                     applicable, the SW-
                                                     846 methods might
                                                     include Methods
                                                     0010, 0011, 0020,
                                                     0023A, 0030, 0031,
                                                     0040, 0050, 0051,
                                                     0060, 0061, 1010A,
                                                     1020B, 1110A,
                                                     1310B, 1311, 1312,
                                                     1320, 1330A, 9010C,
                                                     9012B, 9040C,
                                                     9045D, 9060A, 9070A
                                                     (uses EPA Method
                                                     1664, Rev. A),
                                                     9071B, and 9095B.
                                                     Methods used must
                                                     meet Performance
                                                     Based Measurement
                                                     System Criteria in
                                                     which the Data
                                                     Quality Objectives
                                                     demonstrate that
                                                     representative
                                                     samples of the
                                                     Shell-Deer Park
                                                     multi-source
                                                     landfill leachate
                                                     are collected and
                                                     meet the delisting
                                                     levels in paragraph
                                                     (1).
                                                    (A) Initial
                                                     Verification
                                                     Testing: After EPA
                                                     grants the final
                                                     exclusion, Shell
                                                     Oil Company must do
                                                     the following:
                                                    (i) Within 60 days
                                                     of this exclusions
                                                     becoming final,
                                                     collect four
                                                     samples, before
                                                     disposal, of the
                                                     multi-source
                                                     landfill leachate.
                                                    (ii) The samples are
                                                     to be analyzed and
                                                     compared against
                                                     the delisting
                                                     levels in paragraph
                                                     (1).
                                                    (iii) Within sixty
                                                     (60) days after
                                                     this exclusion
                                                     becomes final,
                                                     Shell Oil Company
                                                     will report initial
                                                     verification
                                                     analytical test
                                                     data for the multi-
                                                     source landfill
                                                     leachate, including
                                                     analytical quality
                                                     control information
                                                     for the first
                                                     thirty (30) days of
                                                     operation after
                                                     this exclusion
                                                     becomes final. If
                                                     levels of
                                                     constituents
                                                     measured in the
                                                     samples of the
                                                     multi-source
                                                     landfill leachate
                                                     that do not exceed
                                                     the levels set
                                                     forth in paragraph
                                                     (1) are also non-
                                                     hazardous in two
                                                     consecutive
                                                     quarters after the
                                                     first thirty (30)
                                                     days of operation
                                                     after this
                                                     exclusion become
                                                     effective, Shell
                                                     Oil Company can
                                                     manage and dispose
                                                     of the multi-source
                                                     landfill leachate
                                                     according to all
                                                     applicable solid
                                                     waste regulations.
                                                    (B) Subsequent
                                                     Verification
                                                     Testing: Following
                                                     written
                                                     notification by
                                                     EPA, Shell Oil
                                                     Company may
                                                     substitute the
                                                     testing conditions
                                                     in (3)(B) for
                                                     (3)(A). Shell Oil
                                                     Company must
                                                     continue to monitor
                                                     operating
                                                     conditions, and
                                                     analyze one
                                                     representative
                                                     sample of the multi-
                                                     source landfill
                                                     leachate for each
                                                     quarter of
                                                     operation during
                                                     the first year of
                                                     waste generation.
                                                     The sample must
                                                     represent the waste
                                                     generated during
                                                     the quarter. After
                                                     the first year of
                                                     analytical sampling
                                                     verification
                                                     sampling can be
                                                     performed on a
                                                     single annual
                                                     sample of the multi-
                                                     source landfill
                                                     leachate. The
                                                     results are to be
                                                     compared to the
                                                     delisting levels in
                                                     paragraph (1).
                                                    (C) Termination of
                                                     Testing:
                                                    (i) After the first
                                                     year of quarterly
                                                     testing, if the
                                                     delisting levels in
                                                     paragraph (1) are
                                                     being met, Shell
                                                     Oil Company may
                                                     then request that
                                                     EPA not require
                                                     quarterly testing.
                                                     After EPA notifies
                                                     Shell Oil Company
                                                     in writing, the
                                                     company may end
                                                     quarterly testing.
                                                    (ii) Following
                                                     cancellation of the
                                                     quarterly testing,
                                                     Shell Oil Company
                                                     must continue to
                                                     test a
                                                     representative
                                                     sample for all
                                                     constituents listed
                                                     in paragraph (1)
                                                     annually.
                                                    (4) Changes in
                                                     Operating
                                                     Conditions: If
                                                     Shell Oil Company
                                                     significantly
                                                     changes the process
                                                     described in its
                                                     petition or starts
                                                     any processes that
                                                     generate(s) the
                                                     waste that may or
                                                     could significantly
                                                     affect the
                                                     composition or type
                                                     of waste generated
                                                     as established
                                                     under paragraph (1)
                                                     (by illustration,
                                                     but not limitation,
                                                     changes in
                                                     equipment or
                                                     operating
                                                     conditions of the
                                                     treatment process),
                                                     it must notify EPA
                                                     in writing; it may
                                                     no longer handle
                                                     the wastes
                                                     generated from the
                                                     new process as
                                                     nonhazardous until
                                                     the wastes meet the
                                                     delisting levels
                                                     set in paragraph
                                                     (1) and it has
                                                     received written
                                                     approval to do so
                                                     from EPA.
                                                    (5) Data Submittals:
                                                     Shell Oil Company
                                                     must submit the
                                                     information
                                                     described below. If
                                                     Shell Oil Company
                                                     fails to submit the
                                                     required data
                                                     within the
                                                     specified time or
                                                     maintain the
                                                     required records on-
                                                     site for the
                                                     specified time,
                                                     EPA, at its
                                                     discretion, will
                                                     consider this
                                                     sufficient basis to
                                                     reopen the
                                                     exclu