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/ 2003
/ October
/ Wednesday, October 01, 2003
[Federal Register: October 1, 2003 (Volume 68, Number 190)]
[Proposed Rules]
[Page 56603-56613]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc03-38]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7567-1]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: The Environmental Protection Agency (the EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: The EPA is proposing to grant a petition submitted by
OxyVinyls, LP (OxyVinyls) to exclude (or delist) a certain solid waste
generated by its Houston, TX Deer Park VCM Plant from the lists of
hazardous wastes.
The EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
The 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, the EPA would conclude that OxyVinyls' petitioned
waste is nonhazardous with respect to the original listing criteria and
that the Incinerator Offgas Treatment Scrubber Water generated from
treating and neutralizing gasses generated in the firebox during the
incineration process and not from a manufacturing process will
adequately reduce the likelihood of migration of constituents from this
waste. The EPA would also conclude that OxyVinyls' process minimizes
short-term and long-term threats from the petitioned waste to human
health and the environment.
DATES: The EPA will accept comments until November 17, 2003. The 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 the EPA by October 16,
2003. 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 and 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 the top with this
regulatory docket number: ``F-02-TX-OXYVINYLS.'' You may submit your comments electronically to James Harris at harris.jamesa@epa.gov.
You should address requests for a hearing to Steve Gilrein,
Associate Director of RCRA, Multimedia Planning and Permitting Division
(6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas
75202.
FOR FURTHER INFORMATION CONTACT: James A. Harris, Jr. (214) 665-8302.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is the EPA proposing?
B. Why is the EPA proposing to approve this delisting?
C. How will OxyVinyls 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 the EPA consider in deciding whether to
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
A. What wastes did OxyVinyls petition the EPA to delist?
B. Who is OxyVinyls and what process does it use to generate the
petitioned waste?
C. How did OxyVinyls sample and analyze the data in this
petition?
D. What were the results of OxyVinyls' analysis?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude about OxyVinyls' analysis?
G. What other factors did the EPA consider in its evaluation?
H. What is the EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if OxyVinyls violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusions?
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 Advancements Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is the EPA Proposing?
The EPA is proposing:
(1) To grant OxyVinyls' delisting petition to have its Incinerator
Offgas Treatment Scrubber Water generated from treating and
neutralizing gasses generated in the firebox during the incineration
process excluded, or delisted, from the definition of a hazardous
waste; and
(2) To use a fate and transport model to evaluate the potential
impact of the petitioned waste on human health and the environment. The
EPA would use this model to predict the concentration of hazardous
constituents released from the petitioned waste, once it is disposed.
B. Why Is the EPA Proposing To Approve This Delisting?
OxyVinyls' petition requests a delisting from the K017, K019, and
K020, waste listings under 40 CFR
[[Page 56604]]
260.20 and 260.22. OxyVinyls does not believe that the petitioned waste
meets the criteria for which the EPA listed it, primarily because the
Off-gas Scrubber Waste Water could be considered ``derived from'' a
listed waste that has been incinerated to destroy the hazardous
constituents of the listed waste. OxyVinyls also believes no additional
constituents or factors could cause the waste to be hazardous. The
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) (hereinafter all
sectional references are to 40 CFR unless otherwise indicated). In
making the initial delisting determination, the 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, the EPA agrees
with the petitioner that the waste is nonhazardous with respect to the
original listing criteria. (If the EPA had found, based on this review,
that the waste remained hazardous based on the factors for which the
waste was originally listed, the EPA would have proposed to deny the
petition.) The 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. The 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. The
EPA believes that the petitioned waste does not meet the listing
criteria and thus should not be a listed waste. The EPA's proposed
decision to delist waste from OxyVinyls' 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 OxyVinyls Manage the Waste if It Is Delisted?
The Incinerator Offgas Treatment Scrubber Water combines with other
aqueous wastes in the chemical sewer and flows by pipe to Shell
Chemical L.P.'s South Effluent Treater (SET). The SET is a TPDES-
permitted wastewater treatment unit which also holds a surface
impoundment retrofitting variance issued by the EPA under RCRA section
3005(j)(3) in November 1988, 42 U.S.C. Sec. 6925(j)(3). It is RCRA
permitted to manage listed hazardous waste.
D. When Would the Proposed Delisting Exclusion Be Finalized?
RCRA section 3001(f) specifically requires the EPA to provide
notice and an opportunity for comment before granting or denying a
final exclusion. Thus, the EPA will not grant the exclusion until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to
become effective in less than six months 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.
The EPA believes that this exclusion should be effective
immediately upon final publication because a six-month deadline is not
necessary to achieve the purpose of section 3010(b), and a later
effective date would impose unnecessary hardship and expense on this
petitioner. These reasons also provide good cause for making this rule
effective immediately, upon final publication, under the Administrative
Procedure Act, 5 U.S.C. 553(d).
E. How Would This Action Affect the States?
Because the 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 the EPA to make their own delisting
decisions.
The EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than the 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, the EPA urges petitioners to contact the State regulatory
authority to establish the status of their wastes under the State law.
The EPA has also authorized some States (for example, Louisiana,
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
OxyVinyls transports the petitioned waste to or manages the waste in
any state with delisting authorization, OxyVinyls must obtain delisting
authorization from that state before it can manage the waste as
nonhazardous in the State.
II. Background
A. What Is the History of the Delisting Program?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing section 3001 of RCRA.
The EPA has amended this list several times and published it in
Sec. Sec. 261.31 and 261.32.
The 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), (2) they meet the criteria for
listing contained in Sec. 261.11(a)(2) or (a)(3), or (3) they are
wastes which are mixed with or derived from the treatment, storage or
disposal of such characteristic and listed wastes and which therefore
become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i), known as the
``mixture'' and ``derived-from'' rules, respectively.
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 the 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 the EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions the EPA because it does not consider the wastes
hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which the EPA lists a
waste are in Part 261 and further explained in the background documents
for the listed waste.
[[Page 56605]]
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 the 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 the EPA has ``delisted'' the waste.
C. What Factors Must the EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in Sec. 260.22(a) and Sec.
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, the EPA must consider any factors (including
additional constituents) other than those for which the EPA listed the
waste if a reasonable basis exists that these additional factors could
cause the waste to be hazardous.
The EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 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. The EPA's Evaluation of the Waste Information and Data
A. What Waste Did OxyVinyls Petition the EPA To Delist?
On October 11, 2002, OxyVinyls petitioned the EPA to exclude from
the lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32,
Incinerator Offgas Treatment Scrubber Water generated from its facility
located in Deer Park, Texas. The waste falls under the classification
of listed waste under Sec. 261.3.
Specifically, in its petition, OxyVinyls requested that the EPA
grant a standard exclusion for 919,990 cubic yardsper year of the
Incinerator Offgas Treatment Scrubber Water.
B. Who Is OxyVinyls and What Process Does It Use To Generate the
Petitioned Waste?
The OxyVinyls facility is located at 1000 Tidal Road Deer Park,
Texas in the Shell Chemical Manufacturing Complex. OxyVinyls produces
ethylene dichloride (EDC) and vinyl chloride monomer (VCM). EDC is
produced only for internal use to make VCM. The primary SIC code for
the facility is 2869. There are also support facilities including vent
incineration, VCM storage and shipping, EDC intermediate storage,
cooling towers and refrigeration and compressors. OxyVinyls utilizes
two permitted, onsite RCRA incinerators to burn process vent gases,
intermediate wastes generated during the production of EDC and VCM
(K019 and K020), epichlorohydrin heavy ends from Resolution Performance
Products LLC (K017) and waste oil. There are three wastewater streams
generated from treatment of the off-gases from each of the two RCRA
permitted incinerators. These three streams are components of the
Incinerator Offgas Treatment Scrubber Water; (1) Rockbox Wastewater,
which is neutralized scrubber water from the HCl (hydrochloric acid)
absorption column, (2) Caustic Scrubber/Dehumidifier column blowdown,
and (3) Wet Electrostatic Precipitator (WESP) blowdown. The HCl
absorption column is designed to remove HCl from the combustion
offgases, while the Caustic Scrubber is designed to remove both
residual HCl and chlorine from the offgases, and is located downstream
of the HCl absorption column. The further downstream WESP units are
designed to remove particulate matter, semi-volatile metals (SVM) and
low volatile metals (LVM) from the combustion offgases, including
arsenic, beryllium, chromium, cadmium and lead. Dioxins will also be
removed by the WESP units. Catalytic oxidizers follow the WESP units
and are designed to destroy trace amounts of dioxins, but they do not
generate a wastewater stream. The concentrations of constituents from
these three units will be accounted for during sampling and analysis of
the Offgas Treatment Scrubber Water.
OxyVinyls classified two waste streams (Rockbox Residue and
Incinerator Offgas Treatment Scrubber Water), generated from the
treatment of the offgas from the incinerators, as hazardous based on
the ``derived from'' rule in 40 CFR 261.3(c)(2)\1\. The facility
operates 24 hours per day, 7 days per week, 365 days per year with the
exception of periodic planned shutdowns for routine maintenance.
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\1\ The EPA has not independently determined that the waste is
hazardous based on the ``derived-from'' rule. Waste characterization
is the responsibility of the generator of the waste. See 40 CFR
262.11. OxyVinyIs made the characterization of the Incinerator
Offgas Treatment Scrubber Water and requested dedisting to resolve
all ambiguity about the applicability of the ``derived-from'' rule
to the waste.
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The Rockbox Residue was successfully delisted from hazardous waste
classification by the EPA (64 FR 42033, August 3, 1999).
OxyVinyls is now petitioning the EPA for a standard exclusion of
the Incinerator Offgas Treatment Scrubber Water from the K017, K019,
and K020, waste listings.
C. How Did OxyVinyls Sample and Analyze the Data in the Petition?
To support its petition, OxyVinyls submitted:
(1) historical information on past waste generation and management
practices;
(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 K017, K019 and K020
(5) results from total oil and grease analyses
(6) multiple pH testing for the petitioned waste.
D. What Were the results of OxyVinyls' Analyses?
The EPA believes that the descriptions of the OxyVinyls analytical
characterization provide a reasonable basis to grant OxyVinyls'
petition for an exclusion of the incinerator offgas treatment scrubber
water. The EPA believes the data submitted in support of the petition
show the incinerator offgas treatment scrubber water is non-hazardous.
Analytical data for the incinerator offgas treatment scrubber water
samples were used in the DRAS. The data summaries for detected
constituents are presented in Table I. The EPA has reviewed the
sampling procedures used by OxyVinyls and has determined they satisfy
the EPA's criteria for collecting representative samples of the
variations in constituent concentrations in the incinerator offgas
treatment scrubber water. The data submitted in support of the petition
show that constituents in OxyVinyls' waste are presently below health-
based levels used in the delisting decision-making. The EPA believes
that OxyVinyls has successfully
[[Page 56606]]
demonstrated that the incinerator offgas treatment scrubber water is
non-hazardous.
Table I.--Maximum TCLP Constituent Concentrations and Maximum Allowable
Delisting Concentration of the Incinerator Offgas Treatment Scrubber
Water at the OxyVinyls L.P. Deer Park VCM Plant\1\
------------------------------------------------------------------------
Maximum
allowable
Constituent TCLP constituent delisting
analyses (mg/l) concentration
levels (mg/l)
------------------------------------------------------------------------
Antimony.............................. 0.00586 0.0204
Arsenic............................... 0.02 \2\ 0.385
Barium................................ 0.291 2.92
Beryllium............................. 0.00279 0.166
Cadmium............................... 0.00112 0.0225
Chromium.............................. 0.0823 5.0
Cobalt................................ 0.00543 13.14
Copper................................ 0.0636 418.00
Lead.................................. 0.011 5.00
Nickel................................ 0.0437 1.13
Mercury............................... 0.00038 0.0111
Vanadium.............................. 0.0222 0.838
Zinc.................................. 0.0798 2.61
Acetone............................... 0.03 1.46
Bromoform............................. 0.016 0.481
Bromomethane.......................... 0.0017 8.20
Bromodichloromethane.................. 0.012 0.0719
Chloroform............................ 0.0051 0.683
Dibromochloromethane.................. 0.013 0.057
Iodomethane........................... 0.001 0.19
Methylene Chloride.................... 0.0014 0.029
2,3,7,8-TCDD Equivalent............... 0.000000302 0.0000926
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
E. How Did the EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, the EPA used such information
gathered to identify plausible exposure routes (i.e., groundwater,
surface water, air) for hazardous constituents present in the
petitioned waste. The EPA determined that disposal in a Subtitle D
surface impoundment is the most reasonable, worst-case disposal
scenario for OxyVinyls' petitioned waste. The EPA applied the most
recent version of the Delisting Risk Assessment Software (DRAS)
described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 (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
OxyVinyls' petitioned waste on human health and the environment. A copy
of this software can be found on the World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm.
In assessing potential
risks to groundwater, the 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 groundwater
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 the
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 groundwater.
The EPA believes that the EPACMTP fate and transport model
represents a reasonable worst-case scenario for possible groundwater
contamination resulting from disposal of the petitioned waste in a
surface impoundment, 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 surface
impoundment). As in the above groundwater 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, the EPA is generally unable to predict, and
does not presently control, how a petitioner will manage a waste after
delisting. Therefore, the EPA currently believes that it is
inappropriate to consider extensive site-specific factors when applying
the fate and transport model. The EPA does control the type of unit
[[Page 56607]]
where the waste is disposed. The waste must be disposed in the type of
unit the fate and transport model evaluates.
The EPA also considers the applicability of groundwater monitoring
data during the evaluation of delisting petitions. In this case,
OxyVinyls disposes of its wastewater in an NPDES permitted facility
with surface impoundments (part of the Shell South Effluent Treatment
system), with existing groundwater contamination sources other than the
surface impoundments impacting monitoring wells in the area. The
groundwater contamination is currently being addressed and managed
through a RCRA Corrective Actions Program. Consequently the groundwater
data would not be relevant to this exclusion. Therefore, the EPA has
determined that it would be unnecessary to request groundwater
monitoring data.
The EPA believes that the descriptions of OxyVinyls' hazardous
waste process and analytical characterization 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
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 in OxyVinyls'
waste. In addition, on the basis of explanations and analytical data
provided by OxyVinyls, pursuant to Sec. 260.22, the 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.
F. What Did the EPA Conclude About OxyVinyls' Analysis?
The EPA concluded, after reviewing OxyVinyls' processes that no
other hazardous constituents of concern, other than those for which
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 OxyVinyls, pursuant to Sec. Sec. 260.22,
the EPA concludes that the petitioned wastes do not exhibit any of the
characteristics of ignitability, corrosivity, or reactivity. See
Sec. Sec. 261.21, 261.22 and 261.23, respectively.
G. What Other Factors Did the EPA Consider in Its Evaluation?
During the evaluation of OxyVinyls' petition, the EPA also
considered the potential impact of the petitioned waste via non-
groundwater routes (i.e., air emission and surface runoff). With regard
to airborne dispersion in particular, the EPA believes that exposure to
airborne contaminants from OxyVinyls' petitioned waste is unlikely.
Therefore, no appreciable air releases are likely from OxyVinyls waste
under any likely disposal conditions. The EPA evaluated the potential
hazards resulting from the unlikely scenario of airborne exposure to
hazardous constituents released from OxyVinyls' waste in an open
surface impoundment. 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
OxyVinyls' incinerator offgas treatment scrubber water. A description
of the EPA's assessment of the potential impact of OxyVinyls' waste,
regarding airborne dispersion of waste contaminants, is presented in
the RCRA public docket for this proposed rule, F-02-TX-OxyVinyls.
The EPA also considered the potential impact of the petitioned
waste via a surface water route. The EPA believes that containment
structures at municipal solid waste surface impoundments 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. The EPA
believes that, in general, the incinerator offgas scrubber water 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. Since the waste is a liquid,
the concentrations provide a direct measure of solubility of a toxic
constituent in water and are indicative of the fraction of the
constituent that may be mobilized in surface water as well as
groundwater.
Based on the reasons discussed above, the EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, the EPA evaluated the potential
impacts on surface water if OxyVinyls' waste were released from a
municipal solid waste surface impoundment 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 of the hazardous constituents of concern
in surface water would be well below health-based levels for human
health, as well as below the EPA Chronic Water Quality Criteria for
aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded
that OxyVinyls incinerator offgas treatment scrubber water is not a
present or potential substantial hazard to human health and the
environment via the surface water exposure pathway.
H. What Is the EPA's Evaluation of This Delisting Petition?
The descriptions of OxyVinyls' hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this notice), provide a reasonable
basis for the 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). The EPA
believes OxyVinyls' process will substantially reduce the likelihood of
migration of hazardous constituents from the petitioned waste.
OxyVinyls' process also minimizes short-term and long-term threats from
the petitioned waste to human health and the environment.
Thus, the EPA believes that it should grant OxyVinyls an exclusion
for the incinerator offgas treatment scrubber water. The EPA believes
the data submitted in support of the petition show OxyVinyls' process
can render the incinerator offgas treatment scrubber water non-
hazardous.
The EPA has reviewed the sampling procedures used by OxyVinyls and
has determined they satisfy the EPA criteria for collecting
representative samples of variable constituent concentrations in the
incinerator offgas treatment scrubber water. The data submitted in
support of the petition show that constituents in OxyVinyls' waste are
presently below the compliance point concentrations used in the
delisting decision-making and would not pose a substantial hazard to
the environment. The EPA believes that OxyVinyls has successfully
demonstrated that the incinerator offgas treatment scrubber water is
non-hazardous.
The EPA therefore, proposes to grant an exclusion to OxyVinyls, in
Deer Park, Texas, for the incinerator offgas treatment scrubber water
described in
[[Page 56608]]
its petition. The EPA's decision to exclude this waste is based on
descriptions of the treatment activities associated with the petitioned
waste and characterization of the incinerator offgas treatment scrubber
water.
If the EPA finalizes the proposed rule, the 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, OxyVinyls, must comply with the requirements in 40
CFR part 261, appendix IX, Table 1 as amended by this notice. The text
below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituents that OxyVinyls
must test the incinerator offgas treatment scrubber water, below which
these wastes would be considered non-hazardous.
The EPA selected the set of inorganic and organic constituents
specified in Paragraph (1) of 40 CFR Part 261, Appendix IX, Table 1,
based on information in the petition. The EPA compiled the inorganic
and organic constituents list from the composition of the waste,
descriptions of OxyVinyls' treatment process, previous test data
provided for the waste, and the respective health-based levels used in
delisting decision-making. These delisting levels correspond to the
allowable levels measured in the total concentration analysis of the
waste.
(2) Waste Holding and Handling
The purpose of this paragraph is to ensure that OxyVinyls manages
and disposes of any incinerator offgas treatment scrubber water that
contains hazardous levels of inorganic and organic constituents
according to Subtitle C of RCRA. Managing the incinerator offgas
treatment scrubber water as a hazardous waste until initial
verification testing is performed will protect against improper
handling of hazardous material. If EPA determines that the data
collected under this Paragraph do not support the data provided for in
the petition, the exclusion will not cover the petitioned waste. The
exclusion is effective upon publication in the Federal Register but the
disposal at a non-Subtitle C surface impoundment cannot begin until the
verification sampling is completed.
(3) Verification Testing Requirements
OxyVinyls must complete a rigorous verification testing program on
the incinerator offgas treatment scrubber water to assure that the
treated incinerator offgas treatment scrubber water does not exceed the
maximum levels specified in Paragraph (1). If the EPA determines that
the data collected under this Paragraph does not support the data
provided for in the petition, the exclusion will not cover the tested
waste. This verification program operates on two levels.
The first part of the verification testing program consists of
testing the incinerator offgas treatment scrubber water for specified
indicator parameters as per Paragraph (1).
If the EPA determines that the data collected under this Paragraph
do not support the data provided for the petition, the exclusion will
not cover the generated wastes. If the data from the initial
verification testing program demonstrate that the treatment process is
effective, OxyVinyls may request quarterly testing. The EPA will notify
OxyVinyls, in writing, if and when it may replace the testing
conditions in paragraph(3)(A)with the testing conditions in (3)(B).
The second part of the verification testing program is the
quarterly testing of representative samples of incinerator offgas
treatment scrubber water for all constituents specified in Paragraph
(1). The EPA believes that the concentrations of the constituents of
concern in the incinerator offgas treatment scrubber water may vary
over time. Consequently this program will ensure that OxyVinyls'
treatment process can effectively handle any variation in constituent
concentrations in the waste.
The proposed subsequent testing would verify that OxyVinyls
operates an incinerator from which an aqueous stream is generated from
treating and neutralizing gasses generated in the firebox during the
incineration process as it did during the initial verification testing.
It would also verify that the incinerator offgas treatment scrubber
water does not exhibit unacceptable levels of toxic constituents.
The EPA is proposing to require OxyVinyls to analyze representative
samples of the incinerator offgas treatment scrubber water quarterly
during the first year of waste generation. OxyVinyls would begin
quarterly sampling 60 days after the final exclusion as described in
Paragraph (3)(B).
The EPA, per Paragraph 3(C), is proposing to end the subsequent
testing conditions after the first year if OxyVinyls has demonstrated
that the waste consistently meets the delisting levels. To confirm that
the characteristics of the waste do not change significantly over time,
OxyVinyls must continue to analyze a representative sample of the waste
on an annual basis. Annual testing requires analyzing the full list of
components in Paragraph 1. If operating conditions change as described
in Paragraph (4); OxyVinyls must reinstate all testing in Paragraph
(1). It must prove through a new demonstration that its waste meets the
conditions of the exclusion.
If the annual testing of the waste does not meet the delisting
requirements in Paragraph 1, OxyVinyls must notify the EPA according to
the requirements in Paragraph 6. The facility must provide sampling
results that support the rationale that the delisting exclusion should
not be withdrawn.
(4) Changes in Operating Conditions
Paragraph (4) would allow OxyVinyls the flexibility of modifying
its processes (for example, changes in equipment or change in operating
conditions) to improve its treatment process. However, OxyVinyls must
prove the effectiveness of the modified process and request approval
from the EPA. OxyVinyls must manage wastes generated during the new
process demonstration as hazardous waste until it has obtained written
approval and Paragraph (3) is satisfied.
(5) Data Submittals
To provide appropriate documentation that OxyVinyls facility is
properly treating the waste, OxyVinyls must compile, summarize, and
keep delisting records on-site for a minimum of five years. It should
keep all analytical data obtained through Paragraph (3) including
quality control information for five years. Paragraph (5) requires that
OxyVinyls furnish these data upon request for inspection by any
employee or representative of the EPA or the State of Texas.
If the proposed exclusion is made final, it will apply only to
919,990 cubic yards per year of incinerator offgas treatment scrubber
water generated at the OxyVinyls facility after successful verification
testing.
The EPA would require OxyVinyls to file a new delisting petition
under any of the following circumstances:
(a) If OxyVinyls significantly alters the manufacturing process
treatment system except as described in Paragraph (4).
(b) If OxyVinyls uses any new manufacturing or production
[[Page 56609]]
process(es), or significantly change from the current process(es)
described in its petition; or
(c) If OxyVinyls make any changes that could affect the composition
or type of waste generated.
OxyVinyls must manage waste volumes greater than 919,990 cubic
yards per year of incinerator offgas treatment scrubber water as
hazardous until the EPA grants a new exclusion.
When this exclusion becomes final, OxyVinyls' management of the
wastes covered by this petition would be relieved from Subtitle C
jurisdiction. OxyVinyls must either treat, store, or dispose of the
waste in an on-site facility. If not, OxyVinyls must ensure that it
delivers the waste to an off-site storage, treatment, or disposal
facility that has a State permit, license, or register to manage
municipal or industrial solid waste.
(6) Reopener
The purpose of Paragraph 6 is to require OxyVinyls 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. OxyVinyls
must also use this procedure, if the waste sample in the annual testing
fails to meet the levels found in Paragraph 1. This provision will
allow the EPA to reevaluate the exclusion if a source provides new or
additional information to the EPA. The EPA will evaluate the
information on which it based the decision to see if it is still
correct, or if circumstances have changed so that the information is no
longer correct or would cause the EPA to deny the petition if
presented.
This provision expressly requires OxyVinyls to report differing
site conditions or assumptions used in the petition in addition to
failure to meet the annual testing conditions within 10 days of
discovery. If the 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.
The EPA believes that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. The EPA may reopen a delisting decision
when new information is received that calls into question the
assumptions underlying the delisting.
The EPA believes a clear statement of its authority in delistings
is merited in light of the EPA's 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 the EPA to repeal the
delisting. If an immediate threat to human health and the environment
presents itself, the EPA will continue to address these situations case
by case. Where necessary, the EPA will make a good cause finding to
justify emergency rulemaking. See APA section 553(b).
(7) Notification Requirements
In order to adequately track wastes that have been delisted, the
EPA is requiring that OxyVinyls provide a one-time notification to any
State regulatory agency through which or to which the delisted waste is
being carried. OxyVinyls must provide this notification within 60 days
of commencing this activity.
B. What Happens if OxyVinyls Violates the Terms and Conditions?
If OxyVinyls violates the terms and conditions established in the
exclusion, the EPA will start procedures to withdraw the exclusion.
Where there is an immediate threat to human health and the environment,
the EPA will evaluate the need for enforcement activities on a case-by-
case basis. The EPA expects OxyVinyls to conduct the appropriate waste
analysis and comply with the criteria explained above in Condition 1 of
the exclusion.
V. Public Comments
A. How May I as an Interested Party Submit Comments?
The EPA is requesting public comments on this proposed decision.
Please send three copies of your comments. Send two copies to the
Section Chief of the Corrective Action and Waste Minimization Section,
Multimedia Planning and Permitting Division (6PD-C), Environmental
Protection Agency (EPA), 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-02-TX-OxyVinyls.'' You may submit your comments electronically to James Harris at harris.jamesa@epa.gov.
You should submit requests for a hearing to Steven Gilrein,
Associate Director of RCRA, Multimedia Planning and Permitting Division
(6PD), 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
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing in the EPA Freedom of
Information Act Review Room from 9:00 a.m. to 4:00 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, the 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 overall costs and
economic impact of the EPA's hazardous waste management regulations.
This reduction would be achieved by excluding waste generated at a
specific facility from the 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 a 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 the 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
[[Page 56610]]
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,
the 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 the EPA rules, under section
205 of the UMRA the EPA must identify and consider alternatives,
including the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The 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 the 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 the 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.
The 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 the 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, the 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 the 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, the 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, the 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 the 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 the 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) of the National Technology Transfer and
Advancement Act, the 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 the EPA, the Act requires that the EPA
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,
the EPA has no need to consider the use of voluntary consensus
standards in developing this final rule.
XIII. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires the 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, the 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 the EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the 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
[[Page 56611]]
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: September 19, 2003.
William Luthans,
Acting 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 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
----------------------------------------------------------------------------------------------------------------
* * * * * * *
OxyVinyls, L.P., Deer Park, TX................................... Incinerator Offgas Scrubber Water (EPA
Hazardous Waste Nos. K017, K019 and K020)
generated at a maximum annual rate of
919,990 cubic yards per calendar year after
[insert publication date of the final rule]
and disposed in a Subtitle D surface
impoundment.
For the exclusion to be valid, OxyVinyls must
implement a testing program that meets the
following Paragraphs:
(1) Delisting Levels: All leachable
concentrations for those constituents must
not exceed the following levels (mg/l).
The petitioner must use the leaching
specified in 40 CFR Part 261.24 to measure
constituents in the incinerator offgas
scrubber water.
Incinerator offgas treatment scrubber water
(i) Inorganic Constituents Antimony-
0.0204; Arsenic-0.385; Barium-2.92;
Beryllium-0.166; Cadmium-0.0225; Chromium-
5.0; Cobalt-13.14; Copper-418.00; Lead-
5.0; Nickel-1.13; Mercury-0.0111; Vanadium-
0.838; Zinc-2.61
(ii) Organic Constituents Acetone-1.46;
Bromoform-0.481; Bromomethane-8.2;
Bromodichloromethane-0.0719; Chloroform-
0.683; Dibromochloromethane-0.057;
Iodomethane-0.19; Methylene Chloride-
0.029; 2,3,7,8-TCDD equivalents as TEQ-
0.0000926
(2) Waste Management:
(A) OxyVinyls must manage as hazardous all
incinerator offgas treatment scrubber
water 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 incinerator offgas
treatment scrubber water that do not
exceed the levels set forth in Paragraph
(1) are non-hazardous. OxyVinyls can
manage and dispose the non-hazardous
incinerator offgas treatment scrubber
water according to all applicable solid
waste regulations.
(C) If constituent levels in a sample
exceed any of the delisting levels set in
Paragraph (1), OxyVinyls can collect one
additional sample and perform expedited
analyses to confirm if the constituent
exceeds the delisting level. If this
sample confirms the exceedance, OxyVinyls
must, from that point forward, treat the
waste as hazardous until it is
demonstrated that the waste again meets
the levels.
(D) If the facility has not treated the
waste, OxyVinyls must manage and dispose
of the waste generated under Subtitle C
of RCRA from the time that it becomes
aware of any exceedance.
(E) Upon completion of the Verification
Testing described in Paragraph 3(A) and
(B) as appropriate and the transmittal of
the results to the EPA, and if the
testing results meet the requirements of
Paragraph (1), OxyVinyls may proceed to
manage its incinerator offgas treatment
scrubber water as non-hazardous waste. If
Subsequent Verification Testing indicates
an exceedance of the Delisting Levels in
Paragraph (1), OxyVinyls must manage the
incinerator offgas treatment scrubber
water as a hazardous waste until two
consecutive quarterly testing samples
show levels below the Delisting Levels.
(3) Verification Testing Requirements:
OxyVinyls must perform sample collection
and analyses, including quality control
procedures, according to SW-846
methodologies. If the EPA judges the
process to be effective under the
operating conditions used during the
initial verification testing, OxyVinyls
may replace the testing required in
Paragraph (3)(A) with the testing required
in Paragraph (3)(B). OxyVinyls must
continue to test as specified in Paragraph
(3)(A) until and unless notified by the
EPA in writing that testing in Paragraph
(3)(A) may be replaced by Paragraph
(3)(B).
(A) Initial Verification Testing: After
the EPA grants the final exclusion,
OxyVinyls must do the following:
(i) Within 60 days of this exclusion's
becoming final, collect four samples,
before disposal, of the incinerator
offgas treatment scrubber water.
(ii) The samples are to be analyzed and
compared against the delisting levels in
Paragraph (1).
[[Page 56612]]
(iii) Within sixty (60) days after this
exclusion becomes final, OxyVinyls will
report initial verification analytical
test data, including analytical quality
control information for the first thirty
(30) days of operation after this
exclusion becomes final of the
incinerator offgas treatment scrubber
water. If levels of constituents
measured in the samples of the
incinerator offgas treatment scrubber
water 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,
OxyVinyls can manage and dispose of the
incinerator offgas treatment scrubber
water according to all applicable solid
waste regulations.
(B) Subsequent Verification Testing:
Following written notification by the
EPA, OxyVinyls may substitute the testing
conditions in (3)(B) for (3)(A).
OxyVinyls must continue to monitor
operating conditions, and analyze
representative samples for each quarter
of operation during the first year of
waste generation. The samples 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 incinerator offgas
treatment scrubber water. The results are
to be compared to the delisting levels in
Condition (1).
(C) Termination of Testing: (i) After the
first year of quarterly testing, if the
Delisting Levels in Paragraph (1) are
being met, OxyVinyls may then request
that the EPA stop quarterly testing.
After the EPA notifies OxyVinyls in
writing, the company may end quarterly
testing.
(ii) Following cancellation of the
quarterly testing, OxyVinyls must
continue to test a representative sample
for all constituents listed in Paragraph
(1) annually.
(4) Changes in Operating Conditions: If
OxyVinyls 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 the EPA in writing; OxyVinyls
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 the EPA.
(5) Data Submittals: OxyVinyls must submit
the information described below. If
OxyVinyls fails to submit the required
data within the specified time or maintain
the required records on-site for the
specified time, the EPA, at its
discretion, will consider this sufficient
basis to reopen the exclusion as described
in Paragraph 6. OxyVinyls must:
(A) Submit the data obtained through
Paragraph 3 to the Section Chief, Region
6 Oklahoma/Texas Section, the EPA, 1445
Ross Avenue, Dallas, Texas 75202-2733,
Mail Code, (6PD-O) within the time
specified.
(B) Compile records of operating
conditions and analytical data from
Paragraph (3), summarized, and maintained
on-site for a minimum of five years.
(C) Furnish these records and data when
the EPA or the State of Texas request
them for inspection.
(D) Send along with all data a signed copy
of the following certification statement,
to attest to the truth and accuracy of
the data submitted:
Under civil and criminal penalty of law
for the making or submission of false or
fraudulent statements or representations
(pursuant to the applicable provisions
of the Federal Code, which include, but
may not be limited to, 18 U.S.C. 1001
and 42 U.S.C. 6928), I certify that the
information contained in or accompanying
this document is true, accurate and
complete.
As to the (those) identified section(s)
of this document for which I cannot
personally verify its (their) truth and
accuracy, I certify as the company
official having supervisory
responsibility for the persons who,
acting under my direct instructions,
made the verification that this
information is true, accurate and
complete.
If any of this information is determined
by the EPA in its sole discretion to be
false, inaccurate or incomplete, and
upon conveyance of this fact to the
company, I recognize and agree that this
exclusion of waste will be void as if it
never had effect or to the extent
directed by the EPA and that the company
will be liable for any actions taken in
contravention of the company's RCRA and
CERCLA obligations premised upon the
company's reliance on the void
exclusion.
(6) Reopener
(A) If, anytime after disposal of the
delisted waste OxyVinyls possesses or is
otherwise made aware of any environmental
data (including but not limited to
leachate data or groundwater 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
Regional Administrator or his delegate in
granting the petition, then the facility
must report the data, in writing, to the
Regional Administrator or his delegate
within 10 days of first possessing or
being made aware of that data.
(B) If the annual testing of the waste
does not meet the delisting requirements
in Paragraph 1, OxyVinyls must report the
data, in writing, to the Regional
Administrator or his delegate within 10
days of first possessing or being made
aware of that data.
(C) If OxyVinyls fails to submit the
information described in paragraphs
(5),(6)(A) or (6)(B) or if any other
information is received from any source,
the Regional Administrator or his
delegate will make a preliminary
determination as to whether the reported
information requires the 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.
[[Page 56613]]
(D) If the Regional Administrator or his
delegate determines that the reported
information does require action by the
EPA's Regional Administrator or his
delegate will notify the facility in
writing of the actions the Regional
Administrator or his delegate 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 Regional
Administrator or his delegate's notice to
present such information.
(E) Following the receipt of information
from the facility described in paragraph
(6)(D) or (if no information is presented
under paragraph (6)(D)) the initial
receipt of information described in
paragraphs (5), (6)(A) or (6)(B), the
Regional Administrator or his delegate
will issue a final written determination
describing the EPA actions that are
necessary to protect human health or the
environment. Any required action
described in the Regional Administrator
or his delegate's determination shall
become effective immediately, unless the
Regional Administrator or his delegate
provides otherwise.
(7) Notification Requirements: OxyVinyls
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 it will
transport the delisted waste described
above for disposal, 60 days before
beginning such activities.
(B) Update the one-time written
notification if it ships the delisted
waste into a different disposal facility.
(C) Failure to provide this notification
will result in a violation of the
delisting variance and a possible
revocation of the decision.
* * * * * * *
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[FR Doc. 03-24910 Filed 9-30-03; 8:45 am]
BILLING CODE 6560-50-P
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