[Federal Register Volume 61, Number 209 (Monday, October 28, 1996)]
[Rules and Regulations]
[Pages 55718-55727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27695]



[[Page 55717]]


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Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 268



Land Disposal Restrictions: Treatability Variance for CITGO Petroleum 
Refinery, Lake Charles, LA; Final Rule

  Federal Register / Vol. 61, No. 209 / Monday, October 28, 1996 / 
Rules and Regulations  

[[Page 55718]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-5642-2]


Land Disposal Restrictions: Treatability Variance for CITGO 
Petroleum Refinery, Lake Charles, Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is granting a site-specific variance from the Land 
Disposal Restrictions (LDR) treatment standards for two hazardous 
petroleum refinery wastes (EPA Hazardous Waste Codes F037 and F038). 
The variance applies to F037 and F038 nonwastewaters that are removed 
from a 26 acre surface impoundment (the Surge Pond) located at the 
CITGO Corporation petroleum refinery outside Lake Charles, Louisiana. 
EPA is taking this action because the LDR treatment standards that 
otherwise would apply are based on the performance of technologies that 
are not appropriate for these wastes at this site. EPA believes that 
requiring use of the technologies that were the basis of the treatment 
standards would likely result in net environmental detriment, namely, 
impeding or preventing the assured remediation of the Surge Pond, 
including removal and substantial treatment of all remaining Surge Pond 
sludge. Granting this variance will enable CITGO to complete the 
removal, treatment, and disposal of the Surge Pond sludge, provided 
they comply with the alternative treatment standards specified in this 
rule. EPA has found that removing, treating, and disposing of the 
sludge in a secure facility is more protective to human health and the 
environment than the likely alternative, leaving the untreated 
hazardous waste sludge in place.
EFFECTIVE DATE: This final rule is effective on October 22, 1996.

ADDRESSES: The official record for this rulemaking is identified by 
RCRA Docket Number F-96-TVLF-FFFF and is located at 1235 Jefferson 
Davis Highway, First Floor, Arlington, Virginia (the ``Crystal 
Gateway'' building). The RCRA Docket is open from 9:00 am to 4:00 pm 
Monday through Friday, except for Federal holidays. The public must 
make an appointment to review docket materials by calling (703) 603-
9230. The public may copy a maximum of 100 pages from any regulatory 
document at no cost. Additional copies cost $.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline at (800) 424-9346 toll-free or (703) 412-9810 locally; TDD 
(800) 553-7672 or (703) 412-3323. For information on specific aspects 
of this document, contact Shaun McGarvey, Waste Treatment Branch 
(Mailcode 5302W), Hazardous Waste Minimization and Management Division, 
Office of Solid Waste, U.S. Environmental Protection Agency, 401 M 
Street SW, Washington, DC 20460, at (703) 308-8603.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Authority
    B. Site Description
    C. History of Surge Pond Remediation
    D. Waste Description
    E. Description of Proposed Treatment
    F. Summary of Proposed Rule
II. Basis for Treatability Variance
    A. EPA's Interpretation of When a Treatment Standard is ``Not 
Appropriate''
    B. Application of EPA's Interpretation of When a Treatment 
Standard is ``Not Appropriate'' to CITGO
    C. Effect of this Variance on Other Remedial Actions
III. Treatment Standards
    A. Existing F037 and F038 Nonwastewater Standards
    B. Alternative F037 and F038 Nonwastewater Standards Approved 
for Use During Surge Pond Remediation at CITGO
IV. Public Comments and EPA Responses
V. Analysis under Executive Order 12866, the Unfunded Mandates 
Reform Act of 1995, the Regulatory Flexibility Act, and the 
Paperwork Reduction Act
VI. Submission to Congress and the General Accounting Office

I. Background

A. Authority

    Under RCRA section 3004(m), EPA is required, as a prerequisite to 
allowing land disposal of hazardous waste, to establish ``levels or 
methods of treatment, if any, which substantially diminish the toxicity 
of the waste or substantially reduce the likelihood of migration of 
hazardous constituents from the waste so that short-term and long-term 
threats to human health and the environment are minimized.'' To date, 
EPA has implemented this requirement by developing technology-based 
treatment standards, although other approaches are also permissible. 
HWTC v. EPA, 886 F.2d 355, (D.C. Cir. 1989). The Agency, however, 
recognizes that there are wastes that cannot or should not be treated 
to the levels specified in the rules, because the wastes are physically 
or chemically different from the wastes the Agency evaluated when 
establishing the treatment standard, or because the treatment 
technology is inappropriate for the waste. See 51 FR at 40605-40606 
(Nov. 7, 1986). For such wastes, EPA established treatability variance 
procedures that may be used to establish alternative treatment 
standards on a case-by-case basis. 40 CFR 268.44.
    The requirements for a treatability variance are found at 40 CFR 
268.44(a), which states:

    Where the treatment standard is expressed as a concentration in 
a waste or waste extract and a waste cannot be treated to the 
specified level, or where the treatment technology is not 
appropriate to the waste, the generator or treatment facility may 
petition the Administrator for a variance from the treatment 
standard. The petitioner must demonstrate that because the physical 
or chemical properties of the waste differ significantly from the 
waste analyzed in developing the treatment standard, the waste 
cannot be treated to specified levels or by the specified methods.

EPA uses this standard to approve site-specific variances and variances 
that have more general applicability. See Sec. 268.44(h) and 53 FR at 
31199-31200 (August 18, 1988). Except for their potential 
applicability, the main difference between site-specific and general 
variances is that EPA may permissibly use procedures less formal than 
Administrative Procedure Act notice and comment rulemaking when 
processing site-specific treatability variance applications (see 53 FR 
at 31199-31200). However, because CITGO's application raises issues 
that may be of national interest (notwithstanding applicability of the 
rule to a particular facility), EPA used APA notice and comment 
procedures to process CITGO's application, even though the variance 
will apply only to specific wastes generated by remediation of the 
Surge Pond at CITGO's Lake Charles, Louisiana facility. Thus, today's 
action can be said to be pursuant to both Secs. 268.44(a) and (h).
    For a more thorough discussion of the conditions which justify 
approving a treatability variance and the supporting information the 
petitioner is required to submit, please refer to the November 7, 1986 
Federal Register (51 FR at 40605-40606), as well as the September 19, 
1994 Federal Register (59 FR at 48023).

B. Site Description

    The surface impoundment containing the waste addressed by this 
variance is located at CITGO Corporation's Lake Charles Refinery, 4401 
Louisiana Highway 108 in Calcasieu County in the southwest corner of 
Louisiana. The

[[Page 55719]]

surface impoundment in question, referred to as the ``Surge Pond'' in 
CITGO's application, is situated immediately adjacent to the west bank 
of the Calcasieu River, approximately 10 miles southwest of Lake 
Charles and 15 miles north of the Sabine National Wildlife Refuge. The 
Surge Pond has a surface area of twenty six (26) acres. Much of the 
pond is 15 to 20 feet deep; the deepest part is about 40 feet deep. The 
water surface elevation of the pond is six feet above sea level; the 
water layer is about 15 feet deep.
    Wastewater from the Surge Pond discharges into an old on-site 
wastewater treatment system. This system consists of an earthen 
equalization basin, followed by dissolved air flotation (DAF) tanks, a 
settling pond, and a polishing pond. It discharges into the Calcasieu 
river at an NPDES regulated outfall (Permit Number LA0005941). The 
bottom of the pond is filled with sludge which has been accumulating 
since the 1940's. The Sludge remaining in the Surge Pond is the subject 
of this variance. (CITGO's application for a treatability variance only 
includes sludge from the Surge Pond; it does not include any sludge 
generated by the rest of the old wastewater treatment system, including 
sludge generated by any remediation of the system.)
    CITGO has been operating a new on-site wastewater treatment system 
since May 13, 1994. This system now receives process wastewater and 
storm water from the site. The new system consists primarily of above 
ground tanks with floating roofs. Air emissions from the tanks are 
routed to a vapor control system. The new wastewater treatment system 
flows from the API separators to an equalization tank, to a DAF unit, 
to aerated activated sludge tanks, to a clarifier. Clarifier effluent 
is discharged to the settling pond of the old wastewater treatment 
system and eventually through the NPDES regulated outfall to the 
Calcasieu River.

C. History of Surge Pond Remediation

    The CITGO Surge Pond is a hazardous waste surface impoundment and, 
thus, is subject to requirements for closure and corrective action. 
See, e.g., 40 CFR 264.101; 40 CFR 264.110. In early 1993, CITGO 
conducted feasibility studies to compare and evaluate their options for 
closing the Surge Pond. They decided to pursue an option that involved 
removal of sludge from the Surge Pond followed by substantial 
treatment, oil recovery, and secure disposal at an off-site Subtitle C 
facility. This remediation strategy was approved by the State of 
Louisiana Department of Environmental Quality in December 1993. 
Following state approval, CITGO designed, constructed and began 
operating an on-site treatment system for treatment of Surge Pond 
sludge.
    At the time CITGO chose the sludge removal and treatment option 
there was a national capacity variance for F037 and F038 nonwastewaters 
which extended the effective date of the applicable LDR treatment 
standards. CITGO planned to complete removal, treatment, and disposal 
of all the Surge Pond sludge before the national capacity variance 
expired; however, they were unable to meet this deadline due to 
unforeseen contractor delays. When the national capacity variance 
expired (June 30, 1994), remediation was stopped because the treatment 
system could not meet the treatment standards for all of the regulated 
constituents in Surge Pond sludge, and CITGO applied for a treatability 
variance.
    For a more detailed discussion of the regulatory and remediation 
history at the CITGO Surge Pond see the preamble to the proposed rule 
at 59 FR 44686 (August 20, 1994) and CITGO's application for a site-
specific treatability variance (available in the docket for today's 
rulemaking).

D. Waste Description

    The Surge Pond received untreated petroleum refining process water 
and storm water runoff from the site for most of the site's history. 
Under normal operation, the Surge Pond received sanitary oxidation pond 
effluent, ballast water, storm water runoff from the refinery complex, 
CPI separator effluent, and, potentially, controlled cooling tower 
blowdown. The sludge at the bottom of the Surge Pond, therefore, is a 
primary sludge generated by the settling of petroleum refining 
wastewater and meets the definition of RCRA Hazardous Waste Codes F037 
and F038. Sampling and analysis of the sludge was performed in 1993 as 
part of a feasibility study conducted by CITGO for the purpose of 
evaluating pond closure options, and again in February and March 1994 
for this treatability variance petition. Concentrations of hazardous 
constituents in the untreated sludge are summarized in Appendix 1.
    This application involves approximately 375,000 tons of sludge 
which remain in the surface impoundment. CITGO and its contractors have 
in fact removed and treated over 500,000 tons of sludge up to June 30, 
1994--the time the land disposal prohibition for F037 and F038 wastes 
took effect.

E. Description of Proposed Treatment

    Upon promulgation of this variance, CITGO will use an on-site 
treatment system to recover oil from, and substantially reduce the 
toxicity and mobility of, regulated hazardous constituents in the Surge 
Pond sludge. This treatment system will consist of air sparging in 
tanks to remove volatile organic constituents, followed by sludge 
dewatering. Dewatered sludge will be mixed with lime or flyash to 
stabilize metals and provide structural integrity. Stabilized sludge 
will be sent for land disposal at Chemical Waste Management's Subtitle 
C landfill in Carlyss, Louisiana. The liquid phase from the dewatering 
units will be routed to tanks functioning as oil-water separators for 
recovery of oil. The aqueous discharge (wastewater) from the separators 
will be discharged back into the Surge Pond and from there through the 
old wastewater treatment to the NPDES regulated outfall at the 
Calcasieu river.
    Air emissions from the treatment system will be routed to a vapor 
control system, permitted by the State of Louisiana Department of 
Environmental Quality, for removal of hydrogen sulfide and destruction 
of the volatile organics. In addition the sludge treatment system will 
have to be operated in accordance with air emission standards specified 
by:
    (1) 40 CFR Part 61--National Emission Standards for Hazardous Air 
Pollutants (NESHAP), Subpart FF: National Emission Standard for Benzene 
Waste Operations, Sec. 61.348 Standards: Treatment Processes. (This 
regulation requires removal of benzene from the waste stream to a level 
less than 10 parts per million by weight (ppmw) on a flow-weighted 
annual average basis, and gives specifications for the design and 
operation of the vapor control system);
    (2) 40 CFR Parts 264 and 265--Standards for Owners and Operators of 
Hazardous Waste Treatment, Storage and Disposal Facilities; Subpart 
CC--Air Emission Standards for Tanks, Surface Impoundments, and 
Containers (assuming that the volatile organic concentration at the 
point of waste origination--that is, in the impoundment--exceeds the 
trigger level specified in those rules, which appears to be the case). 
(The Subpart CC rules require that tanks storing or treating hazardous 
wastes to which the rule applies be equipped with covers and control 
devices to capture and destroy volatile emissions or otherwise to 
control emissions from the tanks to protective levels. See 40 CFR 
264.1084

[[Page 55720]]

and 264.1091; and 265.1085 and 265.1091); and,
    (3) Any additional requirements specified by the Louisiana 
Department of Environmental Quality.
    EPA believes that compliance with the Benzene NESHAP and (if 
applicable) the subpart CC rules will ensure that the treatment unit 
will operate in a protective manner and will not serve as a conduit for 
cross-media transfer of volatile hazardous constituents (or, for that 
matter, volatile constituents in general). Cf. Chemical Waste 
Management v. EPA, 976 F. 2d at 17, 18.
    Before the national capacity variance expired, CITGO treated 
approximately 500,000 tons of Surge Pond sludge, using the treatment 
strategy described above. Performance data from this treatment is 
presented in Appendix 2. While the treatment system used previously has 
been dismantled, EPA expects the new treatment system will be at least 
as effective as the old system. According to CITGO's variance 
application, the engineering for both the new and the old treatment 
systems are identical.

F. Summary of Proposed Rule

    CITGO submitted a site-specific treatability variance petition to 
EPA on April 13, 1994, and submitted additional materials in response 
to EPA's request. The petition requested that EPA establish alternate 
LDR standards for F037 and F038 nonwastewaters generated by remediation 
of the Surge Pond, thereby allowing CITGO to continue the Surge Pond 
cleanup including land disposal of treated Surge Pond sludge.
    As justification for the variance petition, CITGO stated that 
combustion is not an appropriate technology for Surge Pond sludge 
because:
    (1) the tremendous quantity of wastes generated by this remediation 
exceeds the annual excess capacity available nationwide for F037 and 
F038 wastes;
    (2) the metal content of this waste (4,084 ppm reported average) is 
higher than that of typical F037 and F038 wastes; and,
    (3) the hazards of transporting the waste long distances for 
offsite incineration exceed the hazards of treating the waste onsite 
and disposing the residuals in the subtitle C landfill in Carlyss, 
seven miles from the site.1
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    \1\ EPA notes that the Agency does not believe it necessary to 
reach CITGO's comparative risk argument regarding risk posed by 
sludge transport to off-site treatment. CITGO's other points are 
discussed in the August 30, 1994 proposal, in this preamble, and in 
the background documents for this rule.
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    CITGO also claimed that cement kiln combustion is inappropriate for 
this waste due to the low BTU content (less than 2,000 BTU/lb) of the 
waste, and stated that, ``When compared with other treatment options, 
the CITGO approach is clearly the safest for the environment and human 
health.'' After careful evaluation of CITGO's petition, EPA proposed to 
approve a treatability variance for the F037 and F038 nonwastewaters 
generated by the remediation of the Surge Pond based on a finding that 
application of the LDR treatment standards was not appropriate to 
sludge generated by remediation of the CITGO Surge Pond. 59 FR 44684 
(August 30, 1994).

II. Basis for Treatability Variance

A. EPA's Interpretation of When a Treatment Standard Is ``Not 
Appropriate''

    EPA's rules on treatability variances provide that EPA may approve 
a variance ``[w]here the treatment standard is expressed as a 
concentration in a waste . . . and a waste cannot be treated to the 
specified level, or where the treatment technology is not appropriate 
to the waste. . .'' 40 CFR 268.44(a) and (h) (emphasis added). Before 
discussing the application of these rules to CITGO's specific 
circumstance, there is a threshold issue regarding EPA's interpretation 
of the clause in the treatability variance rule authorizing variances 
``where the treatment technology is not appropriate to the waste.''
    EPA's longstanding and consistent interpretation is that a 
treatment standard based on the performance of BDAT can be 
inappropriate where it leads to environmentally counterproductive 
results, in particular, where it may impair environmental cleanups such 
as closure or site remediation--the situation EPA finds is presented by 
CITGO's application. Thus, in promulgating the National Contingency 
Plan under the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), EPA stated:

    EPA's experience under CERCLA has been that treatment of large 
quantities of soil and debris containing relatively low levels of 
contamination using LDR ``best demonstrated available technology'' 
(BDAT) is often inappropriate. . . Experience with the CERCLA 
program has shown that many sites will have large quantities--in 
some cases, many thousands of cubic meters--of soils that are 
contaminated with relatively low concentrations of hazardous wastes. 
These soils often should be treated, but treatment with the types of 
technologies that would meet the standard of BDAT may yield little 
if any environmental benefit over other treatment based remedial 
options. . . .Based on EPA's experience to date and the virtually 
unanimous comments supporting this conclusion, EPA has determined 
that. . .current BDAT standards are generally inappropriate or 
unachievable for soil and debris from CERCLA response actions and 
RCRA corrective actions and closures.

55 FR 8666, 8760 (March 8, 1990). In linking this discussion to the 
language of the treatability variance rule, the Agency explained that: 
``EPA's rules on treatability variances recognize that prohibited 
wastes be treated by appropriate technologies. The rules thus state 
that a petitioner may request a treatability variance `where the 
treatment technology is not appropriate to the waste.' '' Id. at 8761. 
The Agency likewise stated specifically in the same notice that ``EPA 
does not interpret its site-specific variance procedures as invariably 
requiring applicants to demonstrate that they cannot meet applicable 
treatment levels or methods. The first sentence of Sec. 268.44(h) makes 
it clear that an applicant may make one of two demonstrations to 
qualify for a variance: he may show either that he cannot meet a 
treatment standard, or that a treatment method (or the method 
underlying the standard [)] is inappropriate for his waste.'' Id. at 
8762 n. 22.
    EPA reiterated this interpretation most recently in the proposed 
Hazardous Waste Identification Rule for contaminated media. EPA there 
stated that ``[i]n other cases, the generic treatment standard will be 
inappropriate because use of an alternative treatment standard would 
result in a net environmental benefit.'' 61 FR 18780, 18811 (April 29, 
1996). See also 53 FR at 31200 (August 17, 1988) (``On a site-specific 
basis, it may be possible to determine that BDAT treatment is 
inappropriate for a particular waste stream. For example, incineration 
of large volumes of contaminated soil under certain site-specific 
conditions may be found to be inappropriate treatment.'')
    Some commenters on the proposed CITGO treatability variance argued 
that this language--that is, the ``not appropriate'' clause--only 
applies where the treatment standard for the waste is a designated 
method of treatment, and so does not apply where the treatment 
standards are expressed as numerical values. EPA has never limited its 
interpretation in this way, as just shown. Moreover, EPA's reading of 
its own rules is entirely reasonable.
    First, the language of the variance provision does not preclude 
EPA's

[[Page 55721]]

reading, since the rule does not define the circumstances under which a 
treatment technology may be inappropriate. Nor would it be reasonable 
to read the clause as applying only to situations where the standard 
requires use of a designated method of treatment, since the rules 
already contain a separate provision authorizing petitions to use 
alternative treatment methods upon a showing of equivalent performance. 
40 CFR 268.42(b). In light of this separate provision, the ``not 
appropriate'' clause in Secs. 268.44(a) and (h) would have little scope 
unless interpreted to apply to all treatment standards.
    Second, EPA's interpretation reflects a reasonable policy choice. 
In the remediation context, site decision makers are often faced with 
the choice of either capping or treating wastes in place (thereby 
avoiding application of LDRs) or excavating and triggering BDAT 
treatment standards. In such cases, the most cost effective choice is 
often to leave waste in place if the only alternative is BDAT 
treatment. 54 FR 15566, 15568 (October 10, 1989); 55 FR at 8760-62; 61 
FR at 18812. This creates an incentive to favor remediation options 
that minimize LDR applicability (e.g., by leaving waste in place), a 
result obviously not contemplated by Congress in enacting the LDRs. 54 
FR 41566-41569, October 10, 1989.
    It is entirely rational to view as ``inappropriate'' imposition of 
a treatment technology that results in (or reasonably could result in) 
the environmentally detrimental result of no cleanup and no treatment. 
Indeed, there is a legitimate question whether a technology whose use 
results in foregoing other, substantial environmental benefits can be 
considered to be a ``best'' technology. Portland Cement Association v. 
Ruckelshaus, 486 F. 2d 375, 385-86 at n. 42 (D.C. Cir. 1973); Essex 
Chemical Corp. v. Ruckelshaus, 486 F. 2d 427, 439 (D.C. Cir. 1973). See 
also Chemical Waste Management v. EPA, 976 F. 2d 2, 16 (D.C. Cir. 
1992), cert. denied 113 S.Ct. 1961 (1993) (treatment sufficient to 
satisfy section 3004(m) need not be based on performance of best 
demonstrated available technology); and, the legislative history of 
section 3004(m), 130 Cong. Rec. S. 9178 (daily ed. July 25, 1984). (The 
intent of 3004(m) is to require utilization of available technology in 
lieu of continued land disposal without prior treatment, not that every 
waste receive repetitive or ultimate treatment.)

B. Application of EPA's Interpretation of When a Treatment Standard Is 
``Not Appropriate'' to CITGO

    After considering the comments on the August 30, 1994 proposal, EPA 
continues to find, as discussed in the proposal and in this preamble, 
that it is not appropriate within the meaning of Secs. 268.44(a) and 
(h) to require treatment of Surge Pond sludge to levels based on the 
performance of combustion or solvent extraction technologies (the 
technologies on which the LDR treatment standards for F037 and F038 
nonwastewaters are based) and that a treatability variance is, 
therefore, warranted. In CITGO's specific circumstance, EPA finds that 
requiring use of BDAT technologies would delay and possibly preclude 
removal of remaining sludge from the Surge Pond by encouraging CITGO to 
pursue remedial options that would minimize LDR applicability. Debate 
over these remedial alternatives would, at a minimum, further delay 
completion of Surge Pond remediation and could result in some or all of 
the remaining sludge being left in the Surge Pond with little or no 
treatment.
    Today's treatability variance will assure protective remediation of 
the Surge Pond, that is, removal of Surge Pond sludge followed by 
substantial treatment (including oil recovery) and secure disposal of 
treated sludge in an off-site subtitle C facility. Id. at 44687. EPA 
views this result as environmentally preferable to other remedial 
options that CITGO could legally pursue (i.e., leaving the sludge in 
the Surge Pond), given that debate over these options would, at a 
minimum, significantly delay completion of Surge Pond remediation. Id. 
EPA believes the benefits of assured Surge Pond remediation, that is, 
removal of remaining sludge followed by substantial treatment 
(including oil recovery) and secure disposal in an off-site subtitle C 
facility (as proposed by CITGO and approved by the State of Louisiana 
Department of Environmental Protection), are superior to applying the 
treatment standard, because doing so would likely further delay sludge 
removal and possibly result in some or all of the sludge remaining in 
the Surge Pond untreated. Consequently, EPA is finding that requiring 
treatment based on the performance of BDAT is not appropriate to F037 
and F038 nonwastewaters generated by CITGO's Surge Pond remediation 
because, in CITGO's specific circumstance, it would most likely result 
in net environmental detriment.
    EPA is also finding that under the circumstances presented here, 
threats posed by land disposal of Surge Pond sludge--including current 
and potential threats posed by sludge remaining in the Surge Pond--are 
minimized (within the meaning of Sec. 3004(m)) by the combination of 
removal of remaining sludge from the Surge Pond followed by substantial 
treatment (including oil recovery) and secure disposal in an off-site 
subtitle C facility.
    In further support of these determinations, EPA notes:
    (1) CITGO's remediation approach includes substantial treatment 
which will reduce the toxicity and mobility of all regulated 
constituents in the Surge Pond sludge and achieve treatment levels for 
benzene (the most hazardous constituent in the waste based on 
concentration, toxicity, and availability) and chromium, nickel, and 
cyanide. There is no question that sludge generated by Surge Pond 
remediation must be treated. The question is whether the Agency must 
apply BDAT treatment requirements (risking, as discussed above, 
delaying, if not precluding, assured Surge Pond remediation and 
potentially resulting if some or all sludge remaining in the Surge Pond 
untreated), or whether, in this specific case, alternative LDR 
treatment standards can be approved.
    (2) The CITGO remediation strategy, including removal of all 
remaining sludge from the Surge Pond and the subsequent treatment, oil 
recovery and secure off-site disposal, was approved by the Louisiana 
Department of Environmental Quality as protective of human health and 
the environment. The Louisiana Department of Environmental Quality is 
authorized by EPA to administer the Federal RCRA program for closure of 
hazardous waste management units--the situation at CITGO. While EPA 
approval or concurrence is not typically required for individual 
actions in authorized states, EPA staff in Region 6 monitor the 
performance of authorized states, including Louisiana, and agree with 
the remedial strategy at CITGO.
    (3) The remediation of the CITGO Surge Pond, including sludge 
treatment, was successfully on-going when it was interdicted by a new 
land disposal prohibition and treatment standard. When sludge from 
CITGO's Surge Pond became subject to the F037 and F038 LDR treatment 
standards, the remediation had to be stopped because the on-site 
treatment system could not meet the Treatment standards for all of the 
regulated constituents. EPA believes it is appropriate, in this case, 
to allow the state-approved remediation to

[[Page 55722]]

continue rather than to invest considerable resources in developing--
and probably litigating--a new remedial strategy for the Surge Pond. 
EPA believes these resources are more properly directed at timely 
completion of Surge Pond remediation, including assured removal and 
substantial treatment of all remaining sludge.
    (4) The variance applies only to sludge generated as a result of 
Surge Pond remediation. Newly-generated F037 and F038 wastes thus have 
to be treated in compliance with the existing treatment standards 
before they can be land disposed. As EPA has repeatedly discussed, 
treatability variances are often warranted for wastes generated in the 
context of remediation.
    (5) Remediation of the CITGO Surge Pond involves tremendous 
volumes. CITGO estimates that 375,000 tons of sludge remain in the 
Surge Pond. While, as clarified below, EPA is not approving today's 
treatability variance based on insufficient treatment capacity, the 
economies of scale associated with this volume of waste supports the 
Agency's finding that, if BDAT treatment is required, CITGO will likely 
pursue legal remedial options that minimize LDR applicability 
(including leaving some or all of the sludge in the Surge Pond) and 
further delay remediation.

C. Effect of This Variance on Other Remedial Actions

    The decision to approve a treatability variance and alternative LDR 
treatment standards for F037 and F038 nonwastewaters generated by 
remediation of the CITGO Surge Pond is specific to CITGO's 
circumstances and will not apply to any other sites or wastes. 
Furthermore, EPA does not intend or view this action as creating an 
incentive to avoid treatment of process wastes in remedial situations 
by the mechanism of resisting remedial options that trigger LDRs unless 
a treatability variance is approved. The facts at CITGO are unusual and 
may not arise again. Specifically, this is a situation where an on-
going, successful, state-approved remediation was interdicted by a new 
LDR prohibition. The remedial strategy includes removal of all sludge 
from the Surge Pond followed by substantial treatment (including BDAT 
treatment of the most hazardous constituent and three other hazardous 
constituents), oil recovery, and secure disposal in an off-site 
Subtitle C facility. Approving the treatability variance assures 
completion of Surge Pond remediation including removal and substantial 
treatment of all remaining Surge Pond sludge. Denying the variance may 
lead to a prolonged debate on how to remediate the impoundment, and 
could result in some or all sludge remaining in the Surge Pond 
untreated.

III. Treatment Standards

A. Existing F037 and F038 Nonwastewater Treatment Standards

    The listings for F037 and F038 were promulgated on November 2, 1990 
(55 FR 46354) and amended May 13, 1991 (56 FR 21955). LDR treatment 
standards for F037 and F038 nonwastewaters were promulgated on August 
18, 1992, 57 FR at 37271, 37274. The F037 and F038 nonwastewater 
treatment standards set total concentration limits for 14 hazardous 
organic constituents based on the performance of combustion or solvent 
extraction (determined to be BDAT), TCLP leachate concentration limits 
for nickel and chromium based on stabilization (generally the BDAT 
technology for metals), and, a total cyanide standard based on 
combustion.

B. Alternative F037 and F038 Nonwastewater Standards Approved for Use 
During Surge Pond Remediation at CITGO.

    EPA is establishing alternative treatment standards for 14 of the 
17 regulated F037 and F038 hazardous constituents. Alternative 
treatment standards were not established for di-n-butyl phthalate, bis 
(2-ethylhexyl) phthalate, and phenol, because these constituents were 
not detected in samples of pond waste collected for the variance 
petition. For benzene (the most hazardous constituent in this case) and 
chromium, nickel, and cyanide, the alternative treatment standards are 
identical to the existing treatment standards. For the other 10 
regulated constituents, EPA calculated alternative standards based on 
data from samples of waste treated by the Aran unit 2 of CITGO's 
on-site sludge treatment system. In calculating these standards, EPA 
omitted data points for samples that did not meet the 10 mg/kg limit 
for benzene (CITGO's own measure of when the Aran unit was operating 
properly). The Agency then multiplied the mean treated concentration 
(from the 9 waste samples which met the benzene limit) by a variability 
factor calculated as per the equation established by Final BDAT 
Background Document for Quality Assurance/Quality Control Procedures 
and Methodology, Appendix D. Treatment system performance data 
submitted with CITGO's variance petition is summarized in Appendix 2 
following this preamble. More information on the treatment system, 
sampling and analysis procedures, and the calculation of alternative 
standards is available in the Background Document for today's rule.
---------------------------------------------------------------------------

    \2\  The Aran Unit is a sludge dewatering unit.
---------------------------------------------------------------------------

    Since treated sludge from the CITGO Surge Pond remediation will 
remain hazardous waste, it may only be land disposed in a Subtitle C 
facility. The CITGO Alternative LDR Treatment Standards are summarized 
in the table below.

                                    CITGO Alternative LDR Treatment Standards                                   
----------------------------------------------------------------------------------------------------------------
                                                                                 Concentration in mg/kg unless  
        Regulated hazardous constituent                    CAS No.                  noted as ``mg/l TCLP''      
----------------------------------------------------------------------------------------------------------------
Anthracene.....................................  120-12-7...................  20                                
Benzene........................................  71-43-2....................  10*                               
Benz(a)anthracene..............................  56-55-3....................  19                                
Benzo(a)pyrene.................................  50-32-8....................  19                                
Chrysene.......................................  218-01-9...................  29                                
Ethylbenzene...................................  100-41-4...................  39                                
Naphthalene....................................  91-20-3....................  120                               
Phenanthrene...................................  85-01-8....................  120                               
Pyrene.........................................  129-00-0...................  39                                
Toluene........................................  108-88-3...................  33                                
Xylenes-mixed isomers (sum of o-, m-, and p-     1330-20-7..................  150                               
 xylene concentrations).                                                                                        

[[Page 55723]]

                                                                                                                
Chromium (total)...............................  7440-47-3..................  0.86 mg/l TCLP*                   
Cyanides (total)...............................  57-12-5....................  590*                              
Nickel.........................................  7440-02-0..................  5.0 mg/l TCLP*                    
----------------------------------------------------------------------------------------------------------------
* Standard is identical to UTS.                                                                                 

    In order to ensure protection of human health and the environment, 
EPA is also imposing standards on the operation of CITGO's treatment 
system. First, the treatment system must be operated in accordance with 
applicable air emission standards specified by: (A) 40 CFR Part 61--
National Emission Standards for Hazardous Air Pollutants (NESHAP), 
Subpart FF: National Emission Standard for Benzene Waste Operations, 
Sec. 61.348 Standards: Treatment Processes; (B) CFR Parts 264 and 265--
Standards for Owners and Operators of Hazardous Waste Treatment, 
Storage and Disposal Facilities, Subpart CC--Air Emission Standards for 
Tanks, Surface Impoundments, and Containers (if applicable); and, (C) 
any additional requirements specified by the Louisiana Department of 
Environmental Quality (LDEQ).
    Second, the treatability variance will be valid for 24 months only, 
commencing at the date the Surge Pond closure plan is approved by the 
Louisiana Department of Environmental Protection. CITGO may petition 
for additional time if unforeseen delays occur, provided they can 
demonstrate a good faith effort to complete the Surge Pond remediation, 
including sludge treatment, within the original specified time frames.

IV. Public Comments and EPA Responses

    The issues raised by comments to the proposed rule which affected 
the final decision to approve this variance and the variance conditions 
and EPA's responses to these issues, are presented below. Please also 
refer to the Response to Comments and Background Documents for this 
rulemaking, available at the RCRA Docket, for presentation of 
additional issues and EPA responses.
    Issue 1: One commenter stated that the proposed variance violates 
the requirement of Sec. 268.44(a) that the ``petitioner must 
demonstrate that the waste cannot be treated to specified levels or by 
specified methods due to the chemical or physical properties of the 
waste.''
    EPA Response: As discussed above, EPA has decided to approve this 
treatability variance because the treatment technologies upon which the 
F037 and F038 treatment standards are based are ``not appropriate to 
the waste.'' This condition is sufficient to make waste eligible for a 
treatability variance under 40 CFR 268.44(a) and (h).
    Issue 2: One commenter doubted whether CITGO would seek to leave 
remaining sludge in the Surge Pond even if a treatability variance were 
denied and stated that, in any case, EPA should use its closure and 
corrective action authorities to require sludge removal and treatment 
to promulgated treatment standards.
    EPA Response: EPA continues to believe that, if the costly BDAT 
treatment standard is imposed, CITGO will likely pursue legal remedial 
options that minimize LDR applicability due to their understandable 
desire to pursue a cost-effective strategy for Surge Pond remediation 
considering the enormous volume of waste involved. This is consistent 
with EPA's experience in implementing remedial programs such as CERCLA 
and RCRA Corrective Action and with information submitted by CITGO. 
Debate over this issue will undoubtably delay, if not preclude, removal 
and substantial treatment of the remaining sludge in the Surge Pond. 
For that reason, EPA has found that application of BDAT to CITGO's 
specific circumstance is inappropriate. 61 FR at 18812; 55 FR at 8760-
8762.
    In further support of this finding, EPA notes that the standards 
for closure of a surface impoundment under 40 CFR 265.111(b) and 
265.228 do not necessarily require removal of all waste. Similarly, the 
requirements for corrective action do not necessarily require the 
removal and treatment of Surge Pond sludge if other remedial options 
were found to be consistent with Agency guidance and protective of 
human health and the environment. See RCRA sections 3004(u) and 
3004(v); 40 CFR 264.101. CITGO retains the option under Sec. 265.228 of 
not resuming the sludge removal operation and closing the impoundment 
with the waste in place, provided they can satisfy the requirements for 
post-closure care for a landfill under Subpart G (Sec. 265.111) and 
Sec. 265.310. Public comments submitted by CITGO confirm that the 
company is considering this option seriously, and will likely pursue it 
if this variance is denied. The technical standards for closure in 
place require removal of free liquids, stabilization of wastes in order 
to support a final cover over the unit, and prevention of infiltration 
of liquids during the post-closure care period, as well as minimization 
of releases from the unit during the post-closure period to the extent 
necessary to protect human health and the environment. See generally 40 
CFR 265.228 and 265.111(b).
    Approval of an in-place closure or a given corrective action remedy 
depends on many site-specific factors. At this stage, it is not clear 
to EPA that leaving the sludge in the Surge Pond at CITGO is a 
technically feasible alternative, due in particular to the volume of 
standing water in the impoundment, plus the fact that the water table 
at the site is high and so may infiltrate into the unit. Nevertheless, 
EPA cannot now rule out the possibility that leaving some or all of the 
untreated sludge in the Surge Pond could be allowed through some 
combination of draining all liquids, using chemical treatment to 
stabilize sludge so that a cap could be supported, and building some 
type of below-ground barrier to prevent infiltration. CITGO has 
established their intention to pursue leaving the untreated sludge in 
the Surge Pond if their only other option for treatment of Surge Pond 
sludge is BDAT (i.e., if this variance is not approved). In support of 
this strategy, CITGO has submitted soil survey results which indicate 
the presence of a clay layer beneath the impoundment which could 
possibly serve as the foundation for such a barrier; the barrier would 
be completed by constructing vertical slurry walls to connect to this 
clay layer.
    It is clear to EPA that a debate over remedial options that 
minimize LDR applicability to Surge Pond sludge would be contested and 
protracted and would, at the least, significantly delay Surge Pond 
remediation leaving 375,000

[[Page 55724]]

tons of sludge in place in an unlined impoundment. While, as set out at 
40 CFR 265.112(d)(4), EPA (or, as in this case, the authorized State 
administering the program) retains the right to disapprove a submitted 
closure plan, review possible modifications, and ultimately to modify 
any submitted plan to be consistent with substantive standards for 
closure, a company could contest any such determination necessitating 
enforcement by the Agency with ultimate, protracted judicial 
resolution. EPA estimates that at CITGO this process would take years. 
During that time, there could be multimedia releases from the 
impoundment (although the corrective action rules and orders would 
mitigate the extent of any such releases), plus an uncertain prospect 
of ever forcing sludge removal. EPA believes that, in CITGO's specific 
circumstance, it is appropriate to avoid such a debate and, instead, 
direct resources at timely completion of Surge Pond remediation, given 
that the proposed remedial alternative is protective of human health 
and the environment and involves the environmentally desirable result 
of removal of all remaining sludge from the Surge Pond followed by 
substantial treatment (including oil recovery) and secure disposal in 
an off-site Subtitle C facility.
    Issue 3.: One commenter stated that EPA's claim that incineration 
is not ``appropriate'' due to the tremendous volume of the waste 
directly contradicts previous EPA statements that treatability 
variances will not be approved on the basis of insufficient capacity.
    EPA Response: EPA clarifies that today's variance is not being 
approved on the basis of insufficient treatment capacity.3 The 
commenter correctly states that EPA said in the Federal Register notice 
establishing the treatability variance process (51 FR at 40606, 
November 7, 1986) that treatability variances may not be approved on 
the basis of capacity since other rules already provide for capacity 
variances. EPA is approving this variance on the basis that requiring 
treatment based on the performance of BDAT is, in CITGO's specific 
circumstance, inappropriate because it would likely result in a net 
environmental detriment (i.e, further delay of Surge Pond remediation). 
Although today's variance is not being approved based on insufficient 
treatment capacity, EPA notes that the cost of treating such a huge 
quantity of waste to BDAT standards could be prohibitive, thus 
compelling CITGO to seek cost-effective alternatives to BDAT treatment 
(i.e, combustion or solvent extraction). This observation supports 
EPA's finding that denying the variance will, at the least, further 
delay Surge Pond remediation.
---------------------------------------------------------------------------

    \3\  EPA thus disagrees with CITGO that the volume of waste 
alone is justification for approval of a variance.
---------------------------------------------------------------------------

    Issue 4.: One commenter stated that, ``CITGO acknowledges its 
treatment system design was never intended to remove all 17 regulated 
hazardous constituents. By virtue of this admission alone, the proposed 
variance violates Section 3004(m) of RCRA. Chemical Waste Management v. 
EPA , supra, where the Court held that Section 3004(m) of RCRA requires 
that the threat posed by all hazardous constituents in a waste be 
minimized prior to land disposal.''
    EPA Response: EPA's interpretation of ``minimize threats'' does not 
necessarily require BDAT treatment of all regulated constituents in 
every prohibited waste. As EPA stated in the Craftsman/Northwestern 
treatability variance, ``The language of Sec. 3004(m) allows EPA 
latitude in determining what treatment minimizes waste toxicity and 
mobility. It does not mandate a technology-forcing approach. The 
legislative history likewise indicates that Congress did not 
necessarily envision technology-forcing Sec. 3004(m) treatment 
standards. Rather, such standards were intended to force use of 
generally available effective types of treatment.'' (56 FR at 12355, 
March 25, 1991; see also 55 FR 6640-6643 (February 26, 1990); 61 FR at 
18018 (April 29, 1996).) Moreover, the very opinion cited by the 
commenter makes clear that BDAT treatment is not compelled to meet a 
treatment standard (976 F. 2d at 15-16).
    The CITGO treatment system was designed primarily to treat volatile 
organics (with a focus on benzene) and stabilize metals. The system 
achieves BDAT treatment levels for benzene and substantially treats the 
other volatile constituents (toluene, xylene, and ethylbenzene). While 
it might be possible to achieve additional reductions in concentrations 
of the other volatile constituents (toluene, xylene, and ethylbenzene) 
by engineering modifications to the air sparging tanks or increasing 
the treatment residence time, EPA believes that requiring additional 
treatment for these relatively low-risk constituents could seriously 
delay the completion of Surge Pond remediation and could (through this 
delay) result in greater emissions of more toxic constituents from the 
pond to the air.
    Although the proposed treatment system was not designed for 
semivolatile organics (e.g. anthracene, chrysene), data from CITGO's 
variance petition shows that the treatment system does yield reductions 
in concentrations of these constituents. In addition, the semivolatile 
constituents which remain in the treated sludge will be much less 
mobile after the waste is solidified and will be further safeguarded by 
disposal in an off-site subtitle C landfill. The treatment system 
achieves treatment levels for the chromium, cyanides, and nickel.
    It is EPA's judgment that requiring BDAT treatment of sludge 
generated by remediation of the CITGO Surge Pond would likely result in 
a net environmental detriment by, at least, substantially delaying 
Surge Pond remediation and potentially resulting in some or all of the 
sludge remaining in the Surge Pond untreated. It is the Agency's view 
that the combination of assured sludge removal, followed by treatment 
to substantially reduce toxicity and mobility of the regulated 
constituents plus oil recovery, and disposal of the treated sludge in 
an off-site subtitle C facility adequately minimizes threats posed by 
land disposal of the waste under these circumstances. Although this 
treatment strategy does not represent BDAT as promulgated for F037 and 
F038 nonwastewaters, it ``substantially diminish[es] the toxicity of 
the waste'' and ``substantially reduce[s] the likelihood of migration 
of hazardous constituents from the waste'' as required by Section 
3004(m).
    Issue 5.: One commenter stated that, ``Even the inadequate 
treatment contemplated by CITGO is not accompanied by binding 
requirements to ensure achievement of that level of efficiency. The 
lack of proposed treatment standards for most of the regulated 
constituents violates the minimize threat mandate of RCRA.''
    EPA Response: EPA has reconsidered this issue and has decided to 
establish binding alternative treatment standards for all F037 and F038 
regulated constituents that were detected in the Surge Pond sludge, as 
discussed above.
    Issue 6.: One commenter suggested imposing a time limit on the 
treatability variance to ensure the work is done in a timely manner to 
protect human health and the environment. The commenter suggested an 18 
month time limit from the date CITGO awarded the Surge Pond sludge 
treatment contract. Another commenter opposed the imposition of a time 
limit, stating that, ``it is not possible to predict with accuracy the 
time required for

[[Page 55725]]

completion of closure. It is thus not appropriate to establish an 
expiration date for the variance, nor is such contemplated under EPA's 
rules.''
    EPA Response: EPA has decided to impose a time limit for this 
treatability variance, as discussed above. First, the Agency disagrees 
that it is without power to impose a time condition on the variance. 
There is nothing in the treatability variance rule, or in RCRA 
generally, which so restricts EPA's authority. Control of timing here 
is necessary to assure that the expected environmental benefits, which 
are the reason for approving the petition, actually accrue. Allowing 
CITGO unlimited time to complete the remediation would contradict EPA's 
assertion that it is approving this variance, in part, to ensure that 
Surge Pond remediation, including sludge removal and treatment, are 
completed as soon as possible.
    EPA considered a time limit of 18 months from the date CITGO awards 
the sludge treatment contract as suggested by one commenter; however, 
discussions with CITGO lead the Agency to believe that this limit may 
not be practical. CITGO has stated in its public comments that prior to 
resuming sludge removal and treatment operation, it will have to 
prepare a bid package, review bids, reconstruct the treatment system, 
and obtain renewed approval for air emissions from the State. CITGO 
also indicated that one of their main concerns with the proposed time 
limit was the uncertainty posed by the time required to obtain final 
approval of the pond closure plan by the State, and that this concern 
would be lessened by linking the time limit to final approval of the 
closure plan. In conversations with the Agency, CITGO estimated that 
two years would be required to complete the pond remediation.
    EPA has decided to establish a 24 month time limit for this 
treatability variance, calculated from the date the Surge Pond closure 
plan is approved by the Louisiana Department of Environmental 
Protection. The Agency believes it is reasonable to allow the effective 
period of this variance to begin with the closure plan approval. In 
addition, allowing 24 months for the completion of the remediation is 
consistent with EPA practice of allowing 18 to 24 months for the 
development and optimization of treatment capacity between the 
promulgation and the effective date of new LDR rules.
    EPA recognizes that unforeseen circumstances, such as accidents, 
equipment malfunctions, or natural disasters, may prevent CITGO from 
completing this remediation within the established time limit. Under 
such extenuating circumstances, the Agency would not want the time 
limit to act as a disincentive to the completion of the sludge removal 
and treatment operation. Therefore, CITGO may petition for additional 
time if such unforeseen delays occur, provided they can demonstrate a 
good faith effort to complete the remediation. (The fact that the 
company has already removed and treated 500,000 tons of the sludge 
provides an objective track record to support the Agency's belief that 
the company will promptly act to complete its remediation efforts and 
clean close the impoundment.)

V. Analysis Under Executive Order 12866, the Unfunded Mandates 
Reform Act of 1995, the Regulatory Flexibility Act, and the 
Paperwork Reduction Act

    This treatability variance does not create any new regulatory 
requirements. It merely establishes alternative treatment standards for 
specific wastes which replace standards already in effect. This rule 
is, therefore, not a ``significant'' regulatory action within the 
meaning of Executive Order 12866.
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector, and does not impose any Federal 
mandate on State, local, or tribal governments or the private sector 
within the meaning of the Unfunded Mandates Reform Act of 1995. This 
final rule does not create new regulatory requirements; rather, it 
merely establishes alternative treatment standards for specific wastes 
which replace standards already in effect. EPA has determined that this 
rule does not contain a Federal mandate that may result in expenditures 
of $100 million or more for State, local, and tribal governments, in 
the aggregate, or the private sector in any one year. Thus, today's 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA. For the same reasons, EPA has determined that this rule contains 
no regulatory requirements that might significantly or uniquely affect 
small governments.
    This treatability variance does not create any new regulatory 
requirements. It merely establishes alternative treatment standards for 
a specific waste which replace standards already in effect, and it 
applies to only to the CITGO Lake Charles, Louisiana site. Thus, this 
rule would not have a significant impact on a substantial number of 
small entities. Therefore, EPA provides the following certification 
under the Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act: Pursuant to the provision at 5 
U.S.C. 605(b), I hereby certify that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
It does not impose any new burdens on small entities. This rule, 
therefore, does not require a regulatory flexibility analysis.
    Finally, because this treatability variance only changes the 
treatment standards applicable to F037 and F038 nonwastewaters at the 
CITGO Lake Charles, Louisiana site, and does not change in any way the 
paperwork requirements already applicable to these wastes, it does not 
affect requirements under the Paperwork Reduction Act.

[[Page 55726]]

VI. Submission to Congress and the General Accounting Office

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) provides, with limited exceptions, that no rule promulgated on 
or after March 29, 1996 may take effect until it is submitted to 
Congress and the Comptroller General along with specified supporting 
documentation. However, this requirement does not apply to ``any rule 
of particular applicability.  . . .''. 5 U.S.C. 804(3). The present 
rule is of particular applicability, applying only to a particular 
waste at one facility under particular (and, as noted, exceptional) 
circumstances. Consequently, the Congressional review provisions of 
SBREFA are not applicable and the rule can take effect without 
submittal to Congress. (This is not to say that this rule will be 
immediately effective. As explained above in this preamble, the 
treatability variance will be valid for 24 months, commencing at the 
date the Surge Pond closure plan is approved by the Louisiana 
Department of Environmental Protection.)

            Appendix 1.--Summary of Surge Pond Waste Characterization Data Untreated F 037 and F 038            
----------------------------------------------------------------------------------------------------------------
                                   1993 Feasibility Study          February 1994        Variance Petition, March
                                 ------------------------------------------------------           1994          
                                                                                       -------------------------
                                    Average       Range        Average        Range       Average       Range   
----------------------------------------------------------------------------------------------------------------
        VOLATILE ORGANICS                                                                                       
                                                                                                                
Benzene.........................         66.9      3.9-190          2.06       1.4-3.3         26.8       6.1-54
Ethylbenzene....................        135.0        32-00          15.6     12.8-18.1         37.4      28.6-57
Toluene.........................        182.3       ND-490          15.0     12.2-19.9         56.1      7.0-126
Xylene..........................        438.0       14-930          75.7     59.5-85.1          154       67-371
                                                                                                                
      SEMIVOLATILE ORGANICS                                                                                     
Anthracene......................         33.0         7-65         < 4.5         < 4.5         23.4       4.2-45
Benzo(a)anthracene..............         44.9      7.1-160            ND            ND         17.0       6.3-28
Benzo(a)pyrene..................         34.4        6-120           4.3      3.85-4.6          9.4        ND-22
Bis(2-ethylhexyl) phthalate.....           ND           ND            ND            ND           ND           ND
Chrysene........................         73.9       16-220           2.5        ND-4.2         29.4       9.3-47
Di-n-butyl phthalate............           ND           ND            ND            ND           ND           ND
Naphthalene.....................        280.0       75-490          63.5     60.2-69.2          103       36-148
Phenanthrene....................        308.3       71-550          74.8     70.4-80.5          123       50-192
Phenol..........................         32.0        ND-46            ND            ND           ND           ND
Pyrene..........................         94.2       18-200         < 3.8         < 3.8         42.7        13-67
                                                                                                                
           INORGANICS                                                                                           
                                                                                                                
Cyanide.........................           NA           NA            <1            <1         10.1        <1-34
Chromium........................       1085.0     268-2330     < 0.05 TC     < 0.05 TC       3.1 TC   <0.05--9.7
Nickel..........................         75.0     34.8-229     < 0.05 TC     < 0.05 TC      0.12 TC    0.06-0.19
----------------------------------------------------------------------------------------------------------------


                                            Appendix 2.-- Summary of Performance Data, CITGO Treatment System                                           
                       [Success treated avg = Average excluding data points which failed to meet 10 mg/kg Benzene baseline limit]                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Day 1             Day 2             Day 3             Day 4         4 Day Average                    
                                            ------------------------------------------------------------------------------------------                  
  All concentrations in mg/kg except *mg/L                                                                                    Success  Alt Std     UTS  
                    TCLP                       Pond   Treated    Pond   Treated    Pond   Treated    Pond   Treated    Pond   Treated                   
                                               Avg    Avg \1\    Avg    Avg \2\    Avg      Avg      Avg      Avg      Avg      Avg                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benzene....................................    47.5     14.0     28.55    10.9      6.9      5.9     24.4      4.6     26.8      5.7     10        10   
Ethylbenzene...............................    42.75    32.85    33.1     26.4     32.05    29.5     41.5     19.2     37.4     24.5     39        10   
Toluene....................................   117       58.6     40.3     35.2     10.8     25.4     67.6     24.5     56.1     25.6     33        10   
Xylene.....................................   174.75   160.75   121.8     97.7    110      127      212      110      154.4    119      150        30   
Anthracene.................................    30.35    15.3     25.1     21.5      9.0     12.0     29.0      9.9     23.4     11.9     20         3.4 
Benzo(a)anthracene.........................    17.1     11.35    18.2     17.1     13.3     13.6     19.5     14.9     17.0     14.2     19         3.4 
Benzo(a)pyrene.............................     0        0       12.7     11.5      8.5      8.9     16.4      7.1      9.4      8.3     19         3.4 
Chrysene...................................    32.2     18.8     33.9     27.1     18.3     22.8     33.0     20.65    29.4     22.1     29         3.4 
Naphthalene................................   131.5     85.5     85.3     87.6     87.25    88.05   108.6     51.8    103.2     70.9    120         5.6 
Phenanthrene...............................   168       96.4    119.3    113       74.8     92.95   130.25    82.9    123.1     90.1    120         5.6 
Pyrene.....................................    57.5     26.8     44.8     39.0     21.35    25.9     47.2     28.0     42.7     28.3     39         8.2 
Cyanide....................................    11.1      1.45     4.1      1.0     17.25     1.0      8.0      0.73    10.1      1.0    590       590   
Chromium *.................................     8.0      0.05     0.9      0.05     0.08     0.06     3.4      0.02     3.1      0.04     0.86      0.86
Nickel *...................................     0.13     0.05     0.14     0.05     0.1      0.05     0.12     0.00     0.12     0.04     5.0       5.0 
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All samples failed to meet 10 mg/kg limit for Benzene on Day 1, were omitted from standard calculation.                                             
\2\ 3 of 4 samples failed to meet 10 mg/kg limit for Benzene on Day 2, were omitted from standard calculation.                                          


                                                                         Appendix 3.--Calculation of Treatment Standards                                                                        
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                         Benz(a)    Benzo(a)                                                    
                                                                     Ethylbenzene    Toluene     Xylene    Anthracene  anthracene    pyrene     Chrysene   Naphthalene  Phenanthrene    Pyrene  
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample 2-2.........................................................        25.7         31         122          19.5        13.8        11.0        25.1         84.6        107           38.7 
Sample 3-1.........................................................        29.6         24.2       117          14.3        14.0        12.5        26.2         50.2        103           28.3 

[[Page 55727]]

                                                                                                                                                                                                
Sample 3-2.........................................................        30.7         28.1       147          11.7        11.9         6.4        20.2         49.9         87.8         24.8 
Sample 3-3.........................................................        31.1         26.1       129          11.0        14.3         8.3        22.5         51.9         92.7         25.3 
Sample 3-4.........................................................        26.5         23.2       114          11.0        14.3         8.3        22.5         55.1         88.3         25.3 
Sample 4-1.........................................................        20.0         27.0       115          10.5        13.4         9.5        21.6         96.7         85.6         31.7 
Sample 4-2.........................................................        18.0         21.0       103           8.69       18.4         4.2        18.9         75.7         79.6         26.3 
Sample 4-3.........................................................        20.0         24.0       115           9.16       14.1         4.0        18.4         86.0         71.6         24.6 
Sample 4-4.........................................................        19.0         26.0       108          11.4        13.7        10.6        23.7         83.5         95.0         29.4 
Mean...............................................................        24.5         25.6       119          11.9        14.2         8.31       22.1         70.4         90.1         28.3 
Var Factor.........................................................         1.59         1.28        1.25        1.65        1.28        2.30        1.30         1.75         1.30         1.37
                                                                    ----------------------------------------------------------------------------------------------------------------------------
  Treatment Standard...............................................        39           33         150          20          19          19          29          120          120           39   
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: October 22, 1996.
Michael Shapiro,
Director, Office of Solid Waste.
    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 268--LAND DISPOSAL RESTRICTIONS

    1. The authority citation for part 268 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

    2. Section 268.44 is amended by adding paragraph (p) to read as 
follows:


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (p) F037 and F038 wastes generated by the closure of the Surge Pond 
at the CITGO Petroleum Lake Charles Refinery site are excluded from the 
treatment standards under Sec. 268.40 Table--Treatment Standards for 
Hazardous Wastes, and are subject to the following conditions:
    (1) The hazardous constituents in the treated sludge (or in the 
TCLP extract of the treated sludge where indicated) must be at or below 
the concentration values indicated in the following table:

                                    CITGO Alternative LDR Treatment Standards                                   
----------------------------------------------------------------------------------------------------------------
                                                                                 Concentration in mg/kg unless  
        Regulated Hazardous Constituent                    CAS No.                  noted as ``mg/l TCLP''      
----------------------------------------------------------------------------------------------------------------
Anthracene.....................................  120-12-7...................  20                                
Benzene........................................  71-43-2....................  10                                
Benz(a)anthracene..............................  56-55-3....................  19                                
Benzo(a)pyrene.................................  50-32-8....................  19                                
Chrysene.......................................  218-01-9...................  29                                
Ethylbenzene...................................  100-41-4...................  39                                
Naphthalene....................................  91-20-3....................  120                               
Phenanthrene...................................  85-01-8....................  120                               
Pyrene.........................................  129-00-0...................  39                                
Toluene........................................  108-88-3...................  33                                
Xylenes-mixed isomers (sum of o-, m-, and p-     1330-20-7..................  150                               
 xylene concentrations).                                                                                        
Chromium (total)...............................  7440-47-3..................  0.86 mg/l TCLP                    
Cyanides (total)...............................  57-12-5....................  590                               
Nickel.........................................  7440-02-0..................  5.0 mg/l TCLP                     
----------------------------------------------------------------------------------------------------------------
Note: All standards for nonwastewaters are based on analysis of grab samples.                                   

    (2) The proposed sludge treatment system must be operated in 
accordance with applicable air emission standards specified by:
    (i) 40 CFR Part 61--National Emission Standards for Hazardous Air 
Pollutants (NESHAP), Subpart FF: National Emission Standard for Benzene 
Waste Operations, Sec. 61.348 Standards: Treatment Processes;
    (ii) 40 CFR Parts 264 and 265--Standards for Owners and Operators 
of Hazardous Waste Treatment, Storage and Disposal Facilities, Subpart 
CC--Air Emission Standards for Tanks, Surface Impoundments, and 
Containers (if applicable); and
    (iii) Any additional requirements specified by the Louisiana 
Department of Environmental Quality (LDEQ).
    (3) This treatability variance will be valid for a period of 24 
months, commencing on the date the Surge Pond closure plan is approved 
by the State Director. CITGO may petition for additional time if 
unforeseen delays occur, provided they can demonstrate a good faith 
effort to complete the remediation.

[FR Doc. 96-27695 Filed 10-25-96; 8:45 am]
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