Federal Register, Volume 64 Issue 159 (Wednesday, August 18, 1999)

[Federal Register Volume 64, Number 159 (Wednesday, August 18, 1999)]
[Proposed Rules]
[Pages 44866-44876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21422]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6424-4]

Hazardous Waste Management System; Proposed Exclusion for
Identifying and Listing Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
proposing to grant a petition submitted by DuraTherm, Incorporated
(DuraTherm). DuraTherm petitioned the Agency to exclude (or delist)
desorber solid waste generated at its recycling facility from the lists
of hazardous wastes contained in 40 CFR 261.24, 261.31, and 261.32.
DuraTherm submitted the petition under Secs. 260.20 and 260.22(a).
Section 260.20 allows any person to petition the Administrator to
modify or revoke any provision of Secs. 260 through 266, 268 and 273.
Section 260.22(a) specifically provides generators the opportunity to
petition the Administrator to exclude a waste on a ``generator
specific'' basis from the hazardous waste lists.
The Agency bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, conditionally excludes the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA).
We believe that DuraTherm's petitioned waste is nonhazardous with
respect to the original listing criteria and that the waste process
DuraTherm uses will substantially reduce the likelihood of migration of
hazardous constituents from this waste. Their process also minimizes
short-term and long-term threats from the petitioned waste to human
health and the environment.

DATES: We will accept comments until October 4, 1999. We will stamp
comments postmarked after the close of the comment period as ``late.''
These ``late'' comments may not be considered in formulating a final
decision.

ADDRESSES: Please send three copies of your comments: Send two copies
to William Gallagher, Delisting Section, Multimedia Planning and
Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross
Avenue, Dallas, Texas 75202. Send the third copy to the Texas Natural
Resource Conservation Commission, 12100 Park 35 Circle, Austin, Texas
78753. Identify your comments at the top with this regulatory docket
number: ``F-99-TXDEL-DURATHERM.''
You should address requests for a hearing to the Acting Director,
Robert E. Hannesschlager, Multimedia Planning and Permitting Division
(6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas
75202.
Your requests for a hearing must reach EPA by September 2, 1999.
The request must contain the information prescribed in Sec. 260.20(d).

FOR FURTHER INFORMATION CONTACT: For technical information concerning
this notice, contact Michelle Peace, Multimedia Planning and Permitting
Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Dallas, TX 75202, (214) 665-7430.

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

I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will DuraTherm manage the waste if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Data
A. What wastes did DuraTherm petition EPA to delist?
B. Who is DuraTherm, and what process do they use?

[[Page 44867]]

C. How did DuraTherm sample and analyze the waste data in this
petition?
D. What were the results of DuraTherm's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about DuraTherm's analysis?
G. What other factors did EPA consider?
H. What is EPA's final evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if DuraTherm 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?

I. Overview Information

a. What Action is EPA Proposing?

The EPA is proposing:
(1) To grant DuraTherm's petition to have their desorber solids
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 Agency
uses this model to predict the concentration of hazardous constituents
released from the petitioned waste once it is disposed.

B. Why is EPA Proposing To Approve This Delisting?

DuraTherm petitioned the Agency to exclude, or delist, the desorber
solids because they do not believe that the petitioned waste meets the
criteria for which EPA listed it. DuraTherm also believes no additional
constituents or factors could cause the wastes to be hazardous.
Based on our review, described below, the EPA agrees with the
petitioner that the waste is nonhazardous with respect to the original
listing criteria. (If our review had found that the waste remained
hazardous based on the factors for which DuraTherm originally listed
the waste, we would have proposed to deny the petition.)
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste
against the listing criteria and factors cited in Secs. 261.11(a)(2)
and (a)(3).
We also evaluated the waste for other factors or criteria to assess
whether these additional factors could cause the waste to be hazardous.
These factors included, (1)whether the waste is considered acutely
toxic; (2) the toxicity of the constituents, (3) the concentration of
the constituents in the waste, (4) the waste constituent's tendency to
migrate and to bioaccumulate, (5) its persistence in the environment
once released from the waste, (6) plausible and specific types of
management of the petitioned waste, (7) the quantity of waste produced,
and (8) waste variability.
The EPA believes that the petitioned waste does not meet the
criteria for which we listed the waste, and therefore, should be
delisted. The EPA's decision to delist waste from DuraTherm's facility
is based on the description of the thermal desorption treatment system
and analytical data from the San Leon facility submitted to support
today's rule.

C. How Will DuraTherm Manage the Waste if It Is Delisted?

If the petitioned waste is delisted, DuraTherm intends to manage it
in one of three off-site municipal solid waste landfills. If the waste
is stabilized, DuraTherm must ensure that the stabilized waste will
also meet the delisting levels. DuraTherm currently disposes of the
petitioned waste (desorber solids) generated at its facility in two
off-site RCRA hazardous waste landfills that are not owned/operated by
DuraTherm.

D. When Would the Proposed Delisting Exclusion Be Finalized?

The HSWA specifically requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, EPA will not grant the exclusion until it addresses all timely
public comments (including those at public hearings, if any) on today's
proposal.
This rule, if finalized, will become effective immediately upon
final publication. The HSWA amended Sec. 3010 of RCRA 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 Sec. 3010, and a later effective
date would impose unnecessary hardship and expense on this petitioner.
These reasons also provide a basis for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).

E. What States Would Be Affected By This Action?

Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude two categories of
States: States having a dual system that includes Federal RCRA
requirements and their own requirements, and States who have received
our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA
regulatory requirements that are more stringent than EPA's, under
section 3009 of RCRA. 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, we urge 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 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. If DuraTherm
transports the petitioned waste to or manages the waste in any State
with delisting authorization, DuraTherm must obtain delisting
authorization from that State before they 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
Secs. 261.31 and 261.32.
We list these wastes as hazardous because: (1) they typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in Subpart C of Part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in Secs. 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials,

[[Page 44868]]

industrial processes, and other factors. Thus, while a waste described
in these regulations generally is hazardous, a specific waste from an
individual facility meeting the listing description may not be.
For this reason, Secs. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to demonstrate that
EPA should not regulate a specific waste from a particular generating
facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does It Require of a
Petitioner?

A delisting petition is a request from a facility to EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions the Agency because they do 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
the listed wastes. The criteria for which EPA lists a waste are in
Sec. 261.11 and in the background documents for the listed wastes.
In addition, a petitioner must demonstrate 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 Sec. 260.22, 42 U.S.C. Sec. 6921(f) and the
background documents for the listed wastes.
Generators remain obligated under RCRA to confirm whether their
waste remains nonhazardous based on the hazardous waste characteristics
even if EPA has ``delisted'' the wastes.

C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?

Besides considering the criteria in Sec. 260.22(a), in 42 U.S.C.
6921(f), and in the background documents for the listed wastes, EPA
must consider any factors (including additional constituents) other
than those for which we listed the waste if a reasonable basis exists
that these additional factors could cause the waste to be hazardous.
See the Hazardous and Solid Waste Amendments (HSWA) of 1984.
The EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Secs. 261.3(a)(2)(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.
The ``mixture'' and ``derived-from'' rules are now final, after
having been vacated, remanded, and reinstated. On December 6, 1991, the
U.S. Court of Appeals for the District of Columbia vacated the
``mixture/derived from'' rules and remanded them to the EPA on
procedural grounds. See Shell Oil Co. v. EPA., 950 F.2d 741 (D.C. Cir.
1991). On March 3, 1992, EPA reinstated the mixture and derived-from
rules, and solicited comments on other ways to regulate waste mixtures
and residues (57 FR 7628). These rules became final on October 30, 1992
(57 FR 49278). Consult these references for more information about
mixtures derived from wastes.

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

A. What Wastes Did DuraTherm Petition EPA To Delist?

On November 6, 1998, DuraTherm in San Leon, Texas, petitioned the
EPA for a standard exclusion of 20,000 cubic yards of desorber solids,
per calendar year, resulting from its thermal desorption treatment
process. The Agency has presently listed the resulting waste under
Sec. 261.3(c)(2)(I) (the ``derived from'' rule), as EPA Hazardous Waste
No. F037, F038, K048, K049, K050 and K051. Table 1 lists the
constituents of concern for these waste codes.

Table 1.--Hazardous Waste Codes Associated With Waste Streams
------------------------------------------------------------------------
Waste Code Basis for Characteristics/Listing
------------------------------------------------------------------------
F037............................. Benzene, benzo(a)pyrene, Chrysene,
lead, chromium.
F038............................. Benzene, benzo(a)pyrene, Chrysene,
lead, chromium.
K048............................. Hexavalent Chromium, Lead
K049............................. Hexavalent Chromium, Lead.
K050............................. Hexavalent Chromium.
K051............................. Hexavalent Chromium, Lead.
------------------------------------------------------------------------

B. What Information and Analyses Did DuraTherm Submit To Support This
Petition?

To support its petition, DuraTherm submitted:
(1) Descriptions of its thermal desorption processes associated
with petitioned wastes;
(2) results of the total constituent list for 40 CFR part 264
Appendix IX volatiles, semivolatiles, and metals except pesticides,
herbicides, and PCBs;
(3) results of the constituent list for Appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract for volatiles,
semivolatiles, and metals;
(4) results for reactive sulfide,
(5) results for reactive cyanide,
(6) results for pH,
(7) results of the metals concentrations in the Multiple Extraction
Procedure extract, and
(8) results of ignitability.
DuraTherm tested and analyzed the waste stream under five
conditions to properly account for variables in the waste stream:
during start-up operations, shut-down operations, slow feed rates, fast
feed rates, and normal operations. For wastes that failed to meet the
estimated delisting levels, DuraTherm stabilized the wastes to prevent
leaching metal constituents from the wastes. The facility submitted
results from the Multiple Extraction Procedure run on the stabilized
materials.

C. Who Is DuraTherm, and What Process Do They Use To Generate the
Petitioned Waste?

DuraTherm is an environmental waste management and resource
recovery company specializing in separation technologies applicable to
hydrocarbon contaminated wastes. The company has operated a RCRA Part B
permitted thermal desorber facility since 1994. The facility processes
large volumes of hazardous waste from petroleum industries. The
DuraTherm process recovers hydrocarbons from hydrocarbon contaminated
soils and sludges and reduces the volume of solids requiring landfill
disposal. The thermal desorption process uses high temperatures to
volatilize organics from a waste matrix in a nonoxidizing atmosphere,
while pulverizing the waste material.
The thermal desorption system:
(1) Consists of a rotating drum that a gas-fired convection heater
externally heats.
(2) Has support systems for feed, vapor condensation, recovery and
phase separation of liquids, solids, cooling and handling and airs
pollution control devices.
(3) Uses countercurrent inert gas or nitrogen purge/sweep to
maintain oxygen levels below those required for combustion. The purge/
sweep system also directs volatilized contaminants to the vapor exit.
(4) Uses a continuous feed system. Feed rates can vary from 2,000
to 8,000 pounds per hour depending on moisture content. Weight scales
in the hopper monitor the feed rates.
Hot air that is circulated around the drum heats the rotary drum. A
high temperature fan pulls the hot air away

[[Page 44869]]

from the enclosed burner box through the stationary heater shell and
across the finned section of the rotary drum.
The solids are removed from the drum by water jacketed hollow shaft
screw conveyors that are split to two parallel lines and then
discharged through an air lock into roll-off containers. These
containers are sealed under hydraulically controlled lids to eliminate
particulate emissions. The facility moves roll-off containers of filled
with desorber solids to a container storage area.
DuraTherm then samples and tests the desorber solids. They ship the
waste when the analysis is complete and results indicate the materials
meet applicable land disposal restrictions.
DuraTherm sells the recovered oil that meets the used oil
specifications as product. The company sells the oil that fails the
used oil specifications to petroleum refiners for use in the refining
process.

D. How Did DuraTherm Sample and Analyze the Data in This Petition?

DuraTherm generated the waste samples from the thermal desorption
unit under five different operating conditions: at start-up, shutdown,
high feed rates, low feed rates, and under normal operating conditions.
For sampling, DuraTherm developed a list of constituents of concern
from comparing a list of all raw materials used in the plant that could
potentially appear in the petitioned waste with those in 40 CFR
Appendix IX part 264.
During a twenty-one day operational period, DuraTherm conducted its
sampling. Using the list of constituents of concern, DuraTherm
developed a sampling list based on the availability of test methods and
process knowledge. DuraTherm analyzed the forty composite samples:
(1) For the total concentrations (that is, the mass of a particular
constituent per mass of waste) of selected volatiles and semivolatiles,
and metals from Appendix IX.
(2) to determine whether the waste exhibited ignitable, corrosive,
or reactive properties as defined under 40 CFR 261.21, 261.22, and
261.23, including analysis for total constituent concentrations of
cyanide, sulfide, reactive cyanide, and reactive sulfide.
(3) for TCLP concentrations (that is, the mass of a particular
constituent per unit volume of extract) of selected volatiles,
semivolatiles, and metals on the Appendix IX list.

------------------------------------------------------------------------
DuraTherm Used These Methods To Quantify
------------------------------------------------------------------------
SW-846 Method 8260A, 8270B, and 6010... The total constituent
concentrations of 40 CFR, part
Sec. 264 Appendix IX
Volatiles Appendix IX
Semivolatiles (excluding PCBs,
Pesticides, Herbicides) and
Appendix IX Metals.
SW-846 Methods 1311, 8260A, 8270B, The TCLP concentrations of
6010, 8290. constituents in the extract.
SW-846 1320............................ The concentration of metal
constituents in the extract
after the Multiple Extraction
Procedure.
SW-846 Methods 7470A, 7471A............ Mercury.
SW-846 9071A........................... Total oil and grease.
SW-846 9045A........................... pH.
SW-846 9030............................ Reactive Sulfide.
SW-846 9010A........................... Reactive Cyanide.
------------------------------------------------------------------------

E. What Were the Results of DuraTherm's Analysis?

The Desorber Solids do not meet the definitions for characteristic
waste as defined by Secs. 261.21-261.24. Table 2 presents the maximum
total constituent and leachate concentrations for the Desorber Solids.
Twenty-six of the forty samples tested exceeded the maximum
allowable leachate concentration for antimony. For this petition the
maximum allowable leachate concentration for antimony is 0.162 mg/L.
The EPA did not base its listing of F037, F038, K048, K049, K050 or
K051 on the presence of antimony. One of the twenty-six waste samples
exceeded the maximum allowable leachate concentration for lead (0.405
mg/L). We eliminated these samples from the delisting evaluation. The
EPA evaluated fourteen samples of waste. We believe that these fourteen
samples are representative of the waste codes to be delisted. DuraTherm
also anticipated the failures, stabilized the waste with Portland
Cement, and analyzed three of these samples using the Multiple
Extraction Procedure. The Multiple Extraction Procedure detected metals
concentrations for zinc (3.98 mg/l), antimony (0.15 mg/l), barium (3.37
mg/l), chromium (0.01 mg/l), and vanadium (0.03 mg/l). These
concentrations were below the maximum allowable leachate concentrations
EPA sets as delisting criteria.

Table 2. Maximum Total Constituent and Leachate Concentrations Desorber
Solids \1\
------------------------------------------------------------------------
Total constituent Leachate
Constituents analyses (mg/kg) analyses (mg/l)
------------------------------------------------------------------------
Antimony......................... 107 0.14
Arsenic.......................... 67.1 0.67
Barium........................... 7,750 2.86
Benzene.......................... 5.56 0.0129
Benzo (a) anthracene............. 0.241 ND
Beryllium........................ 4.73 0.006
Bis ethylhexyl phthalate......... 0.356 ND
Butanone (MEK)................... 1.76 0.0315
Cadmium.......................... 7.19 0.11
Carbon Disulfide................. 0.67 ND
Chromium......................... 987 0.18
Chrysene......................... 0.08 ND
o-Cresol......................... 0.134 0.0044
m,p cresols...................... 0.088 0.0053
Ethylbenzene..................... 0.15 ND
Fluoranthene..................... 0.166 ND
Lead............................. 3,910 0.23
Nickel........................... 1,310 2.37
Phenanthrene..................... 0.284 ND
Phenol........................... 0.259 0.0135
Pyrene........................... 0.153 ND
Selenium......................... 58.8 0.22
Silver........................... 8.05 0.02
Styrene.......................... 0.38 ND
Toluene.......................... 1.16 0.0008
Vanadium......................... 3,760 0.11
Xylene........................... 0.17 ND
Zinc............................. 6,290 26.5
Reactive sulfide................. 60 ................
Total sulfide.................... 21,800 ................
Total cyanide.................... 2.3 ................
Oil and grease................... 4,700 ................
pH............................... 5.97-12.4 ................
------------------------------------------------------------------------
ND Denotes that the constituent was not detected at the detection limit
specified in the table.
¹ These levels represent the highest concentration of each constituent
found in any sample. These levels do not necessarily represent the
specific levels found in one sample.

F. How Did EPA Evaluate the Risk of Delisting This Waste?

The EPA considered the appropriateness of alternative waste
management scenarios for DuraTherm's desorber solids. Based on the
information provided in the petition, we decided that disposing of the
desorber solids in a municipal solid waste landfill is the most
reasonable, worse-case scenario for the desorber solids.
Under a landfill disposal scenario, the major exposure route of
concern for any hazardous constituents would be ingestion of
contaminated ground water. The EPA, therefore, evaluated DuraTherm's
petitioned wastes using the modified EPA Composite Model for Landfills/
Surface Impoundments (EPACML). The model predicts the potential for
ground water

[[Page 44870]]

contamination from wastes disposed of in a landfill.
You can find a detailed description of the EPACML model, the
disposal assumptions, and the modifications made for delisting in 56 FR
32993 (July 18, 1991), 56 FR 67197 (December 30, 1991) and the RCRA
public docket. This model includes both unsaturated and saturated zone
transport modules. It uses the reasonable worse-case contaminant levels
in ground water at a compliance point; that is, a receptor well serving
as a drinking-water supply.
Specifically, the model estimates the dilution/attenuation factor
(DAF) resulting from subsurface processes such as three-dimensional
dispersion and dilution from ground water recharge for a specific
volume of waste. The EPA requests comments on using the EPACML to
evaluate DuraTherm's desorber solids.
To evaluate DuraTherm's petitioned waste, we used the EPACML to
evaluate the mobility of the hazardous constituents detected in the
extract of samples of DuraTherm's desorber solids. Typically, the EPA
uses the maximum annual waste volume to derive a petition-specific DAF.
The DAFs are currently calculated assuming that an ongoing process
generates wastes for 20 years. The DAF for the waste volume of desorber
solids is 20,000 cubic yards/year, assuming 20 years is 27.
The EPA's evaluation of the desorber solids using a DAF of 27, an
estimated maximum waste volume of 20,000 cubic yards, and the maximum
reported TCLP concentrations (see Table 2), yielded compliance point
concentrations (see Table 3) that are below the current health-based
levels.

Table 3.--Compliance Point Concentrations
------------------------------------------------------------------------
Compliance
Constituents point Regulatory
concentration limit
------------------------------------------------------------------------
Antimony..................................... 0.005 0.006
Arsenic...................................... 0.02 0.05
Barium....................................... 0.106 2
Benzene...................................... 0.0005 0.005
Beryllium.................................... 0.0002 0.004
Butanone (MEK)............................... 0.0012 20
Cadmium...................................... 0.004 0.005
Chromium..................................... 0.006 0.1
o Cresol..................................... 0.002 2
m,p cresols.................................. 0.009 0.2
Lead......................................... 0.008 0.015
Nickel....................................... 0.087 0.1
Phenol....................................... 0.009 20
Selenium..................................... 0.008 0.05
Silver....................................... 0.0007 0.2
Styrene...................................... 0.0002 0.1
Toluene...................................... 0.0004 1
Vanadium..................................... 0.004 0.2
Zinc......................................... 0.981 10
------------------------------------------------------------------------

The maximum reported or calculated leachate concentrations of
barium, benzene, and selenium in the desorber solids yielded compliance
point concentrations below the health-based levels used in the
delisting decision-making.
The EPA did not evaluate the mobility of the remaining constituents
(for example, anthracene and pyrene) from DuraTherm's waste because
DuraTherm did not detect them in the leachate using the appropriate
analytical test methods (see Table 2). As explained above, we do not
evaluate nondetectable concentrations of a constituent of concern in a
petitioner's modeling efforts for delisting.
We believe the TCLP is the appropriate analytical method to use in
evaluating this petition. DuraTherm's waste streams range in pH between
5.97 and 12.4. We also know the disposal scenarios used. The EPA
believes that the TCLP will adequately predict the leachability of
constituents in the waste. To confirm that the waste will not leach at
concentrations that may affect human health and the environment, EPA
will require DuraTherm to analyze the constituents in the waste at
varying pH conditions during the verification testing.

G. What Did EPA Conclude About DuraTherm's Analysis?

After reviewing DuraTherm's processes, the EPA concludes that:
(1) No additional hazardous constituents of concern are likely to
be present or formed as reaction products or by-products in DuraTherm's
waste.
(2) the petitioned waste does not exhibit any of the
characteristics of ignitability, corrosivity, or reactivity. See
Secs. 261.21, 261.22, and 261.23, respectively.

H. What Other Factors Did EPA Consider in Its Evaluation?

During the evaluation of DuraTherm's petition, the EPA also
considered the potential impact of the petitioned waste via air
emission and surface run-off.
Potential Impact Via Air Emission
The Agency evaluated the potential hazards resulting from airborne
exposure to the hazardous constituents released from the desorber
solids. We investigated the potential hazard from exposure to
particulates released from the surface of an open landfill.
We considered exposure to hazardous constituents through: (1)
Inhalation of particulates and absorption into the lungs, (2) ingestion
of particulates eliminated from respiratory passages and subsequently
swallowed, and (3) air deposition of particulates and subsequent
ingestion of the soil/waste mixture.
We believe that exposure to airborne contaminants from DuraTherm's
petitioned wastes is unlikely. DuraTherm's waste should have no
appreciable air releases under the proposed disposal conditions.
The results of this worse-case analysis suggested no substantial
present or potential hazard to human health from airborne exposure to
constituents from DuraTherm's desorber solids.
The estimated levels of the hazardous constituents of concern
released into the air are below health-based levels for human health,
ingestion, and inhalation levels of concern, and the EPA Concentration-
Based Exemption Criteria for Soils (57 FR 21450, May 20, 1992).
For a description of the EPA's assessment of the potential impact
of DuraTherm's waste on airborne dispersion of waste contaminants, see
the RCRA public docket for today's proposed rule.
Potential Impact Via Surface Run-off Water Routes
The EPA also considered the potential impact of the petitioned
wastes via a surface water route. The EPA believes those containment
structures at municipal solid waste landfills can effectively control
surface water runoff, as the Subtitle D regulations prohibit pollutant
discharges into surface waters. See 56 FR 50978, October 9, 1991.
The concentrations of any hazardous constituents dissolved in the
run-off might be lower than the levels in the TCLP leachate analyses
reported in today's notice due to the aggressive acidic medium used for
extraction in the TCLP.
We believe leachate derived from the waste is unlikely to directly
enter a surface water body. The leachate will not enter a surface water
body without first traveling through the saturated subsurface where
dilution and attenuation of hazardous constituents will also occur.
Leachable concentrations provide a direct measure of solubility of a
toxic constituent in water. The leachable concentration shows the
fraction of the constituent that mobilizes in surface water and ground
water.
For the reasons discussed above, EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, we evaluated the potential impacts
on surface water if release of constituents of DuraTherm's waste by
runoff and erosion occurs. See the RCRA public docket for today's

[[Page 44871]]

proposed rule. The estimated levels of the hazardous constituents of
concern in surface water are below health-based levels for human health
and the EPA Chronic Water Quality Criteria for aquatic organisms (EPA,
OWRS, 1987).
The EPA, therefore, concluded that DuraTherm's desorber solids
waste is not a substantial or potential hazard to human health and the
environment via surface water exposure.

I. What Is EPA's Final Evaluation of This Delisting Petition?

The descriptions of the DuraTherm hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this notice), provide a reasonable
basis for EPA to grant the exclusion. We conclude DuraTherm's process
will substantially reduce the likelihood of migration of hazardous
constituents from the petitioned waste. Their process also minimizes
short-term and long-term threats from the petitioned waste to human
health and the environment.
Thus, EPA believes we should grant DuraTherm a conditional
exclusion for the desorber solids. The EPA believes the data submitted
in support of the petition show DuraTherm's process can render the
desorber solids nonhazardous.
We have reviewed the sampling procedures used by DuraTherm and have
determined they satisfy EPA criteria for collecting representative
samples of variable constituent concentrations in the desorber solids.
The data submitted in support of the petition show that constituents in
DuraTherm's waste are presently below the compliance point
concentrations used in the delisting decision-making and would not pose
a substantial hazard to the environment. The EPA believes that
DuraTherm has successfully demonstrated that the desorber solids are
nonhazardous.
The EPA therefore, proposes to grant a conditional exclusion to the
DuraTherm Corporation, in San Leon, Texas, for the desorber solids
described in its petition. The EPA's decision to conditionally exclude
this waste is based on descriptions of the treatment activities
associated with the petitioned waste and characterization of the
desorber solids.
If we finalize the proposed rule, the Agency 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, DuraTherm, must comply with the requirements in 40
CFR part 261, Appendix IX, Tables 1 and 2. The text below gives the
rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituents that DuraTherm
must test the leachate from the desorber solids, below which these
wastes would be considered nonhazardous.
The EPA selected the set of inorganic and organic constituents
specified in Paragraph (1) because of information in the petition. We
compiled the list from the composition of the waste, descriptions of
DuraTherm's treatment process, previous test data provided for the
waste, and the respective health-based levels used in delisting
decision-making.
We established the proposed delisting levels by calculating the
Maximum Allowable Leachate (MALs) concentrations from the Health-based
levels (HBL) for the constituents of concern and the EPACML chemical-
specific DAF of 27, that is, MAL = HBL x DAF. We also limited the
MALs so the concentrations would not exceed non waste water
concentrations in the Land Disposal Restriction treatment standards for
F037, F038, K048, K049, K050, and K051 in 40 CFR part 268. These
delisting levels correspond to the allowable levels measured in the
TCLP extract of the waste.
(2) Waste Holding and Handling
The purpose of this paragraph is to ensure that DuraTherm manages
and disposes of any desorber solids that might contain hazardous levels
of inorganic and organic constituents according to Subtitle C of RCRA.
Holding the desorber solids until characterization is complete 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 when we sign it, but the
disposal cannot begin until the verification sampling is completed.
(3) Verification Testing Requirements
(A) Initial Verification Testing:
If the EPA determines that the data from the initial verification
period shows the treatment process is effective, DuraTherm may request
that EPA allow it to conduct verification testing quarterly. If EPA
approves this request in writing, then DuraTherm may begin verification
testing quarterly.
The EPA believes that an initial period of 60 days is adequate for
a facility to collect sufficient data to verify that the data provided
for the desorber solids, in the 1998 petition, is representative.
We are requiring DuraTherm to conduct a multiple pH analysis
because in our experience more leaching can occur from disposed waste
when the pH of the waste is extremely acidic or basic. DuraTherm's
desorber solids vary greatly in pH, from 5.97 to 12.4. The pH of the
desorber solid cannot exceed a pH of 12.5 when measured using SW-846,
Method 9045C. DuraTherm must analyze 10 samples of the desorber solids
using a multiple pH extraction procedure. The 10 waste samples should
consist of both the non-stabilized and stabilized residual solids
samples. If none of the samples collected during the 60 day test period
need to be stabilized, DuraTherm should provide multiple pH data on the
first sample of stabilized wastes generated. The multiple pH test is
similar to the TCLP, but the test uses different pH extraction fluids.
DuraTherm should design the analytical test to show that the petitioned
waste when disposed of in an acidic and basic landfill environment
would not leach concentrations above the levels of regulatory concern.
The third condition should reflect how the petitioned waste will behave
when it is disposed in a landfill environment similar to the pH of the
waste. The EPA believes that evaluating the leachate generated from
using extraction fluids over a range of pHs can simulate general
disposal conditions and provide added assurance that the waste will
remain nonhazardous when disposal conditions change. The petitioner
must perform these analyses to confirm that the leachate concentrations
do not exceed the concentrations in Paragraph 1 over a wide pH range.
While the waste's pH does vary, the Agency believes that under the
various pH conditions the waste will remain stable, and thus will
proceed with the promulgation of the proposed decision.
If we determine 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
period demonstrate that the treatment process is effective, DuraTherm
may request quarterly testing. EPA will notify DuraTherm, in writing,
if and when they may replace the testing conditions in paragraph

[[Page 44872]]

(3)(A)(i) with the testing conditions in (3)(B).
(B) Subsequent Verification Testing:
The EPA believes that the concentrations of the constituents of
concern in the desorber solids may vary over time. As a result, to
ensure that DuraTherm's treatment process can effectively handle any
variation in constituent concentrations in the waste, we are proposing
a subsequent verification testing condition.
The proposed subsequent testing would verify that DuraTherm
operates the thermal desorption as it did during the initial
verification testing. It would also verify that the desorber solids do
not exhibit unacceptable levels of toxic constituents. The EPA is
proposing to require DuraTherm to analyze representative samples of the
desorber solids quarterly during the first year of waste generation.
DuraTherm would begin quarterly sampling on the anniversary date of the
final exclusion as described in Paragraph (3)(B). They must also use
the multiple pH extraction procedure for samples collected during the
quarterly and annual sampling.
(C) Termination of Organic Testing:
The EPA is proposing to end the subsequent testing conditions for
organics during the first year in Paragraph (1)(C) after DuraTherm has
demonstrated that the waste consistently meets the delisting levels.
Annual testing requires the full list of components in Paragraph 1.
If the annual testing of the waste does not meet the delisting
requirements in Paragraph 1, DuraTherm must notify the Agency according
to the requirements in Paragraph 6. We will take the appropriate
actions necessary to protect human health and the environment. The
facility must provide sampling results that support the rationale that
the delisting exclusion should not be withdrawn.
To confirm that the characteristics of the waste do not change
significantly over time, DuraTherm must continue to analyze a
representative sample of the waste for organic constituents annually.
If operating conditions change as described in Paragraph (4); DuraTherm
must reinstate all testing in Paragraph (1)(A). They must prove through
a new demonstration that their waste meets the conditions of the
exclusion. DuraTherm must continue organic testing of the desorber
solids for the exclusion of that waste.
(4) Changes in Operating Conditions
Paragraph (4) would allow DuraTherm the flexibility of modifying
its processes (for example, changes in equipment or change in operating
conditions) to improve its treatment process. However, DuraTherm must
prove the effectiveness of the modified process and request approval
from the EPA. DuraTherm must manage wastes generated during the new
process demonstration as hazardous waste until they have obtained
written approval and Paragraph (3) is satisfied.
(5) Data Submittals
To provide appropriate documentation that DuraTherm's facility is
properly treating the waste, DuraTherm must compile, summarize, and
keep delisting records on-site for a minimum of five years. They should
keep all analytical data obtained through Paragraph (3) including
quality control information for five years. Paragraph (5) requires that
DuraTherm furnish these data upon request for inspection by any
employee or representative of EPA or the State of Texas.
If the proposed exclusion is made final, it will apply only to
20,000 cubic yards of desorber solids, generated annually at the
DuraTherm facility after successful verification testing.
We would require DuraTherm to file a new delisting petition under
any of the following circumstances:
(a) If they significantly alter the thermal desorption treatment
system except as described in Paragraph (4)
(b) If they use any new manufacturing or production process(es), or
significantly change from the current process(es) described in their
petition; or
(c) If they make any changes that could affect the composition or
type of waste generated.
DuraTherm must manage waste volumes greater than 20,000 cubic yards
of desorber solids as hazardous until we grant a new exclusion.
When this exclusion becomes final, DuraTherm's management of the
wastes covered by this petition would be relieved from Subtitle C
jurisdiction. DuraTherm must either treat, store, or dispose of the
waste in an on-site facility. If not, DuraTherm 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 Language
The purpose of Paragraph 6 is to require DuraTherm 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. DuraTherm
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 EPA to reevaluate the exclusion if a source provides new or
additional information to the Agency. The EPA will evaluate the
information on which we based the decision to see if it is still
correct, or if circumstances have changed so that the information is no
longer correct or would cause EPA to deny the petition if presented.
This provision expressly requires DuraTherm 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 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 we have the authority under RCRA and the
Administrative Procedures Act, 5 U.S.C. 551 (1978) et seq., to reopen a
delisting decision. We may reopen a delisting decision when we receive
new information that calls into question the assumptions underlying the
delisting.
The Agency believes a clear statement of its authority in
delistings is merited in light of Agency 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
Agency to repeal the delisting. If an immediate threat to human health
and the environment presents itself, EPA will continue to address these
situations case by case. Where necessary, EPA will make a good cause
finding to justify emergency rulemaking. See APA 553 (b).
(7) Notification Requirements
In order to adequately track wastes that have been delisted, EPA is
requiring that DuraTherm provide a one-time notification to any State
regulatory agency through which or to which the delisted waste is being
carried. DuraTherm must provide this notification within 60 days of
commencing this activity.

D. What Happens if DuraTherm Violates the Terms and Conditions?

If DuraTherm violates the terms and conditions established in the
exclusion, the Agency will start procedures to withdraw the exclusion.
Where there is an immediate threat to human health and the environment,
the Agency will

[[Page 44873]]

continue to evaluate these events on a case-by-case basis. The Agency
expects DuraTherm to conduct the appropriate waste analysis and comply
with the criteria explained above in Paragraphs 3, 4, 5 and 6 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 and
on the applicability of the fate and transport model used to evaluate
the petition.
Please send three copies of your comments: Send two copies to
William Gallagher, Delisting Section, Multimedia Planning and
Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross
Avenue, Dallas, Texas 75202. Send the third copy to the Texas Natural
Resource Conservation Commission, 12100 Park 35 Circle, Austin, Texas
78753. Identify your comments at the top with this regulatory docket
number: F-99-TXDEL-DURATHERM.
You should address requests for a hearing to the Acting Director,
Robert E. Hannesschlager, Multimedia Planning and Permitting Division
(6PD), 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 (E.O.) 12866, EPA must conduct an
``assessment of the potential costs and benefits'' for all
``significant'' regulatory actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction would be achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous wastes, thus enabling a facility
to manage its waste as nonhazardous.
Because there is no additional impact from today's 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 E.O. 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 EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, I hereby certify that this proposed regulation,
if promulgated, will not have a significant economic impact on a
substantial number of small entities. This regulation, therefore, does
not require a regulatory flexibility analysis.

VIII. Paperwork Reduction Act

Information collection and record-keeping requirements associated
with this proposed rule have been approved by the OMB under the
provisions of the Paperwork Reduction Act of 1980 (Public Law (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), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year.
When such a statement is required for EPA rules, under section 205
of the UMRA EPA must identify and consider alternatives, including the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. 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 EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must develop under section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, giving them meaningful and timely input in
the development of EPA regulatory proposals with significant Federal
intergovermental 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 today's 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 12875

Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the OMB a
description of the extent of EPA's prior consultation with
representatives of affected state, local, and tribal governments, the
nature of their concerns, copies of written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, E.O. 12875 requires EPA to develop an
effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

[[Page 44874]]

XI. Executive Order 13045

The E.O. 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines: (1) Is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency 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 Agency. This
proposed rule is not subject to E.O. 13045 because this is not an
economically significant regulatory action as defined by E.O. 12866.

XII. Executive Order 13084

Because this action does not involve any requirements that affect
Indian Tribes, the requirements of section 3(b) of E.O. 13084 do not
apply.
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects
that communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments.
If the mandate is unfunded, EPA must provide to the Office
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation.
In addition, E.O. 13084 requires EPA to develop an effective
process permitting elected and other representatives of Indian tribal
governments ``to 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 E.O. 13084 do not
apply to this rule.

XIII. National Technology Transfer and Advancement Act

Under section 12(d) if the National Technology Transfer and
Advancement Act (NTTAA), the Agency is directed to use voluntary
consensus standards in its regulatory activities unless doing so would
be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (for example,
materials specifications, test methods, sampling procedures, business
practices, etc.) that are developed or adopted by voluntary consensus
standard bodies. Where EPA does not use available and potentially
applicable voluntary consensus standards, the NTTAA requires that
Agency to provide Congress, through the OMB, an explanation of the
reasons for not using such standards.
This rule does not establish any new technical standards, and thus
the Agency has no need to consider the use of voluntary consensus
standards in developing this rule.

List of Subjects in 40 CFR Part 261

Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.

Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f)

Dated: July 13, 1999.
Robert E. Hannesschlager,
Acting Division Director, Multimedia Planning and Permitting Division.

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

PART 261--IDENTIFYING AND LISTING 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 Tables 1 and 2, of Appendix IX of Part 261 it is proposed to
add the following waste stream in alphabetical order by facility to
read as follows:

Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and
260.22

Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility and address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
DuraTherm, Incorporated San Leon, Texas... Desorber solids, (at a maximum generation of 20,000 cubic yards per
calendar year) generated by DuraTherm using the thermal desorption
treatment process, (EPA Hazardous Waste No. F037 and F038) and that
is disposed of in Subtitle D landfills after [publication date of
the Final exclusion].
For the exclusion to be valid, DuraTherm 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 (ppm). The
petitioner must use an acceptable leaching method, for example SW-
846, Method 1311 to measure constituents in the waste leachate.
Desorber solids--
(i) Inorganic Constituents Arsenic--1.35; Antimony--0.162; Barium-
21.0; Beryllium--0.108; Cadmium-0.135; Chromium-2.7; Lead-0.405;
Nickel--2.7; Selenium-0.82; Silver-0.43; Vanadium-4.3; Zinc-270.
(ii) Organic Constituents Anthracene--0.28; Benzene--0.135;
Benzo(a) anthracene--0.059; Benzo(b)fluoranthene--0.11;
Benzo(a)pyrene--0.061;Bis-ethylhexylphthalate--0.28; Carbon
Disulfide--3.8; Chlorobenzene--0.057; Chrysene--0.059; o,m,p
Cresols--54; Dibenzo(a,h) anthracene--0.055; 2,4 Dimethyl
phenol--18.9; Dioctyl phthalate--0.017; Ethylbenzene--0.057;
Fluoranthene--0.068; Fluorene--0.059; Naphthalene--0.059;
Phenanthrene--0.059; Phenol--6.2; Pyrene--0.067; Styrene--2.7;
Trichloroethylene--0.054; Toluene--0.08; Xylene--0.032
(2) Waste Holding and Handling: DuraTherm must store the desorber
solids as described in its RCRA permit, or continue to dispose of
as hazardous all desorber solids generated, until they have
completed 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 desorber
solids that do not exceed the levels set forth in Paragraph (1) are
nonhazardous. DuraTherm can manage and dispose the nonhazardous
desorber solids according to all applicable solid waste
regulations.

[[Page 44875]]

(C) If constituent levels in a sample exceed any of the delisting
levels set in Paragraph (1), DuraTherm must retreat or stabilize
the batches of waste used to generate the representative sample
until it meets the levels. DuraTherm must repeat the analyses of
the treated or stabilized waste.
(D) If the facility has not treated or stabilized the waste,
DuraTherm must manage and dispose the waste generated under
Subtitle C of RCRA.
(3) Verification Testing Requirements: DuraTherm must perform sample
collection and analyses, including quality control procedures,
according to SW-846 methodologies. If EPA judges the process to be
effective under the operating conditions used during the initial
verification testing, DuraTherm may replace the testing required in
Paragraph (3)(A) with the testing required in Paragraph (3)(B).
DuraTherm must continue to test as specified in Paragraph (3)(A)
until and unless notified by EPA in writing that testing in
Paragraph (3)(A) may be replaced by Paragraph (3)(B).
(A) Initial Verification Testing: After EPA grants the final
exclusion, DuraTherm must do the following:
(i) Collect and analyze composites of the desorber solids.
(ii) Make two composites of representative grab samples
collected.
(iii) Analyze the waste, before disposal, for all of the
constituents listed in Paragraph 1.
(iv) Sixty (60) days after this exclusion becomes final, report
the operational and analytical test data, including quality
control information.
(v) Submit the test plan for conducting the multiple pH leaching
procedure to EPA for approval at least 10 days before conducting
the analysis.
(vi) Conduct a multiple pH leaching procedure on 10 samples
collected during the sixty-day test period.
(vii) The ten samples should include both non-stabilized and
stabilized residual solids. If none of the samples collected
during the sixty-day test period need to be stabilized,
DuraTherm should provide multiple pH data on the first sample of
stabilized wastes generated.
(vii) Perform the toxicity characteristic leaching procedure
using three different pH extraction fluids to simulate disposal
under three conditions. Simulate an acidic landfill environment,
basic landfill environment, and a landfill environment similar
to the pH of the waste.
(B) Subsequent Verification Testing: Following written notification
by EPA, DuraTherm may substitute the testing conditions in (3)(B)
for (3)(A)(i). DuraTherm must continue to monitor operating
conditions, and analyze representative samples each quarter of
operation during the first year of waste generation. The samples
must represent the waste generated in one quarter. DuraTherm must
run the multiple pH procedure on these waste samples.
(C) Termination of Organic Testing:
(i) DuraTherm must continue testing as required under Paragraph
(3)(B) for organic constituents in Paragraph (1)(A)(ii), until
the analytical results submitted under Paragraph (3)(B) show a
minimum of two consecutive samples below the delisting levels in
Paragraph (1)(A)(i), DuraTherm may then request that EPA stop
quarterly organic testing. After EPA notifies DuraTherm in
writing, the company may end quarterly organic testing.
(ii) Following cancellation of the quarterly testing, DuraTherm
must continue to test a representative composite sample for all
constituents listed in Paragraph (1) annually (by twelve months
after final exclusion).
(4) Changes in Operating Conditions: If DuraTherm significantly
changes the process described in its petition or starts any
processes that generate(s)the waste that may or could 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), they
must notify EPA in writing; they 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 they have
received written approval to do so from EPA.
(5) Data Submittals: DuraTherm must submit the information described
below. If DuraTherm fails to submit the required data within the
specified time or maintain the required records on-site for the
specified time, EPA, at its discretion, will consider this
sufficient basis to reopen the exclusion as described in Paragraph
6. DuraTherm must:
(A) Submit the data obtained through Paragraph 3 to Mr. William
Gallagher, Chief, Region 6 Delisting Program, 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 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. Sec. 1001 and 42 U.S.C. Sec.
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 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 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 Language--

[[Page 44876]]

(A) If, anytime after disposal of the delisted waste, DuraTherm
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, DuraTherm 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 DuraTherm 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 Agency 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.
(D) If the Regional Administrator or his delegate determines that
the reported information does require Agency action, the 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 Agency 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
Agency 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: DuraTherm must do following before
transporting the delisted waste: Failure to provide this
notification will result in a violation of the delisting petition
and a possible revocation of the decision.
(A) Provide a one-time written notification to any State Regulatory
Agency to which or through which they will transport the delisted
waste described above for disposal, 60 days before beginning such
activities.
(B) Update the one-time written notification if they ship the
delisted waste into a different disposal facility.
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Table 2.--Wastes Excluded From Specific Sources
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Facility and address Waste description
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* * * * * *
*
DuraTherm, Incorporated San Leon, Texas Desorber Solids, (at a maximum generation of 20,000 cubic yards per
calendar year) generated by DuraTherm using the treatment process to
treat the Desorber solids, (EPA Hazardous Waste No. K048, K049, K050,
and K051 and disposed of in a Subtitle D landfill. DuraTherm must
implement the testing program found in Table 1. Wastes Excluded From
Non-Specific Sources, for the petition to be valid.
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[FR Doc. 99-21422 Filed 8-17-99; 8:45 am]
BILLING CODE 6560-50-P