[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Proposed Rules]
[Pages 55880-55892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26663]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6455-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA (``the Agency'' or ``we'' in this preamble) is 
proposing to grant a petition submitted by Rhodia, Incorporated Houston 
(Rhodia). Rhodia petitioned the Agency to exclude (or delist) filter-
cake sludge generated at its Houston, Harris County, Texas, facility 
from the lists of hazardous wastes contained in 40 CFR 261.24, 261.31, 
and 261.32 (hereinafter all sectional references are to 40 CFR unless 
otherwise indicated).
    Rhodia submitted this 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.
    If finalized, we would conclude that Rhodia's petitioned waste is 
nonhazardous with respect to the original listing criteria and that the 
waste process Rhodia uses will substantially reduce the likelihood of 
migration of hazardous constituents from this waste. We would also 
conclude that their process minimizes short-term and long-term threats 
from the petitioned waste to human health and the environment.

DATES: We will accept comments until November 29, 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.
    Your requests for a hearing must reach EPA by November 1, 1999. The 
request must contain the information prescribed in Sec. 260.20(d).

ADDRESSES: Please send three copies of your comments. Two copies should 
be sent to William Gallagher, Delisting Section, Multimedia Planning 
and Permitting Division (6PD-O), Environmental Protection Agency, 1445 
Ross Avenue, Dallas, Texas 75202. A third copy should be sent to the 
Texas Natural Resources Conservation Commission (TNRCC), P.O. Box 
13087, Austin, Texas, 78711-3087. Identify your comments at the top 
with this regulatory docket number: ``F-99-TXDEL-Rhodia.''
    You should address requests for a hearing to the Acting Director, 
Robert Hannesschlager, Multimedia Planning and Permitting Division 
(6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202.

FOR FURTHER INFORMATION CONTACT: James Harris at (214) 665-8302.

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

I. Overview Information
    A. What action is EPA proposing?

[[Page 55881]]

    B. Why is EPA proposing to approve this delisting?
    C. How will Rhodia manage the waste if it is delisted?
    D. When would EPA finalize the proposed delisting?
    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 waste did Rhodia petition EPA to delist?
    B. Who is Rhodia, and what process does it use?
    C. How did Rhodia sample and analyze the waste data in this 
petition?
    D. What were the results of Rhodia's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Rhodia'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 Rhodia violates the terms and conditions?
V. Public Comments
    A. How can I, as an interested party, submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 12875
XI. Executive Order 13045
XII. Executive Order 13084
XIII. National Technology Transfer and Advancement Act

I. Overview Information

A. What Action is EPA Proposing?

    The EPA is proposing:
    (1) To grant Rhodia's petition to have it's filter-cake sludge 
excluded, or delisted, from the definition of a hazardous waste, 
subject to certain verification and monitoring conditions; 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?

    Rhodia's petition requests a delisting for listed hazardous wastes. 
Rhodia does not believe that the petitioned waste meets the criteria 
for which EPA listed it. Rhodia also believes no additional 
constituents or factors could cause the waste to be hazardous. EPA's 
review of this petition included consideration of the original listing 
criteria, and the additional factors required by HSWA. See section 222 
of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the 
initial delisting determination, EPA evaluated the petitioned waste 
against the listing criteria and factors cited in Secs. 261.11 (a)(2) 
and (a)(3). Based on this review, the EPA agrees with the petitioner 
that the waste is nonhazardous with respect to the original listing 
criteria. (If the EPA had found, based on this review, that the waste 
remained hazardous based on the factors for which the waste were 
originally listed, EPA would have proposed to deny the petition.) The 
EPA evaluated the waste with respect to other factors or criteria to 
assess whether there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. The EPA 
considered whether the waste is acutely toxic, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. The 
EPA believes that the petitioned waste does not meet these criteria. 
EPA's proposed decision to delist waste from Rhodia's facility is based 
on the information submitted in support of today's rule, i.e., 
descriptions of the Sulfuric Acid Regeneration Unit (SARU) and the 
Advanced Water Treatment (AWT) system and analytical data from the 
Houston facility.

C. How Will Rhodia Manage the Waste If It Is Delisted?

    Rhodia currently disposes of the petitioned waste (filter-cake 
Sludge) generated at its facility in off-site, RCRA permitted TSD 
facilities which are not owned/operated by Rhodia. If the waste is 
delisted it will meet the criteria for disposal in a Subtitle D 
landfill.

D. When Would EPA Finalize the Proposed Delisting?

    The HSWA specifically requires EPA to provide notice and an 
opportunity for comment before granting or denying a final exclusion. 
Thus, EPA will not grant the exclusion until it addresses all timely 
public comments (including those at public hearings, if any) on today's 
proposal.
    Section 3010(b) at 42 USCA 6930(b) 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(b), and a later effective 
date would impose unnecessary hardship and expense on this petitioner. 
These reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How Would This Action Affect States?

    Because EPA is issuing 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 
authorization from EPA 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 RCRA delisting program in place of 
the Federal program, that is, to make State delisting decisions. 
Therefore, this exclusion does not apply in those authorized States. If 
Rhodia transports the petitioned waste to or manages the waste in any 
State with delisting authorization, Rhodia must obtain delisting 
authorization from that State before they can manage the waste as 
nonhazardous in the State.

[[Page 55882]]

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, 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 
hazardous.
    For this reason, Secs. 260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

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

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude 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 Part 
261 and in the background documents for the listed wastes.
    In addition, under Sec. 260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See Part 261 and the background documents for the 
listed 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 3010(b) of the Solid Waste Disposal Act.)
    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) (iii and iv) 
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded.
    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 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 See (57 FR 7628). These rules became final on October 30, 1992 
See (57 FR 49278). Consult these references for more information about 
mixtures derived from wastes.

II. EPA's Evaluation of the Waste Data

A. What Waste Did Rhodia Petition EPA To Delist?

    On November 4, 1997, Rhodia petitioned the EPA to exclude from the 
lists of hazardous waste contained in Secs. 261.31 and 261.32, a waste 
by-product (Filter-Cake Sludge) which falls under the classification of 
listed waste because of the ``derived from'' rule in RCRA 40 CFR 
260.3(c)(2)(i). Specifically, in its petition, Rhodia, Incorporated, 
located in Houston, Texas, requested that EPA grant an exclusion for 
1,200 cubic yards per year of filter-cake sludge resulting from its 
hazardous waste treatment process. The resulting waste is listed, in 
accordance with Sec. 261.3(c)(2)(i) (i.e., the ``derived from'' rule).

B. Who Is Rhodia, and What Process Does It Use?

    Rhodia owns and operates a 46-acre facility which is primarily 
involved in the manufacture of sulfuric acid. Rhodia has been in 
operation since 1917, primarily producing various strengths and grades 
of sulfuric acid, sulfur dioxide, oleum, and sulfur trioxide. Rhodia 
generates sulfuric acid using a spray burning SARU. The recycling 
process requires the use of an industrial furnace. The furnace utilizes 
natural gas as the primary fuel. However, Rhodia also treats high and 
low British Thermal Unit (BTU) pumpable liquid hazardous waste in the 
furnace. Rhodia accepts hazardous waste from off-site generators for 
incineration in the sulfuric acid regeneration furnace. A weak acid 
blowdown stream generated from the wet gas scrubber, cooler, and 
electrostatic precipitator is treated at the AWT system. The petitioned 
waste is dewatered filter-cake sludge resulting from the AWT system. 
The waste by-product (filter-cake sludge) currently falls under the 
classification of listed waste according to RCRA 40 CFR 261.3(c)(2)(i) 
because of the ``derived from'' rule. The waste codes of the 
constituents of concern are EPA Hazardous Waste Nos. D001-D043, F001-
F012, F019, F024, F025, F032, F034, F037-F039, K002-004, K006-K011, 
K013-K052, K060-K062, K064-K066, K069, K071, K073, K083-K088, K090-
K091, K093-K118, K123-K126, K131-K133, K136, K141-K145, K147-K151, 
K156-K161, P001-P024, P026-P031, P033-P034, P036-P051, P054, P056-P060, 
P062-P078, P081-P082, P084-P085, P087-P089, P092-P116, P118-P123, P127-
P128, P185, P188-P192, P194, P196-P199, P201-P205, U001-U012, U014-
U039, U041-U053, U055-U064, U066-U099, U101-U103, U105-U138, U140-U174, 
U176-U194, U196-U197, U200-U211, U213-U223, U225-U228, U234-U240, U243-
U244, U246-U249, U271, U277-U280, U328, U353, U359, U364-U367, U372-
U373, U375-U379, U381-U396, U400-U404, U407, U409-U411.

C. How Did Rhodia Sample and Analyze the Waste Data in This Petition?

    Rhodia analyzed the samples for the complete list of constituents 
included in 40 CFR Part 264, Appendix IX and the additional parameters 
for waste common to the petrochemical, oil and gas industries. The 
analyses was performed using EPA-approved methods. The analytical 
parameters and methods are provided in Table I.

[[Page 55883]]



               Table I.--Analytical Parameters and Methods
------------------------------------------------------------------------
           Parameter                  Matrix               Method
------------------------------------------------------------------------
GC/MS BNA, App IX List........  Solid............  SW846 Method 8270.
GC/MS VOA, App IX List........  Solid............  SW846 Method 8240.
Metals--App IX List...........  Solid............  SW846 Methods 6010/
                                                    7000 Series.
Herbicides--App IX List.......  Solid............  SW846 Method 8150.
Pesticide/PCB, App IX List....  Solid............  SW846 Method 8080.
Organophosporus Pesticides,     Solid............  SW846 Method 8140.
 App IX List.
Sulfide.......................  Solid............  EPA 376.1.
Cyanide, Total................  Solid............  SW846, Method 9010.
Dioxin/Furan--App IX List.....  Solid............  SW846 Method 8280.
TCLP--40 CFR 261.24 List, and   Solid............  SW846 Method 1311.
 Nickel.
Neutral Leach Cyanide.........  Solid............  SW846 Method 1311
                                                    (Modified).
Oil & Grease..................  Solid............  EPA 413.1.
Reactive Cyanide..............  Solid............  SW 846 Chapter
                                                    7.3.3.2.
Reactive Sulfide..............  Solid............  SW846 Chapter
                                                    7.3.4.2.
Flash Point Closed Cup........  Solid............  SW846 Method 1010.
pH............................  Solid............  SW846 Method 9045.
------------------------------------------------------------------------
Note: Rhodia performed TCLP analyses for specific constituents detected
  in the total analyses for a given sample.

D. What Were the Results of Rhodia's Analysis?

    The EPA believes that the descriptions of the Rhodia hazardous 
waste process and analytical characterization, in conjunction with the 
proposed verification testing requirements (as discussed later in this 
notice), provide a reasonable basis to grant Rhodia's petition for an 
exclusion of the filter-cake sludge. The EPA believes the data 
submitted in support of the petition show Rhodia's process can render 
the filter-cake sludge non-hazardous. The EPA has reviewed the sampling 
procedures used by Rhodia and has determined they satisfy EPA criteria 
for collecting representative samples of the variations in constituent 
concentrations in the filter-cake sludge. The data submitted in support 
of the petition show that constituents in Rhodia's waste are presently 
below health-based levels used in the delisting decision-making. The 
EPA believes that Rhodia has successfully demonstrated that the filter-
cake sludge is non-hazardous.

E. How Did EPA Evaluate the Risk of Delisting the Waste?

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e., ground water, 
surface water, air) for hazardous constituents present in the 
petitioned waste. The EPA determined that disposal in a Subtitle D 
landfill/surface impoundment is the most reasonable, worst-case 
disposal scenario for Rhodia's petitioned waste, and that the major 
exposure route of concern would be ingestion of contaminated ground 
water. EPA applied a particular fate and transport model, EPA Composite 
Model for Landfills (EPACML), to predict the maximum allowable 
concentrations of hazardous constituents that may release from the 
petitioned waste after disposal and determined the potential impact of 
the disposal of Rhodia's petitioned waste on human health and the 
environment. Specifically, EPA used the maximum estimated waste volumes 
and the maximum reported extract concentrations as inputs to estimate 
the constituent concentrations in the ground water at a hypothetical 
receptor well downgradient from the disposal site. The calculated 
receptor well concentrations (referred to as compliance-point 
concentrations) were then compared directly to the health-based levels 
at an assumed risk of 10-6 used in delisting decision-making 
for the hazardous constituents of concern.
    The EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned waste in 
a landfill/surface impoundment, and that a reasonable worst-case 
scenario is appropriate when evaluating whether a waste should be 
relieved of the protective management constraints of RCRA Subtitle C. 
The use of some reasonable worst-case scenario resulted in conservative 
values for the compliance-point concentrations and ensured that the 
waste, once removed from hazardous waste regulation, may not pose a 
significant threat to human health or the environment. In most cases, 
because a delisted waste is no longer subject to hazardous waste 
control, EPA is generally unable to predict, and does not presently 
control, how a petitioner will manage a waste after delisting. 
Therefore, EPA currently believes that it is inappropriate to consider 
extensive site-specific factors when applying the fate and transport 
model.
    The EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, EPA 
determined that it would be unnecessary to request ground water 
monitoring data. Rhodia currently disposes of its waste in an off-site 
RCRA landfill. This landfill did not begin accepting this petitioned 
waste generated by the Rhodia facility until 1991. This petitioned 
waste comprises a small fraction of the total waste managed in the 
unit. Therefore, EPA believes that any ground water monitoring data 
from the landfill would not be meaningful for an evaluation of the 
specific effect of this petitioned waste on ground water.
    From the evaluation of Rhodia's delisting petition, EPA developed a 
list of constituents for the verification testing conditions. Proposed 
maximum allowable leachable concentrations for these constituents were 
derived by back-calculating from the delisting health-based levels 
through the proposed fate and transport model for a landfill management 
scenario. These concentrations (i.e., ``delisting levels'') are part of 
the proposed verification testing conditions of the exclusion.
    Similar to other facilities seeking exclusions, Rhodia's exclusion 
(if granted) would be contingent upon the facility conducting 
analytical testing of representative samples of the petitioned waste at 
its Houston facility. This testing would be necessary to verify that 
the treatment system is operating as demonstrated in the petition 
submitted on November 4, 1997. Specifically, the verification testing 
requirements, demonstrate that the processing facility will generate 
nonhazardous waste (i.e., waste that meet EPA's verification testing 
conditions). The EPA believes

[[Page 55884]]

that the descriptions of the Rhodia, Inc. hazardous waste process and 
analytical characterization, in conjunction with the proposed 
verification testing requirements (as discussed later in this notice) 
provide a reasonable basis to conclude that the likelihood of migration 
of hazardous constituents from the petitioned waste will be 
substantially reduced so that short-term and long-term threats to human 
health and the environment are minimized. Thus, EPA should grant 
Rhodia's petition for a conditional exclusion of the filter-cake 
sludge.
    The EPA Region 6 Delisting Program guidance document states that 
the appropriate fate and effect model will be used to determine the 
effect the petitioned waste could have on human health if it is not 
managed as a hazardous waste. Specifically, the model considers the 
maximum estimated waste volume and the maximum reported leachate 
concentrations as inputs to estimate the constituent concentrations in 
the ground water at a hypothetical receptor well downgradient from the 
disposal site. The calculated receptor well concentrations (referred to 
as compliance-point concentrations) are then compared directly to the 
health-based levels used in delisting decision-making for hazardous 
constituents of concern. EPA Region 6 has selected the EPA Composite 
Model for Landfills (EPACML, Federal Register Vol. 56, No. 138, July 
18, 1991, Page 32993) as the appropriate model for the delisting 
program. This subsection presents an evaluation of the potential for 
ground water contamination for the petitioned waste using the EPACML 
model.
    The EPA considered the appropriateness of alternative waste 
management scenarios for Rhodia's filter-cake sludge. The EPA decided, 
based on the information provided in the petition, that disposal of the 
filter-cake in a municipal solid waste landfill is the most reasonable, 
worst-case scenario for the filter-cake sludge. The disposal of the 
filter-cake sludge in a surface impoundment would be the most 
reasonable worst-case scenario. Under a landfill/surface impoundment 
disposal scenario, the major exposure route of concern for any 
hazardous constituents would be ingestion of contaminated ground water. 
The EPA, therefore, evaluated Rhodia's petitioned waste using the 
modified EPA Composite Model for Landfills/Surface Impoundments 
(EPACML) which predicts the potential for ground water contamination 
from waste landfilled/placed in a surface impoundment. See 56 FR 32993 
(July 18, 1991), 56 FR 67197 (December 30, 1991) and the RCRA public 
docket for these notices for a detailed description of the EPACML 
model, the disposal assumptions, and the modifications made for 
delisting. This model, which includes both unsaturated and saturated 
zone transport modules, predicts reasonable worse-case contaminant 
levels in ground water at a compliance point (i.e., a receptor well 
serving as a drinking-water supply). Specifically, the model estimated 
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.
    For the evaluation of Rhodia's petitioned waste, EPA used the 
EPACML to evaluate the mobility of the hazardous constituents detected 
in the extract of samples of Rhodia's filter-cake sludge. Total 
analysis was also utilized for the filter-cake sludge. Typically, EPA 
uses the maximum annual waste volume to derive a petition-specific DAF. 
The maximum annual waste volume for Rhodia is 1,200 cubic yards per 
year. The DAFs are currently calculated assuming an ongoing process 
generates waste for 20 years.
    Analytical data for the filter-cake sludge samples were used in the 
model. The data summaries for detected constituents are presented in 
Tables II, III, IV, and V.
    The EPA's evaluation of the Filter-cake Sludge is based on the 
maximum reported Total and TCLP concentrations (See Table III). 
Consequently the compliance point concentrations are below current 
health based levels and Land Disposal Restrictions for Non-Wastewater 
(See Table V).
    Based on the EPACML, the petitioned waste should be delisted 
because no constituents of concern exceed the delisting concentrations.

           Table II.--Acetone and Chloroform Data Summary \1\
------------------------------------------------------------------------
                                        Analytical parameter (VOCs)
   Filter-cake samples (mg/kg)   ---------------------------------------
                                        Acetone           Chloroform
------------------------------------------------------------------------
Appendix IX Reporting Limit \2\.               0.010               0.05
FC970512-01.....................               0.60                0.10
FC970512-01RE \3\...............               0.26                0.02
FC970513-02.....................               0.30                0.10
FC970513-02RE \3\...............               0.28                0.04
FC970514-03.....................               0.25                0.056
FC970514-03RE \3\...............               0.16                0.023
FC970515-04.....................          \4\ ND                  ND
FC970515-04RE \3\...............          \5\ NA                  NA
FC970517-05.....................               0.043              ND
FC970517-05RE \3\...............              NA                  NA
FC970520-06.....................               0.050              ND
FC970520-06RE \3\...............              NA                  NA
FC970521-07.....................               0.049              ND
FC970522-08.....................               0.058              ND
FC970522-08RE \3\...............               0.17               ND
FC970522-08.....................              ND                  ND
FC970522-08RE \3\...............               0.13               ND
------------------------------------------------------------------------
\1\ This table only summarizes the analytical results for the volatile
  organic compounds that were detected by the laboratory against the
  Appendix IX reporting limits.
\2\ The Appendix IX reporting limits for acetone are chloroform are
  referenced from 40 CFR 264, Appendix IX.
\3\ RE--Replicate samples.
\4\ ND--Not detected.
\5\ NA--Not analyzed.


[[Page 55885]]


  Table III.--Maximum Total and TCLP Constituent Concentrations Filter-
                             Cake Sludge \1\
------------------------------------------------------------------------
                                                         TCLP Leachate
           Constituent             Total constituent  Concentration  (mg/
                                   analyses (mg/kg)           l)
------------------------------------------------------------------------
Arsenic.........................              830.00               ND
Barium..........................              193.00               ND
Cadmium.........................                3.50               ND
Chromium........................              852.00               ND
Cobalt..........................               81.20                4.06
Copper..........................             1500.00               75.00
Mercury.........................               81.60               ND
Lead............................              861.00               ND
Nickel..........................             1210.00                3.00
Selenium........................               36.30               ND
Silver..........................               94.90               ND
Vanadium........................               92.10                4.61
Zinc............................             3130.00              156.50 
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.


              Table IV.--Oil and Grease Results Summary \1\
------------------------------------------------------------------------
                                                   Analytical Parameter
          Filter-cake samples (mg/kg)               (specific) Oil and
                                                          grease
------------------------------------------------------------------------
Laboratory Reporting Limit \2\.................                    3,520
FC970520-06....................................                   3,660
------------------------------------------------------------------------
\1\ This table only summarizes the results for those special parameters
  that were detected above laboratory detection limits.
\2\ Appendix IX reporting limits are not available for oil and grease.
  Therefore, the laboratory's detection limits were used for the
  comparison.


Table V.--EPACML: Comparison of Filter-Cake Sludge Calculated Compliance-Point Concentrations Against Regulatory
                                                    Standards
----------------------------------------------------------------------------------------------------------------
                                                       Compliance point
                    Constituents                        concentrations     Levels of concern  LDR non-wastewater
                                                           (mg/l) 1            (mg/l) 2              (mg/l)
----------------------------------------------------------------------------------------------------------------
Arsenic.............................................               0.001               0.05                5.00
Barium..............................................               0.006               2.00               21.00
Cadmium.............................................               0.001               0.005               0.11
Chromium............................................               0.001               0.1                 0.60
Mercury.............................................            3 ND                   0.002               0.025
Nickel..............................................               0.033               0.1                11.00
Lead................................................               0.001               0.015               0.75
Selenium............................................            3 ND                   0.05                5.70
Silver..............................................               0.001               0.2                 0.14
----------------------------------------------------------------------------------------------------------------
1 Using the maximum TCLP leachate concentration, based on a DAF of 90 for a maximum annual volume of 1,200 cubic
  yards.
2  See ``Docket Report on Health-Based Levels and Solubilities Used in the Evaluation of Delisting Petitions,''
  May 1996 located in the RCRA Public Docket for today's notice.
3 ND = Not Detected.

F. What Did EPA Conclude About Rhodia's Analysis?

    The EPA concluded, after reviewing Rhodia's processes that no other 
hazardous constituents of concern, other than those for which tested, 
are likely to be present or formed as reaction products or by products 
in Rhodia's waste. In addition, on the basis of explanations and 
analytical data provided by Rhodia, pursuant to Sec. 260.22, the EPA 
concludes that the petitioned waste does not exhibit any of the 
characteristics of ignitability, corrosivity, or reactivity. See 
Secs. 261.21, 261.22, and 261.23, respectively.

G. What Other Factors Did EPA Consider?

    During the evaluation of Rhodia's petition, EPA also considered the 
potential impact of the petitioned waste via non-ground water routes 
(i.e., air emission and surface runoff). With regard to airborne 
dispersion in particular, EPA believes that exposure to airborne 
contaminants from Rhodia's petitioned waste is unlikely. Therefore, no 
appreciable air releases are likely from Rhodia's waste under any 
likely disposal conditions. The EPA evaluated the potential hazards 
resulting from the unlikely scenario of airborne exposure to hazardous 
constituents released from Rhodia's waste in an open landfill. The 
results of this worst-case analysis indicated that there is no 
substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from Rhodia's 
Filter-cake sludge. A description of EPA's assessment of the potential 
impact of Rhodia's waste, regarding airborne dispersion of waste 
contaminants, is presented in the RCRA public docket for today's 
proposed rule.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste landfills can effectively control 
surface water runoff,

[[Page 55886]]

as the Subtitle D regulations (See 56 FR 50978, October 9, 1991) 
prohibit pollutant discharges into surface waters. Furthermore, the 
concentrations of any hazardous constituents dissolved in the runoff 
will tend to be lower than the levels in the TCLP leachate analyses 
reported in today's notice due to the aggressive acidic medium used for 
extraction in the TCLP. The EPA believes that, in general, leachate 
derived from the waste is unlikely to directly enter a surface water 
body without first traveling through the saturated subsurface where 
dilution and attenuation of hazardous constituents will also occur. 
Leachable concentrations provide a direct measure of solubility of a 
toxic constituent in water and are indicative of the fraction of the 
constituent that may be mobilized in surface water as well as ground 
water.
    Based on the reasons discussed above, EPA believes that the 
contamination of surface water through runoff from the waste disposal 
area is very unlikely. Nevertheless, EPA evaluated the potential 
impacts on surface water if Rhodia's waste were released from a 
municipal solid waste landfill through runoff and erosion. See, the 
RCRA public docket for today's proposed rule. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). The EPA, therefore, concluded that Rhodia's filter-cake Sludge 
is not a present or potential substantial hazard to human health and 
the environment via the surface water exposure pathway.

H. What is EPA's Final Evaluation of This Delisting Petition?

    The descriptions of Rhodia's 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. The data submitted in support of the petition 
show that constituents in the waste are below the applicable treatment 
standards (see Table V). We conclude Rhodia'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 Rhodia an exclusion for the 
filter-cake sludge. The EPA believes the data submitted in support of 
the petition show Rhodia's process can render the filter-cake sludge 
nonhazardous.
    We have reviewed the sampling procedures used by Rhodia and have 
determined they satisfy EPA criteria for collecting representative 
samples of variable constituent concentrations in the filter-cake 
sludge. The data submitted in support of the petition show that 
constituents in Rhodia'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 Rhodia 
has successfully demonstrated that the filter-cake sludge are 
nonhazardous.
    The EPA therefore, proposes to grant a conditional exclusion to the 
Rhodia Corporation, in Houston, Texas, for the filter-cake sludge 
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 
filter-cake sludge.
    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, Rhodia, 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 Rhodia must 
test the leachate from the filter-cake sludge, 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 
Rhodia'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 90, 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 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 any filter-cake 
sludge which might contain hazardous levels of inorganic and organic 
constituents are managed and disposed of in accordance with Subtitle C 
of RCRA. Holding the filter-cake sludge until characterization is 
complete will protect against improper handling of hazardous material. 
If EPA determines that the data collected under this condition do not 
support the data provided for the petition the exclusion will not cover 
the petitioned waste.
(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, Rhodia may request that EPA allow it to conduct 
verification testing quarterly. If EPA approves this request in 
writing, then Rhodia 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 filter-cake sludge in the 1998 petition, is representative.
    We are requiring Rhodia 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. The multiple pH test is 
similar to the TCLP, but the test uses different pH extraction fluids. 
Rhodia 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 second 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 pH's 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

[[Page 55887]]

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, Rhodia may 
request quarterly testing. EPA will notify Rhodia, in writing, if and 
when they may replace the testing conditions in paragraph (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 filter-cake sludge 
may vary over time. As a result, to ensure that Rhodia'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 Rhodia operates 
the AWT as it did during the initial verification testing. It would 
also verify that the filter-cake sludge does not exhibit unacceptable 
levels of toxic constituents. The EPA is proposing to require Rhodia to 
analyze representative samples of the filter-cake sludge quarterly 
during the first year of waste generation. Rhodia would begin annual 
sampling on the anniversary date of the final exclusion. They must also 
use the multiple pH extraction procedure for samples collected during 
the annual sampling.
(4) Changes in Operating Conditions
    Paragraph (4) would allow Rhodia the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment process. However, Rhodia must 
prove the effectiveness of the modified process and request approval 
from the EPA. Rhodia 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 Rhodia's facility is 
properly treating the waste, Rhodia 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 Rhodia 
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 
1,200 cubic yards of filter-cake sludge, generated annually at the 
Rhodia facility after successful verification testing.
    We would require Rhodia 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.
    Rhodia must manage waste volumes greater than 1,200 cubic yards of 
filter-cake sludge as hazardous until we grant a new exclusion.
    When this exclusion becomes final, Rhodia's management of the 
wastes covered by this petition would be relieved from Subtitle C 
jurisdiction. Rhodia must either treat, store, or dispose of the waste 
in an on-site facility that has a State permit, license, or is 
registered to manage municipal or industrial solid waste. If not, 
Rhodia must ensure that it delivers the waste to an off-site storage, 
treatment, or disposal facility that has a State permit, license, or is 
registered to manage municipal or industrial solid waste.
(6) Reopener Language
    The purpose of Paragraph 6 is to require Rhodia 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. Rhodia 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 Rhodia 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. Sec. 551 (1978) et seq., to 
reopen a delisting decision. We may reopen a delisting decision when we 
receive new information that calls into question the assumptions 
underlying the delisting.
    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 Rhodia provide a one-time notification to any State 
regulatory agency through which or to which the delisted waste is being 
carried. Rhodia must provide this notification within 60 days of 
commencing this activity.

B. What Happens if Rhodia Violates the Terms and Conditions?

    If Rhodia 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 continue to evaluate these events on a case-by-case 
basis. The Agency expects Rhodia 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 can I as an Interested Party Submit Comments?

    The EPA is requesting public comments on this proposed decision. 
Please send three copies of your comments. Send two copies to William 
Gallagher, Delisting Section, Multimedia Planning and Permitting 
Division (6PD-O), Environmental Protection Agency (EPA), 1445 Ross 
Avenue, Dallas, Texas 75202. Send a third copy to the Texas Natural 
Resource Conservation Commission, 12100 Park 35 Circle, Austin, Texas

[[Page 55888]]

78753. Identify your comments at the top with this regulatory docket 
number: ``F-99-TXDEL-RHODIA.''
    You should submit requests for a hearing to Robert Hannesschlager, 
Acting Director, 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 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at fifteen cents per page for 
additional copies.

VI. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions.
    The proposal to grant an exclusion is not significant, since its 
effect, if promulgated, would be to reduce the 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 Executive Order 12866.

VII. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an 
agency is required to publish a general notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis which describes the impact of 
the rule on small entities (that is, small businesses, small 
organizations, and small governmental jurisdictions). No regulatory 
flexibility analysis is required, however, if the Administrator or 
delegated representative certifies that the rule will not have any 
impact on a small entities.
    This rule, if promulgated, will not have an adverse economic impact 
on small entities since its effect would be to reduce the overall costs 
of EPA's hazardous waste regulations and would be limited to one 
facility. Accordingly, I hereby certify that this proposed regulation, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities. This regulation, therefore, does 
not require a regulatory flexibility analysis.

VIII. Paperwork Reduction Act

    Information collection and record-keeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned 
OMB Control Number 2050-0053.

IX. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year.
    When such a statement is required for EPA rules, under section 205 
of the UMRA EPA must identify and consider alternatives, including the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. 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 
intergovernmental mandates, and informing, educating, and advising them 
on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector.
    The EPA finds that 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 Executive Order 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 Office 
of Management and Budget 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, Executive Order 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 Executive 
Order 12875 do not apply to this rule.

XI. Executive Order 13045

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

[[Page 55889]]

regulatory action as defined by Executive Order 12866.

XII. Executive Order 13084

    Because this action does not involve any requirements that affect 
Indian Tribes, the requirements of section 3(b) of Executive Order 
13084 do not apply.
    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
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 of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to meaningful and timely input'' in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. This 
action does not involve or impose any requirements that affect Indian 
Tribes. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

XIII. National Technology Transfer and Advancement Act

    Under Section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) developed or adopted by voluntary consensus standard bodies. 
Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires that 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 final 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: September 29, 1999.
Robert Hannesschlager,
Acting Director, Multimedia Planning and Permitting Division, Region 6
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

    2. In Tables 1, 2, and 3 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.--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
     Facility and address                  Waste description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
Rhodia, Houston, Texas.......  Filter-cake Sludge, (at a maximum
                                generation of 1,200 cubic yards per
                                calendar year) generated by Rhodia using
                                the SARU and AWT treatment process to
                                treat the filter-cake sludge (EPA
                                Hazardous Waste Nos. D001-D43, F001-
                                F012, F019, F024, F025, F032, F034, F037-
                                F039) generated at Rhodia.
                               Rhodia must implement a testing program
                                that meets the following conditions for
                                the exclusion to be valid:
                               (1) Delisting Levels:
                               All concentrations for the following
                                constituents must not exceed the
                                following levels (mg/l). For the filter-
                                cake constituents must be measured in
                                the waste leachate by the method
                                specified in 40 CFR Part 261.24.
                               (A) Filter-cake Sludge
                               (i) Inorganic Constituents: Antimony--
                                1.15; Arsenic--1.40; Barium--21.00;
                                Beryllium--1.22; Cadmium--0.11; Cobalt--
                                189.00; Copper--90.00; Chromium--0.60;
                                Lead--0.75; Mercury--0.025; Nickel--
                                9.00; Selenium--4.50; Silver--0.14;
                                Thallium--0.20; Vanadium--1.60; Zinc--
                                4.30
                               (ii) Organic Constituents: Chlorobenzene-
                                Non Detect; Carbon Tetrachloride-Non
                                Detect; Acetone--360; Chloroform--0.9
                               (2) Waste Holding and Handling:
                               Rhodia must store in accordance with its
                                RCRA permit, or continue to dispose of
                                as hazardous waste all Filter-cake
                                Sludge until the verification testing
                                described in Condition (3)(A), as
                                appropriate, is completed and valid
                                analyses demonstrate that condition (3)
                                is satisfied. If the levels of
                                constituents measured in the samples of
                                the Filter-cake Sludge do not exceed the
                                levels set forth in Condition (1), then
                                the waste is nonhazardous and may be
                                managed and disposed of in accordance
                                with all applicable solid waste
                                regulations.
                               (3) Verification Testing Requirements:
                               Rhodia 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, Rhodia may replace
                                the testing required in Condition (3)(A)
                                with the testing required in Condition
                                (3)(B). Rhodia must continue to test as
                                specified in Condition (3)(A) until and
                                unless notified by EPA in writing that
                                testing in Condition (3)(A) may be
                                replaced by Condition (3)(B).

[[Page 55890]]

 
                               (A) Initial Verification Testing:
                               (i) At quarterly intervals for one year
                                after the final exclusion is granted,
                                Rhodia must collect and analyze
                                composites of the filter-cake sludge.
                                TCLP must be run on all waste and
                                constituents for which total
                                concentrations have been identified
                                including constituents listed in
                                Paragraph 1. Rhodia must conduct a
                                multiple pH leaching procedure on
                                samples collected during the quarterly
                                intervals. Rhodia must perform the TCLP
                                procedure using distilled water and
                                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. Rhodia must report
                                the operational and analytical test
                                data, including quality control
                                information, obtained during this
                                initial period no later than 90 days
                                after the generation of the waste.
                               (B) Subsequent Verification Testing:
                               Following termination of the quarterly
                                testing, Rhodia must continue to test a
                                representative composite sample for all
                                constituents listed in Condition (1) on
                                an annual basis (no later than twelve
                                months after the final exclusion).
                               (4) Changes in Operating Conditions:
                               If Rhodia significantly changes the
                                process which generate(s) the waste(s)
                                and which may or could affect the
                                composition or type waste(s) generated
                                as established under Condition (1) (by
                                illustration, but not limitation, change
                                in equipment or operating conditions of
                                the treatment process), or its NPDES
                                permit is changed, revoked or not
                                reissued, Rhodia must notify the EPA in
                                writing and may no longer handle the
                                waste generated from the new process or
                                no longer discharge as nonhazardous
                                until the waste meet the delisting
                                levels set in Condition (1) and it has
                                received written approval to do so from
                                EPA.
                               (5) Data Submittals:
                               Rhodia must submit the information
                                described below. If Rhodia 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.
                                Rhodia 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:
                               (A) If, anytime after disposal of the
                                delisted waste, Rhodia 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, Rhodia 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 Rhodia 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.

[[Page 55891]]

 
                               (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:
                               Rhodia 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.
------------------------------------------------------------------------


             Table 2.--Wastes Excluded From Specific Sources
------------------------------------------------------------------------
     Facility and address                  Waste description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
Rhodia, Houston,Texas........  Filter-cake Sludge, (at a maximum
                                generation of 1,200 cubic yards per
                                calendar year) generated by Rhodia using
                                the SARU and AWT treatment process to
                                treat the filter-cake sludge (EPA
                                Hazardous Waste Nos. K002-004, K006-
                                K011, K013-K052, K060-K062, K064-K066,
                                K069, K071, K073, K083-K088, K090-K091,
                                K093-K118, K123-K126, K131-K133, K136,
                                K141-K145, K147-K151, K156-K161)
                                generated at Rhodia. Rhodia must
                                implement the testing program described
                                in Table 1. Waste Excluded From Non-
                                Specific Sources for the petition to be
                                valid.
------------------------------------------------------------------------


    Table 3.--Wastes Excluded From Commercial Chemical Products, Off
  Specification Species, Container Residues, and Soil Residues Thereof
------------------------------------------------------------------------
     Facility and address                  Waste description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
Rhodia, Houston,Texas........  Filter-cake Sludge, (at a maximum
                                generation of 1,200 cubic yards per
                                calendar year) generated by Rhodia using
                                the SARU and AWT treatment process to
                                treat the filter-cake sludge (EPA
                                Hazardous Waste Nos. P001-P024, P026-
                                P031, P033-P034, P036-P051, P054, P056-
                                P060, P062-P078, P081-P082, P084-P085,
                                P087-P089, P092-P116, P118-P123, P127-
                                P128, P185, P188-P192, P194, P196-P199,
                                P201-P205, U001-U012, U014-U039, U041-
                                U053, U055-U064, U066-U099, U101-U103,
                                U105-U138, U140-U174, U176-U194, U196-
                                U197, U200-U211, U213-U223, U225-U228,
                                U234-U240, U243-U244, U246-U249, U271,
                                U277-U280, U328, U353, U359, U364-U367,
                                U372-U373, U375-U379, U381-U396, U400-
                                U404, U407, U409-U411) generated at
                                Rhodia. Rhodia must implement the
                                testing program described in Table 1.
                                Waste Excluded From Non-Specific Sources
                                for the petition to be valid.
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------


[[Page 55892]]

[FR Doc. 99-26663 Filed 10-14-99; 8:45 am]
BILLING CODE 6560-50-P