[Federal Register Volume 68, Number 190 (Wednesday, October 1, 2003)]
[Proposed Rules]
[Pages 56603-56613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24910]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7567-1]


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

AGENCY: The Environmental Protection Agency (the EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA is proposing to grant a petition submitted by 
OxyVinyls, LP (OxyVinyls) to exclude (or delist) a certain solid waste 
generated by its Houston, TX Deer Park VCM Plant from the lists of 
hazardous wastes.
    The EPA used the Delisting Risk Assessment Software (DRAS) in the 
evaluation of the impact of the petitioned waste on human health and 
the environment.
    The EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, the EPA would conclude that OxyVinyls' petitioned 
waste is nonhazardous with respect to the original listing criteria and 
that the Incinerator Offgas Treatment Scrubber Water generated from 
treating and neutralizing gasses generated in the firebox during the 
incineration process and not from a manufacturing process will 
adequately reduce the likelihood of migration of constituents from this 
waste. The EPA would also conclude that OxyVinyls' process minimizes 
short-term and long-term threats from the petitioned waste to human 
health and the environment.

DATES: The EPA will accept comments until November 17, 2003. The EPA 
will stamp comments received after the close of the comment period as 
late. These late comments may not be considered in formulating a final 
decision. Your requests for a hearing must reach the EPA by October 16, 
2003. The request must contain the information prescribed in 40 CFR 
260.20(d).

ADDRESSES: Please send three copies of your comments. You should send 
two copies to the Section Chief of the Corrective Action and Waste 
Minimization Section, Multimedia Planning and Permitting Division (6PD-
C), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202. You should send a third copy to Nicole Bealle, Waste Team 
Leader, Texas Commission on Environmental Quality, 5425 Polk Avenue, 
Suite A, Houston, TX 77023. Identify your comments at the top with this 
regulatory docket number: ``F-02-TX-OXYVINYLS.'' You may submit your 
comments electronically to James Harris at [email protected].
    You should address requests for a hearing to Steve Gilrein, 
Associate Director of RCRA, Multimedia Planning and Permitting Division 
(6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202.

FOR FURTHER INFORMATION CONTACT: James A. Harris, Jr. (214) 665-8302.

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

I. Overview Information
    A. What action is the EPA proposing?
    B. Why is the EPA proposing to approve this delisting?
    C. How will OxyVinyls manage the waste if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must the EPA consider in deciding whether to 
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
    A. What wastes did OxyVinyls petition the EPA to delist?
    B. Who is OxyVinyls and what process does it use to generate the 
petitioned waste?
    C. How did OxyVinyls sample and analyze the data in this 
petition?
    D. What were the results of OxyVinyls' analysis?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What did the EPA conclude about OxyVinyls' analysis?
    G. What other factors did the EPA consider in its evaluation?
    H. What is the EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if OxyVinyls violates the terms and conditions?
V. Public Comments
    A. How may I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusions?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is the EPA Proposing?

    The EPA is proposing:
    (1) To grant OxyVinyls' delisting petition to have its Incinerator 
Offgas Treatment Scrubber Water generated from treating and 
neutralizing gasses generated in the firebox during the incineration 
process excluded, or delisted, from the definition of a hazardous 
waste; and
    (2) To use a fate and transport model to evaluate the potential 
impact of the petitioned waste on human health and the environment. The 
EPA would use this model to predict the concentration of hazardous 
constituents released from the petitioned waste, once it is disposed.

B. Why Is the EPA Proposing To Approve This Delisting?

    OxyVinyls' petition requests a delisting from the K017, K019, and 
K020, waste listings under 40 CFR

[[Page 56604]]

260.20 and 260.22. OxyVinyls does not believe that the petitioned waste 
meets the criteria for which the EPA listed it, primarily because the 
Off-gas Scrubber Waste Water could be considered ``derived from'' a 
listed waste that has been incinerated to destroy the hazardous 
constituents of the listed waste. OxyVinyls also believes no additional 
constituents or factors could cause the waste to be hazardous. The 
EPA's review of this petition included consideration of the original 
listing criteria, and the additional factors required by the Hazardous 
and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 
42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated). In 
making the initial delisting determination, the EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Sec.  261.11(a)(2) and (a)(3). Based on this review, the EPA agrees 
with the petitioner that the waste is nonhazardous with respect to the 
original listing criteria. (If the EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, the EPA would have proposed to deny the 
petition.) The EPA evaluated the waste with respect to other factors or 
criteria to assess whether there is a reasonable basis to believe that 
such additional factors could cause the waste to be hazardous. The EPA 
considered whether the waste is acutely toxic, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. The 
EPA believes that the petitioned waste does not meet the listing 
criteria and thus should not be a listed waste. The EPA's proposed 
decision to delist waste from OxyVinyls' facility is based on the 
information submitted in support of this rule, including descriptions 
of the wastes and analytical data from the Deer Park, TX facility.

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

    The Incinerator Offgas Treatment Scrubber Water combines with other 
aqueous wastes in the chemical sewer and flows by pipe to Shell 
Chemical L.P.'s South Effluent Treater (SET). The SET is a TPDES-
permitted wastewater treatment unit which also holds a surface 
impoundment retrofitting variance issued by the EPA under RCRA section 
3005(j)(3) in November 1988, 42 U.S.C. Sec.  6925(j)(3). It is RCRA 
permitted to manage listed hazardous waste.

D. When Would the Proposed Delisting Exclusion Be Finalized?

    RCRA section 3001(f) specifically requires the EPA to provide 
notice and an opportunity for comment before granting or denying a 
final exclusion. Thus, the EPA will not grant the exclusion until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here, because this rule, if finalized, would reduce the existing 
requirements for persons generating hazardous wastes.
    The EPA believes that this exclusion should be effective 
immediately upon final publication because a six-month deadline is not 
necessary to achieve the purpose of section 3010(b), and a later 
effective date would impose unnecessary hardship and expense on this 
petitioner. These reasons also provide good cause for making this rule 
effective immediately, upon final publication, under the Administrative 
Procedure Act, 5 U.S.C. 553(d).

E. How Would This Action Affect the States?

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

II. Background

A. What Is the History of the Delisting Program?

    The EPA published an amended list of hazardous wastes from 
nonspecific and specific sources on January 16, 1981, as part of its 
final and interim final regulations implementing section 3001 of RCRA. 
The EPA has amended this list several times and published it in 
Sec. Sec.  261.31 and 261.32.
    The EPA lists these wastes as hazardous because: (1) They typically 
and frequently exhibit one or more of the characteristics of hazardous 
wastes identified in Subpart C of Part 261 (that is, ignitability, 
corrosivity, reactivity, and toxicity), (2) they meet the criteria for 
listing contained in Sec.  261.11(a)(2) or (a)(3), or (3) they are 
wastes which are mixed with or derived from the treatment, storage or 
disposal of such characteristic and listed wastes and which therefore 
become hazardous under Sec.  261.3(a)(2)(iv) or (c)(2)(i), known as the 
``mixture'' and ``derived-from'' rules, respectively.
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations or resulting from the operation of the 
mixture or derived-from rules generally is hazardous, a specific waste 
from an individual facility may not be hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that the EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

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

    A delisting petition is a request from a facility to the EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions the EPA because it does not consider the wastes 
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which the EPA lists a 
waste are in Part 261 and further explained in the background documents 
for the listed waste.

[[Page 56605]]

    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for the EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See Part 261 and the background documents for the 
listed waste.)
    Generators remain obligated under RCRA to confirm whether their 
waste remains nonhazardous based on the hazardous waste characteristics 
even if the EPA has ``delisted'' the waste.

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

    Besides considering the criteria in Sec.  260.22(a) and Sec.  
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, the EPA must consider any factors (including 
additional constituents) other than those for which the EPA listed the 
waste if a reasonable basis exists that these additional factors could 
cause the waste to be hazardous.
    The EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec. Sec.  261.3(a)(2)(iii and 
iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

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

A. What Waste Did OxyVinyls Petition the EPA To Delist?

    On October 11, 2002, OxyVinyls petitioned the EPA to exclude from 
the lists of hazardous waste contained in Sec. Sec.  261.31 and 261.32, 
Incinerator Offgas Treatment Scrubber Water generated from its facility 
located in Deer Park, Texas. The waste falls under the classification 
of listed waste under Sec.  261.3.
    Specifically, in its petition, OxyVinyls requested that the EPA 
grant a standard exclusion for 919,990 cubic yardsper year of the 
Incinerator Offgas Treatment Scrubber Water.

B. Who Is OxyVinyls and What Process Does It Use To Generate the 
Petitioned Waste?

    The OxyVinyls facility is located at 1000 Tidal Road Deer Park, 
Texas in the Shell Chemical Manufacturing Complex. OxyVinyls produces 
ethylene dichloride (EDC) and vinyl chloride monomer (VCM). EDC is 
produced only for internal use to make VCM. The primary SIC code for 
the facility is 2869. There are also support facilities including vent 
incineration, VCM storage and shipping, EDC intermediate storage, 
cooling towers and refrigeration and compressors. OxyVinyls utilizes 
two permitted, onsite RCRA incinerators to burn process vent gases, 
intermediate wastes generated during the production of EDC and VCM 
(K019 and K020), epichlorohydrin heavy ends from Resolution Performance 
Products LLC (K017) and waste oil. There are three wastewater streams 
generated from treatment of the off-gases from each of the two RCRA 
permitted incinerators. These three streams are components of the 
Incinerator Offgas Treatment Scrubber Water; (1) Rockbox Wastewater, 
which is neutralized scrubber water from the HCl (hydrochloric acid) 
absorption column, (2) Caustic Scrubber/Dehumidifier column blowdown, 
and (3) Wet Electrostatic Precipitator (WESP) blowdown. The HCl 
absorption column is designed to remove HCl from the combustion 
offgases, while the Caustic Scrubber is designed to remove both 
residual HCl and chlorine from the offgases, and is located downstream 
of the HCl absorption column. The further downstream WESP units are 
designed to remove particulate matter, semi-volatile metals (SVM) and 
low volatile metals (LVM) from the combustion offgases, including 
arsenic, beryllium, chromium, cadmium and lead. Dioxins will also be 
removed by the WESP units. Catalytic oxidizers follow the WESP units 
and are designed to destroy trace amounts of dioxins, but they do not 
generate a wastewater stream. The concentrations of constituents from 
these three units will be accounted for during sampling and analysis of 
the Offgas Treatment Scrubber Water.
    OxyVinyls classified two waste streams (Rockbox Residue and 
Incinerator Offgas Treatment Scrubber Water), generated from the 
treatment of the offgas from the incinerators, as hazardous based on 
the ``derived from'' rule in 40 CFR 261.3(c)(2)\1\. The facility 
operates 24 hours per day, 7 days per week, 365 days per year with the 
exception of periodic planned shutdowns for routine maintenance.
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    \1\ The EPA has not independently determined that the waste is 
hazardous based on the ``derived-from'' rule. Waste characterization 
is the responsibility of the generator of the waste. See 40 CFR 
262.11. OxyVinyIs made the characterization of the Incinerator 
Offgas Treatment Scrubber Water and requested dedisting to resolve 
all ambiguity about the applicability of the ``derived-from'' rule 
to the waste.
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    The Rockbox Residue was successfully delisted from hazardous waste 
classification by the EPA (64 FR 42033, August 3, 1999).
    OxyVinyls is now petitioning the EPA for a standard exclusion of 
the Incinerator Offgas Treatment Scrubber Water from the K017, K019, 
and K020, waste listings.

C. How Did OxyVinyls Sample and Analyze the Data in the Petition?

    To support its petition, OxyVinyls submitted:
    (1) historical information on past waste generation and management 
practices;
    (2) results of the total constituent list for 40 CFR Part 264 
Appendix IX volatiles, semivolatiles, metals, pesticides, herbicides, 
dioxins and PCBs;
    (3) results of the constituent list for Appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for volatiles, 
semivolatiles, and metals;
    (4) analytical constituents of concern for K017, K019 and K020
    (5) results from total oil and grease analyses
    (6) multiple pH testing for the petitioned waste.

D. What Were the results of OxyVinyls' Analyses?

    The EPA believes that the descriptions of the OxyVinyls analytical 
characterization provide a reasonable basis to grant OxyVinyls' 
petition for an exclusion of the incinerator offgas treatment scrubber 
water. The EPA believes the data submitted in support of the petition 
show the incinerator offgas treatment scrubber water is non-hazardous. 
Analytical data for the incinerator offgas treatment scrubber water 
samples were used in the DRAS. The data summaries for detected 
constituents are presented in Table I. The EPA has reviewed the 
sampling procedures used by OxyVinyls and has determined they satisfy 
the EPA's criteria for collecting representative samples of the 
variations in constituent concentrations in the incinerator offgas 
treatment scrubber water. The data submitted in support of the petition 
show that constituents in OxyVinyls' waste are presently below health-
based levels used in the delisting decision-making. The EPA believes 
that OxyVinyls has successfully

[[Page 56606]]

demonstrated that the incinerator offgas treatment scrubber water is 
non-hazardous.

 Table I.--Maximum TCLP Constituent Concentrations and Maximum Allowable
  Delisting Concentration of the Incinerator Offgas Treatment Scrubber
           Water at the OxyVinyls L.P. Deer Park VCM Plant\1\
------------------------------------------------------------------------
                                                              Maximum
                                                             allowable
              Constituent               TCLP constituent     delisting
                                         analyses (mg/l)   concentration
                                                           levels (mg/l)
------------------------------------------------------------------------
Antimony..............................       0.00586          0.0204
Arsenic...............................       0.02         \2\ 0.385
Barium................................       0.291            2.92
Beryllium.............................       0.00279          0.166
Cadmium...............................       0.00112          0.0225
Chromium..............................       0.0823           5.0
Cobalt................................       0.00543         13.14
Copper................................       0.0636         418.00
Lead..................................       0.011            5.00
Nickel................................       0.0437           1.13
Mercury...............................       0.00038          0.0111
Vanadium..............................       0.0222           0.838
Zinc..................................       0.0798           2.61
Acetone...............................       0.03             1.46
Bromoform.............................       0.016            0.481
Bromomethane..........................       0.0017           8.20
Bromodichloromethane..................       0.012            0.0719
Chloroform............................       0.0051           0.683
Dibromochloromethane..................       0.013            0.057
Iodomethane...........................       0.001            0.19
Methylene Chloride....................       0.0014           0.029
2,3,7,8-TCDD Equivalent...............       0.000000302      0.0000926
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.

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

    For this delisting determination, the EPA used such information 
gathered to identify plausible exposure routes (i.e., groundwater, 
surface water, air) for hazardous constituents present in the 
petitioned waste. The EPA determined that disposal in a Subtitle D 
surface impoundment is the most reasonable, worst-case disposal 
scenario for OxyVinyls' petitioned waste. The EPA applied the most 
recent version of the Delisting Risk Assessment Software (DRAS) 
described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 (December 
4, 2000), to predict the maximum allowable concentrations of hazardous 
constituents that may be released from the petitioned waste after 
disposal and determined the potential impact of the disposal of 
OxyVinyls' petitioned waste on human health and the environment. A copy 
of this software can be found on the World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. In assessing potential 
risks to groundwater, the EPA used the maximum estimated waste volumes 
and the maximum reported extract concentrations as inputs to the DRAS 
program to estimate the constituent concentrations in the groundwater 
at a hypothetical receptor well down gradient from the disposal site. 
Using the risk level (carcinogenic risk of 10-5 and non-
cancer hazard index of 0.1), the DRAS program can back-calculate the 
acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and the 
EPA health-based numbers. Using the maximum compliance-point 
concentrations and the EPA Composite Model for Leachate Migration with 
Transformation Products (EPACMTP) fate and transport modeling factors, 
the DRAS further back-calculates the maximum permissible waste 
constituent concentrations not expected to exceed the compliance-point 
concentrations in groundwater.
    The EPA believes that the EPACMTP fate and transport model 
represents a reasonable worst-case scenario for possible groundwater 
contamination resulting from disposal of the petitioned waste in a 
surface impoundment, and that a reasonable worst-case scenario is 
appropriate when evaluating whether a waste should be relieved of the 
protective management constraints of RCRA Subtitle C. The use of some 
reasonable worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    The DRAS also uses the maximum estimated waste volumes and the 
maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the surface 
impoundment). As in the above groundwater analyses, the DRAS uses the 
risk level, the health-based data and standard risk assessment and 
exposure algorithms to predict maximum compliance-point concentrations 
of waste constituents at a hypothetical point of exposure. Using fate 
and transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, the EPA is generally unable to predict, and 
does not presently control, how a petitioner will manage a waste after 
delisting. Therefore, the EPA currently believes that it is 
inappropriate to consider extensive site-specific factors when applying 
the fate and transport model. The EPA does control the type of unit

[[Page 56607]]

where the waste is disposed. The waste must be disposed in the type of 
unit the fate and transport model evaluates.
    The EPA also considers the applicability of groundwater monitoring 
data during the evaluation of delisting petitions. In this case, 
OxyVinyls disposes of its wastewater in an NPDES permitted facility 
with surface impoundments (part of the Shell South Effluent Treatment 
system), with existing groundwater contamination sources other than the 
surface impoundments impacting monitoring wells in the area. The 
groundwater contamination is currently being addressed and managed 
through a RCRA Corrective Actions Program. Consequently the groundwater 
data would not be relevant to this exclusion. Therefore, the EPA has 
determined that it would be unnecessary to request groundwater 
monitoring data.
    The EPA believes that the descriptions of OxyVinyls' hazardous 
waste process and analytical characterization provide a reasonable 
basis to conclude that the likelihood of migration of hazardous 
constituents from the petitioned waste will be substantially reduced so 
that short-term and long-term threats to human health and the 
environment are minimized.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of the DRAS results and maximum TCLP 
concentrations found in Table I, the petitioned waste should be 
delisted because no constituents of concern tested are likely to be 
present or formed as reaction products or by products in OxyVinyls' 
waste. In addition, on the basis of explanations and analytical data 
provided by OxyVinyls, pursuant to Sec.  260.22, the EPA concludes that 
the petitioned waste does not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See Sec. Sec.  261.21, 
261.22, and 261.23, respectively.

F. What Did the EPA Conclude About OxyVinyls' Analysis?

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

G. What Other Factors Did the EPA Consider in Its Evaluation?

    During the evaluation of OxyVinyls' petition, the EPA also 
considered the potential impact of the petitioned waste via non-
groundwater routes (i.e., air emission and surface runoff). With regard 
to airborne dispersion in particular, the EPA believes that exposure to 
airborne contaminants from OxyVinyls' petitioned waste is unlikely. 
Therefore, no appreciable air releases are likely from OxyVinyls waste 
under any likely disposal conditions. The EPA evaluated the potential 
hazards resulting from the unlikely scenario of airborne exposure to 
hazardous constituents released from OxyVinyls' waste in an open 
surface impoundment. The results of this worst-case analysis indicated 
that there is no substantial present or potential hazard to human 
health and the environment from airborne exposure to constituents from 
OxyVinyls' incinerator offgas treatment scrubber water. A description 
of the EPA's assessment of the potential impact of OxyVinyls' waste, 
regarding airborne dispersion of waste contaminants, is presented in 
the RCRA public docket for this proposed rule, F-02-TX-OxyVinyls.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste surface impoundments can 
effectively control surface water runoff, as the Subtitle D regulations 
(See 56 FR 50978, October 9, 1991) prohibit pollutant discharges into 
surface waters. Furthermore, the concentrations of any hazardous 
constituents dissolved in the runoff will tend to be lower than the 
levels in the TCLP leachate analyses reported in this notice due to the 
aggressive acidic medium used for extraction in the TCLP. The EPA 
believes that, in general, the incinerator offgas scrubber water is 
unlikely to directly enter a surface water body without first traveling 
through the saturated subsurface where dilution and attenuation of 
hazardous constituents will also occur. Since the waste is a liquid, 
the concentrations provide a direct measure of solubility of a toxic 
constituent in water and are indicative of the fraction of the 
constituent that may be mobilized in surface water as well as 
groundwater.
    Based on the reasons discussed above, the EPA believes that the 
contamination of surface water through runoff from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated the potential 
impacts on surface water if OxyVinyls' waste were released from a 
municipal solid waste surface impoundment through runoff and erosion. 
See the RCRA public docket for this proposed rule for further 
information on the potential surface water impacts from runoff and 
erosion. The estimated levels of the hazardous constituents of concern 
in surface water would be well below health-based levels for human 
health, as well as below the EPA Chronic Water Quality Criteria for 
aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded 
that OxyVinyls incinerator offgas treatment scrubber water is not a 
present or potential substantial hazard to human health and the 
environment via the surface water exposure pathway.

H. What Is the EPA's Evaluation of This Delisting Petition?

    The descriptions of OxyVinyls' hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this notice), provide a reasonable 
basis for the EPA to grant the exclusion. The data submitted in support 
of the petition show that constituents in the waste are below the 
maximum allowable leachable concentrations (see Table I). The EPA 
believes OxyVinyls' process will substantially reduce the likelihood of 
migration of hazardous constituents from the petitioned waste. 
OxyVinyls' process also minimizes short-term and long-term threats from 
the petitioned waste to human health and the environment.
    Thus, the EPA believes that it should grant OxyVinyls an exclusion 
for the incinerator offgas treatment scrubber water. The EPA believes 
the data submitted in support of the petition show OxyVinyls' process 
can render the incinerator offgas treatment scrubber water non-
hazardous.
    The EPA has reviewed the sampling procedures used by OxyVinyls and 
has determined they satisfy the EPA criteria for collecting 
representative samples of variable constituent concentrations in the 
incinerator offgas treatment scrubber water. The data submitted in 
support of the petition show that constituents in OxyVinyls' waste are 
presently below the compliance point concentrations used in the 
delisting decision-making and would not pose a substantial hazard to 
the environment. The EPA believes that OxyVinyls has successfully 
demonstrated that the incinerator offgas treatment scrubber water is 
non-hazardous.
    The EPA therefore, proposes to grant an exclusion to OxyVinyls, in 
Deer Park, Texas, for the incinerator offgas treatment scrubber water 
described in

[[Page 56608]]

its petition. The EPA's decision to exclude this waste is based on 
descriptions of the treatment activities associated with the petitioned 
waste and characterization of the incinerator offgas treatment scrubber 
water.
    If the EPA finalizes the proposed rule, the EPA will no longer 
regulate the petitioned waste under Parts 262 through 268 and the 
permitting standards of Part 270.

IV. Next Steps

A. With What Conditions Must the Petitioner Comply?

    The petitioner, OxyVinyls, must comply with the requirements in 40 
CFR part 261, appendix IX, Table 1 as amended by this notice. The text 
below gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituents that OxyVinyls 
must test the incinerator offgas treatment scrubber water, below which 
these wastes would be considered non-hazardous.
    The EPA selected the set of inorganic and organic constituents 
specified in Paragraph (1) of 40 CFR Part 261, Appendix IX, Table 1, 
based on information in the petition. The EPA compiled the inorganic 
and organic constituents list from the composition of the waste, 
descriptions of OxyVinyls' treatment process, previous test data 
provided for the waste, and the respective health-based levels used in 
delisting decision-making. These delisting levels correspond to the 
allowable levels measured in the total concentration analysis of the 
waste.
(2) Waste Holding and Handling
    The purpose of this paragraph is to ensure that OxyVinyls manages 
and disposes of any incinerator offgas treatment scrubber water that 
contains hazardous levels of inorganic and organic constituents 
according to Subtitle C of RCRA. Managing the incinerator offgas 
treatment scrubber water as a hazardous waste until initial 
verification testing is performed will protect against improper 
handling of hazardous material. If EPA determines that the data 
collected under this Paragraph do not support the data provided for in 
the petition, the exclusion will not cover the petitioned waste. The 
exclusion is effective upon publication in the Federal Register but the 
disposal at a non-Subtitle C surface impoundment cannot begin until the 
verification sampling is completed.
(3) Verification Testing Requirements
    OxyVinyls must complete a rigorous verification testing program on 
the incinerator offgas treatment scrubber water to assure that the 
treated incinerator offgas treatment scrubber water does not exceed the 
maximum levels specified in Paragraph (1). If the EPA determines that 
the data collected under this Paragraph does not support the data 
provided for in the petition, the exclusion will not cover the tested 
waste. This verification program operates on two levels.
    The first part of the verification testing program consists of 
testing the incinerator offgas treatment scrubber water for specified 
indicator parameters as per Paragraph (1).
    If the EPA determines that the data collected under this Paragraph 
do not support the data provided for the petition, the exclusion will 
not cover the generated wastes. If the data from the initial 
verification testing program demonstrate that the treatment process is 
effective, OxyVinyls may request quarterly testing. The EPA will notify 
OxyVinyls, in writing, if and when it may replace the testing 
conditions in paragraph(3)(A)with the testing conditions in (3)(B).
    The second part of the verification testing program is the 
quarterly testing of representative samples of incinerator offgas 
treatment scrubber water for all constituents specified in Paragraph 
(1). The EPA believes that the concentrations of the constituents of 
concern in the incinerator offgas treatment scrubber water may vary 
over time. Consequently this program will ensure that OxyVinyls' 
treatment process can effectively handle any variation in constituent 
concentrations in the waste.
    The proposed subsequent testing would verify that OxyVinyls 
operates an incinerator from which an aqueous stream is generated from 
treating and neutralizing gasses generated in the firebox during the 
incineration process as it did during the initial verification testing. 
It would also verify that the incinerator offgas treatment scrubber 
water does not exhibit unacceptable levels of toxic constituents.
    The EPA is proposing to require OxyVinyls to analyze representative 
samples of the incinerator offgas treatment scrubber water quarterly 
during the first year of waste generation. OxyVinyls would begin 
quarterly sampling 60 days after the final exclusion as described in 
Paragraph (3)(B).
    The EPA, per Paragraph 3(C), is proposing to end the subsequent 
testing conditions after the first year if OxyVinyls has demonstrated 
that the waste consistently meets the delisting levels. To confirm that 
the characteristics of the waste do not change significantly over time, 
OxyVinyls must continue to analyze a representative sample of the waste 
on an annual basis. Annual testing requires analyzing the full list of 
components in Paragraph 1. If operating conditions change as described 
in Paragraph (4); OxyVinyls must reinstate all testing in Paragraph 
(1). It must prove through a new demonstration that its waste meets the 
conditions of the exclusion.
    If the annual testing of the waste does not meet the delisting 
requirements in Paragraph 1, OxyVinyls must notify the EPA according to 
the requirements in Paragraph 6. The facility must provide sampling 
results that support the rationale that the delisting exclusion should 
not be withdrawn.
(4) Changes in Operating Conditions
    Paragraph (4) would allow OxyVinyls the flexibility of modifying 
its processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment process. However, OxyVinyls must 
prove the effectiveness of the modified process and request approval 
from the EPA. OxyVinyls must manage wastes generated during the new 
process demonstration as hazardous waste until it has obtained written 
approval and Paragraph (3) is satisfied.
(5) Data Submittals
    To provide appropriate documentation that OxyVinyls facility is 
properly treating the waste, OxyVinyls must compile, summarize, and 
keep delisting records on-site for a minimum of five years. It should 
keep all analytical data obtained through Paragraph (3) including 
quality control information for five years. Paragraph (5) requires that 
OxyVinyls furnish these data upon request for inspection by any 
employee or representative of the EPA or the State of Texas.
    If the proposed exclusion is made final, it will apply only to 
919,990 cubic yards per year of incinerator offgas treatment scrubber 
water generated at the OxyVinyls facility after successful verification 
testing.
    The EPA would require OxyVinyls to file a new delisting petition 
under any of the following circumstances:
    (a) If OxyVinyls significantly alters the manufacturing process 
treatment system except as described in Paragraph (4).
    (b) If OxyVinyls uses any new manufacturing or production

[[Page 56609]]

process(es), or significantly change from the current process(es) 
described in its petition; or
    (c) If OxyVinyls make any changes that could affect the composition 
or type of waste generated.
    OxyVinyls must manage waste volumes greater than 919,990 cubic 
yards per year of incinerator offgas treatment scrubber water as 
hazardous until the EPA grants a new exclusion.
    When this exclusion becomes final, OxyVinyls' management of the 
wastes covered by this petition would be relieved from Subtitle C 
jurisdiction. OxyVinyls must either treat, store, or dispose of the 
waste in an on-site facility. If not, OxyVinyls must ensure that it 
delivers the waste to an off-site storage, treatment, or disposal 
facility that has a State permit, license, or register to manage 
municipal or industrial solid waste.
(6) Reopener
    The purpose of Paragraph 6 is to require OxyVinyls to disclose new 
or different information related to a condition at the facility or 
disposal of the waste if it is pertinent to the delisting. OxyVinyls 
must also use this procedure, if the waste sample in the annual testing 
fails to meet the levels found in Paragraph 1. This provision will 
allow the EPA to reevaluate the exclusion if a source provides new or 
additional information to the EPA. The EPA will evaluate the 
information on which it based the decision to see if it is still 
correct, or if circumstances have changed so that the information is no 
longer correct or would cause the EPA to deny the petition if 
presented.
    This provision expressly requires OxyVinyls to report differing 
site conditions or assumptions used in the petition in addition to 
failure to meet the annual testing conditions within 10 days of 
discovery. If the EPA discovers such information itself or from a third 
party, it can act on it as appropriate. The language being proposed is 
similar to those provisions found in RCRA regulations governing no-
migration petitions at Sec.  268.6.
    The EPA believes that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. The EPA may reopen a delisting decision 
when new information is received that calls into question the 
assumptions underlying the delisting.
    The EPA believes a clear statement of its authority in delistings 
is merited in light of the EPA's experience. See Reynolds Metals 
Company at 62 FR 37694 and 62 FR 63458 where the delisted waste leached 
at greater concentrations in the environment than the concentrations 
predicted when conducting the TCLP, thus leading the EPA to repeal the 
delisting. If an immediate threat to human health and the environment 
presents itself, the EPA will continue to address these situations case 
by case. Where necessary, the EPA will make a good cause finding to 
justify emergency rulemaking. See APA section 553(b).
(7) Notification Requirements
    In order to adequately track wastes that have been delisted, the 
EPA is requiring that OxyVinyls provide a one-time notification to any 
State regulatory agency through which or to which the delisted waste is 
being carried. OxyVinyls must provide this notification within 60 days 
of commencing this activity.

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

    If OxyVinyls violates the terms and conditions established in the 
exclusion, the EPA will start procedures to withdraw the exclusion. 
Where there is an immediate threat to human health and the environment, 
the EPA will evaluate the need for enforcement activities on a case-by-
case basis. The EPA expects OxyVinyls to conduct the appropriate waste 
analysis and comply with the criteria explained above in Condition 1 of 
the exclusion.

V. Public Comments

A. How May I as an Interested Party Submit Comments?

    The EPA is requesting public comments on this proposed decision. 
Please send three copies of your comments. Send two copies to the 
Section Chief of the Corrective Action and Waste Minimization Section, 
Multimedia Planning and Permitting Division (6PD-C), Environmental 
Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a 
third copy to Nicole Bealle, Waste Team Leader, Texas Commission on 
Environmental Quality, 5425 Polk Avenue Suite A, Houston, TX 77023. 
Identify your comments at the top with this regulatory docket number: 
``F-02-TX-OxyVinyls.'' You may submit your comments electronically to 
James Harris at [email protected].
    You should submit requests for a hearing to Steven Gilrein, 
Associate Director of RCRA, Multimedia Planning and Permitting Division 
(6PD), U. S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202.

B. How May I Review the Docket or Obtain Copies of the Proposed 
Exclusion?

    You may review the RCRA regulatory docket for this proposed rule at 
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202. It is available for viewing in the EPA Freedom of 
Information Act Review Room from 9:00 a.m. to 4:00 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at fifteen cents per page for 
additional copies.

VI. Regulatory Impact

    Under Executive Order 12866, the EPA must conduct an ``assessment 
of the potential costs and benefits'' for all ``significant'' 
regulatory actions.
    The proposal to grant an exclusion is not significant, since its 
effect, if promulgated, would be to reduce the overall costs and 
economic impact of the EPA's hazardous waste management regulations. 
This reduction would be achieved by excluding waste generated at a 
specific facility from the EPA's lists of hazardous wastes, thus 
enabling a facility to manage its waste as nonhazardous.
    Because there is no additional impact from this proposed rule, this 
proposal would not be a significant regulation, and no cost/benefit 
assessment is required. The Office of Management and Budget (OMB) has 
also exempted this rule from the requirement for OMB review under 
Section (6) of Executive Order 12866.

VII. Regulatory Flexibility Act

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

[[Page 56610]]

a significant economic impact on a substantial number of small 
entities. This regulation, therefore, does not require a regulatory 
flexibility analysis.

VIII. Paperwork Reduction Act

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

IX. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
the EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year.
    When such a statement is required for the EPA rules, under section 
205 of the UMRA the EPA must identify and consider alternatives, 
including the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The EPA must 
select that alternative, unless the Administrator explains in the final 
rule why it was not selected or it is inconsistent with law.
    Before the EPA establishes regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must develop under section 203 of the UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, giving them meaningful and timely input in 
the development of the EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising them on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon state, local, or 
tribal governments or the private sector.
    The EPA finds that this delisting decision is deregulatory in 
nature and does not impose any enforceable duty on any State, local, or 
tribal governments or the private sector. In addition, the proposed 
delisting decision does not establish any regulatory requirements for 
small governments and so does not require a small government agency 
plan under UMRA section 203.

X. Executive Order 13045

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

XI. Executive Order 13084

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

XII. National Technology Transfer and Advancement Act

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

XIII. Executive Order 13132 Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, the EPA may not issue a 
regulation that has federalism implications, that impose substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or the EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the EPA consults with State and local officials early in the 
process of developing the proposed regulation.
    This action does not have federalism implication. It will not have 
a substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and

[[Page 56611]]

responsibilities among the various levels of government, as specified 
in Executive Order 13132, because it affects only one facility.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: September 19, 2003.
William Luthans,
Acting Director, Multimedia Planning and Permitting Division, Region 6.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

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

                               Table 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                         Facility/Address                                        Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
OxyVinyls, L.P., Deer Park, TX...................................  Incinerator Offgas Scrubber Water (EPA
                                                                    Hazardous Waste Nos. K017, K019 and K020)
                                                                    generated at a maximum annual rate of
                                                                    919,990 cubic yards per calendar year after
                                                                    [insert publication date of the final rule]
                                                                    and disposed in a Subtitle D surface
                                                                    impoundment.
                                                                   For the exclusion to be valid, OxyVinyls must
                                                                    implement a testing program that meets the
                                                                    following Paragraphs:
                                                                     (1) Delisting Levels: All leachable
                                                                      concentrations for those constituents must
                                                                      not exceed the following levels (mg/l).
                                                                      The petitioner must use the leaching
                                                                      specified in 40 CFR Part 261.24 to measure
                                                                      constituents in the incinerator offgas
                                                                      scrubber water.
                                                                     Incinerator offgas treatment scrubber water
                                                                      (i) Inorganic Constituents Antimony-
                                                                      0.0204; Arsenic-0.385; Barium-2.92;
                                                                      Beryllium-0.166; Cadmium-0.0225; Chromium-
                                                                      5.0; Cobalt-13.14; Copper-418.00; Lead-
                                                                      5.0; Nickel-1.13; Mercury-0.0111; Vanadium-
                                                                      0.838; Zinc-2.61
                                                                     (ii) Organic Constituents Acetone-1.46;
                                                                      Bromoform-0.481; Bromomethane-8.2;
                                                                      Bromodichloromethane-0.0719; Chloroform-
                                                                      0.683; Dibromochloromethane-0.057;
                                                                      Iodomethane-0.19; Methylene Chloride-
                                                                      0.029; 2,3,7,8-TCDD equivalents as TEQ-
                                                                      0.0000926
                                                                      (2) Waste Management:
                                                                      (A) OxyVinyls must manage as hazardous all
                                                                       incinerator offgas treatment scrubber
                                                                       water generated, until it has completed
                                                                       initial verification testing described in
                                                                       Paragraph (3)(A) and (B), as appropriate,
                                                                       and valid analyses show that paragraph
                                                                       (1) is satisfied.
                                                                      (B) Levels of constituents measured in the
                                                                       samples of the incinerator offgas
                                                                       treatment scrubber water that do not
                                                                       exceed the levels set forth in Paragraph
                                                                       (1) are non-hazardous. OxyVinyls can
                                                                       manage and dispose the non-hazardous
                                                                       incinerator offgas treatment scrubber
                                                                       water according to all applicable solid
                                                                       waste regulations.
                                                                      (C) If constituent levels in a sample
                                                                       exceed any of the delisting levels set in
                                                                       Paragraph (1), OxyVinyls can collect one
                                                                       additional sample and perform expedited
                                                                       analyses to confirm if the constituent
                                                                       exceeds the delisting level. If this
                                                                       sample confirms the exceedance, OxyVinyls
                                                                       must, from that point forward, treat the
                                                                       waste as hazardous until it is
                                                                       demonstrated that the waste again meets
                                                                       the levels.
                                                                      (D) If the facility has not treated the
                                                                       waste, OxyVinyls must manage and dispose
                                                                       of the waste generated under Subtitle C
                                                                       of RCRA from the time that it becomes
                                                                       aware of any exceedance.
                                                                      (E) Upon completion of the Verification
                                                                       Testing described in Paragraph 3(A) and
                                                                       (B) as appropriate and the transmittal of
                                                                       the results to the EPA, and if the
                                                                       testing results meet the requirements of
                                                                       Paragraph (1), OxyVinyls may proceed to
                                                                       manage its incinerator offgas treatment
                                                                       scrubber water as non-hazardous waste. If
                                                                       Subsequent Verification Testing indicates
                                                                       an exceedance of the Delisting Levels in
                                                                       Paragraph (1), OxyVinyls must manage the
                                                                       incinerator offgas treatment scrubber
                                                                       water as a hazardous waste until two
                                                                       consecutive quarterly testing samples
                                                                       show levels below the Delisting Levels.
                                                                     (3) Verification Testing Requirements:
                                                                      OxyVinyls must perform sample collection
                                                                      and analyses, including quality control
                                                                      procedures, according to SW-846
                                                                      methodologies. If the EPA judges the
                                                                      process to be effective under the
                                                                      operating conditions used during the
                                                                      initial verification testing, OxyVinyls
                                                                      may replace the testing required in
                                                                      Paragraph (3)(A) with the testing required
                                                                      in Paragraph (3)(B). OxyVinyls must
                                                                      continue to test as specified in Paragraph
                                                                      (3)(A) until and unless notified by the
                                                                      EPA in writing that testing in Paragraph
                                                                      (3)(A) may be replaced by Paragraph
                                                                      (3)(B).
                                                                      (A) Initial Verification Testing: After
                                                                       the EPA grants the final exclusion,
                                                                       OxyVinyls must do the following:
                                                                       (i) Within 60 days of this exclusion's
                                                                        becoming final, collect four samples,
                                                                        before disposal, of the incinerator
                                                                        offgas treatment scrubber water.
                                                                       (ii) The samples are to be analyzed and
                                                                        compared against the delisting levels in
                                                                        Paragraph (1).

[[Page 56612]]

 
                                                                       (iii) Within sixty (60) days after this
                                                                        exclusion becomes final, OxyVinyls will
                                                                        report initial verification analytical
                                                                        test data, including analytical quality
                                                                        control information for the first thirty
                                                                        (30) days of operation after this
                                                                        exclusion becomes final of the
                                                                        incinerator offgas treatment scrubber
                                                                        water. If levels of constituents
                                                                        measured in the samples of the
                                                                        incinerator offgas treatment scrubber
                                                                        water that do not exceed the levels set
                                                                        forth in Paragraph (1) are also non-
                                                                        hazardous in two consecutive quarters
                                                                        after the first thirty (30) days of
                                                                        operation after this exclusion,
                                                                        OxyVinyls can manage and dispose of the
                                                                        incinerator offgas treatment scrubber
                                                                        water according to all applicable solid
                                                                        waste regulations.
                                                                      (B) Subsequent Verification Testing:
                                                                       Following written notification by the
                                                                       EPA, OxyVinyls may substitute the testing
                                                                       conditions in (3)(B) for (3)(A).
                                                                       OxyVinyls must continue to monitor
                                                                       operating conditions, and analyze
                                                                       representative samples for each quarter
                                                                       of operation during the first year of
                                                                       waste generation. The samples must
                                                                       represent the waste generated during the
                                                                       quarter. After the first year of
                                                                       analytical sampling Verification sampling
                                                                       can be performed on a single annual
                                                                       sample of the incinerator offgas
                                                                       treatment scrubber water. The results are
                                                                       to be compared to the delisting levels in
                                                                       Condition (1).
                                                                      (C) Termination of Testing: (i) After the
                                                                       first year of quarterly testing, if the
                                                                       Delisting Levels in Paragraph (1) are
                                                                       being met, OxyVinyls may then request
                                                                       that the EPA stop quarterly testing.
                                                                       After the EPA notifies OxyVinyls in
                                                                       writing, the company may end quarterly
                                                                       testing.
                                                                      (ii) Following cancellation of the
                                                                       quarterly testing, OxyVinyls must
                                                                       continue to test a representative sample
                                                                       for all constituents listed in Paragraph
                                                                       (1) annually.
                                                                     (4) Changes in Operating Conditions: If
                                                                      OxyVinyls significantly changes the
                                                                      process described in its petition or
                                                                      starts any processes that generate(s) the
                                                                      waste that may or could significantly
                                                                      affect the composition or type of waste
                                                                      generated as established under Paragraph
                                                                      (1) (by illustration, but not limitation,
                                                                      changes in equipment or operating
                                                                      conditions of the treatment process), it
                                                                      must notify the EPA in writing; OxyVinyls
                                                                      may no longer handle the wastes generated
                                                                      from the new process as nonhazardous until
                                                                      the wastes meet the delisting levels set
                                                                      in Paragraph (1) and it has received
                                                                      written approval to do so from the EPA.
                                                                     (5) Data Submittals: OxyVinyls must submit
                                                                      the information described below. If
                                                                      OxyVinyls fails to submit the required
                                                                      data within the specified time or maintain
                                                                      the required records on-site for the
                                                                      specified time, the EPA, at its
                                                                      discretion, will consider this sufficient
                                                                      basis to reopen the exclusion as described
                                                                      in Paragraph 6. OxyVinyls must:
                                                                      (A) Submit the data obtained through
                                                                       Paragraph 3 to the Section Chief, Region
                                                                       6 Oklahoma/Texas Section, the EPA, 1445
                                                                       Ross Avenue, Dallas, Texas 75202-2733,
                                                                       Mail Code, (6PD-O) within the time
                                                                       specified.
                                                                      (B) Compile records of operating
                                                                       conditions and analytical data from
                                                                       Paragraph (3), summarized, and maintained
                                                                       on-site for a minimum of five years.
                                                                      (C) Furnish these records and data when
                                                                       the EPA or the State of Texas request
                                                                       them for inspection.
                                                                      (D) Send along with all data a signed copy
                                                                       of the following certification statement,
                                                                       to attest to the truth and accuracy of
                                                                       the data submitted:
                                                                       Under civil and criminal penalty of law
                                                                        for the making or submission of false or
                                                                        fraudulent statements or representations
                                                                        (pursuant to the applicable provisions
                                                                        of the Federal Code, which include, but
                                                                        may not be limited to, 18 U.S.C. 1001
                                                                        and 42 U.S.C. 6928), I certify that the
                                                                        information contained in or accompanying
                                                                        this document is true, accurate and
                                                                        complete.
                                                                       As to the (those) identified section(s)
                                                                        of this document for which I cannot
                                                                        personally verify its (their) truth and
                                                                        accuracy, I certify as the company
                                                                        official having supervisory
                                                                        responsibility for the persons who,
                                                                        acting under my direct instructions,
                                                                        made the verification that this
                                                                        information is true, accurate and
                                                                        complete.
                                                                       If any of this information is determined
                                                                        by the EPA in its sole discretion to be
                                                                        false, inaccurate or incomplete, and
                                                                        upon conveyance of this fact to the
                                                                        company, I recognize and agree that this
                                                                        exclusion of waste will be void as if it
                                                                        never had effect or to the extent
                                                                        directed by the EPA and that the company
                                                                        will be liable for any actions taken in
                                                                        contravention of the company's RCRA and
                                                                        CERCLA obligations premised upon the
                                                                        company's reliance on the void
                                                                        exclusion.
                                                                     (6) Reopener
                                                                      (A) If, anytime after disposal of the
                                                                       delisted waste OxyVinyls possesses or is
                                                                       otherwise made aware of any environmental
                                                                       data (including but not limited to
                                                                       leachate data or groundwater monitoring
                                                                       data) or any other data relevant to the
                                                                       delisted waste indicating that any
                                                                       constituent identified for the delisting
                                                                       verification testing is at level higher
                                                                       than the delisting level allowed by the
                                                                       Regional Administrator or his delegate in
                                                                       granting the petition, then the facility
                                                                       must report the data, in writing, to the
                                                                       Regional Administrator or his delegate
                                                                       within 10 days of first possessing or
                                                                       being made aware of that data.
                                                                      (B) If the annual testing of the waste
                                                                       does not meet the delisting requirements
                                                                       in Paragraph 1, OxyVinyls must report the
                                                                       data, in writing, to the Regional
                                                                       Administrator or his delegate within 10
                                                                       days of first possessing or being made
                                                                       aware of that data.
                                                                      (C) If OxyVinyls fails to submit the
                                                                       information described in paragraphs
                                                                       (5),(6)(A) or (6)(B) or if any other
                                                                       information is received from any source,
                                                                       the Regional Administrator or his
                                                                       delegate will make a preliminary
                                                                       determination as to whether the reported
                                                                       information requires the EPA action to
                                                                       protect human health or the environment.
                                                                       Further action may include suspending, or
                                                                       revoking the exclusion, or other
                                                                       appropriate response necessary to protect
                                                                       human health and the environment.

[[Page 56613]]

 
                                                                      (D) If the Regional Administrator or his
                                                                       delegate determines that the reported
                                                                       information does require action by the
                                                                       EPA's Regional Administrator or his
                                                                       delegate will notify the facility in
                                                                       writing of the actions the Regional
                                                                       Administrator or his delegate believes
                                                                       are necessary to protect human health and
                                                                       the environment. The notice shall include
                                                                       a statement of the proposed action and a
                                                                       statement providing the facility with an
                                                                       opportunity to present information as to
                                                                       why the proposed EPA action is not
                                                                       necessary. The facility shall have 10
                                                                       days from the date of the Regional
                                                                       Administrator or his delegate's notice to
                                                                       present such information.
                                                                      (E) Following the receipt of information
                                                                       from the facility described in paragraph
                                                                       (6)(D) or (if no information is presented
                                                                       under paragraph (6)(D)) the initial
                                                                       receipt of information described in
                                                                       paragraphs (5), (6)(A) or (6)(B), the
                                                                       Regional Administrator or his delegate
                                                                       will issue a final written determination
                                                                       describing the EPA actions that are
                                                                       necessary to protect human health or the
                                                                       environment. Any required action
                                                                       described in the Regional Administrator
                                                                       or his delegate's determination shall
                                                                       become effective immediately, unless the
                                                                       Regional Administrator or his delegate
                                                                       provides otherwise.
                                                                     (7) Notification Requirements: OxyVinyls
                                                                      must do the following before transporting
                                                                      the delisted waste: Failure to provide
                                                                      this notification will result in a
                                                                      violation of the delisting petition and a
                                                                      possible revocation of the decision.
                                                                      (A) Provide a one-time written
                                                                       notification to any State Regulatory
                                                                       Agency to which or through which it will
                                                                       transport the delisted waste described
                                                                       above for disposal, 60 days before
                                                                       beginning such activities.
                                                                      (B) Update the one-time written
                                                                       notification if it ships the delisted
                                                                       waste into a different disposal facility.
                                                                      (C) Failure to provide this notification
                                                                       will result in a violation of the
                                                                       delisting variance and a possible
                                                                       revocation of the decision.
 
                                                  * * * * * * *
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[FR Doc. 03-24910 Filed 9-30-03; 8:45 am]
BILLING CODE 6560-50-P