[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Notices]
[Pages 79089-79096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30698]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-RCRA-2008-0645; FRL-8756-7]
RIN 2050-ZA04


Notice of Data Availability on Spent Oil Shale From Above Ground 
Retorting Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Data Availability.

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SUMMARY: The Agency recognizes that there may have been some 
uncertainty regarding the Bevill status of spent oil shale from above 
ground retorting operations. This notice reiterates that spent oil 
shale from the above ground retorting of oil shale is not a Bevill 
waste excluded from regulation under Subtitle C of the Resource 
Conservation and Recovery Act (RCRA). However, the fact that such 
material is not excluded from regulation as Bevill waste does not mean 
that it is regulated under Subtitle C of RCRA. In fact, the notice 
summarizes, for comment, available analytical data on the 
characteristics of spent shale from oil shale above ground retorting 
operations (especially leachate characteristics), which indicate that 
this material is unlikely to exhibit a hazardous characteristic under 
Subtitle C of RCRA. This Notice does not reopen any prior EPA 
rulemakings which address the Bevill status of wastes from the 
extraction, beneficiation, or processing of ores and minerals.

DATES: Submit comments on or before January 23, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0645 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail) 
to [email protected] Attention Docket ID No. EPA-HQ-RCRA-2008-0645.
     Fax: Comments may be faxed to 202-566-9744. Attention 
Docket ID No. EPA-HQ-RCRA-2008-0645.

[[Page 79090]]

     Mail: Send two copies of your comments to Notice of Data 
Availability on Spent Oil Shale from Above Ground Retorting Operations, 
Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460. Attention Docket ID No. EPA-HQ-RCRA-
2008-0645.
     Hand Delivery: Deliver two copies of your comments to the 
Notice of Data Availability on Spent Oil Shale from Above Ground 
Retorting Operations Docket, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC 20460. Attention Docket ID No. 
EPA-HQ-RCRA-2008-0645. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2008-0645. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Notice of Data 
Availability on Spent Oil Shale from Above Ground Retorting Operations 
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The Docket 
telephone number is (202) 566-0270. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744.

FOR FURTHER INFORMATION CONTACT: Stephen Hoffman, Office of Solid Waste 
(5306P), U.S. Environmental Protection Agency, Ariel Rios Building, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, telephone 
(703) 308-8413, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. What Should I Consider as I Prepare My Comments for EPA?

    1. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree. Suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used. Provide as much detail as 
possible.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly and in as much detail as 
possible.
     Make sure to submit your comments by the comment period 
deadline identified.
    2. Docket Copying Costs. The first 100-copied pages are free. 
Thereafter, the charge for making copies of Docket materials is 15 
cents per page.

II. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through http://www.regulations.gov or by e-mail. Send or 
deliver information identified as CBI only to the following address: 
RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. 
EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention 
Docket ID No. EPA-HQ-RCRA-2008-0645. You may claim information that you 
submit to EPA as CBI by marking any part or all of that information as 
CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk 
or CD-ROM as CBI and then identify electronically within the disk or 
CD-ROM the specific information that is CBI). Information so marked 
will not be disclosed, except in accordance with procedures set forth 
in 40 CFR Part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD-ROM, mark the outside 
of the disk or CD-ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please contact: 
LaShan Haynes, Office of Solid Waste (5305P), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-
0002, telephone (703) 605-0516, e-mail address: [email protected].

III. Oil Shale Retorting Wastes

A. Background

    The Energy Policy Act of 2005 directed the Bureau of Land 
Management (BLM) to manage oil shale and tar sands development on 
public lands on three tracks:
     Research development and demonstration (RD&D) leasing;
     A programmatic Environmental Impact Statement (PEIS); and
     Regulations for commercial leasing.
    In 2006, BLM issued Environmental Assessments for oil shale 
Research and

[[Page 79091]]

Development projects located in Colorado and Utah. In 2007, BLM issued 
its oil shale and tar sands PEIS. Given the fact that BLM has already 
issued RD&D leases in Colorado and Utah and the PEIS, we believe it is 
appropriate to discuss and provide a clear statement as to the 
regulatory status of spent oil shale from above ground retorting 
operations since it is likely that commercial development will occur in 
the near future.
1. What Is Oil Shale?
    BLM defines oil shale \1\ as fine-grained sedimentary rock 
containing: (1) Organic matter which was derived chiefly from aquatic 
organisms or waxy spores or pollen grains, which is only slightly 
soluble in ordinary petroleum solvents, and of which a large proportion 
is distillable into synthetic petroleum, and (2) Inorganic matter, 
which may contain other minerals. This term is applicable to any 
argillaceous, carbonate, or siliceous sedimentary rock which, through 
destructive distillation, will yield synthetic petroleum.
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    \1\ U.S. Bureau of Land Management, Draft Oil Shale and Tar 
Sands Resource Management Plan Amendments to Address Land Use 
Allocations in Colorado, Utah, and Wyoming and Programmatic 
Environmental Impact Statement, December 2007.
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2. What Is Kerogen?
    BLM defines kerogen as the hydrocarbon in oil shale. Kerogen is a 
pyrobitumen, and oil is formed from kerogen by heating. It consists 
chiefly of low forms of plant life; chemically it is a complex mixture 
of large organic molecules, containing hydrogen, carbon, oxygen, 
nitrogen, and sulfur. Kerogen is the chief source of oil in oil shale.
3. Where Is Oil Shale Located in the United States?
    Nearly 62% of the world's potentially recoverable oil shale 
resources are concentrated in the United States. The largest of the 
deposits is found in the Green River formation in northwestern 
Colorado, northeastern Utah and southwestern Wyoming. The richest and 
most easily recoverable deposits are located in the Piceance Creek 
Basin in western Colorado and the Uinta Basin in eastern Utah.\2\ There 
are less productive oil shale deposits in the eastern United States.
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    \2\ USGS Geology and Resources of some World Oil Shale Deposits 
2005, Rand Corporation Oil Shale Deposits in the U.S. for USDOE NETL 
2005.
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4. What Is Above Ground Retorting?
    Organic kerogen within the oil shale rock can be heated to form 
synthetic gas and petroleum known as shale oil. The transformation of 
kerogen to oils occurs in a process called retorting which requires 
heating of the rock. There are various above ground retort designs that 
have differing operating temperatures ranging from lower temperatures 
of approximately 600-700 degrees Fahrenheit (F) to higher temperature 
designs usually operating at 900 to 1200 degrees F. Most aboveground 
retorts are closed metal vessels where the oil shale is placed and 
internally or externally heated. When sufficient heat is applied to oil 
shale, gases and oil are released from the oil shale. The heating of 
oil shale to produce shale oil is classified by EPA as retorting. See 
54 FR 36619.
    After retorting, shale oil is removed. The spent oil shale, a waste 
of this process, is generally disposed of in aboveground disposal units 
or is placed back into mined-out voids.
    A recent study of oil shale production by the Congressional 
Research Service entitled, Oil Shale: History, Incentives, and Policy 
(April 13, 2006 RL33359), states, ``Oil derived from shale has been 
referred to as a synthetic crude oil and thus closely associated with 
synthetic fuel production.''
5. What Is an Oil Shale Cleaning and Upgrade Facility?
    Shale oil flowing out of aboveground retorting units must be 
cleaned of contaminants or be ``upgraded'' to make a range of products. 
Shale oil ``cleaning'' often involves the removal of sulfur. Shale oil 
upgrading generally includes additional processing equivalent to crude 
oil hydrocracking (required to convert oil shale distillates to 
gasoline). Upgrading also removes arsenic and nitrogen using 
hydrotreating.
    A one million ton per day (tpd) upgrade facility can generate over 
3,000 metric tons per year (tpy) of spent catalysts, treatment 
chemicals, sludges and byproduct wastes. Upgrade wastes may include 
5,400 tpy of spent hydrotreater guard bed catalyst containing 20 
percent arsenic and 7,200 tpy \3\ of API separator bottoms.
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    \3\ USEPA 1985 Report to Congress, Wastes from the Extraction 
and Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, 
Overburden from Uranium Mining, and Oil Shale, EPA/530-SW-85-033.
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    Wastes from oil shale upgrade operations are not exempt from the 
hazardous waste requirements under the Bevill exemption (40 CFR 
261.4(b)(7)), and unlike spent oil shale generated by above ground 
retorting operations discussed below, may, in some cases, exhibit a 
hazardous characteristic. EPA is not addressing or seeking comment on 
those wastes, which are of much smaller volume relative to the spent 
oil shale.

B. Bevill Status of Spent Oil Shale

    One purpose of this notice is to make a clear statement on the 
Bevill status of spent oil shale wastes from aboveground retorting of 
oil shale. A history of the Bevill rulemakings can be found at 54 FR 
15317, April 17, 1989. The Agency is not seeking comment on this 
discussion since this position has been in effect since the 
promulgation of the Mining Waste Exclusion final rules (see 54 FR 
36592, September 1, 1989, 55 FR 2322, January 23, 1990, and 56 FR 
27300, June 13, 1991). Nor is EPA seeking to reopen, or otherwise 
reconsider, the regulatory status of oil shale retort wastes. 
Consequently, the Agency will not respond to any comments that raise 
questions or concerns about this background discussion. In summary, EPA 
has determined that spent oil shale waste from aboveground retorting of 
oil shale is not Bevill-exempt. However, as discussed in subsection C 
below, EPA believes it is very unlikely that such waste would exhibit a 
hazardous characteristic and thus, would not be subject to regulation 
under Subtitle C of RCRA.
    Specifically, on October 21, 1980, Congress enacted Pub. L. 96-482, 
which included various amendments to RCRA Section 8002, such as 
subsection (p), which required the Administrator to study the adverse 
effects on human health and the environment, if any, of waste from the 
disposal and utilization of ``solid waste from the extraction, 
beneficiation, and processing of ores and minerals, including phosphate 
rock and overburden from the mining of uranium ore,'' and submit a 
Report to Congress on its findings by October 21, 1983. 42 U.S.C. 
6982(p). Also, as part of these amendments, Congress enacted RCRA 
section 3001(b)(3), which established a temporary exemption for such 
wastes, pending the completion of EPA's Report to Congress and a 
Regulatory Determination on whether the wastes warranted regulation as 
hazardous wastes under RCRA Subtitle C. 42 U.S.C. 6921(b)(3)(A)(ii) and 
(C).
    The Agency issued its Report to Congress, Wastes from the 
Extraction and Beneficiation of Metallic Ores, Phosphate Rock, 
Asbestos, Overburden from Uranium Mining, and Oil Shale (EPA/530-SW-85-
033), in December 1985. The report's findings on wastes from the mining 
and processing of oil shale are summarized in Appendix A of this report 
and were entitled, ``Summary of Major Wastes from the Mining and 
Processing of Oil Shale.'' This appendix did not identify spent oil 
shale as potentially hazardous under the RCRA

[[Page 79092]]

hazardous waste regulations. It also stated that spent oil shale did 
not have an ignitability characteristic.
    Based on the 1985 Report to Congress, the Agency issued the, 
Regulatory Determination for Wastes from the Extraction and 
Beneficiation of Ores and Minerals (51 FR 24497), on July 3, 1986. This 
determination concluded that wastes from the extraction and 
beneficiation of ores and minerals should not be regulated under RCRA 
Subtitle C at that time. In making this Regulatory Determination, the 
Agency did not specifically mention wastes from the retorting of oil 
shale.
    On April 17, 1989, EPA proposed a rule (54 FR 15316), which for the 
first time addressed the Court decision in Environmental Defense Fund 
v. EPA (852 F.2d 1316 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 1120 
(1989)), mandating that the Agency clarify the line between extraction/
beneficiation and mineral processing. In the preamble to the proposed 
rule (at 54 FR 15342), after review of nominated waste streams, the 
Agency presented its preliminary conclusions as to (1) Whether the 
wastes fell within the categories of extraction/beneficiation or 
mineral processing; (2) whether those wastes derived from mineral 
processing activities might qualify as Bevill-exempt; and (3) the 
rationale for the determination. Table 1 at 54 FR 15343 indicated the 
Agency's preliminary conclusion that oil shale retorting wastes were 
not mineral processing wastes, but were beneficiation wastes.
    On September 1, 1989, EPA finalized the first Bevill rule (54 FR 
36592) making significant changes to the April 1989 proposal. Among 
other things, EPA promulgated a definition of beneficiation waste that 
listed certain specific processes as beneficiation processes, and made 
it clear that processes that did not fit these categories were not 
beneficiation processes. The 24 enumerated beneficiation processes \4\ 
did not include shale oil retorting. That is, spent oil shale from 
retorting operations does not meet the definition of any of these 24 
categories, and therefore, is not a Bevill-exempt beneficiation 
waste.\5\ Because spent oil shale does not meet these definitions, it 
is therefore not a Bevill-exempt beneficiation waste.
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    \4\ The 24 categories of beneficiation activities are: Crushing; 
grinding; washing; dissolution; crystallization; filtration; 
sorting; sizing; drying; sintering; pelletizing; briquetting; 
calcining to remove water and/or carbon dioxide; roasting, 
autoclaving, and/or chlorination in preparation for leaching (except 
where the roasting (and/or autoclaving and/or chlorination)/leaching 
sequence produces a final or intermediate product that does not 
undergo further beneficiation or processing); gravity concentration; 
magnetic separation; electrostatic separation; flotation; ion 
exchange; solvent extraction; electrowinning; precipitation; 
amalgamation; and heap, dump, vat, tank, and in situ leaching.
    \5\ In March 1989, the Office of Solid Waste issued a memorandum 
to EPA Region VIII regarding the Bevill status of spent oil shale at 
the Parachute Creek oil shale project. The memo stated, among other 
things, that the retort process at Parachute Creek is a 
beneficiation process, and as such, wastes from it are subject to 
the Bevill exclusion. While the Agency has not withdrawn or revised 
the memorandum, the September 1, 1989 final rule superseded it since 
spent oil shale from above ground retorting operations does not meet 
any of the processes or activities that the rule defines as 
beneficiation.
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    Because spent oil shale from above ground oil shale retorting 
operations are not Bevill exempt, they are not exempt from regulation 
under Subtitle C of RCRA. As stated in 40 CFR 262.11, ``A person who 
generates a solid waste, as defined in 40 CFR 261.2, must determine if 
that waste is a hazardous waste * * *.'' The generator must determine 
if the waste is listed as a hazardous waste in Subpart D of 40 CFR 261, 
and/or whether the waste exhibits any hazardous waste characteristic 
identified in Subpart C of 40 CFR 261, either by testing the waste, or 
by applying knowledge of the waste.\6\ The information presented in 
Section C below will be useful to generators in making such a 
determination.
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    \6\ For more information regarding requirements for hazardous 
waste generators, see 40 CFR 262 and Hazardous Waste Generator 
Requirements at http://www.epa.gov/epaoswer/osw/gen_trans/tool.pdf.
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C. Is Spent Oil Shale a Hazardous Waste?

    Spent oil shale from above ground oil shale retorting operations is 
not listed as a hazardous waste. Further the Agency does not believe 
that such material is likely to exhibit a hazardous characteristic. In 
this section, EPA is presenting data that have been identified and can 
be used by generators, along with any other data that they are aware 
of, as part of their hazardous waste determination. Specifically, EPA 
is seeking comment on these data. Based on the data EPA has evaluated 
and described in this notice, EPA believes spent oil shale generated by 
above ground retorting operations is very unlikely to exhibit a 
hazardous waste characteristic. Accordingly, EPA believes that it is 
very unlikely that such material is a hazardous waste under Subtitle C 
of RCRA.
1. Toxicity Characteristics--Metals
    The purpose of this section is to summarize the research that was 
conducted since the mid-1980's that evaluates the chemical 
characteristics of spent oil shale from aboveground retorting 
operations. EPA has placed into the docket reports which assess the 
total chemical concentrations and leaching characteristics of spent oil 
shale.\7\
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    \7\ EPA is also interested in the public identifying other 
related studies/reports which evaluate the leachate and other 
characteristics of spent oil shale.
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    Most of the early research included leachate analyses using the 
Extraction Procedure (EP) Toxicity Test first noted in the Federal 
Register in 1978 (see SW 846 Method 1310). That test was superseded by 
the Toxicity Characteristic Leachate Procedure (TCLP) in June 1991 (see 
SW 846 Method 1311). The Agency conducted a review of these test 
methods to determine if the Agency could continue to use test results 
that relied upon EP toxicity data when assessing whether spent oil 
shale could be characteristically hazardous. Specifically, the Agency 
reviewed the 1991 EPA and U.S. Army Engineer Waterways Experiment 
Station report entitled, A Comparative Evaluation of Two Extraction 
Procedures: The TCLP and The EP, by R. Mark Bricka, Teresa T. Holmes, 
and M. John Cullinane, Jr. The researchers found that when the TCLP 
extraction fluid 2 was used for the extraction of metal contaminants, 
the EP and TCLP produced similar results. It is likely that TCLP 
extraction fluid 2 would be used in the analysis of spent oil shale 
because of its moderate to high alkalinity. Therefore, the Agency 
believes that research which analyzed spent oil shale using the EP test 
is useful in evaluating whether spent oil shale is likely to be 
hazardous under the current characteristic regulations. These EP test 
results supplement the available TCLP information.
    Before presenting the specific data, we would note that the 
leaching characteristics of spent oil shale are dependent on the origin 
of the shale, the retorting process, and the conditions under which the 
spent oil shale is managed. There are two types of processed shale--
carbonaceous and burned. Carbonaceous processed oil shales are produced 
by indirect retorting which does not burn the residual oil on the 
shale, while burned processed shale is produced by direct heating and 
in-situ retorting. The Agency's evaluation of past research indicates 
that most spent oil shale, regardless of the retort technology (with 
internal operating temperatures in the retort ranging from 900 degrees 
F to greater than 1200 degrees F) generates leachate which is 
significantly below TCLP limits.

[[Page 79093]]

Results From Previous Research and Studies
    In 1983, USGS issued Open File Report 83-378, entitled, Chemical 
and Mineral Composition Data on Oil Shale and Retorted Oil Shale Wastes 
from Rulison, Colorado. This study assessed the chemical composition of 
spent oil shale generated at the U.S. BOM's oil shale retort test 
facility. The spent oil shale analyzed in this study was stored in open 
piles, outside, for approximately 50 years. Samples were analyzed for 
total metal concentrations (at ppm). No EP or TCLP analyses of the 
samples were undertaken; however, total analyses can be used to show 
that it is physically impossible for a material to fail the toxicity 
characteristic--because even in the very unlikely event that 100% of 
the hazardous substance leached, it would still not exceed the toxicity 
characteristic (or TC) levels. In fact, EPA has identified totals 
analysis as an acceptable method of testing for the TC, if it is 
conservatively assumed that 100% of the total constituent concentration 
will leach from the waste.\8\ The study results below show that it is 
highly unlikely that spent oil shale is characteristically hazardous.
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    \8\ See memo from Michael Shapiro to Charlie Norwood on May 25, 
2000, which can be found at http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/66b5c5da87d218b285256a4100635b78!OpenDocument. It is important to 
note that totals concentrations can be used to show that a waste is 
non-hazardous, but they can not be used to show that a waste is 
hazardous. EPA does not presume a waste is TC hazardous if \1/20\th 
of the total constituent concentrations in the waste exceed TC 
regulatory levels, because it would be an unusual situation for 100% 
of the material to leach from a solid.

------------------------------------------------------------------------
                                                              Calculated
                                                               maximum
           Element             Totals (mg/kg)   RCRA limit     possible
                                                  (mg/L)       leachate
                                                                (mg/L)
------------------------------------------------------------------------
Arsenic.....................  60.............           5.0         3
Barium......................  740............         100          37
Cadmium.....................  3..............           1.0         0.15
Chromium....................  27.............           5.0         1.35
Lead........................  30.............           5.0         1.5
Mercury.....................  not analyzed...           0.2  ...........
Selenium....................  not analyzed...           1.0  ...........
Silver......................  not analyzed...           5.0  ...........
------------------------------------------------------------------------

    A May 1986 study entitled, Assessment of Solid Waste 
Characteristics and Control Technology for Oil Shale Retorting, by 
Ashok Agarwal, Monsanto for USEPA, EPA 60017-86-019 evaluated the 
leaching characteristics from simulated retorted oil shale wetted with 
simulated process water using the EP toxicity test. This study used 
simulated retorted shale from the Union B process, which is a good 
indicator of wastes from higher temperature above ground retorts. This 
study shows that spent oil shale would not be classified as 
characteristically hazardous and supports the findings of the USGS 1983 
study. The study noted on Table 1.2-4:

------------------------------------------------------------------------
                                   RCRA limit
             Element                 (mg/L)     EP test results*  (mg/L)
------------------------------------------------------------------------
Arsenic.........................           5.0  0.07
Barium..........................         100    <2.7
Cadmium.........................           1.0  not analyzed
Chromium........................           5.0  <0.05
Lead............................           5.0  <0.0005
Mercury.........................           0.2  <0.0005
Selenium........................           1.0  <0.0005
Silver..........................           5.0  <0.02
------------------------------------------------------------------------
* While Agarwal (1986) did not report the sampling methodology, QA/QC,
  or pH in the final EP extract, these results are much lower than the
  hazardous characteristic and it is very unlikely to expect that
  results would be materially different had the spent shale undergone
  TCLP analyses.

    Another EP leachate study, Leaching and Hydraulic Properties of 
Retorted Oil Shale Including Effects from Codisposal of Wastewater, 
Colorado State University for EPA/ORD, 1986 examined spent oil shale 
from different retort processes using oil shale from Colorado, 
Pennsylvania, and Kentucky (data from this study is replicated in 
``Assessment of Solid Waste Characteristics and Control Technology for 
Oil Shale Retorting,'' Monsanto Company for EPA/ORD, 1986). EP toxicity 
results from spent shale generated from deposits in Colorado, 
Pennsylvania, and Kentucky are provided in the Table below.
    This study notes that spent oil shale from these sources do not 
generate leachate levels that exceeds the RCRA EP toxicity 
characteristic levels. The study shows, however, that retorted oil 
shale leachate has the potential to leach non-hazardous constituents, 
such as sulfates, nitrates and total dissolved solids (TDS).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 EP test results (mg/L)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Rio Blanco      Hammerville     Rocky Flats    Anvil Points
                                           Units             Colorado      Pennsylvania      Colorado        Colorado        Kentucky      RCRA TC limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Retort Process...................  .....................               Lurgi                       Tosco          Paraho          Hytort
Grain Size.......................  mm...................              0.1-5.0                                0.420-3.327
Density..........................  kg/m\3\..............             2700-2760                      2600       2589-2633            1700
                                                         --------------------------------
Aluminum.........................  mg/L.................           <0.02           <0.02           <0.02             3.6            0.44
Arsenic..........................  mg/L.................           0.019           0.047           <0.01           0.010           0.010             5.0
Barium...........................  mg/L.................           0.130           0.180           0.780           0.915           0.210           100.0
Beryllium........................  mg/L.................         <0.0005          0.0026          0.0045         <0.0005         <0.0005
Boron............................  mg/L.................           0.520           1.470           0.640           0.333           0.340
Cadmium..........................  mg/L.................           0.004           0.002           0.003          <0.001           0.013             1.0
Calcium..........................  mg/L.................             964            1479            1872             724             319

[[Page 79094]]

 
Chromium.........................  mg/L.................          <0.005          <0.005           0.007           <0.10          <0.005             5.0
Chlorides........................  mg/L.................             7.1            18.9            22.2            28.8            8.95
Copper...........................  mg/L.................           0.032           0.009           0.014           0.019           0.023             1.3
Iron.............................  mg/L.................          <0.005          <0.005          <0.005           0.020           0.078
Lead.............................  mg/L.................           <0.01           <0.01           <0.01          <0.010            0.01             5.0
Magnesium........................  mg/L.................             290             430              81             484              85
Manganese........................  mg/L.................           0.110           0.090           1.260           0.016            8.98
Mercury..........................  mg/L.................          <0.001          <0.001           0.075          <0.001          <0.001             0.2
Molybdenum.......................  mg/L.................           <0.05           <0.05           <0.05           <0.05           <0.05
Nickel...........................  mg/L.................           0.012          <0.005           0.055           <0.05           0.971
Nitrate..........................  mg/L.................            1.53            0.53             2.0            1.75             2.3
Phosphorous......................  mg/L.................             0.4             0.7             0.6            0.49             0.4
Potassium........................  mg/L.................             3.2            11.0             3.9             6.5              22
Selenium.........................  mg/L.................           <0.02           <0.02           <0.02           <0.02           <0.02             1.0
Silver...........................  mg/L.................           0.002          <0.002           0.002          <0.002           0.003             5.0
Sodium...........................  mg/L.................              43              55             131              37              11
Sulfate..........................  mg/L.................             684             880             229             220              97
Zinc.............................  mg/L.................           0.138           0.010           0.078          <0.001           0.477
TDS..............................  mg/L.................            5690            8520            8180            6220            1740
pH...............................  .....................            8.06            8.67            7.72            9.27            4.94
--------------------------------------------------------------------------------------------------------------------------------------------------------

    DOE conducted a study that presented TCLP analysis of raw and 
retorted shale as part of the preliminary clean up of the Western 
Research Institute North Site Facility, which had been commissioned to 
conduct energy studies in 1968. Test oil shale retorting was conducted 
at this site using a wide variety of pilot retort technologies. Results 
of this analysis were published in a study entitled, Volume 1 Phase 1 
of the North Site Cleanup Topical Report by Susan Sorini and Norm 
Merriam March 1994 (DOE/MC/30126-3843). Two laboratories were used to 
test composite samples of spent oil shale from three different sources 
onsite, and the paired results are shown in the table below. This study 
notes that retorted oil shale did not exceed TCLP limits, by orders of 
magnitude, for any of the TCLP metals (see table below).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         TCLP Results (mg/L)
                                                                           -----------------------------------------------------------------------------
                                                                RCRA limit                                                       Spent oil    Spent oil
                                                                             Spent oil    Spent oil    Spent oil    Spent oil    shale pile   shale pile
                                                                            shale-1 WRI  shale-1 SVL  shale-2 WRI  shale-2 SVL      WRI          SVL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic......................................................          5.0        <0.10        <0.04        <0.10        <0.04        <0.10        <0.04
Barium.......................................................          100         0.14         0.17         0.20         0.22         0.10         0.09
Cadmium......................................................          1.0        <0.01       <0.002        <0.01       <0.002        <0.01       <0.002
Chromium.....................................................          5.0       <0.008       <0.003       <0.008       <0.003       <0.008        0.005
Lead.........................................................          5.0        <0.10        <0.04        <0.10        <0.04        <0.10        <0.04
Mercury......................................................          0.2       <0.002      <0.0002       <0.002      <0.0002       <0.002      <0.0002
Selenium.....................................................          1.0        <0.10        <0.04        <0.10        <0.04        <0.10        <0.04
Silver.......................................................          5.0        <0.02       <0.002        <0.02       <0.002        <0.02       <0.002
--------------------------------------------------------------------------------------------------------------------------------------------------------
WRI--Western Research Institute.
SVL--SVL Analytical is the inorganic CLP laboratory that was used in phase I to verify WRI's analytical results.

    Another study involving TCLP analyses of spent oil shale is found 
in the 1995 article in Fuel (vol. 74, no. 9) by Michael Mensinger and 
Jeffery Budiman entitled, Physical and Thermal Properties and Leaching 
Characteristics of a Hydroretorted Beneficiated Eastern Oil Shale in 
Different Processing Stages. This study evaluated the TCLP 
characteristics of retorted eastern oil shale and concluded that none 
of the spent oil shale exhibited the TC. Analytical results of 
hydroretorted, hydroretorted and combusted, and hydroretroted and 
agglomerated Alabama oil shale are as follows:

----------------------------------------------------------------------------------------------------------------
                                                    Mensinger and Budiman (1995) TCLP test results (mg/L)
                                           ---------------------------------------------------------------------
                  Element                                                    Hydroretorted &    Hydroretorted &
                                             RCRA limit    Hydroretorted        combusted         agglomerate
----------------------------------------------------------------------------------------------------------------
Arsenic...................................          5.0              0.081              0.078             0.0069
Barium....................................          100              0.082              0.034              0.085
Cadmium...................................          1.0              <0.02              <0.02               0.12
Chromium..................................          5.0              <0.05              <0.05              <0.05
Lead......................................          5.0               <0.2               <0.2               <0.2
Mercury...................................          0.2             <0.005             <0.001             <0.001
Selenium..................................          1.0              0.096              0.026             <0.013

[[Page 79095]]

 
Silver....................................          5.0              <0.05              <0.05              <0.05
----------------------------------------------------------------------------------------------------------------

    This study noted that silver, lead and mercury did not leach above 
the detection limit, selenium was <10 percent of the TCLP limit, while 
all other metals leached at levels that were <2 percent of the TCLP 
limit.
    BLM also conducted a series of studies in 2005 to determine how to 
effectively clean up spent oil shale piles at the Anvil Points 
facility. A report titled, Final Draft Engineering/Cost Analysis for 
Waste Shale and Impoundments at U.S. Navy Oil Reserve 1 & 3 March 2005, 
presented the results of TCLP analyses of the spent oil shale piles. 
The spent oil shale analyzed in this study was generated between 1947 
and 1982. This study noted that eight inorganic constituents (arsenic, 
barium, beryllium, chromium, copper, magnesium, sodium, and vanadium) 
were detected at concentrations exceeding three times background 
(Dynamac 1998). The spent oil shale had no detectable volatile organic 
compounds (VOCs), phthalates were detected at concentrations less than 
the practical quantification limit, and high molecular weight 
hydrocarbons were detected at concentrations in the 1.3 to 2.6 
milligrams per kilogram (mg/kg) range. In addition to testing the spent 
oil shale samples using the TCLP, they were also tested for the other 
hazardous characteristics--that is corrosivity, ignitability, and 
reactivity; however, the report did not provide these results. Page 3-
12 of this report concluded that none of the 28 retorted oil shale 
samples exceeded TCLP limits for metals. Results of these analyses are 
noted below:

----------------------------------------------------------------------------------------------------------------
                                        RCRA limit   Minimum leachate results
               Element                    (mg/L)               (mg/L)           Maximum leachate results  (mg/L)
----------------------------------------------------------------------------------------------------------------
Arsenic..............................           5.0  not detected............  2.70E-05 J
Barium...............................         100    2.37E-06 B..............  3.91E-03
Cadmium..............................           1.0  not detected............  2.32E-05
Chromium.............................           5.0  not detected............  1.28E-04
Lead.................................           5.0  2.19E-06 JB.............  1.30E-04 JB
Mercury..............................           0.2  not detected............  not detected
Selenium.............................           1.0  not detected............  4.60E-05 J
Silver...............................           5.0  not detected............  4.72E-06 J
----------------------------------------------------------------------------------------------------------------
J--Estimated value below practical quantification limit but above method detection limit.
B--Analyte detected in method blank.

    Because the detection limit was not noted in the report, total 
concentration data are shown in the table below, along with the 
calculated theoretical maximum leachate concentrations, to provide 
further information regarding the potential for spent oil shale to 
exhibit the TC. All calculated leachate values are below the RCRA 
hazardous characteristic limits.

----------------------------------------------------------------------------------------------------------------
                                                                                   Calculated
                            Element                               Totals  (mg/    leachate (mg/  RCRA limit  (mg/
                                                                       kg)             L)               L)
----------------------------------------------------------------------------------------------------------------
Arsenic........................................................         74.0              3.70               5.0
Barium.........................................................        568               28.4              100
Cadmium........................................................          0.375J           0.019              1.0
Chromium.......................................................         33.5              1.68               5.0
Lead...........................................................         42.2              2.11               5.0
Mercury........................................................          0.0562           0.003              0.2
Selenium.......................................................          4.88             0.244              1.0
Silver.........................................................          0.494J           0.025              5.0
----------------------------------------------------------------------------------------------------------------

2. Ignitability
    A 1984 report on a study on the auto-oxidation potential of raw and 
retorted oil shale (Research Triangle Institute for EPA, July 1984) 
noted that retorted (i.e., spent) oil shale is unlikely to present a 
spontaneous combustion hazard. The oil shale investigated in this study 
includes retorted oil shale from the Paraho, TOSCO II, Hytort, and 
Lurgi processes and a mixture of retorted oil shale, raw shale 
``fines,'' and sulfur from the Union B process. Appendix A of the 1985 
Report to Congress noted at A-6 that raw shale fines and/or spent 
shales, if not properly disposed, may auto-oxidize resulting in 
autoignition. However, the 1985 RTC also noted that retorted oil shale 
appears to be less reactive than raw shale fines. The Ashok Agarwal, 
Monsanto for USEPA EPA, May 1986 study, Assessment of Solid Waste 
Characteristics and Control Technology for Oil Shale Retorting, 
supports EPA's 1985 conclusion that spontaneous combustion of retorted 
oil shale is only a concern assuming improper disposal with other 
wastes. Based on the reports noted above, the Agency believes that 
spent oil shale does not present an environmental concern due to 
ignitability.
3. Corrosivity
    The majority of research on the environmental effects of spent oil 
shale has focused on the potential leaching of metals into ground and 
surface waters. There is, however, limited information assessing 
whether spent oil shale could be corrosive. Review of the BLM studies

[[Page 79096]]

noted above, which assessed spent oil shale disposed of at Anvil Points 
for over thirty years, and discussed in the report, Final Draft 
Engineering/Cost Analysis for Waste Shale and Impoundments at U.S. Navy 
Oil Reserve 1 & 3 March 2005, indicates that spent oil shale samples 
did not exhibit the corrosivity characteristic when tested for the 
hazardous characteristic of corrosivity. Also, because oil shale 
undergoing above ground retorting is subject to high heat where 
destructive distillation occurs and results in most organics and 
hydrogen being removed, it is not likely from a chemical standpoint 
that spent oil shale could be corrosive.
4. Reactivity
    Based on the review of the literature noted above, the Agency has 
not found any information that identifies spent oil shale as 
potentially reactive. Review of the BLM Anvil Points studies do not 
indicate that spent oil shale disposed of in piles over long periods of 
time ever became reactive. Based on our review of the data noted above, 
it is not likely from a chemical standpoint that spent oil shale could 
be reactive.
D. Conclusion
    The regulatory status of spent oil shale, from above ground 
retorting operations was determined as part of the 1989 final Bevill 
rulemaking. Spent oil shale from above ground oil shale operations is 
not Bevill-exempt. The Agency believes this NODA's clear statement will 
have little practical effect, because it believes--based on the data 
described in this notice--that spent oil shale from above ground 
retorting operations are very unlikely to be hazardous under RCRA 
Subtitle C. EPA seeks additional data relevant to this conclusion and 
seeks comment on the data presented that supports our conclusion.

    Dated: December 17, 2008.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. E8-30698 Filed 12-23-08; 8:45 am]
BILLING CODE 6560-50-P