[Federal Register Volume 61, Number 209 (Monday, October 28, 1996)]
[Rules and Regulations]
[Pages 55718-55727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27695]
[[Page 55717]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 268
Land Disposal Restrictions: Treatability Variance for CITGO Petroleum
Refinery, Lake Charles, LA; Final Rule
Federal Register / Vol. 61, No. 209 / Monday, October 28, 1996 /
Rules and Regulations
[[Page 55718]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[FRL-5642-2]
Land Disposal Restrictions: Treatability Variance for CITGO
Petroleum Refinery, Lake Charles, Louisiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is granting a site-specific variance from the Land
Disposal Restrictions (LDR) treatment standards for two hazardous
petroleum refinery wastes (EPA Hazardous Waste Codes F037 and F038).
The variance applies to F037 and F038 nonwastewaters that are removed
from a 26 acre surface impoundment (the Surge Pond) located at the
CITGO Corporation petroleum refinery outside Lake Charles, Louisiana.
EPA is taking this action because the LDR treatment standards that
otherwise would apply are based on the performance of technologies that
are not appropriate for these wastes at this site. EPA believes that
requiring use of the technologies that were the basis of the treatment
standards would likely result in net environmental detriment, namely,
impeding or preventing the assured remediation of the Surge Pond,
including removal and substantial treatment of all remaining Surge Pond
sludge. Granting this variance will enable CITGO to complete the
removal, treatment, and disposal of the Surge Pond sludge, provided
they comply with the alternative treatment standards specified in this
rule. EPA has found that removing, treating, and disposing of the
sludge in a secure facility is more protective to human health and the
environment than the likely alternative, leaving the untreated
hazardous waste sludge in place.
EFFECTIVE DATE: This final rule is effective on October 22, 1996.
ADDRESSES: The official record for this rulemaking is identified by
RCRA Docket Number F-96-TVLF-FFFF and is located at 1235 Jefferson
Davis Highway, First Floor, Arlington, Virginia (the ``Crystal
Gateway'' building). The RCRA Docket is open from 9:00 am to 4:00 pm
Monday through Friday, except for Federal holidays. The public must
make an appointment to review docket materials by calling (703) 603-
9230. The public may copy a maximum of 100 pages from any regulatory
document at no cost. Additional copies cost $.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information contact the
RCRA Hotline at (800) 424-9346 toll-free or (703) 412-9810 locally; TDD
(800) 553-7672 or (703) 412-3323. For information on specific aspects
of this document, contact Shaun McGarvey, Waste Treatment Branch
(Mailcode 5302W), Hazardous Waste Minimization and Management Division,
Office of Solid Waste, U.S. Environmental Protection Agency, 401 M
Street SW, Washington, DC 20460, at (703) 308-8603.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Authority
B. Site Description
C. History of Surge Pond Remediation
D. Waste Description
E. Description of Proposed Treatment
F. Summary of Proposed Rule
II. Basis for Treatability Variance
A. EPA's Interpretation of When a Treatment Standard is ``Not
Appropriate''
B. Application of EPA's Interpretation of When a Treatment
Standard is ``Not Appropriate'' to CITGO
C. Effect of this Variance on Other Remedial Actions
III. Treatment Standards
A. Existing F037 and F038 Nonwastewater Standards
B. Alternative F037 and F038 Nonwastewater Standards Approved
for Use During Surge Pond Remediation at CITGO
IV. Public Comments and EPA Responses
V. Analysis under Executive Order 12866, the Unfunded Mandates
Reform Act of 1995, the Regulatory Flexibility Act, and the
Paperwork Reduction Act
VI. Submission to Congress and the General Accounting Office
I. Background
A. Authority
Under RCRA section 3004(m), EPA is required, as a prerequisite to
allowing land disposal of hazardous waste, to establish ``levels or
methods of treatment, if any, which substantially diminish the toxicity
of the waste or substantially reduce the likelihood of migration of
hazardous constituents from the waste so that short-term and long-term
threats to human health and the environment are minimized.'' To date,
EPA has implemented this requirement by developing technology-based
treatment standards, although other approaches are also permissible.
HWTC v. EPA, 886 F.2d 355, (D.C. Cir. 1989). The Agency, however,
recognizes that there are wastes that cannot or should not be treated
to the levels specified in the rules, because the wastes are physically
or chemically different from the wastes the Agency evaluated when
establishing the treatment standard, or because the treatment
technology is inappropriate for the waste. See 51 FR at 40605-40606
(Nov. 7, 1986). For such wastes, EPA established treatability variance
procedures that may be used to establish alternative treatment
standards on a case-by-case basis. 40 CFR 268.44.
The requirements for a treatability variance are found at 40 CFR
268.44(a), which states:
Where the treatment standard is expressed as a concentration in
a waste or waste extract and a waste cannot be treated to the
specified level, or where the treatment technology is not
appropriate to the waste, the generator or treatment facility may
petition the Administrator for a variance from the treatment
standard. The petitioner must demonstrate that because the physical
or chemical properties of the waste differ significantly from the
waste analyzed in developing the treatment standard, the waste
cannot be treated to specified levels or by the specified methods.
EPA uses this standard to approve site-specific variances and variances
that have more general applicability. See Sec. 268.44(h) and 53 FR at
31199-31200 (August 18, 1988). Except for their potential
applicability, the main difference between site-specific and general
variances is that EPA may permissibly use procedures less formal than
Administrative Procedure Act notice and comment rulemaking when
processing site-specific treatability variance applications (see 53 FR
at 31199-31200). However, because CITGO's application raises issues
that may be of national interest (notwithstanding applicability of the
rule to a particular facility), EPA used APA notice and comment
procedures to process CITGO's application, even though the variance
will apply only to specific wastes generated by remediation of the
Surge Pond at CITGO's Lake Charles, Louisiana facility. Thus, today's
action can be said to be pursuant to both Secs. 268.44(a) and (h).
For a more thorough discussion of the conditions which justify
approving a treatability variance and the supporting information the
petitioner is required to submit, please refer to the November 7, 1986
Federal Register (51 FR at 40605-40606), as well as the September 19,
1994 Federal Register (59 FR at 48023).
B. Site Description
The surface impoundment containing the waste addressed by this
variance is located at CITGO Corporation's Lake Charles Refinery, 4401
Louisiana Highway 108 in Calcasieu County in the southwest corner of
Louisiana. The
[[Page 55719]]
surface impoundment in question, referred to as the ``Surge Pond'' in
CITGO's application, is situated immediately adjacent to the west bank
of the Calcasieu River, approximately 10 miles southwest of Lake
Charles and 15 miles north of the Sabine National Wildlife Refuge. The
Surge Pond has a surface area of twenty six (26) acres. Much of the
pond is 15 to 20 feet deep; the deepest part is about 40 feet deep. The
water surface elevation of the pond is six feet above sea level; the
water layer is about 15 feet deep.
Wastewater from the Surge Pond discharges into an old on-site
wastewater treatment system. This system consists of an earthen
equalization basin, followed by dissolved air flotation (DAF) tanks, a
settling pond, and a polishing pond. It discharges into the Calcasieu
river at an NPDES regulated outfall (Permit Number LA0005941). The
bottom of the pond is filled with sludge which has been accumulating
since the 1940's. The Sludge remaining in the Surge Pond is the subject
of this variance. (CITGO's application for a treatability variance only
includes sludge from the Surge Pond; it does not include any sludge
generated by the rest of the old wastewater treatment system, including
sludge generated by any remediation of the system.)
CITGO has been operating a new on-site wastewater treatment system
since May 13, 1994. This system now receives process wastewater and
storm water from the site. The new system consists primarily of above
ground tanks with floating roofs. Air emissions from the tanks are
routed to a vapor control system. The new wastewater treatment system
flows from the API separators to an equalization tank, to a DAF unit,
to aerated activated sludge tanks, to a clarifier. Clarifier effluent
is discharged to the settling pond of the old wastewater treatment
system and eventually through the NPDES regulated outfall to the
Calcasieu River.
C. History of Surge Pond Remediation
The CITGO Surge Pond is a hazardous waste surface impoundment and,
thus, is subject to requirements for closure and corrective action.
See, e.g., 40 CFR 264.101; 40 CFR 264.110. In early 1993, CITGO
conducted feasibility studies to compare and evaluate their options for
closing the Surge Pond. They decided to pursue an option that involved
removal of sludge from the Surge Pond followed by substantial
treatment, oil recovery, and secure disposal at an off-site Subtitle C
facility. This remediation strategy was approved by the State of
Louisiana Department of Environmental Quality in December 1993.
Following state approval, CITGO designed, constructed and began
operating an on-site treatment system for treatment of Surge Pond
sludge.
At the time CITGO chose the sludge removal and treatment option
there was a national capacity variance for F037 and F038 nonwastewaters
which extended the effective date of the applicable LDR treatment
standards. CITGO planned to complete removal, treatment, and disposal
of all the Surge Pond sludge before the national capacity variance
expired; however, they were unable to meet this deadline due to
unforeseen contractor delays. When the national capacity variance
expired (June 30, 1994), remediation was stopped because the treatment
system could not meet the treatment standards for all of the regulated
constituents in Surge Pond sludge, and CITGO applied for a treatability
variance.
For a more detailed discussion of the regulatory and remediation
history at the CITGO Surge Pond see the preamble to the proposed rule
at 59 FR 44686 (August 20, 1994) and CITGO's application for a site-
specific treatability variance (available in the docket for today's
rulemaking).
D. Waste Description
The Surge Pond received untreated petroleum refining process water
and storm water runoff from the site for most of the site's history.
Under normal operation, the Surge Pond received sanitary oxidation pond
effluent, ballast water, storm water runoff from the refinery complex,
CPI separator effluent, and, potentially, controlled cooling tower
blowdown. The sludge at the bottom of the Surge Pond, therefore, is a
primary sludge generated by the settling of petroleum refining
wastewater and meets the definition of RCRA Hazardous Waste Codes F037
and F038. Sampling and analysis of the sludge was performed in 1993 as
part of a feasibility study conducted by CITGO for the purpose of
evaluating pond closure options, and again in February and March 1994
for this treatability variance petition. Concentrations of hazardous
constituents in the untreated sludge are summarized in Appendix 1.
This application involves approximately 375,000 tons of sludge
which remain in the surface impoundment. CITGO and its contractors have
in fact removed and treated over 500,000 tons of sludge up to June 30,
1994--the time the land disposal prohibition for F037 and F038 wastes
took effect.
E. Description of Proposed Treatment
Upon promulgation of this variance, CITGO will use an on-site
treatment system to recover oil from, and substantially reduce the
toxicity and mobility of, regulated hazardous constituents in the Surge
Pond sludge. This treatment system will consist of air sparging in
tanks to remove volatile organic constituents, followed by sludge
dewatering. Dewatered sludge will be mixed with lime or flyash to
stabilize metals and provide structural integrity. Stabilized sludge
will be sent for land disposal at Chemical Waste Management's Subtitle
C landfill in Carlyss, Louisiana. The liquid phase from the dewatering
units will be routed to tanks functioning as oil-water separators for
recovery of oil. The aqueous discharge (wastewater) from the separators
will be discharged back into the Surge Pond and from there through the
old wastewater treatment to the NPDES regulated outfall at the
Calcasieu river.
Air emissions from the treatment system will be routed to a vapor
control system, permitted by the State of Louisiana Department of
Environmental Quality, for removal of hydrogen sulfide and destruction
of the volatile organics. In addition the sludge treatment system will
have to be operated in accordance with air emission standards specified
by:
(1) 40 CFR Part 61--National Emission Standards for Hazardous Air
Pollutants (NESHAP), Subpart FF: National Emission Standard for Benzene
Waste Operations, Sec. 61.348 Standards: Treatment Processes. (This
regulation requires removal of benzene from the waste stream to a level
less than 10 parts per million by weight (ppmw) on a flow-weighted
annual average basis, and gives specifications for the design and
operation of the vapor control system);
(2) 40 CFR Parts 264 and 265--Standards for Owners and Operators of
Hazardous Waste Treatment, Storage and Disposal Facilities; Subpart
CC--Air Emission Standards for Tanks, Surface Impoundments, and
Containers (assuming that the volatile organic concentration at the
point of waste origination--that is, in the impoundment--exceeds the
trigger level specified in those rules, which appears to be the case).
(The Subpart CC rules require that tanks storing or treating hazardous
wastes to which the rule applies be equipped with covers and control
devices to capture and destroy volatile emissions or otherwise to
control emissions from the tanks to protective levels. See 40 CFR
264.1084
[[Page 55720]]
and 264.1091; and 265.1085 and 265.1091); and,
(3) Any additional requirements specified by the Louisiana
Department of Environmental Quality.
EPA believes that compliance with the Benzene NESHAP and (if
applicable) the subpart CC rules will ensure that the treatment unit
will operate in a protective manner and will not serve as a conduit for
cross-media transfer of volatile hazardous constituents (or, for that
matter, volatile constituents in general). Cf. Chemical Waste
Management v. EPA, 976 F. 2d at 17, 18.
Before the national capacity variance expired, CITGO treated
approximately 500,000 tons of Surge Pond sludge, using the treatment
strategy described above. Performance data from this treatment is
presented in Appendix 2. While the treatment system used previously has
been dismantled, EPA expects the new treatment system will be at least
as effective as the old system. According to CITGO's variance
application, the engineering for both the new and the old treatment
systems are identical.
F. Summary of Proposed Rule
CITGO submitted a site-specific treatability variance petition to
EPA on April 13, 1994, and submitted additional materials in response
to EPA's request. The petition requested that EPA establish alternate
LDR standards for F037 and F038 nonwastewaters generated by remediation
of the Surge Pond, thereby allowing CITGO to continue the Surge Pond
cleanup including land disposal of treated Surge Pond sludge.
As justification for the variance petition, CITGO stated that
combustion is not an appropriate technology for Surge Pond sludge
because:
(1) the tremendous quantity of wastes generated by this remediation
exceeds the annual excess capacity available nationwide for F037 and
F038 wastes;
(2) the metal content of this waste (4,084 ppm reported average) is
higher than that of typical F037 and F038 wastes; and,
(3) the hazards of transporting the waste long distances for
offsite incineration exceed the hazards of treating the waste onsite
and disposing the residuals in the subtitle C landfill in Carlyss,
seven miles from the site.1
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\1\ EPA notes that the Agency does not believe it necessary to
reach CITGO's comparative risk argument regarding risk posed by
sludge transport to off-site treatment. CITGO's other points are
discussed in the August 30, 1994 proposal, in this preamble, and in
the background documents for this rule.
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CITGO also claimed that cement kiln combustion is inappropriate for
this waste due to the low BTU content (less than 2,000 BTU/lb) of the
waste, and stated that, ``When compared with other treatment options,
the CITGO approach is clearly the safest for the environment and human
health.'' After careful evaluation of CITGO's petition, EPA proposed to
approve a treatability variance for the F037 and F038 nonwastewaters
generated by the remediation of the Surge Pond based on a finding that
application of the LDR treatment standards was not appropriate to
sludge generated by remediation of the CITGO Surge Pond. 59 FR 44684
(August 30, 1994).
II. Basis for Treatability Variance
A. EPA's Interpretation of When a Treatment Standard Is ``Not
Appropriate''
EPA's rules on treatability variances provide that EPA may approve
a variance ``[w]here the treatment standard is expressed as a
concentration in a waste . . . and a waste cannot be treated to the
specified level, or where the treatment technology is not appropriate
to the waste. . .'' 40 CFR 268.44(a) and (h) (emphasis added). Before
discussing the application of these rules to CITGO's specific
circumstance, there is a threshold issue regarding EPA's interpretation
of the clause in the treatability variance rule authorizing variances
``where the treatment technology is not appropriate to the waste.''
EPA's longstanding and consistent interpretation is that a
treatment standard based on the performance of BDAT can be
inappropriate where it leads to environmentally counterproductive
results, in particular, where it may impair environmental cleanups such
as closure or site remediation--the situation EPA finds is presented by
CITGO's application. Thus, in promulgating the National Contingency
Plan under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), EPA stated:
EPA's experience under CERCLA has been that treatment of large
quantities of soil and debris containing relatively low levels of
contamination using LDR ``best demonstrated available technology''
(BDAT) is often inappropriate. . . Experience with the CERCLA
program has shown that many sites will have large quantities--in
some cases, many thousands of cubic meters--of soils that are
contaminated with relatively low concentrations of hazardous wastes.
These soils often should be treated, but treatment with the types of
technologies that would meet the standard of BDAT may yield little
if any environmental benefit over other treatment based remedial
options. . . .Based on EPA's experience to date and the virtually
unanimous comments supporting this conclusion, EPA has determined
that. . .current BDAT standards are generally inappropriate or
unachievable for soil and debris from CERCLA response actions and
RCRA corrective actions and closures.
55 FR 8666, 8760 (March 8, 1990). In linking this discussion to the
language of the treatability variance rule, the Agency explained that:
``EPA's rules on treatability variances recognize that prohibited
wastes be treated by appropriate technologies. The rules thus state
that a petitioner may request a treatability variance `where the
treatment technology is not appropriate to the waste.' '' Id. at 8761.
The Agency likewise stated specifically in the same notice that ``EPA
does not interpret its site-specific variance procedures as invariably
requiring applicants to demonstrate that they cannot meet applicable
treatment levels or methods. The first sentence of Sec. 268.44(h) makes
it clear that an applicant may make one of two demonstrations to
qualify for a variance: he may show either that he cannot meet a
treatment standard, or that a treatment method (or the method
underlying the standard [)] is inappropriate for his waste.'' Id. at
8762 n. 22.
EPA reiterated this interpretation most recently in the proposed
Hazardous Waste Identification Rule for contaminated media. EPA there
stated that ``[i]n other cases, the generic treatment standard will be
inappropriate because use of an alternative treatment standard would
result in a net environmental benefit.'' 61 FR 18780, 18811 (April 29,
1996). See also 53 FR at 31200 (August 17, 1988) (``On a site-specific
basis, it may be possible to determine that BDAT treatment is
inappropriate for a particular waste stream. For example, incineration
of large volumes of contaminated soil under certain site-specific
conditions may be found to be inappropriate treatment.'')
Some commenters on the proposed CITGO treatability variance argued
that this language--that is, the ``not appropriate'' clause--only
applies where the treatment standard for the waste is a designated
method of treatment, and so does not apply where the treatment
standards are expressed as numerical values. EPA has never limited its
interpretation in this way, as just shown. Moreover, EPA's reading of
its own rules is entirely reasonable.
First, the language of the variance provision does not preclude
EPA's
[[Page 55721]]
reading, since the rule does not define the circumstances under which a
treatment technology may be inappropriate. Nor would it be reasonable
to read the clause as applying only to situations where the standard
requires use of a designated method of treatment, since the rules
already contain a separate provision authorizing petitions to use
alternative treatment methods upon a showing of equivalent performance.
40 CFR 268.42(b). In light of this separate provision, the ``not
appropriate'' clause in Secs. 268.44(a) and (h) would have little scope
unless interpreted to apply to all treatment standards.
Second, EPA's interpretation reflects a reasonable policy choice.
In the remediation context, site decision makers are often faced with
the choice of either capping or treating wastes in place (thereby
avoiding application of LDRs) or excavating and triggering BDAT
treatment standards. In such cases, the most cost effective choice is
often to leave waste in place if the only alternative is BDAT
treatment. 54 FR 15566, 15568 (October 10, 1989); 55 FR at 8760-62; 61
FR at 18812. This creates an incentive to favor remediation options
that minimize LDR applicability (e.g., by leaving waste in place), a
result obviously not contemplated by Congress in enacting the LDRs. 54
FR 41566-41569, October 10, 1989.
It is entirely rational to view as ``inappropriate'' imposition of
a treatment technology that results in (or reasonably could result in)
the environmentally detrimental result of no cleanup and no treatment.
Indeed, there is a legitimate question whether a technology whose use
results in foregoing other, substantial environmental benefits can be
considered to be a ``best'' technology. Portland Cement Association v.
Ruckelshaus, 486 F. 2d 375, 385-86 at n. 42 (D.C. Cir. 1973); Essex
Chemical Corp. v. Ruckelshaus, 486 F. 2d 427, 439 (D.C. Cir. 1973). See
also Chemical Waste Management v. EPA, 976 F. 2d 2, 16 (D.C. Cir.
1992), cert. denied 113 S.Ct. 1961 (1993) (treatment sufficient to
satisfy section 3004(m) need not be based on performance of best
demonstrated available technology); and, the legislative history of
section 3004(m), 130 Cong. Rec. S. 9178 (daily ed. July 25, 1984). (The
intent of 3004(m) is to require utilization of available technology in
lieu of continued land disposal without prior treatment, not that every
waste receive repetitive or ultimate treatment.)
B. Application of EPA's Interpretation of When a Treatment Standard Is
``Not Appropriate'' to CITGO
After considering the comments on the August 30, 1994 proposal, EPA
continues to find, as discussed in the proposal and in this preamble,
that it is not appropriate within the meaning of Secs. 268.44(a) and
(h) to require treatment of Surge Pond sludge to levels based on the
performance of combustion or solvent extraction technologies (the
technologies on which the LDR treatment standards for F037 and F038
nonwastewaters are based) and that a treatability variance is,
therefore, warranted. In CITGO's specific circumstance, EPA finds that
requiring use of BDAT technologies would delay and possibly preclude
removal of remaining sludge from the Surge Pond by encouraging CITGO to
pursue remedial options that would minimize LDR applicability. Debate
over these remedial alternatives would, at a minimum, further delay
completion of Surge Pond remediation and could result in some or all of
the remaining sludge being left in the Surge Pond with little or no
treatment.
Today's treatability variance will assure protective remediation of
the Surge Pond, that is, removal of Surge Pond sludge followed by
substantial treatment (including oil recovery) and secure disposal of
treated sludge in an off-site subtitle C facility. Id. at 44687. EPA
views this result as environmentally preferable to other remedial
options that CITGO could legally pursue (i.e., leaving the sludge in
the Surge Pond), given that debate over these options would, at a
minimum, significantly delay completion of Surge Pond remediation. Id.
EPA believes the benefits of assured Surge Pond remediation, that is,
removal of remaining sludge followed by substantial treatment
(including oil recovery) and secure disposal in an off-site subtitle C
facility (as proposed by CITGO and approved by the State of Louisiana
Department of Environmental Protection), are superior to applying the
treatment standard, because doing so would likely further delay sludge
removal and possibly result in some or all of the sludge remaining in
the Surge Pond untreated. Consequently, EPA is finding that requiring
treatment based on the performance of BDAT is not appropriate to F037
and F038 nonwastewaters generated by CITGO's Surge Pond remediation
because, in CITGO's specific circumstance, it would most likely result
in net environmental detriment.
EPA is also finding that under the circumstances presented here,
threats posed by land disposal of Surge Pond sludge--including current
and potential threats posed by sludge remaining in the Surge Pond--are
minimized (within the meaning of Sec. 3004(m)) by the combination of
removal of remaining sludge from the Surge Pond followed by substantial
treatment (including oil recovery) and secure disposal in an off-site
subtitle C facility.
In further support of these determinations, EPA notes:
(1) CITGO's remediation approach includes substantial treatment
which will reduce the toxicity and mobility of all regulated
constituents in the Surge Pond sludge and achieve treatment levels for
benzene (the most hazardous constituent in the waste based on
concentration, toxicity, and availability) and chromium, nickel, and
cyanide. There is no question that sludge generated by Surge Pond
remediation must be treated. The question is whether the Agency must
apply BDAT treatment requirements (risking, as discussed above,
delaying, if not precluding, assured Surge Pond remediation and
potentially resulting if some or all sludge remaining in the Surge Pond
untreated), or whether, in this specific case, alternative LDR
treatment standards can be approved.
(2) The CITGO remediation strategy, including removal of all
remaining sludge from the Surge Pond and the subsequent treatment, oil
recovery and secure off-site disposal, was approved by the Louisiana
Department of Environmental Quality as protective of human health and
the environment. The Louisiana Department of Environmental Quality is
authorized by EPA to administer the Federal RCRA program for closure of
hazardous waste management units--the situation at CITGO. While EPA
approval or concurrence is not typically required for individual
actions in authorized states, EPA staff in Region 6 monitor the
performance of authorized states, including Louisiana, and agree with
the remedial strategy at CITGO.
(3) The remediation of the CITGO Surge Pond, including sludge
treatment, was successfully on-going when it was interdicted by a new
land disposal prohibition and treatment standard. When sludge from
CITGO's Surge Pond became subject to the F037 and F038 LDR treatment
standards, the remediation had to be stopped because the on-site
treatment system could not meet the Treatment standards for all of the
regulated constituents. EPA believes it is appropriate, in this case,
to allow the state-approved remediation to
[[Page 55722]]
continue rather than to invest considerable resources in developing--
and probably litigating--a new remedial strategy for the Surge Pond.
EPA believes these resources are more properly directed at timely
completion of Surge Pond remediation, including assured removal and
substantial treatment of all remaining sludge.
(4) The variance applies only to sludge generated as a result of
Surge Pond remediation. Newly-generated F037 and F038 wastes thus have
to be treated in compliance with the existing treatment standards
before they can be land disposed. As EPA has repeatedly discussed,
treatability variances are often warranted for wastes generated in the
context of remediation.
(5) Remediation of the CITGO Surge Pond involves tremendous
volumes. CITGO estimates that 375,000 tons of sludge remain in the
Surge Pond. While, as clarified below, EPA is not approving today's
treatability variance based on insufficient treatment capacity, the
economies of scale associated with this volume of waste supports the
Agency's finding that, if BDAT treatment is required, CITGO will likely
pursue legal remedial options that minimize LDR applicability
(including leaving some or all of the sludge in the Surge Pond) and
further delay remediation.
C. Effect of This Variance on Other Remedial Actions
The decision to approve a treatability variance and alternative LDR
treatment standards for F037 and F038 nonwastewaters generated by
remediation of the CITGO Surge Pond is specific to CITGO's
circumstances and will not apply to any other sites or wastes.
Furthermore, EPA does not intend or view this action as creating an
incentive to avoid treatment of process wastes in remedial situations
by the mechanism of resisting remedial options that trigger LDRs unless
a treatability variance is approved. The facts at CITGO are unusual and
may not arise again. Specifically, this is a situation where an on-
going, successful, state-approved remediation was interdicted by a new
LDR prohibition. The remedial strategy includes removal of all sludge
from the Surge Pond followed by substantial treatment (including BDAT
treatment of the most hazardous constituent and three other hazardous
constituents), oil recovery, and secure disposal in an off-site
Subtitle C facility. Approving the treatability variance assures
completion of Surge Pond remediation including removal and substantial
treatment of all remaining Surge Pond sludge. Denying the variance may
lead to a prolonged debate on how to remediate the impoundment, and
could result in some or all sludge remaining in the Surge Pond
untreated.
III. Treatment Standards
A. Existing F037 and F038 Nonwastewater Treatment Standards
The listings for F037 and F038 were promulgated on November 2, 1990
(55 FR 46354) and amended May 13, 1991 (56 FR 21955). LDR treatment
standards for F037 and F038 nonwastewaters were promulgated on August
18, 1992, 57 FR at 37271, 37274. The F037 and F038 nonwastewater
treatment standards set total concentration limits for 14 hazardous
organic constituents based on the performance of combustion or solvent
extraction (determined to be BDAT), TCLP leachate concentration limits
for nickel and chromium based on stabilization (generally the BDAT
technology for metals), and, a total cyanide standard based on
combustion.
B. Alternative F037 and F038 Nonwastewater Standards Approved for Use
During Surge Pond Remediation at CITGO.
EPA is establishing alternative treatment standards for 14 of the
17 regulated F037 and F038 hazardous constituents. Alternative
treatment standards were not established for di-n-butyl phthalate, bis
(2-ethylhexyl) phthalate, and phenol, because these constituents were
not detected in samples of pond waste collected for the variance
petition. For benzene (the most hazardous constituent in this case) and
chromium, nickel, and cyanide, the alternative treatment standards are
identical to the existing treatment standards. For the other 10
regulated constituents, EPA calculated alternative standards based on
data from samples of waste treated by the Aran unit 2 of CITGO's
on-site sludge treatment system. In calculating these standards, EPA
omitted data points for samples that did not meet the 10 mg/kg limit
for benzene (CITGO's own measure of when the Aran unit was operating
properly). The Agency then multiplied the mean treated concentration
(from the 9 waste samples which met the benzene limit) by a variability
factor calculated as per the equation established by Final BDAT
Background Document for Quality Assurance/Quality Control Procedures
and Methodology, Appendix D. Treatment system performance data
submitted with CITGO's variance petition is summarized in Appendix 2
following this preamble. More information on the treatment system,
sampling and analysis procedures, and the calculation of alternative
standards is available in the Background Document for today's rule.
---------------------------------------------------------------------------
\2\ The Aran Unit is a sludge dewatering unit.
---------------------------------------------------------------------------
Since treated sludge from the CITGO Surge Pond remediation will
remain hazardous waste, it may only be land disposed in a Subtitle C
facility. The CITGO Alternative LDR Treatment Standards are summarized
in the table below.
CITGO Alternative LDR Treatment Standards
----------------------------------------------------------------------------------------------------------------
Concentration in mg/kg unless
Regulated hazardous constituent CAS No. noted as ``mg/l TCLP''
----------------------------------------------------------------------------------------------------------------
Anthracene..................................... 120-12-7................... 20
Benzene........................................ 71-43-2.................... 10*
Benz(a)anthracene.............................. 56-55-3.................... 19
Benzo(a)pyrene................................. 50-32-8.................... 19
Chrysene....................................... 218-01-9................... 29
Ethylbenzene................................... 100-41-4................... 39
Naphthalene.................................... 91-20-3.................... 120
Phenanthrene................................... 85-01-8.................... 120
Pyrene......................................... 129-00-0................... 39
Toluene........................................ 108-88-3................... 33
Xylenes-mixed isomers (sum of o-, m-, and p- 1330-20-7.................. 150
xylene concentrations).
[[Page 55723]]
Chromium (total)............................... 7440-47-3.................. 0.86 mg/l TCLP*
Cyanides (total)............................... 57-12-5.................... 590*
Nickel......................................... 7440-02-0.................. 5.0 mg/l TCLP*
----------------------------------------------------------------------------------------------------------------
* Standard is identical to UTS.
In order to ensure protection of human health and the environment,
EPA is also imposing standards on the operation of CITGO's treatment
system. First, the treatment system must be operated in accordance with
applicable air emission standards specified by: (A) 40 CFR Part 61--
National Emission Standards for Hazardous Air Pollutants (NESHAP),
Subpart FF: National Emission Standard for Benzene Waste Operations,
Sec. 61.348 Standards: Treatment Processes; (B) CFR Parts 264 and 265--
Standards for Owners and Operators of Hazardous Waste Treatment,
Storage and Disposal Facilities, Subpart CC--Air Emission Standards for
Tanks, Surface Impoundments, and Containers (if applicable); and, (C)
any additional requirements specified by the Louisiana Department of
Environmental Quality (LDEQ).
Second, the treatability variance will be valid for 24 months only,
commencing at the date the Surge Pond closure plan is approved by the
Louisiana Department of Environmental Protection. CITGO may petition
for additional time if unforeseen delays occur, provided they can
demonstrate a good faith effort to complete the Surge Pond remediation,
including sludge treatment, within the original specified time frames.
IV. Public Comments and EPA Responses
The issues raised by comments to the proposed rule which affected
the final decision to approve this variance and the variance conditions
and EPA's responses to these issues, are presented below. Please also
refer to the Response to Comments and Background Documents for this
rulemaking, available at the RCRA Docket, for presentation of
additional issues and EPA responses.
Issue 1: One commenter stated that the proposed variance violates
the requirement of Sec. 268.44(a) that the ``petitioner must
demonstrate that the waste cannot be treated to specified levels or by
specified methods due to the chemical or physical properties of the
waste.''
EPA Response: As discussed above, EPA has decided to approve this
treatability variance because the treatment technologies upon which the
F037 and F038 treatment standards are based are ``not appropriate to
the waste.'' This condition is sufficient to make waste eligible for a
treatability variance under 40 CFR 268.44(a) and (h).
Issue 2: One commenter doubted whether CITGO would seek to leave
remaining sludge in the Surge Pond even if a treatability variance were
denied and stated that, in any case, EPA should use its closure and
corrective action authorities to require sludge removal and treatment
to promulgated treatment standards.
EPA Response: EPA continues to believe that, if the costly BDAT
treatment standard is imposed, CITGO will likely pursue legal remedial
options that minimize LDR applicability due to their understandable
desire to pursue a cost-effective strategy for Surge Pond remediation
considering the enormous volume of waste involved. This is consistent
with EPA's experience in implementing remedial programs such as CERCLA
and RCRA Corrective Action and with information submitted by CITGO.
Debate over this issue will undoubtably delay, if not preclude, removal
and substantial treatment of the remaining sludge in the Surge Pond.
For that reason, EPA has found that application of BDAT to CITGO's
specific circumstance is inappropriate. 61 FR at 18812; 55 FR at 8760-
8762.
In further support of this finding, EPA notes that the standards
for closure of a surface impoundment under 40 CFR 265.111(b) and
265.228 do not necessarily require removal of all waste. Similarly, the
requirements for corrective action do not necessarily require the
removal and treatment of Surge Pond sludge if other remedial options
were found to be consistent with Agency guidance and protective of
human health and the environment. See RCRA sections 3004(u) and
3004(v); 40 CFR 264.101. CITGO retains the option under Sec. 265.228 of
not resuming the sludge removal operation and closing the impoundment
with the waste in place, provided they can satisfy the requirements for
post-closure care for a landfill under Subpart G (Sec. 265.111) and
Sec. 265.310. Public comments submitted by CITGO confirm that the
company is considering this option seriously, and will likely pursue it
if this variance is denied. The technical standards for closure in
place require removal of free liquids, stabilization of wastes in order
to support a final cover over the unit, and prevention of infiltration
of liquids during the post-closure care period, as well as minimization
of releases from the unit during the post-closure period to the extent
necessary to protect human health and the environment. See generally 40
CFR 265.228 and 265.111(b).
Approval of an in-place closure or a given corrective action remedy
depends on many site-specific factors. At this stage, it is not clear
to EPA that leaving the sludge in the Surge Pond at CITGO is a
technically feasible alternative, due in particular to the volume of
standing water in the impoundment, plus the fact that the water table
at the site is high and so may infiltrate into the unit. Nevertheless,
EPA cannot now rule out the possibility that leaving some or all of the
untreated sludge in the Surge Pond could be allowed through some
combination of draining all liquids, using chemical treatment to
stabilize sludge so that a cap could be supported, and building some
type of below-ground barrier to prevent infiltration. CITGO has
established their intention to pursue leaving the untreated sludge in
the Surge Pond if their only other option for treatment of Surge Pond
sludge is BDAT (i.e., if this variance is not approved). In support of
this strategy, CITGO has submitted soil survey results which indicate
the presence of a clay layer beneath the impoundment which could
possibly serve as the foundation for such a barrier; the barrier would
be completed by constructing vertical slurry walls to connect to this
clay layer.
It is clear to EPA that a debate over remedial options that
minimize LDR applicability to Surge Pond sludge would be contested and
protracted and would, at the least, significantly delay Surge Pond
remediation leaving 375,000
[[Page 55724]]
tons of sludge in place in an unlined impoundment. While, as set out at
40 CFR 265.112(d)(4), EPA (or, as in this case, the authorized State
administering the program) retains the right to disapprove a submitted
closure plan, review possible modifications, and ultimately to modify
any submitted plan to be consistent with substantive standards for
closure, a company could contest any such determination necessitating
enforcement by the Agency with ultimate, protracted judicial
resolution. EPA estimates that at CITGO this process would take years.
During that time, there could be multimedia releases from the
impoundment (although the corrective action rules and orders would
mitigate the extent of any such releases), plus an uncertain prospect
of ever forcing sludge removal. EPA believes that, in CITGO's specific
circumstance, it is appropriate to avoid such a debate and, instead,
direct resources at timely completion of Surge Pond remediation, given
that the proposed remedial alternative is protective of human health
and the environment and involves the environmentally desirable result
of removal of all remaining sludge from the Surge Pond followed by
substantial treatment (including oil recovery) and secure disposal in
an off-site Subtitle C facility.
Issue 3.: One commenter stated that EPA's claim that incineration
is not ``appropriate'' due to the tremendous volume of the waste
directly contradicts previous EPA statements that treatability
variances will not be approved on the basis of insufficient capacity.
EPA Response: EPA clarifies that today's variance is not being
approved on the basis of insufficient treatment capacity.3 The
commenter correctly states that EPA said in the Federal Register notice
establishing the treatability variance process (51 FR at 40606,
November 7, 1986) that treatability variances may not be approved on
the basis of capacity since other rules already provide for capacity
variances. EPA is approving this variance on the basis that requiring
treatment based on the performance of BDAT is, in CITGO's specific
circumstance, inappropriate because it would likely result in a net
environmental detriment (i.e, further delay of Surge Pond remediation).
Although today's variance is not being approved based on insufficient
treatment capacity, EPA notes that the cost of treating such a huge
quantity of waste to BDAT standards could be prohibitive, thus
compelling CITGO to seek cost-effective alternatives to BDAT treatment
(i.e, combustion or solvent extraction). This observation supports
EPA's finding that denying the variance will, at the least, further
delay Surge Pond remediation.
---------------------------------------------------------------------------
\3\ EPA thus disagrees with CITGO that the volume of waste
alone is justification for approval of a variance.
---------------------------------------------------------------------------
Issue 4.: One commenter stated that, ``CITGO acknowledges its
treatment system design was never intended to remove all 17 regulated
hazardous constituents. By virtue of this admission alone, the proposed
variance violates Section 3004(m) of RCRA. Chemical Waste Management v.
EPA , supra, where the Court held that Section 3004(m) of RCRA requires
that the threat posed by all hazardous constituents in a waste be
minimized prior to land disposal.''
EPA Response: EPA's interpretation of ``minimize threats'' does not
necessarily require BDAT treatment of all regulated constituents in
every prohibited waste. As EPA stated in the Craftsman/Northwestern
treatability variance, ``The language of Sec. 3004(m) allows EPA
latitude in determining what treatment minimizes waste toxicity and
mobility. It does not mandate a technology-forcing approach. The
legislative history likewise indicates that Congress did not
necessarily envision technology-forcing Sec. 3004(m) treatment
standards. Rather, such standards were intended to force use of
generally available effective types of treatment.'' (56 FR at 12355,
March 25, 1991; see also 55 FR 6640-6643 (February 26, 1990); 61 FR at
18018 (April 29, 1996).) Moreover, the very opinion cited by the
commenter makes clear that BDAT treatment is not compelled to meet a
treatment standard (976 F. 2d at 15-16).
The CITGO treatment system was designed primarily to treat volatile
organics (with a focus on benzene) and stabilize metals. The system
achieves BDAT treatment levels for benzene and substantially treats the
other volatile constituents (toluene, xylene, and ethylbenzene). While
it might be possible to achieve additional reductions in concentrations
of the other volatile constituents (toluene, xylene, and ethylbenzene)
by engineering modifications to the air sparging tanks or increasing
the treatment residence time, EPA believes that requiring additional
treatment for these relatively low-risk constituents could seriously
delay the completion of Surge Pond remediation and could (through this
delay) result in greater emissions of more toxic constituents from the
pond to the air.
Although the proposed treatment system was not designed for
semivolatile organics (e.g. anthracene, chrysene), data from CITGO's
variance petition shows that the treatment system does yield reductions
in concentrations of these constituents. In addition, the semivolatile
constituents which remain in the treated sludge will be much less
mobile after the waste is solidified and will be further safeguarded by
disposal in an off-site subtitle C landfill. The treatment system
achieves treatment levels for the chromium, cyanides, and nickel.
It is EPA's judgment that requiring BDAT treatment of sludge
generated by remediation of the CITGO Surge Pond would likely result in
a net environmental detriment by, at least, substantially delaying
Surge Pond remediation and potentially resulting in some or all of the
sludge remaining in the Surge Pond untreated. It is the Agency's view
that the combination of assured sludge removal, followed by treatment
to substantially reduce toxicity and mobility of the regulated
constituents plus oil recovery, and disposal of the treated sludge in
an off-site subtitle C facility adequately minimizes threats posed by
land disposal of the waste under these circumstances. Although this
treatment strategy does not represent BDAT as promulgated for F037 and
F038 nonwastewaters, it ``substantially diminish[es] the toxicity of
the waste'' and ``substantially reduce[s] the likelihood of migration
of hazardous constituents from the waste'' as required by Section
3004(m).
Issue 5.: One commenter stated that, ``Even the inadequate
treatment contemplated by CITGO is not accompanied by binding
requirements to ensure achievement of that level of efficiency. The
lack of proposed treatment standards for most of the regulated
constituents violates the minimize threat mandate of RCRA.''
EPA Response: EPA has reconsidered this issue and has decided to
establish binding alternative treatment standards for all F037 and F038
regulated constituents that were detected in the Surge Pond sludge, as
discussed above.
Issue 6.: One commenter suggested imposing a time limit on the
treatability variance to ensure the work is done in a timely manner to
protect human health and the environment. The commenter suggested an 18
month time limit from the date CITGO awarded the Surge Pond sludge
treatment contract. Another commenter opposed the imposition of a time
limit, stating that, ``it is not possible to predict with accuracy the
time required for
[[Page 55725]]
completion of closure. It is thus not appropriate to establish an
expiration date for the variance, nor is such contemplated under EPA's
rules.''
EPA Response: EPA has decided to impose a time limit for this
treatability variance, as discussed above. First, the Agency disagrees
that it is without power to impose a time condition on the variance.
There is nothing in the treatability variance rule, or in RCRA
generally, which so restricts EPA's authority. Control of timing here
is necessary to assure that the expected environmental benefits, which
are the reason for approving the petition, actually accrue. Allowing
CITGO unlimited time to complete the remediation would contradict EPA's
assertion that it is approving this variance, in part, to ensure that
Surge Pond remediation, including sludge removal and treatment, are
completed as soon as possible.
EPA considered a time limit of 18 months from the date CITGO awards
the sludge treatment contract as suggested by one commenter; however,
discussions with CITGO lead the Agency to believe that this limit may
not be practical. CITGO has stated in its public comments that prior to
resuming sludge removal and treatment operation, it will have to
prepare a bid package, review bids, reconstruct the treatment system,
and obtain renewed approval for air emissions from the State. CITGO
also indicated that one of their main concerns with the proposed time
limit was the uncertainty posed by the time required to obtain final
approval of the pond closure plan by the State, and that this concern
would be lessened by linking the time limit to final approval of the
closure plan. In conversations with the Agency, CITGO estimated that
two years would be required to complete the pond remediation.
EPA has decided to establish a 24 month time limit for this
treatability variance, calculated from the date the Surge Pond closure
plan is approved by the Louisiana Department of Environmental
Protection. The Agency believes it is reasonable to allow the effective
period of this variance to begin with the closure plan approval. In
addition, allowing 24 months for the completion of the remediation is
consistent with EPA practice of allowing 18 to 24 months for the
development and optimization of treatment capacity between the
promulgation and the effective date of new LDR rules.
EPA recognizes that unforeseen circumstances, such as accidents,
equipment malfunctions, or natural disasters, may prevent CITGO from
completing this remediation within the established time limit. Under
such extenuating circumstances, the Agency would not want the time
limit to act as a disincentive to the completion of the sludge removal
and treatment operation. Therefore, CITGO may petition for additional
time if such unforeseen delays occur, provided they can demonstrate a
good faith effort to complete the remediation. (The fact that the
company has already removed and treated 500,000 tons of the sludge
provides an objective track record to support the Agency's belief that
the company will promptly act to complete its remediation efforts and
clean close the impoundment.)
V. Analysis Under Executive Order 12866, the Unfunded Mandates
Reform Act of 1995, the Regulatory Flexibility Act, and the
Paperwork Reduction Act
This treatability variance does not create any new regulatory
requirements. It merely establishes alternative treatment standards for
specific wastes which replace standards already in effect. This rule
is, therefore, not a ``significant'' regulatory action within the
meaning of Executive Order 12866.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector, and does not impose any Federal
mandate on State, local, or tribal governments or the private sector
within the meaning of the Unfunded Mandates Reform Act of 1995. This
final rule does not create new regulatory requirements; rather, it
merely establishes alternative treatment standards for specific wastes
which replace standards already in effect. EPA has determined that this
rule does not contain a Federal mandate that may result in expenditures
of $100 million or more for State, local, and tribal governments, in
the aggregate, or the private sector in any one year. Thus, today's
rule is not subject to the requirements of sections 202 and 205 of the
UMRA. For the same reasons, EPA has determined that this rule contains
no regulatory requirements that might significantly or uniquely affect
small governments.
This treatability variance does not create any new regulatory
requirements. It merely establishes alternative treatment standards for
a specific waste which replace standards already in effect, and it
applies to only to the CITGO Lake Charles, Louisiana site. Thus, this
rule would not have a significant impact on a substantial number of
small entities. Therefore, EPA provides the following certification
under the Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act: Pursuant to the provision at 5
U.S.C. 605(b), I hereby certify that this final rule will not have a
significant economic impact on a substantial number of small entities.
It does not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
Finally, because this treatability variance only changes the
treatment standards applicable to F037 and F038 nonwastewaters at the
CITGO Lake Charles, Louisiana site, and does not change in any way the
paperwork requirements already applicable to these wastes, it does not
affect requirements under the Paperwork Reduction Act.
[[Page 55726]]
VI. Submission to Congress and the General Accounting Office
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) provides, with limited exceptions, that no rule promulgated on
or after March 29, 1996 may take effect until it is submitted to
Congress and the Comptroller General along with specified supporting
documentation. However, this requirement does not apply to ``any rule
of particular applicability. . . .''. 5 U.S.C. 804(3). The present
rule is of particular applicability, applying only to a particular
waste at one facility under particular (and, as noted, exceptional)
circumstances. Consequently, the Congressional review provisions of
SBREFA are not applicable and the rule can take effect without
submittal to Congress. (This is not to say that this rule will be
immediately effective. As explained above in this preamble, the
treatability variance will be valid for 24 months, commencing at the
date the Surge Pond closure plan is approved by the Louisiana
Department of Environmental Protection.)
Appendix 1.--Summary of Surge Pond Waste Characterization Data Untreated F 037 and F 038
----------------------------------------------------------------------------------------------------------------
1993 Feasibility Study February 1994 Variance Petition, March
------------------------------------------------------ 1994
-------------------------
Average Range Average Range Average Range
----------------------------------------------------------------------------------------------------------------
VOLATILE ORGANICS
Benzene......................... 66.9 3.9-190 2.06 1.4-3.3 26.8 6.1-54
Ethylbenzene.................... 135.0 32-00 15.6 12.8-18.1 37.4 28.6-57
Toluene......................... 182.3 ND-490 15.0 12.2-19.9 56.1 7.0-126
Xylene.......................... 438.0 14-930 75.7 59.5-85.1 154 67-371
SEMIVOLATILE ORGANICS
Anthracene...................... 33.0 7-65 < 4.5="">< 4.5="" 23.4="" 4.2-45="" benzo(a)anthracene..............="" 44.9="" 7.1-160="" nd="" nd="" 17.0="" 6.3-28="" benzo(a)pyrene..................="" 34.4="" 6-120="" 4.3="" 3.85-4.6="" 9.4="" nd-22="" bis(2-ethylhexyl)="" phthalate.....="" nd="" nd="" nd="" nd="" nd="" nd="" chrysene........................="" 73.9="" 16-220="" 2.5="" nd-4.2="" 29.4="" 9.3-47="" di-n-butyl="" phthalate............="" nd="" nd="" nd="" nd="" nd="" nd="" naphthalene.....................="" 280.0="" 75-490="" 63.5="" 60.2-69.2="" 103="" 36-148="" phenanthrene....................="" 308.3="" 71-550="" 74.8="" 70.4-80.5="" 123="" 50-192="" phenol..........................="" 32.0="" nd-46="" nd="" nd="" nd="" nd="" pyrene..........................="" 94.2="" 18-200="">< 3.8="">< 3.8="" 42.7="" 13-67="" inorganics="" cyanide.........................="" na="" na=""><1><1 10.1=""><1-34 chromium........................="" 1085.0="" 268-2330="">< 0.05="" tc="">< 0.05="" tc="" 3.1="" tc=""><0.05--9.7 nickel..........................="" 75.0="" 34.8-229="">< 0.05="" tc="">< 0.05="" tc="" 0.12="" tc="" 0.06-0.19="" ----------------------------------------------------------------------------------------------------------------="" appendix="" 2.--="" summary="" of="" performance="" data,="" citgo="" treatment="" system="" [success="" treated="" avg="Average" excluding="" data="" points="" which="" failed="" to="" meet="" 10="" mg/kg="" benzene="" baseline="" limit]="" --------------------------------------------------------------------------------------------------------------------------------------------------------="" day="" 1="" day="" 2="" day="" 3="" day="" 4="" 4="" day="" average="" ------------------------------------------------------------------------------------------="" all="" concentrations="" in="" mg/kg="" except="" *mg/l="" success="" alt="" std="" uts="" tclp="" pond="" treated="" pond="" treated="" pond="" treated="" pond="" treated="" pond="" treated="" avg="" avg="" \1\="" avg="" avg="" \2\="" avg="" avg="" avg="" avg="" avg="" avg="" --------------------------------------------------------------------------------------------------------------------------------------------------------="" benzene....................................="" 47.5="" 14.0="" 28.55="" 10.9="" 6.9="" 5.9="" 24.4="" 4.6="" 26.8="" 5.7="" 10="" 10="" ethylbenzene...............................="" 42.75="" 32.85="" 33.1="" 26.4="" 32.05="" 29.5="" 41.5="" 19.2="" 37.4="" 24.5="" 39="" 10="" toluene....................................="" 117="" 58.6="" 40.3="" 35.2="" 10.8="" 25.4="" 67.6="" 24.5="" 56.1="" 25.6="" 33="" 10="" xylene.....................................="" 174.75="" 160.75="" 121.8="" 97.7="" 110="" 127="" 212="" 110="" 154.4="" 119="" 150="" 30="" anthracene.................................="" 30.35="" 15.3="" 25.1="" 21.5="" 9.0="" 12.0="" 29.0="" 9.9="" 23.4="" 11.9="" 20="" 3.4="" benzo(a)anthracene.........................="" 17.1="" 11.35="" 18.2="" 17.1="" 13.3="" 13.6="" 19.5="" 14.9="" 17.0="" 14.2="" 19="" 3.4="" benzo(a)pyrene.............................="" 0="" 0="" 12.7="" 11.5="" 8.5="" 8.9="" 16.4="" 7.1="" 9.4="" 8.3="" 19="" 3.4="" chrysene...................................="" 32.2="" 18.8="" 33.9="" 27.1="" 18.3="" 22.8="" 33.0="" 20.65="" 29.4="" 22.1="" 29="" 3.4="" naphthalene................................="" 131.5="" 85.5="" 85.3="" 87.6="" 87.25="" 88.05="" 108.6="" 51.8="" 103.2="" 70.9="" 120="" 5.6="" phenanthrene...............................="" 168="" 96.4="" 119.3="" 113="" 74.8="" 92.95="" 130.25="" 82.9="" 123.1="" 90.1="" 120="" 5.6="" pyrene.....................................="" 57.5="" 26.8="" 44.8="" 39.0="" 21.35="" 25.9="" 47.2="" 28.0="" 42.7="" 28.3="" 39="" 8.2="" cyanide....................................="" 11.1="" 1.45="" 4.1="" 1.0="" 17.25="" 1.0="" 8.0="" 0.73="" 10.1="" 1.0="" 590="" 590="" chromium="" *.................................="" 8.0="" 0.05="" 0.9="" 0.05="" 0.08="" 0.06="" 3.4="" 0.02="" 3.1="" 0.04="" 0.86="" 0.86="" nickel="" *...................................="" 0.13="" 0.05="" 0.14="" 0.05="" 0.1="" 0.05="" 0.12="" 0.00="" 0.12="" 0.04="" 5.0="" 5.0="" --------------------------------------------------------------------------------------------------------------------------------------------------------="" \1\="" all="" samples="" failed="" to="" meet="" 10="" mg/kg="" limit="" for="" benzene="" on="" day="" 1,="" were="" omitted="" from="" standard="" calculation.="" \2\="" 3="" of="" 4="" samples="" failed="" to="" meet="" 10="" mg/kg="" limit="" for="" benzene="" on="" day="" 2,="" were="" omitted="" from="" standard="" calculation.="" appendix="" 3.--calculation="" of="" treatment="" standards="" ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------="" benz(a)="" benzo(a)="" ethylbenzene="" toluene="" xylene="" anthracene="" anthracene="" pyrene="" chrysene="" naphthalene="" phenanthrene="" pyrene="" ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------="" sample="" 2-2.........................................................="" 25.7="" 31="" 122="" 19.5="" 13.8="" 11.0="" 25.1="" 84.6="" 107="" 38.7="" sample="" 3-1.........................................................="" 29.6="" 24.2="" 117="" 14.3="" 14.0="" 12.5="" 26.2="" 50.2="" 103="" 28.3="" [[page="" 55727]]="" sample="" 3-2.........................................................="" 30.7="" 28.1="" 147="" 11.7="" 11.9="" 6.4="" 20.2="" 49.9="" 87.8="" 24.8="" sample="" 3-3.........................................................="" 31.1="" 26.1="" 129="" 11.0="" 14.3="" 8.3="" 22.5="" 51.9="" 92.7="" 25.3="" sample="" 3-4.........................................................="" 26.5="" 23.2="" 114="" 11.0="" 14.3="" 8.3="" 22.5="" 55.1="" 88.3="" 25.3="" sample="" 4-1.........................................................="" 20.0="" 27.0="" 115="" 10.5="" 13.4="" 9.5="" 21.6="" 96.7="" 85.6="" 31.7="" sample="" 4-2.........................................................="" 18.0="" 21.0="" 103="" 8.69="" 18.4="" 4.2="" 18.9="" 75.7="" 79.6="" 26.3="" sample="" 4-3.........................................................="" 20.0="" 24.0="" 115="" 9.16="" 14.1="" 4.0="" 18.4="" 86.0="" 71.6="" 24.6="" sample="" 4-4.........................................................="" 19.0="" 26.0="" 108="" 11.4="" 13.7="" 10.6="" 23.7="" 83.5="" 95.0="" 29.4="" mean...............................................................="" 24.5="" 25.6="" 119="" 11.9="" 14.2="" 8.31="" 22.1="" 70.4="" 90.1="" 28.3="" var="" factor.........................................................="" 1.59="" 1.28="" 1.25="" 1.65="" 1.28="" 2.30="" 1.30="" 1.75="" 1.30="" 1.37="" ----------------------------------------------------------------------------------------------------------------------------="" treatment="" standard...............................................="" 39="" 33="" 150="" 20="" 19="" 19="" 29="" 120="" 120="" 39="" ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------="" list="" of="" subjects="" in="" 40="" cfr="" part="" 268="" environmental="" protection,="" hazardous="" waste,="" reporting="" and="" recordkeeping="" requirements.="" dated:="" october="" 22,="" 1996.="" michael="" shapiro,="" director,="" office="" of="" solid="" waste.="" for="" the="" reasons="" set="" out="" in="" the="" preamble,="" title="" 40,="" chapter="" i,="" of="" the="" code="" of="" federal="" regulations="" is="" amended="" as="" follows:="" part="" 268--land="" disposal="" restrictions="" 1.="" the="" authority="" citation="" for="" part="" 268="" continues="" to="" read="" as="" follows:="" authority:="" 42="" u.s.c.="" 6905,="" 6912(a),="" 6921,="" and="" 6924.="" 2.="" section="" 268.44="" is="" amended="" by="" adding="" paragraph="" (p)="" to="" read="" as="" follows:="" sec.="" 268.44="" variance="" from="" a="" treatment="" standard.="" *="" *="" *="" *="" *="" (p)="" f037="" and="" f038="" wastes="" generated="" by="" the="" closure="" of="" the="" surge="" pond="" at="" the="" citgo="" petroleum="" lake="" charles="" refinery="" site="" are="" excluded="" from="" the="" treatment="" standards="" under="" sec.="" 268.40="" table--treatment="" standards="" for="" hazardous="" wastes,="" and="" are="" subject="" to="" the="" following="" conditions:="" (1)="" the="" hazardous="" constituents="" in="" the="" treated="" sludge="" (or="" in="" the="" tclp="" extract="" of="" the="" treated="" sludge="" where="" indicated)="" must="" be="" at="" or="" below="" the="" concentration="" values="" indicated="" in="" the="" following="" table:="" citgo="" alternative="" ldr="" treatment="" standards="" ----------------------------------------------------------------------------------------------------------------="" concentration="" in="" mg/kg="" unless="" regulated="" hazardous="" constituent="" cas="" no.="" noted="" as="" ``mg/l="" tclp''="" ----------------------------------------------------------------------------------------------------------------="" anthracene.....................................="" 120-12-7...................="" 20="" benzene........................................="" 71-43-2....................="" 10="" benz(a)anthracene..............................="" 56-55-3....................="" 19="" benzo(a)pyrene.................................="" 50-32-8....................="" 19="" chrysene.......................................="" 218-01-9...................="" 29="" ethylbenzene...................................="" 100-41-4...................="" 39="" naphthalene....................................="" 91-20-3....................="" 120="" phenanthrene...................................="" 85-01-8....................="" 120="" pyrene.........................................="" 129-00-0...................="" 39="" toluene........................................="" 108-88-3...................="" 33="" xylenes-mixed="" isomers="" (sum="" of="" o-,="" m-,="" and="" p-="" 1330-20-7..................="" 150="" xylene="" concentrations).="" chromium="" (total)...............................="" 7440-47-3..................="" 0.86="" mg/l="" tclp="" cyanides="" (total)...............................="" 57-12-5....................="" 590="" nickel.........................................="" 7440-02-0..................="" 5.0="" mg/l="" tclp="" ----------------------------------------------------------------------------------------------------------------="" note:="" all="" standards="" for="" nonwastewaters="" are="" based="" on="" analysis="" of="" grab="" samples.="" (2)="" the="" proposed="" sludge="" treatment="" system="" must="" be="" operated="" in="" accordance="" with="" applicable="" air="" emission="" standards="" specified="" by:="" (i)="" 40="" cfr="" part="" 61--national="" emission="" standards="" for="" hazardous="" air="" pollutants="" (neshap),="" subpart="" ff:="" national="" emission="" standard="" for="" benzene="" waste="" operations,="" sec.="" 61.348="" standards:="" treatment="" processes;="" (ii)="" 40="" cfr="" parts="" 264="" and="" 265--standards="" for="" owners="" and="" operators="" of="" hazardous="" waste="" treatment,="" storage="" and="" disposal="" facilities,="" subpart="" cc--air="" emission="" standards="" for="" tanks,="" surface="" impoundments,="" and="" containers="" (if="" applicable);="" and="" (iii)="" any="" additional="" requirements="" specified="" by="" the="" louisiana="" department="" of="" environmental="" quality="" (ldeq).="" (3)="" this="" treatability="" variance="" will="" be="" valid="" for="" a="" period="" of="" 24="" months,="" commencing="" on="" the="" date="" the="" surge="" pond="" closure="" plan="" is="" approved="" by="" the="" state="" director.="" citgo="" may="" petition="" for="" additional="" time="" if="" unforeseen="" delays="" occur,="" provided="" they="" can="" demonstrate="" a="" good="" faith="" effort="" to="" complete="" the="" remediation.="" [fr="" doc.="" 96-27695="" filed="" 10-25-96;="" 8:45="" am]="" billing="" code="" 6560-50-p="">