[Federal Register Volume 61, Number 98 (Monday, May 20, 1996)]
[Proposed Rules]
[Pages 25175-25183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12607]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-5507-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule and request for comment.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant a
[[Page 25176]]
petition to Giant Refining Company (Giant) to exclude (or ``delist''),
on a one-time basis, certain solid wastes generated at its facility
from the lists of hazardous wastes contained in 40 CFR 261.31 and
261.32 (hereinafter all sectional references are to 40 CFR unless
otherwise indicated). This action responds to a delisting petition
originally submitted by the Bloomfield Refining Company, Inc.
(Bloomfield), in Bloomfield, New Mexico. Bloomfield was purchased by
Giant on October 4, 1995. Giant has advised the Agency that it wishes
to proceed with the petition for delisting submitted by Bloomfield.
This petition was submitted under 40 CFR 260.20, which allows any
person to petition the Administrator to modify or revoke any provision
of 40 CFR parts 260 through 266, 268 and 273, and under 40 CFR 260.22,
which specifically provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator specific'' basis from
the hazardous waste lists. This proposed decision is based on an
evaluation of waste-specific information provided by the petitioner. If
this proposed decision is finalized, the petitioned waste will be
conditionally excluded from the requirements of hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA).
The EPA is also proposing the use of a fate and transport model
(the EPA Composite Model for Landfills (EPACML)) to evaluate the
potential impact of the petitioned waste on human health and the
environment, based on the waste-specific information provided by the
petitioner. This model has been used in evaluating the petition to
predict the concentration of hazardous constituents that may be
released from the petitioned waste, once it is disposed.
DATES: The EPA is requesting public comments on this proposed decision
and on the applicability of the fate and transport model used to
evaluate the petition. Comments will be accepted until July 5, 1996.
Comments postmarked after the close of the comment period will be
stamped ``late.''
Any person may request a hearing on this proposed decision by
filing a request with Jane N. Saginaw, Regional Administrator, whose
address appears below, by June 4, 1996. The request must contain the
information prescribed in 40 CFR 260.20(d).
ADDRESSES: Send three copies of your comments. Two copies should be
sent to William Gallagher, Delisting Program, Multimedia Planning and
Permitting Division (6PD-O), Environmental Protection Agency, Region 6,
1445 Ross Avenue, Dallas, Texas 75202. A third copy should be sent to
the New Mexico Environment Department, Hazardous and Radioactive
Materials Bureau, 1190 St. Francis Drive, Sante Fe, New Mexico 87502.
Identify your comments at the top with this regulatory docket number:
``F-96-NMDEL-GIANT.''
Requests for a hearing should be addressed to the Regional
Administrator, Region 6, Environmental Protection Agency, 1445 Ross
Avenue, Dallas, Texas 75202.
The RCRA regulatory docket for this proposed rule is located at the
Region 6, Environmental Protection Agency, 1445 Ross Avenue, Dallas,
Texas 75202 and is available for viewing in the EPA library on the 12th
floor from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding
Federal holidays. Call (214) 665-6444 for appointments. The docket may
also be viewed at the New Mexico Environment Department, 1190 St.
Francis Drive, Sante Fe, New Mexico 87502. The public may copy material
from any regulatory docket at no cost for the first 100 pages, and at
$0.15 per page for additional copies.
FOR FURTHER INFORMATION, CONTACT: For technical information concerning
this notice, contact Michelle Peace, Delisting Program (6PD-O), Region
6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas
75202, (214) 665-7430.
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority
On January 16, 1981, as part of its final and interim final
regulations implementing Section 3001 of RCRA, the EPA published an
amended list of hazardous wastes from non-specific and specific
sources. This list has been amended several times, and is published in
Sec. 261.31 and Sec. 261.32. These wastes are listed as hazardous
because they typically and frequently exhibit one or more of the
characteristics of hazardous wastes identified in Subpart C of Part 261
(i.e., ignitability, corrosivity, reactivity, and toxicity) or meet the
criteria for listing contained in Sec. 261.11 (a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, Sec. 260.20 and Sec. 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating facility should not be
regulated as a hazardous waste.
To have their wastes excluded, petitioners must show that wastes
generated at their facilities do not meet any of the criteria for which
the wastes were listed. See Sec. 260.22(a) and the background documents
for the listed wastes. In addition, the Hazardous and Solid Waste
Amendments (HSWA) of 1984 require the Agency to consider any factors
(including additional constituents) other than those for which the
waste was listed, if there is a reasonable basis to believe that such
additional factors could cause the waste to be hazardous. Accordingly,
a petitioner also must demonstrate that the waste does not exhibit any
of the hazardous waste characteristics (i.e., ignitability, reactivity,
corrosivity, and toxicity), and must present sufficient information for
the Agency to determine whether the waste contains any other toxicants
at hazardous levels. See Sec. 260.22(a), 42 U.S.C. Sec. 6921(f), and
the background documents for the listed wastes. Although wastes which
are ``delisted'' (i.e., excluded) have been evaluated to determine
whether or not they exhibit any of the characteristics of hazardous
waste, generators remain obligated under RCRA to determine whether or
not their waste remains non-hazardous based on the hazardous waste
characteristics.
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See Secs. 261.3 (a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of Columbia vacated the ``mixture/derived
from'' rules and remanded them to the Agency on procedural grounds. See
Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992,
EPA reinstated the mixture and derived-from rules, and solicited
comments on other ways to regulate waste mixtures and residues (57
Federal Register (FR) 7628). On December 21, 1995, the EPA proposed
rules related to waste mixtures and residues at 60 FR 66344 and invited
public comment.
B. Approach Used To Evaluate This Petition
Giant's petition requests a delisting for a listed hazardous waste.
In making the initial delisting determination, the EPA evaluated the
petitioned waste against the listing criteria and factors
[[Page 25177]]
cited in Sec. 261.11 (a)(2) and (a)(3). Based on this review, the EPA
agreed with the petitioner that the waste is non-hazardous with respect
to the original listing criteria. (If the EPA had found, based on this
review, that the waste remained hazardous based on the factors for
which the waste was originally listed, the EPA would have proposed to
deny the petition.) The EPA then evaluated the waste with respect to
other factors or criteria to assess whether there is a reasonable basis
to believe that such additional factors could cause the waste to be
hazardous. The EPA considered whether the waste is acutely toxic, and
considered the toxicity of the constituents, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability.
For this delisting determination, the EPA used such information to
identify plausible exposure routes (i.e., ground water, surface water,
air) for hazardous constituents present in the petitioned waste. The
EPA determined that disposal in a Subtitle D landfill is the most
reasonable, worst-case disposal scenario for Giant's petitioned waste,
and that the major exposure route of concern would be ingestion of
contaminated ground water. Therefore, the EPA is proposing to use a
particular fate and transport model to predict the maximum allowable
concentrations of hazardous constituents that may be released from the
petitioned waste after disposal and to determine the potential impact
of the disposal of Giant's petitioned waste on human health and the
environment. Specifically, the EPA used the maximum estimated waste
volume and the maximum reported extract concentrations as inputs to
estimate the constituent concentrations in the ground water at a
hypothetical receptor well downgradient from the disposal site. The
calculated receptor well concentrations (referred to as compliance-
point concentrations) were then compared directly to the current
health-based levels at an assumed risk value of 10-6 used in
delisting decision-making for the hazardous constituents of concern.
The EPA believes that this fate and transport model represents a
reasonable worst-case scenario for disposal of the petitioned waste in
a landfill, and that a reasonable worst-case scenario is appropriate
when evaluating whether a waste should be relieved of the protective
management constraints of RCRA Subtitle C. The use of a reasonable
worst-case scenario results in conservative values for the compliance-
point concentrations and ensures that the waste, once removed from
hazardous waste regulation, will not pose a threat to human health or
the environment. Because a delisted waste is no longer subject to
hazardous waste control, the EPA is generally unable to predict and
does not presently control how a waste will be managed after delisting.
Therefore, the EPA does not currently consider extensive site-specific
factors when applying the fate and transport model.
The EPA also considers the applicability of groundwater monitoring
data during the evaluation of delisting petitions. The EPA normally
requests groundwater monitoring data for wastes managed on-site to
determine whether hazardous constituents have migrated to the
underlying groundwater. Groundwater monitoring data provides
significant additional information important to fully characterize the
potential impact (if any) of the disposal of a petitioned waste on
human health and the environment. In this case, the EPA determined that
the groundwater monitoring data was not applicable to the evaluation of
the petitioned waste. Although Giant's petitioned waste is managed in
an on-site waste pile, the EPA Region 6 has not required Giant to
install groundwater monitoring wells specifically to monitor the waste
pile. Giant does have a monitoring system in place at its facility,
including wells in the vicinity of the waste pile. However, the
location of these wells were not selected with the specific intent of
monitoring the waste pile. For these reasons, the EPA does not believe
that data collected from Giant's groundwater monitoring system will
provide a clear measure of whether the waste pile has adversely
impacted groundwater quality at the Giant site. However, the potential
impact of these wastes on the groundwater will be predicted through the
application of the EPACML, fate and transport model.
Finally, the Hazardous and Solid Waste Amendments of 1984
specifically require the EPA to provide notice and an opportunity for
comment before granting or denying a final exclusion. Thus, a final
decision will not be made until all timely public comments (including
those at public hearings, if any) on today's proposal are addressed.
II. Disposition of Delisting Petition
Giant Refining Company, Bloomfield, New Mexico
A. Petition for Exclusion
Giant, located in Bloomfield, New Mexico, is involved in the
processing and refining of petroleum. Giant petitioned the EPA for an
exclusion of a discrete volume of contaminated soil presently stored in
an on-site waste pile, generated from the cleaning of two wastewater
treatment impoundments (referred to as the South and North Oily Water
Ponds) in 1982. The soil is classified as EPA Hazardous Waste No.
K051--``API separator sludge from the petroleum refining industry.''
The listed constituents of concern for EPA Hazardous Waste No. K051 are
hexavalent chromium and lead (see Part 261, Appendix VII).
Giant petitioned the EPA to exclude this discrete volume of
excavated soil because it does not believe that the waste meets the
criteria for which it was listed. Giant also believes that the waste
does not contain any other constituents that would render it hazardous.
Review of this petition included consideration of the original listing
criteria, as well as the additional factors required by the Hazardous
and Solid Waste Amendments (HSWA) of 1984. See Section 222 of HSWA, 42
U.S.C. Sec. 6921(f), and 40 CFR Sec. 260.22(d) (2)-(4). Today's
proposal to grant this petition for delisting is the result of the
EPA's evaluation of Giant's petition.
B. Background
On April 15, 1991, Bloomfield, now Giant, petitioned the EPA to
exclude, from the lists of hazardous wastes contained in 40 CFR
Sec. 261.31 and Sec. 261.32, a discrete volume of contaminated soil
excavated from its wastewater treatment impoundments. Giant
subsequently provided additional information to complete its petition.
Specifically, in its petition, Giant requested that the EPA grant an
one-time exclusion for 2,000 cubic yards of excavated soil presently
stored in an on-site waste pile.
In support of its petition, Giant submitted: (1) descriptions of
its wastewater treatment processes and the excavation activities
associated with the petitioned waste; (2) results from total
constituent analyses for the eight Toxicity Characteristic (TC) metals
listed in Sec. 261.24 (i.e., the TC metals) antimony, beryllium,
cyanide, nickel, vanadium, and zinc from representative samples of the
stockpiled waste; (3) results from the Toxicity Characteristic Leaching
Procedure (TCLP, SW-846
[[Page 25178]]
Method 1311) for the eight TC metals, antimony, beryllium, cyanide,
nickel, vanadium, and zinc from representative samples of the
stockpiled waste; (4) results from the Oily Waste Extraction Procedure
(OWEP, SW-846 Method 1330) for the eight TC metals, antimony,
beryllium, nickel, vanadium, and zinc from representative samples of
the stockpiled waste; (5) results from the Extraction Procedure
Toxicity Test (EP, SW-846 Method 1310) for the eight metals listed in
Sec. 261.24 from representative samples of the stockpiled waste; (6)
results from total oil and grease analyses from representative samples
of the stockpiled waste; (7) test results and information regarding the
hazardous characteristics of ignitability, corrosivity, and reactivity;
and (8) results from total constituent and TCLP analyses for certain
volatile and semi-volatile organic compounds from representative
samples of the stockpiled waste.
Giant is an active petroleum refinery. In October 1984, Bloomfield
purchased the refinery located in Bloomfield, New Mexico, from Plateau,
Inc., a subsidiary of Suburban Propane Gas Corporation. On October 4,
1995, Giant purchased the refinery from Bloomfield. Giant has assumed
ownership and operation of the Bloomfield site and wishes to proceed
with the petition for delisting originally submitted by Bloomfield.
Current refinery operations, including wastewater treatment, are
different than the operations on-line during the time period the waste
considered in this petition was generated. During the period of
interest, Plateau operated the refinery primarily as a producer of
gasoline and diesel fuel. The facility processed roughly 10,000 barrels
per day of low sulfur crude oil. The refinery was altered substantially
during the period of time in which the waste was generated. In 1976,
the refinery consisted of a crude unit with a capacity of 8,000 barrels
per day, a reformer with a capacity of roughly 2,800 barrels per day,
and required tankage and utilities. By November 1982, the refinery had
installed a 6,000 barrel per day fluidized catalytic cracking unit,
expanded the crude unit to 16,500 barrels per day, installed a
wastewater treatment system, and had added to tankage and utilities.
The refinery experienced no periods of inactivity during this time.
Prior to November 1982, Plateau operated two wastewater treatment
surface impoundments; the bottoms of the two impoundments had been
treated with bentonite to retard migration of contaminants. These two
impoundments were used to contain water outflow from an API separator.
The API separator was used to remove oil and oily sludges from refinery
wastewater and consisted of two reinforced concrete bays. The API
separator system received wastewaters from many sources during the time
period of waste generation, including boiler blowdown; cooling tower
blowdown; desalination water; process area runoff; small amounts of
solvent cleaners and sealants; and lubricants used in site vehicles,
pump reservoirs, metal machining tools, instrument air supplies, and
during the overhaul and rebuilding of various pieces of process
equipment. Oily wastewater entered the API separator and was contained
for a period of approximately 27 hours (flow to the API separator
averaged roughly 35 gallons per minute during the period of interest).
Oil within the wastewater was allowed to rise and form a separate
floating phase. This phase was recovered through a weir at the
downstream end of each bay. Wastewater from each bay flowed under the
weir, discharging into the first of two impoundments. Wastewater from
the first impoundment was subsequently directed through an outflow pipe
to the second impoundment. In addition, any oily sludge with a density
heavier than the wastewater sank to the bottom of the concrete bays.
These sludges were removed and disposed of at a hazardous waste
facility approximately every two years.
During the period around October and November 1982, Plateau cleaned
the impoundments to install a 100 milliliter synthetic high density
polyethylene (HDPE) liner. Approximately 90,000 gallons of sludge were
removed by vacuum truck and disposed of in an offsite hazardous waste
disposal facility. This sludge was mainly the result of the
accumulation of windblown dirt and debris. Visibly contaminated soil
from the impoundments was removed and disposed of in an unlined on-site
landfill in October 1984. This landfill was a dedicated area of the
Giant site, and did not hold any other waste material. Plateau assumed
this material was not hazardous based on characteristic testing. As
part of subsequent closure activities, the contaminated soil was
reexcavated in November 1989 and stockpiled at its present location,
where it awaits final disposal. This volume of stockpiled soil is the
subject of Giant's delisting petition.
The impoundments were originally installed about 1974 for fresh
water use. Following the installation of the API separator in late
1976, wastewater from the API separator was routed to the impoundments
for further wastewater treatment. Prior to the installation of the API
separator, a tank was used to recover oil from wastewater. The API
separator was installed because of substantial expansion planned and
underway for the refinery. Therefore, the period of generation of waste
sludges into the impoundments (and, therefore, the generation of the
contaminated soil) was from late 1976 until the impoundments were
cleaned in November 1982.
The stockpiled waste has a moisture content of roughly 25 percent.
The waste does not contain any free liquids or liquid petroleum. The
stockpiled waste consists only of the waste that was originally
deposited in the landfill from the impoundments and a small amount of
soils adjacent to the landfill that was removed during the November
1989 excavation activities.
To collect representative samples from a waste pile like Giant's,
petitioners are normally requested to divide the unit into four
quadrants (not exceeding 10,000 square feet per quadrant) and randomly
collect five full-depth core samples from each quadrant. The five full-
depth core samples are then composited (mixed) by quadrant to produce a
total of four composite samples. See Test Methods for Evaluating Solid
Wastes: Physical/Chemical Methods, EPA, Office of Solid Waste and
Emergency Response, Publication SW-846 (third edition), November 1986,
and Petitions to Delist Hazardous Wastes--A Guidance Manual, (second
edition), EPA, Office of Solid Waste, (EPA/530-R-93-007), March 1993.
The first sampling and analysis of the stockpiled waste took place
in May 1990. Two samples of waste were gathered over the full depth of
the waste pile, from the surface to the bottom of the waste pile. This
was accomplished by cutting trenches into the waste pile using a
backhoe and gathering composite samples, with a trowel, from ten
locations within each trench spanning the entire depth of the trench.
To form a composite from the west side of the waste pile, ten samples
each from six trenches were mixed in a bucket (for a total of 60
samples). The same procedure was followed in forming a composite from
the east side of the waste pile. These two composite samples were
analyzed for the total concentrations (i.e., mass of a particular
constituent per mass of waste) of the eight TCLP metals, nickel,
antimony, beryllium, vanadium, selected volatile and semi-volatile
organic constituents, and oil and grease content. These two samples
were also analyzed to
[[Page 25179]]
determine whether the waste exhibited ignitable, corrosive, or reactive
properties as defined, respectively, under Sec. 261.21, Sec. 261.22,
and Sec. 261.23, including analysis for total constituent
concentrations of cyanide, sulfide, reactive cyanide, and reactive
sulfide. These two samples were also analyzed for TCLP concentrations
(i.e., mass of a particular constituent per unit volume of extract) of
the eight TC metals, nickel, and selected volatile and semi-volatile
organic constituents. Finally, these two samples were analyzed for EP
toxicity concentrations of the eight metals listed in Sec. 261.24.
To highlight any possible variance of the outer material due to
weathering, a third composite sample was formed from samples taken from
eight locations across the surface of the waste pile. The maximum depth
sampled was twelve inches. This composite sample was subject to the
same analyses as the other two composite samples. In August 1990, Giant
collected three samples, one sample each from the west side, east side,
and surface of the waste pile. These samples were analyzed for TCLP
concentrations of selected semi-volatile constituents.
Giant claims that because the waste pile was subjected to several
operations that would have mixed the waste to a significant extent,
including dredging of the wastewater treatment impoundments; loading
and transporting the waste; unloading and spreading the waste in the
landfill; reexcavating, loading and transporting the waste; and
spreading and contouring the waste, the analytical data obtained from
the two composite samples are representative of any variation in the
waste pile concentrations. Based on its review of information
describing this sampling event, the EPA concluded that these samples
were not sufficient to support a delisting determination in part,
because only two of the samples represented the full depth of the waste
pile. At the request of the EPA, Giant submitted an addendum to its
delisting petition. This addendum, submitted on June 25, 1993, included
results from the analysis of four additional samples of the petitioned
waste. Four waste samples were collected from the waste pile at the
Giant facility in April 1993. The waste pile was divided into four
quadrants and four full-depth core samples were collected from each
quadrant.
All four samples were analyzed for total constituent concentrations
of the TC metals, antimony, beryllium, cyanide, nickel, sulfide,
vanadium, zinc, reactive cyanide, and reactive sulfide. The four
composite samples were also analyzed for oil and grease content and
leachate concentrations (using the TCLP and OWEP) of the TC metals,
antimony, beryllium, cyanide, nickel, vanadium, and zinc (using
distilled water in the cyanide extraction). An aliquot of the full-
depth core sample was removed and analyzed for total constituent and
TCLP leachate concentrations of selected volatile organic constituents.
In addition, the remainder of the sample was composited and analyzed
for total constituent and TCLP leachate concentrations of selected
semi-volatile organic constituents.
C. Agency Analysis
Giant used SW-846 Methods 7041 through 7740 to quantify the total
constituent concentrations of antimony, arsenic, lead, mercury, and
selenium; and SW-846 Method 6010 to quantify total constituent
concentrations of barium, beryllium, cadmium, chromium, nickel, silver,
vanadium, and zinc in the 1990 and 1993 samples. Giant used SW-846
Methods 9010 (modified) to quantify the total constituent
concentrations of cyanide in the 1990 and 1993 samples. Giant used
Methods 7.3.4.2 and 9030 modified to quantify the total constituent
concentrations of sulfide, respectively, in the 1990 and 1993 samples.
Using modified SW 846 Method 9071, Giant determined that the
petitioned waste had a maximum oil and grease content of 2.35 percent.
Two composite samples of the waste had more than one percent oil and
grease. The leachate analyses for one sample extract (as discussed
below) was modified in accordance with the OWEP methodology. The
leachate analysis for the other sample extract was not modified, as the
laboratory had already conducted the TCLP without filtration
difficulties. Wastes having more than one percent total oil and grease
may either have significant concentrations of constituents of concern
in the oil phase, which may not be assessed using the standard leachate
procedures, or the concentration of oil and grease may be sufficient to
coat the solid phase of the sample and interfere with the leaching of
metals from the sample.
Giant used SW-846 Method 1311 (TCLP)/Method 6010 to quantify the
leachable concentrations of the eight TC metals, antimony, beryllium,
nickel, vanadium, and zinc in the 1990 and 1993 samples. SW-846 Method
7470 was used for mercury analyses of the extracts from the 1993
samples. Giant used SW-846 Method 1311 (TCLP; modified using distilled
water)/Method 9010 to quantify leachable cyanide concentrations in the
1993 samples. Extractable metals for one of the 1993 composite samples
(i.e., Sample D) was evaluated by the OWEP (SW-846 Method 1330).1
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\1\ The Oily Waste Extraction Procedure (OWEP) is a leach test
used to determine the mobile metal concentration in oily wastes. The
OWEP simulates biodegradation that has occurred in the landfill. The
oil in the wastes, which tends to bind complex metals such that they
are not available for leaching, degrades in the landfill disposal
environment, eventually resulting in the release of the metals into
the underlying strata and ground water. Per the EPA instructions,
Bloomfield modified the OWEP by substituting the Toxicity
Characteristic Leaching Procedure (TCLP) for the Extraction
Procedure (EP) in step 7.10 of the OWEP method.
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Giant used SW-846 Method 1310 (EP)/Method 6010 to quantify the
leachable concentrations of arsenic, barium, cadmium, chromium, lead,
selenium, and silver in the 1990 samples. SW-846 Method 7470 was used
for mercury analyses of the extracts from the 1990 samples. The EP
analyses were only conducted on the three 1990 composite samples.
Characteristic testing was conducted on the 1990 and 1993 samples
of the stockpiled waste, including analysis for reactive cyanide and
reactive sulfide (SW-846 Methods 7.3.3.2 and 7.3.4.2, respectively),
ignitability (SW-846 Method 1010 (modified)), and corrosivity (SW-846
Method 9045).
Table 1 presents the maximum total constituent and leachate
concentrations for the eight TC metals, antimony, beryllium, cyanide,
nickel, vanadium, and zinc for the composite samples of the petitioned
waste. Table 1 also presents maximum reactive cyanide and reactive
sulfide concentrations.
The detection limits presented in Table 1 represent the lowest
concentrations quantifiable by Giant when using the appropriate SW-846
or Agency-approved analytical methods to analyze its waste. (Detection
limits may vary according to the waste and waste matrix being analyzed,
i.e., the ``cleanliness'' waste matrices varies and ``dirty'' waste
matrices may cause interferences, thus raising the detection limits).
Giant used SW-846 Methods 8240 and 8270 to quantify the total
constituent concentrations of 41 volatile and 65 semi-volatile organic
compounds, respectively, in the stockpiled waste samples. This suite of
constituents included all of the nonpesticide organic constituents
listed in Sec. 261.24. Giant used SW-846 Methods 8240 and 8270 to
quantify the leachable concentrations of 21 volatile and 76 semi-
volatile organic compounds, respectively, in the stockpiled waste
samples, following extraction by SW-846 Method 1311
[[Page 25180]]
(TCLP). This suite of constituents included all of the organic
constituents listed in Sec. 261.24. Table 2 presents the maximum total
and leachate concentrations of all detected organic constituents in
Giant's waste and waste extract samples. Lastly, on the basis of
explanations and analytical data provided by Giant, none of the
analyzed samples exhibited the characteristics of ignitability,
corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22 and
Sec. 261.23.
Table 1.--Maximum Total Constituent and Leachate Concentrations (ppm)
\1\ Stockpiled Soil
------------------------------------------------------------------------
Total Leachate analyses
Inorganic constituents constituent ---------------------------
analyses EP/TCLP OWEP
------------------------------------------------------------------------
Antimony...................... < 0.3="" 0.07="">< 0.616="" arsenic.......................="" 3.9="">< 0.2="">< 2.05="" barium........................="" 194="" 0.632="" 0.629="" beryllium.....................="" 0.3="" 0.002="">< 1.03="" cadmium.......................="" 3.9="" 0.003="">< 0.030="" chromium="" (total)..............="" 507="" 0.149="">< 0.0999="" cyanide="" (total)...............="">< 1="">< 0.02="" lead..........................="" 26.2="">< 0.08="" 0.916="" mercury.......................="" 0.29="">< 0.1="">< 0.006="" nickel........................="" 14.7="" 0.007="" 0.954="" selenium......................="">< 0.4="">< 0.09="" 1.68="" silver........................="">< 0.7="">< 0.007="">< 0.074="" vanadium......................="" 55="">< 0.04="">< 0.41="" zinc..........................="" 302="" 1.67="" 0.978="" cyanide="" (reactive)............="">< 2="" sulfide="" (reactive)............="">< 10="" ------------------------------------------------------------------------="">< denotes="" that="" the="" constituent="" was="" not="" detected="" at="" the="" detection="" limit="" specified="" in="" the="" table.="" \1\="" these="" levels="" represent="" the="" highest="" concentration="" of="" each="" constituent="" found="" in="" any="" one="" sample.="" these="" levels="" do="" not="" necessarily="" represent="" the="" specific="" levels="" found="" in="" one="" sample.="" table="" 2.--maximum="" total="" constituent="" and="" leachate="" concentrations="" (ppm)="" \1\="" stockpiled="" soil="" ------------------------------------------------------------------------="" total="" tclp="" organic="" constituents="" constituent="" leachate="" analyses="" analyses="" ------------------------------------------------------------------------="" acetone.....................................="" 0.032="">< 0.1="" benzo(a)anthracene..........................="" 1.2="">< 0.005="" benzo(a)pyrene..............................="" 2.1="">< 0.005="" chrysene....................................="" 3.9="">< 0.005="" fluorene....................................="" 1.5="">< 0.005="" 2-methylnaphthalene.........................="" 5.9="" 0.006="" naphthalene.................................="" 0.83="">< 0.005="" phenanthrene................................="" 4.4="">< 0.005="" pyrene......................................="" 2.1="">< 0.005="" ------------------------------------------------------------------------="">< denotes="" that="" the="" constituent="" was="" not="" detected="" at="" the="" detection="" limit="" specified="" in="" the="" table.="" \1\="" these="" levels="" represent="" the="" highest="" concentration="" of="" each="" constituent="" found="" in="" any="" one="" sample.="" these="" levels="" do="" not="" necessarily="" represent="" the="" specific="" levels="" found="" in="" one="" sample.="" giant="" submitted="" a="" signed="" certification="" stating="" that="" the="" waste="" pile="" contains="" 2,000="" cubic="" yards="" of="" waste.="" the="" epa="" reviews="" a="" petitioner's="" estimates="" and,="" on="" occasion,="" has="" requested="" a="" petitioner="" to="" re-evaluate="" estimated="" waste="" volume.="" the="" epa="" accepted="" giant's="" certified="" estimate="" of="" 2,000="" cubic="" yards="" of="" stockpiled="" waste.="" the="" epa="" does="" not="" generally="" verify="" submitted="" test="" data="" before="" proposing="" delisting="" decisions.="" the="" sworn="" affidavit="" submitted="" with="" this="" petition="" binds="" the="" petitioner="" to="" present="" truthful="" and="" accurate="" results.="" the="" epa,="" however,="" has="" maintained="" a="" spot-check="" sampling="" and="" analysis="" program="" to="" verify="" the="" representative="" nature="" of="" the="" data="" for="" some="" percentage="" of="" the="" submitted="" petitions.="" a="" spot-check="" visit="" to="" a="" selected="" facility="" may="" be="" initiated="" before="" finalizing="" a="" delisting="" petition="" or="" after="" granting="" a="" final="" exclusion.="" d.="" agency="" evaluation="" the="" epa="" considered="" the="" appropriateness="" of="" alternative="" waste="" management="" scenarios="" for="" giant's="" stockpiled="" waste="" and="" decided,="" based="" on="" the="" information="" provided="" in="" the="" petition,="" that="" disposal="" in="" a="" municipal="" solid="" waste="" landfill="" is="" the="" most="" reasonable,="" worst-case="" scenario="" for="" this="" waste.="" under="" a="" landfill="" disposal="" scenario,="" the="" major="" exposure="" route="" of="" concern="" for="" any="" hazardous="" constituents="" would="" be="" ingestion="" of="" contaminated="" ground="" water.="" the="" epa,="" therefore,="" evaluated="" giant's="" petitioned="" waste="" using="" the="" modified="" epacml="" which="" predicts="" the="" potential="" for="" groundwater="" contamination="" from="" wastes="" that="" are="" landfilled.="" see="" 56="" fr="" 32993="" (july="" 18,="" 1991),="" 56="" fr="" 67197="" (december="" 30,="" 1991),="" and="" the="" rcra="" public="" docket="" for="" these="" notices="" for="" a="" detailed="" description="" of="" the="" epacml="" model,="" the="" disposal="" assumptions,="" and="" the="" modifications="" made="" for="" delisting.="" this="" model,="" which="" includes="" both="" unsaturated="" and="" saturated="" zone="" transport="" modules,="" was="" used="" to="" predict="" reasonable="" worst-case="" contaminant="" levels="" in="" groundwater="" at="" a="" compliance="" point="" (i.e.,="" a="" receptor="" well="" serving="" as="" a="" drinking-water="" supply).="" specifically,="" the="" model="" estimated="" the="" dilution/attenuation="" factor="" (daf)="" resulting="" from="" subsurface="" processes="" such="" as="" three-dimensional="" dispersion="" and="" dilution="" from="" groundwater="" recharge="" for="" a="" specific="" volume="" of="" waste.="" the="" epa="" requests="" comments="" on="" the="" use="" of="" the="" [[page="" 25181]]="" epacml="" as="" applied="" to="" the="" evaluation="" of="" giant's="" petitioned="" waste.="" for="" the="" evaluation="" of="" giant's="" petitioned="" waste,="" the="" epa="" used="" the="" epacml="" to="" evaluate="" the="" mobility="" of="" the="" hazardous="" inorganic="" constituents="" detected="" in="" the="" extract="" of="" samples="" of="" giant's="" stockpiled="" waste.="" the="" epa="" intends="" to="" evaluate="" petitions="" for="" wastes="" no="" longer="" being="" generated="" on="" a="" case-by-case="" basis.="" the="" dafs="" are="" currently="" calculated="" assuming="" an="" ongoing="" process="" generates="" wastes="" for="" 20="" years.="" therefore,="" the="" daf="" needs="" to="" be="" adjusted="" as="" appropriate="" for="" an="" one-time="" exclusion.="" the="" daf="" for="" the="" waste="" volume="" of="" 2,000="" cubic="" yards/year="" has="" been="" adjusted="" for="" the="" evaluation="" of="" this="" petition.="" the="" daf="" for="" 2,000="" cubic="" yards/year="" assuming="" 20="" years="" of="" generation="" is="" 79,="" for="" this="" petition="" a="" daf="" of="" 100="" is="" being="" used.="" the="" epa's="" evaluation,="" using="" a="" daf="" of="" 100,="" maximum="" waste="" volume="" estimate="" of="" 2,000="" cubic="" yards="" and="" the="" maximum="" reported="" tclp="" or="" owep="" leachate="" concentrations="" (see="" table="" 1),="" yielded="" compliance-point="" concentrations="" (see="" table="" 3)="" that="" are="" below="" the="" current="" health-based="" levels="" at="" an="" assumed="" risk="" level="" of="">-6 used in delisting
decision-making.
Table 3.--EPACML: Calculated Compliance-Point Concentrations (ppm) Stockpiled Soil
----------------------------------------------------------------------------------------------------------------
Levels of
Compliance point regulatory
Inorganic constituents concentrations concern \2\
\1\ (mg/l) (mg/l)
----------------------------------------------------------------------------------------------------------------
Antimony....................................................................... 0.0007 0.006
Barium......................................................................... 0.0063 2.0
Beryllium...................................................................... 0.00002 0.004
Cadmium........................................................................ 0.00003 0.005
Chromium....................................................................... 0.0015 0.1
Lead........................................................................... 0.009 0.015
Nickel......................................................................... 0.010 0.1
Selenium....................................................................... 0.017 0.05
Zinc........................................................................... 0.017 10.0
----------------------------------------------------------------------------------------------------------------
\1\ Using the maximum EP/TCLP leachate level and based on a DAF of 100 calculated using the EPACML for an one-
time volume of 2,000 cubic yards.
\2\ See Docket Report on Health-Based Levels and Solubilities Used in the Evaluation of Delisting Petitions,
December 1994 located in the RCRA public docket for today's notice.
The maximum reported or calculated leachate concentrations of
antimony, barium, beryllium, cadmium, chromium, lead, nickel selenium,
and zinc in the stockpiled waste yielded compliance point
concentrations well below the health-based levels used in delisting
decision-making. The EPA did not evaluate the mobility of the remaining
inorganic constituents (i.e., arsenic, mercury, silver, vanadium, and
cyanide) from Giant's waste because they were not detected in the
leachate using the appropriate analytical test methods (see Table 1).
The EPA believes that it is inappropriate to evaluate nondetectable
concentrations of a constituent of concern in its modeling efforts if
the nondetectable value was obtained using the appropriate analytical
method. If a constituent cannot be detected (when using the appropriate
analytical method with an adequate detection limit), the EPA assumes
that the constituent is not present and therefore does not present a
threat to human health or the environment.
The EPA also evaluated the potential hazard of 2-methylnaphthalene,
the only organic constituent detected in the TCLP extract of samples of
Giant's stockpiled waste. Although, the EPA does not have a health-
based level of concern for comparison, the EPA believes that the
reported leachate concentration of 0.006 ppm does not present a
potential concern. In particular, were this leachate concentration
evaluated using the EPACML, the calculated compliance-point
concentration would be 0.00006 ppm, a value lower than other chemicals
from the naphthalene family. The EPA does not believe that this
concentration, at the receptor well, would present an adverse impact on
human health or the environment.
As reported in Table 1, the maximum concentrations of reactive
cyanide and sulfide in Giant's stockpiled waste are less than 2 and 10
ppm, respectively. These concentrations are below the EPA's interim
standards of 250 and 500 ppm, respectively. See Interim Agency
Thresholds for Toxic Gas Generation, July 12, 1985, internal Agency
Memorandum in the RCRA public docket. Therefore, reactive cyanide and
sulfide levels are not of concern.
The EPA concluded, after reviewing Giant's processes, that no other
hazardous constituents of concern, other than those tested for, are
likely to be present or formed as reaction products or by-products in
Giant's waste. In addition, on the basis of explanations and analytical
data provided by Giant, pursuant to Sec. 260.22, the EPA concludes that
the waste does not exhibit any of the characteristics of ignitability,
corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22, and
Sec. 261.23, respectively.
During the evaluation of Giant's petition, the EPA also considered
the potential impact of the petitioned waste via non-ground water
routes (i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, the EPA believes that exposure to airborne
contaminants from Giant's petitioned waste is unlikely. The EPA
evaluated the potential hazards resulting from the unlikely scenario of
airborne exposure to hazardous constituents released from Giant's waste
in an open landfill. The results of this worst-case analysis indicated
that there is no substantial present or potential hazard to human
health from airborne exposure to constituents from Giant's stockpiled
waste. A description of the EPA's assessment of the potential impact of
Giant's waste, with regard to airborne dispersion of waste
contaminants, is presented in the RCRA public docket for today's
proposed rule.
The EPA also considered the potential impact of the petitioned
waste via a surface water route. The EPA believes that containment
structures at municipal solid waste landfills can effectively control
surface water run-off, as the recently promulgated Subtitle D
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant
discharges into surface waters. Furthermore, the concentrations of any
hazardous constituents dissolved in the runoff will tend to be lower
than the levels in the
[[Page 25182]]
TCLP/EP or OWEP leachate analyses reported in today's notice, due to
the aggressive acid medium used for extraction in the TCLP/EP and OWEP
tests. The EPA believes that, in general, leachate derived from the
waste is unlikely to enter a surface water body directly without first
travelling through the saturated subsurface zone where further dilution
and attenuation of hazardous constituents will also occur. Leachable
concentrations provide a direct measure of the solubility of a toxic
constituent in water, and are indicative of the fraction of the
constituent that may be mobilized in surface water, as well as ground
water. The reported TCLP/EP and OWEP extraction data show that the
metals in Giant's stockpiled waste are essentially immobile in aqueous
solution. Therefore, constituents that might be released from Giant's
waste to surface water would be likely to remain undissolved. Finally,
any transported constituents would be further diluted in the receiving
surface water body due to relatively large flows of the streams/rivers
of concern.
Based on the reasons discussed above, the EPA believes that
contamination of surface water through run-off from the waste disposal
area is very unlikely. Nevertheless, the EPA evaluated potential
impacts on surface water if Giant's waste were released from a
municipal solid waste landfill through run-off and erosion. See, the
RCRA public docket for today's proposed rule. The estimated levels of
the hazardous constituents of concern in surface water would be well
below health-based levels for human health, as well as below the EPA
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS,
1987). The EPA, therefore, concluded that Giant's stockpiled waste is
not a substantial present or potential hazard to human health and the
environment via the surface water exposure pathway.
E. Conclusion
The EPA has reviewed the sampling procedures used by Giant and has
determined that they satisfy the EPA criteria for collecting
representative samples of the variations in constituent concentrations
found throughout the waste pile. The data submitted in support of the
petition show that constituents in Giant's waste are present below the
health-based levels used in the delisting decision-making. In addition,
the constituents are immobile and should not leach from the waste pile
into potential receptors. The EPA believes that Giant has successfully
demonstrated that the stockpiled waste is non-hazardous.
The EPA, therefore, proposes to grant a one-time exclusion to Giant
Refining Company, Inc., located in Bloomfield, New Mexico, for the
stockpiled waste described in its petition as EPA Hazardous Waste No.
K051. The EPA's decision to exclude this waste is based on descriptions
of the excavation activities associated with the petitioned waste,
descriptions of Giant's wastewater treatment process, and
characterization of the stockpiled waste. If the proposed rule is
finalized, the petitioned waste will no longer be subject to regulation
under Parts 262 through 268 and the permitting standards of Part 270.
If made final, the proposed exclusion will apply only to the 2,000
cubic yards of stockpiled waste generated during the excavation of
Giant's two wastewater treatment impoundments (referred to as the South
and North Oily Water Ponds). The facility would need to file a new
petition for any new waste produced. The facility must treat any
excavated soil in excess of the original 2,000 cubic yards as hazardous
unless a new exclusion is granted.
Although management of the waste covered by this petition would be
removed from Subtitle C jurisdiction upon final promulgation of an
exclusion, the generator of a delisted waste must either treat, store,
or dispose of the waste in an on-site facility, or ensure that the
waste is delivered to an off-site storage, treatment, or disposal
facility, either of which is permitted, licensed, or registered by a
State to manage municipal or industrial solid waste. Alternatively, the
delisted waste may be delivered to a facility that beneficially uses or
reuses, or legitimately recycles or reclaims the waste, or treats the
waste prior to such beneficial use, reuse, recycling, or reclamation.
IV. Effective Date
This rule, if made final, will become effective immediately upon
final publication. The Hazardous and Solid Waste Amendments of 1984
amended Section 3010 of RCRA to allow rules to become effective in less
than six-months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because
this rule, if finalized, would reduce the existing requirements for
persons generating hazardous wastes. In light of the unnecessary
hardship and expense that would be imposed on this petitioner by an
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010,
the EPA believes that this exclusion should be effective immediately
upon final publication. These reasons also provide a basis for making
this rule effective immediately, upon final publication, under the
Administrative Procedure Act, pursuant to 5 U.S.C.Sec. 553(d).
V. Regulatory Impact
Under Executive Order 12866, the EPA must conduct an ``assessment
of the potential costs and benefits'' for all ``significant''
regulatory actions. This proposal to grant an exclusion is not
significant, since its effect, if promulgated, would be to reduce the
overall costs and economic impact of the EPA's hazardous waste
management regulations. This reduction would be achieved by excluding
waste generated at a specific facility from the EPA's lists of
hazardous wastes, thereby enabling this facility to treat its waste as
non-hazardous. There is no additional impact due to today's rule.
Therefore, this proposal would not be a significant regulation, and no
cost/benefit assessment is required. The Office of Management and
Budget (OMB) has also exempted this rule from the requirement for OMB
review under Section (6) of Executive Order 12866.
VI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. Secs. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required, however, if the
Administrator or delegated representative certifies that the rule will
not have any impact on any small entities.
This rule, if promulgated, will not have any adverse economic
impact on any small entities since its effect would be to reduce the
overall costs of the EPA's hazardous waste regulations and would be
limited to one facility. Accordingly, I hereby certify that this
proposed regulation, if promulgated, will not have a significant
economic impact on a substantial number of small entities. This
regulation, therefore, does not require a regulatory flexibility
analysis.
VII. Paperwork Reduction Act
Information collection and recordkeeping requirements associated
with this proposed rule have been approved by OMB under the provisions
[[Page 25183]]
of the Paperwork Reduction Act of 1980 (Pub. L. 96-511, 44 U.S.C.
Sec. 3501 et seq.) and have been assigned OMB Control Number 2050-0053.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
the EPA generally must prepare a written statement for rules with
Federal mandates that may result in estimated costs to State, local,
and tribal governments in the aggregate, or to the private sector, of
$100 million or more in any one year. When such a statement is required
for EPA rules, under section 205 of the UMRA, the EPA must identify and
consider alternatives, including the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The EPA must select that alternative, unless the Administrator
explains in the final rule why it was not selected or it is
inconsistent with law. Before the EPA establishes regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must develop under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, giving
them meaningful and timely input in the development of the EPA
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements. The UMRA generally defines a Federal
mandate for regulatory purposes as one that imposes an enforceable duty
upon state, local or tribal governments or the private sector. The EPA
finds that today's proposed delisting decision is deregulatory in
nature and does not impose any enforceable duty upon state, local or
tribal governments or the private sector. In addition, the proposed
delisting does not establish any regulatory requirements for small
governments and so does not require a small government agency plan
under UMRA section 203.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. Sec. 6921(f).
Dated: May 3, 1996.
Jane N. Saginaw,
Regional Administrator.
For the reasons set out in the preamble, 40 CFR Part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 2 of Appendix IX of Part 261 it is proposed to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. 260.20 and
260.22.
Table 2.--Wastes Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Giant Refining Company, Inc........ Bloomfield, New Mexico..... Waste generated during the excavation of soils
from two wastewater treatment impoundments
(referred to as the South and North Oily
Water Ponds) used to contain water outflow
from an API separator (EPA Hazardous Waste
No. K051). This is a one-time exclusion for
approximately 2,000 cubic yards of stockpiled
waste. This exclusion was published on
[insert publication date of the final rule].
Notification Requirements:
Giant Refining Company must provide a one-time
written notification to any State Regulatory
Agency to which or through which the delisted
waste described above will be transported for
disposal at least 60 days prior to the
commencement of such activities. Failure to
provide such a notification will result in a
violation of the delisting petition and a
possible revocation of the decision.
* * * * * *
*
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[FR Doc. 96-12607 Filed 5-17-96; 8:45 am]
BILLING CODE 6560-50-P
