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

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...................... -6 used in delisting

decision-making.

Table 3.--EPACML: Calculated Compliance-Point Concentrations (ppm) Stockpiled Soil

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Levels of

Compliance point regulatory

Inorganic constituents concentrations concern \2\

\1\ (mg/l) (mg/l)

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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

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\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