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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6012-3]

Hazardous Waste Management System; Identification and Listing of

Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing to grant a petition submitted by

Occidental Chemical Corporation (Occidental Chemical), to exclude (or

delist) certain solid wastes generated at its Ingleside, Texas,

facility from the lists of hazardous wastes contained in 40 CFR 261.24,

261.31, and 261.32, (hereinafter all sectional references are to 40 CFR

unless otherwise indicated). This petition was submitted under

Sec. 260.20, which allows any person to petition the Administrator to

modify or revoke any provision of parts 260 through 266, 268 and 273,

and under Sec. 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 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 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. 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.

DATES: Comments will be accepted until June 25, 1998. 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 Acting Director, Robert E. Hannesschlager,

Multimedia Planning and Permitting Division, whose address appears

below, by May 26, 1998. The request must contain the information

prescribed in Sec. 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be

sent to the William Gallagher, Delisting Section, Multimedia Planning

and Permitting Division (6PD-O), Environmental Protection Agency EPA,

1445 Ross Avenue, Dallas, Texas 75202. A third copy should be sent to

the Texas Natural Resource Conservation Commission, 12100 Park 35

Circle, Austin, Texas 78753. Identify your comments at the top with

this regulatory docket number: ``F-97-TXDEL-OCCIDENTAL.''

Requests for a hearing should be addressed to the Acting Director,

Robert E. Hannesschlager, Multimedia Planning and Permitting Division

(6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas

75202.

The RCRA regulatory docket for this proposed rule is located at the

Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,

Texas 75202 and is available for viewing in the EPA Library on the 12th

Floor from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding

Federal holidays. Call (214) 665-6444 for appointments. The public may

copy material from any regulatory docket at no cost for the first 100

pages, and at fifteen cents per page for additional copies.

FOR FURTHER INFORMATION CONTACT: For technical information concerning

this notice, contact Jon Rinehart, Multimedia Planning and Permitting

Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Dallas, TX 75202, (214) 665-6789.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

On January 16, 1981, as part of its final and interim final

regulations implementing section 3001 of RCRA, 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 261.31 and

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

[[Page 25798]]

may not be. For this reason, Secs. 260.20 and 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 EPA 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 EPA to determine whether the waste contains any other toxicants at

hazardous levels. See Sec. 260.22(a), 42 U.S.C. 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 nonhazardous based on the hazardous waste

characteristics.

In addition, mixtures containing listed hazardous wastes are also

considered hazardous wastes as are wastes derived from the treatment,

storage, or disposal of listed hazardous waste. See

Sec. 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 EPA on

procedural grounds. 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 FR 7628). These rules became final on October 30, 1992

(57 FR 49278). These references should be consulted for more

information regarding mixtures and residues.

B. Approach Used to Evaluate This Petition

Occidental Chemical's petition requests a delisting for listed

hazardous wastes. In making the initial delisting determination, the

EPA evaluated the petitioned wastes against the listing criteria and

factors cited in Sec. 261.11(a)(2) and (a)(3). Based on this review,

the EPA agreed with the petitioner that the waste is nonhazardous with

respect to the original listing criteria. (If the EPA had found, based

on this review, that the wastes remained hazardous based on the factors

for which the wastes were originally listed, EPA would have proposed to

deny the petition.) The EPA then evaluated the wastes with respect to

other factors or criteria to assess whether there is a reasonable basis

to believe that such additional factors could cause the wastes to be

hazardous. The EPA considered whether the wastes are acutely toxic, and

considered the toxicity of the constituents, the concentration of the

constituents in the wastes, their tendency to migrate and to

bioaccumulate, their persistence in the environment once released from

the wastes, plausible and specific types of management of the

petitioned wastes, the quantities of wastes generated, and waste

variability.

For this delisting determination, the EPA used such information

gathered to identify plausible exposure routes (i.e., ground water,

surface water, air) for hazardous constituents present in the

petitioned wastes. The EPA determined that disposal in a Subtitle D

landfill/surface impoundment is the most reasonable, worst-case

disposal scenario for Occidental Chemical's petitioned wastes, 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, the EPA Composite Model for Landfills (EPACML), to

predict the maximum allowable concentrations of hazardous constituents

that may be released from the petitioned wastes after disposal and to

determine the potential impact of the disposal of Occidental Chemical's

petitioned wastes on human health and the environment. Specifically,

the EPA used the maximum estimated waste volumes 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 health-based levels at an assumed risk 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 wastes in

a landfill/surface impoundment, and that a reasonable worst-case

scenario is appropriate when evaluating whether a waste should be

relieved of the protective management constraints of RCRA Subtitle C.

The use of 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, may not pose a

threat to human health or the environment. In most cases, because a

delisted waste is no longer subject to hazardous waste control, the EPA

is generally unable to predict, and does not presently control, how a

waste will be managed after delisting. Therefore, EPA currently

believes that it is inappropriate to consider extensive site-specific

factors when applying the fate and transport model.

The EPA also considers the applicability of ground water monitoring

data during the evaluation of delisting petitions. In this case, the

EPA determined that it would be unnecessary to request ground water

monitoring data. Specifically, Occidental Chemical currently disposes

of a part of the petitioned wastes (Rockbox Residue and Limestone

Sludge) generated at its facility in an off-site, RCRA hazardous waste

landfill (which is not owned/operated by Occidental

Chemical).1 This landfill did not begin accepting this

petitioned waste generated by the Occidental Chemical facility until

1991. This petitioned waste comprises a small fraction of the total

waste managed in the unit. Therefore, the EPA, believes that any ground

water monitoring data from the landfill would not be meaningful for an

evaluation of the specific effect of this petitioned waste on ground

water. Finally, there are presently no data from groundwater monitoring

wells available, therefore there is no data to evaluate.

---------------------------------------------------------------------------

\1\ The other portion of waste proposed to be excluded is not

disposed but is instead treated onsite prior to discharge. Discharge

of the waste is regulated under Section 402 of the Clean Water Act.

---------------------------------------------------------------------------

From the evaluation of Occidental Chemical's delisting petition, a

list of constituents was developed for the verification testing

conditions. Proposed maximum allowable leachable concentrations for

these constituents were derived by back-calculating from

[[Page 25799]]

the delisting health-based levels through the proposed fate and

transport model for a landfill management scenario. These

concentrations (i.e., ``delisting levels'') are part of the proposed

verification testing conditions of the exclusion.

Similar to other facilities seeking exclusions, Occidental

Chemical's exclusion (if granted) would be contingent upon the facility

conducting analytical testing of representative samples of the

petitioned wastes at Ingleside. This testing would be necessary to

verify that the treatment system is operating as demonstrated in the

petition submitted on January 3, 1997. Specifically, the verification

testing requirements, would be implemented to demonstrate that the

processing facility will generate nonhazardous wastes (i.e., wastes

that meet the EPA's verification testing conditions). The EPA's

proposed decision to delist wastes from Occidental Chemical's facility

is based on the information submitted in support of today's rule, i.e.,

description of the wastewater treatment system and analytical data from

the Ingleside facility.

Finally, the HSWA 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

Occidental Chemical Corporation, Ingleside, Texas 78362.

A. Petition for Exclusion

Occidental Chemical Corporation, located in Ingleside, Texas,

petitioned the EPA for an exclusion for 128 cubic yards of Rockbox

Residue, 148,284 cubic yards of Caustic Neutralized Wastewater, and

1,114 cubic yards Limestone Sludge per calendar year resulting from its

hazardous waste treatment process. The resulting wastes are presently

listed, in accordance with Sec. 261.3(c)(2)(i) (i.e., the ``derived

from'' rule), as EPA Hazardous Waste No. K019, K020, F001, F003, F005,

and F025. The listed constituents of concern for these waste codes are

listed in Table 1.

Table 1.--Hazardous Waste Codes Associated With Wastewater Streams

------------------------------------------------------------------------

Waste code Basis for characteristics/listing

------------------------------------------------------------------------

K019/K020................... Ethylene dichloride, 1,1,1-

trichloroethane, 1,1,2-trichloroethane,

1,1,1,2-tetrachloroethane, 1,1,2,2-

tetrachloroethane, trichloroethylene,

tetrachloroethylene, carbon

tetrachloride, chloroform, vinyl

chloride, vinylidene chloride.

F001........................ Tetrachloroethylene, trichloroethylene,

methylene chloride, 1,1,1-

trichloroethane, carbon tetrachloride,

chlorinated fluorocarbons.

F003........................ N.A Waste is hazardous because it fails

the test for the characteristic of

ignitability, corrosivity, or reactivity.

F005........................ Toluene, methyl ethyl ketone, carbon

disulfide, isobutanol, pyridine, benzene,

2-ethoxyethanol, 2-nitropropane.

F025........................ Chloromethane, dichloromethane,

trichloromethane, carbon tetrachloride,

chloroethylene,1,1-dichloroethane,1,2-

dichloroethane, trans-1,2-

dichloroethylene, 1,1-dichlorothylene,

1,1,1-trichloroethane,1,1,2-

trichloroethane, trichlorothylene,

1,1,1,2-tetrachloroethane,1,1,2,2-

tetrachloroethane, tetrachloroethylene,

pentachloroethane, hexachloroethane, 3-

chloropropene, dichloropropane,

dichloropropene, 2-chloro-1,3-butadiene,

hexachloro-1,3-butadiene,

hexachlorocyclopentadiene, benzene,

chlorobenzene, dichlorobenzene, 1,2,4-

trichlorobenzene, tetrachlorobenzene,

pentachlorobenzene, hexachlorobenzene,

toluene, naphthalene.

------------------------------------------------------------------------

Occidental Chemical petitioned to exclude the Rockbox Residue,

Caustic Neutralized Wastewater, and Limestone Sludge treatment residues

because it does not believe that the petitioned wastes meet the

criteria for which they were listed. Occidental Chemical further

believes that the wastes are not hazardous for any other reason (i.e.,

there are no additional constituents or factors that could cause the

wastes to be hazardous). Review of this petition included consideration

of the original listing criteria, as well as the additional factors

required by the HSWA. See section 222 of HSWA, 42 U.S.C. Sec. 6921(f),

and 40 CFR 260.22(d)(2)-(4). Today's proposal to grant this petition

for delisting is the result of the EPA's evaluation of Occidental

Chemical's petition.

B. Background

On January 3, 1997, Occidental Chemical petitioned the EPA to

exclude from the lists of hazardous waste contained in Secs. 261.31 and

261.32, an annual volume of Rockbox Residue, Caustic Neutralized

Wastewater, and Limestone Sludge which are generated as a result of the

treatment of offgases from onsite incinerators. Specifically, in its

petition, Occidental Chemical requested that the EPA grant an exclusion

for 128 cubic yards of Rockbox Residue, 148,284 cubic yards of Caustic

Neutralized Wastewater, and 1,114 cubic yards of Limestone Sludge

generated per calendar year.

In support of its petition, Occidental Chemical submitted: (1)

Descriptions of its wastewater treatment processes and the incineration

activities associated with petitioned wastes; (2) results of the total

constituent list for 40 CFR part 264 Appendix IX volatiles,

semivolatiles, and metals except for pesticides, herbicides and PCBs;

(3) results of the constituent list for Appendix IX on Toxicity

Characteristic Leaching Procedure (TCLP) extract for volatiles,

semivolatiles, and metals; (4) results for reactive sulfide, (5)

results for reactive cyanide; (6) results for pH; (7) results of the

total basis for dioxin and furan; and (8) results of dioxin and furan

TCLP extract.

Occidental Chemical is an active plant that produces ethylene

dichloride (EDC), vinyl chloride monomer (VCM), chlorine, and caustic

soda. The plant utilizes chlorine, ethylene, and oxygen as feedstock

and utilizes two permitted, onsite RCRA incinerators to burn process

vent gases, intermediate wastes generated during the production of EDC

and VCM (K019, K020, and F025), waste paint thinner (F001, F003, F005),

and occasionally waste oil. These two incinerators have been in

continuous operation since 1991. Occidental Chemical has previously

classified three waste streams (Rockbox Residue, Caustic Neutralized

Wastewater and Limestone Sludge) generated from the treatment of the

offgas from the incinerators as hazardous based on the ``derived from''

rule in Sec. 261.3(c)(2)(i).

The combustion products from the incinerators contain hydrochloric

acid (HCl). Incinerator offgases are treated in the Incinerator Offgas

Treatment System. In this system, the emissions are passed through

absorption columns, dehumidifier columns, and caustic scrubbers to

remove the HCl. Blowdown

[[Page 25800]]

water from the dehumidifier columns and caustic scrubber columns are

routed to the Rockbox Tank (the Rockbox) as the first step in

neutralizing the HCl. Excess HCl from the aqueous HCl storage tanks is

commingled with the blowdown water and routed to the Rockbox. The

influent to Rockbox normally contains 3 to 7 percent HCl. At times when

excess HCl is not produced, the influent to the Rockbox is

predominantly blowdown from the dehumidifier and caustic scrubber

columns.

The Rockbox contains crushed limestone with small amounts of inert

materials (silica oxide). These inert materials accumulate in the

bottom of the Rockbox as the crushed limestone is utilized in the

neutralization process. The accumulation of inert materials is the

Rockbox Residue. The Rockbox Residue is a ``third generation'' waste

since it is the residue of treating wastewater used to quench gaseous

emissions from the incineration of listed wastes.

The pH of the effluent leaving the Rockbox is between 1 and 5. The

effluent is passed through a primary pH adjustment tank where air is

released into the water to remove carbon dioxide. Additionally, sodium

hydroxide may be added to this tank. Mixing with air minimizes the

formation of calcium carbonate precipitate upon introduction of caustic

soda. The effluent is then passed through the secondary pH adjustment

tank where caustic soda (sodium hydroxide) is added to raise the pH of

the water to a pH between 7 and 9. The stream, consisting of water and

calcium carbonate precipitant in suspension, flows through a clarifier

where the sludge is settled out. The aqueous effluent from the

clarifier tank is the Caustic Neutralized Wastewater which Occidental

Chemical seeks to delist. This waste stream consists of an aqueous

phase that no longer exhibits the hazardous waste characteristic of

corrosivity.

The settled solids (calcium carbonate) from the clarifier are

dewatered on a belt filter press and are dropped directly into rolloff

bins for disposal. Water removed during the operation of the filter

press is returned to the clarifier. The remaining filter cake is the

Limestone Sludge, which Occidental Chemical also seeks to delist.

Rockbox Residue is generated on a batch basis every one to two

years. For the past two years (1995 and 1996), the Rockbox Residue was

generated annually. This is probable due to a higher than average

concentration of inerts in the limestone purchased for the Rockbox. The

Rockbox Residue is disposed of in an offsite permitted hazardous waste

landfill.

Caustic Neutralized Wastewater and Limestone Sludge are generated

on a continuous basis. The Caustic Neutralized Wastewater is treated in

an onsite unit which has in an National Pollution Discharge Elimination

System (NPDES) permitted outfall. The Limestone Sludge is transported

to an offsite hazardous waste landfill for disposal.

Occidental Chemical developed a list of constituents of concern

from comparing a list of all raw materials used in the plant that could

potentially appear in the petitioned waste with those found in 40 CFR

part Sec. 264, as well as dioxins and furans. Based on the knowledge of

process they determined that herbicides, pesticides and PCBs would be

excluded from the Appendix IX analyte list. The EPA has included the

dioxins and furans on the list, due the incineration of chlorinated

compounds. Using the list of constituents of concern, Occidental

analyzed the four composite samples for the total concentrations (i.e.,

mass of a particular constituent per mass of waste) of the volatiles

and semivolatiles, and metals from Appendix IX. These four samples were

also analyzed to determine whether the waste exhibited ignitable,

corrosive, or reactive properties as defined under 40 CFR 261.21,

261.22, and 261.23, including analysis for total constituent

concentrations of cyanide, sulfide, reactive cyanide, and reactive

sulfide. These four samples were also analyzed for Toxicity

Characteristic Leaching Procedure (TCLP) concentrations (i.e., mass of

a particular constituent per unit volume of extract) of all the

volatiles, semivolatiles, and metals on the Appendix IX list. This list

was developed based on the availability of test methods and process

knowledge. Two sampling events were conducted, one in 1995 and one in

1996.

C. EPA Analysis

Occidental Chemical used SW-846 Methods 8260A, 8270B, 6010, 8290 to

quantify the total constituent concentrations of 40 CFR part 264,

Appendix IX Volatiles (including 2-ethoxyethanol, chloroethylene,

vinyldene chloride and trichloromethane), Appendix IX Semivolatiles

(excluding PCBs, Pesticides, Herbicides) Appendix IX Metals, and

Appendix IX Dioxins/Furans. Occidental Chemical used SW-846 Methods

9045, 9030, 9010, 1311 to quantify pH, Reactive Sulfide, and Reactive

Cyanide. Occidental Chemical used SW-846 Methods 8260A, 8270B, 6010,

8290 to quantify the constituents from the TCLP extract. These analyses

were performed on all three of the petitioned wastes: the Rockbox

Residue, Limestone Sludge, and the Caustic Neutralized Wastewater. The

Rockbox Residue, the Limestone Sludge, and the Caustic Neutralized

Wastewater do not meet the definitions for reactivity and corrosivity

as defined by Secs. 261.22 and 261.23. Table 2 presents the maximum

total constituent and leachate concentrations for the Rockbox Residue.

Table 2.--Maximum Total Constituent and Leachate Concentrations Rockbox

Residue \2\

------------------------------------------------------------------------

Total

constituent Leachate analyses

Constituents analyses (mg/ (mg/l)

kg)

------------------------------------------------------------------------

Acetone.............................. 3

------------------------------------------------------------------------

Total

constituent Leachate analyses

Constituent analyses (mg/ (mg/l)

kg)

------------------------------------------------------------------------

Acetone.............................. 0.034 0.27

Bromoform............................ 0.031 10 (mg/l) 11

------------------------------------------------------------------------

Acetone........................... 0.00143 4.0

Bromoform......................... 0.01 0.01

Chlorodibromomethane.............. 0.001 0.001

2,3,7,8-TCDD Equivalent........... 0.00000000012 0.0000000006

Arsenic........................... 0.00143 0.05

Barium............................ 0.03 2.0

[[Page 25804]]

Lead.............................. 0.01 0.015

Silver............................ 0.01 0.02

Vanadium.......................... 0.001 0.3

Zinc.............................. 0.07 10.0

------------------------------------------------------------------------

\10\ Using the maximum total concentration, based on a DAF of 7 for a

maximum annual volume of 148,248 cubic yards.

\11\ See Table 6.

The maximum reported or calculated leachate concentrations of

bromoform, chlorodibromomethane, dichloromethane, ethylbenzene,

2,3,7,8-TCDD Equivalent, barium, chromium, and selenium in the Rockbox

Residue yielded compliance point concentrations well below the health

based levels used in the delisting decision-making. The EPA did not

evaluate the mobility of the remaining constituents (e.g., acetone,

bromodichloromethane, copper, lead) from Occidental Chemical's waste

because they were not detected in the leachate using the appropriate

analytical test methods (see Table 2). The EPA does not evaluate

nondetectable concentrations of a constituent of concern in its

modeling efforts if the nondetectable value was obtained using the

appropriate analytical method; the EPA then assumes that the

constituent is not present and therefore does not present a threat to

human health or the environment.

The maximum reported or calculated leachate concentrations of

acetone, bromoform, chlorodibromomethane, 2,3,7,8-TCDD Equivalent,

arsenic, barium, lead, silver, vanadium, and zinc in the Caustic

Neutralized Wastewater yielded compliance point concentrations well

below the health based levels used in the delisting decision-making.

The maximum reported or calculated leachate concentrations of

acetone, dichloromethane, ethylbenzene, toluene, xylene, 2,3,7,8-TCDD

Equivalent, barium, nickel, selenium, and zinc in the Limestone Sludge

yielded compliance point concentrations well below the health based

levels used in the delisting decision-making. The EPA did not evaluate

the mobility of the remaining constituents ( e.g., bromoform,

beryllium, chromium, cobalt, copper, lead) from Occidental Chemical's

waste because they were not detected in the leachate using the

appropriate analytical test methods (see Table 3). As explained above,

the EPA does not evaluate nondetectable concentrations of a constituent

of concern in its modeling efforts if the non-detectable value was

obtained using the appropriate analytical method.

The EPA concluded, after reviewing Occidental Chemical's processes

that no other hazardous constituents of concern, other than those for

which tested, are likely to be present or formed as reaction products

or by products in Occidental Chemical's wastes. In addition, on the

basis of explanations and analytical data provided by Occidental

Chemical, pursuant to Sec. 260.22, the EPA concludes that the

petitioned wastes do not exhibit any of the characteristics of

ignitability, corrosivity, or reactivity. See Secs. 261.21, 261.22, and

261.23, respectively.

During the evaluation of Occidental Chemical's petition, the EPA

also considered the potential impact of the petitioned wastes 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 Occidental Chemical's petitioned

wastes is unlikely. Therefore, no appreciable air releases are likely

from Occidental's wastes under any likely disposal conditions. The EPA

evaluated the potential hazards resulting from the unlikely scenario of

airborne exposure to hazardous constituents released from Occidental

Chemical's wastes in an open landfill. The results of this worst-case

analysis indicated that there is no substantial present or potential

hazard to human health and the environment from airborne exposure to

constituents from Occidental Chemical's Rockbox Residue, Caustic

Neutralized Wastewater, or the Limestone Sludge. A description of the

EPA's assessment of the potential impact of Occidental Chemical's

wastes, regarding 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

wastes via a surface water route. The EPA believes that containment

structures at municipal solid waste landfills can effectively control

surface water runoff, as the Subtitle D regulations (See 56 FR 50978,

October 9, 1991) prohibit pollutant discharges into surface waters.

Furthermore, the concentrations of any hazardous constituents dissolved

in the run-off will tend to be lower than the levels in the TCLP

leachate analyses reported in today's notice due to the aggressive

acidic medium used for extraction in the TCLP. The EPA believes that,

in general, leachate derived from the wastes is unlikely to directly

enter a surface water body without first traveling through the

saturated subsurface where dilution and attenuation of hazardous

constituents will also occur. Leachable concentrations provide a direct

measure of solubility of a toxic constituent in water and are

indicative of the fraction of the constituent that may be mobilized in

surface water as well as ground water.

Based on the reasons discussed above, EPA believes that the

contamination of surface water through runoff from the waste disposal

area is very unlikely. Nevertheless, the EPA evaluated the potential

impacts on surface water if Occidental Chemical's waste were released

from a municipal solid waste landfill through runoff 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 Occidental Chemical's Rockbox

Residue, the Caustic Neutralized Wastewater, and the Limestone Sludge

wastes are not a present or potential substantial hazard to human

health and the environment via the surface water exposure pathway.

[[Page 25805]]

E. Conclusion

The EPA believes that the descriptions of the Occidental Chemical

hazardous waste process and analytical characterization, in conjunction

with the proposed verification testing requirements (as discussed later

in this notice), provide a reasonable basis to grant Occidental

Chemical's petition for an exclusion of the Rockbox Residue, Limestone

Sludge, and Caustic Neutralized Wastewater. The EPA believes the data

submitted in support of the petition show Occidental Chemical's process

can render the Rockbox Residue, Limestone Sludge, and Caustic

Neutralized Wastewater non-hazardous. The EPA has reviewed the sampling

procedures used by Occidental Chemical and has determined they satisfy

EPA criteria for collecting representative samples of the variations in

constituent concentrations in the Rockbox Residue, Limestone Sludge,

and Caustic Neutralized Wastewater. The data submitted in support of

the petition show that constituents in Occidental Chemical's waste are

presently below health-based levels used in the delisting decision-

making. The EPA believes that Occidental Chemical has successfully

demonstrated that the Rockbox Residue, Limestone Sludge, and Caustic

Neutralized Wastewater is non-hazardous.

The EPA's decision to exclude this waste is based on descriptions

of the incineration and the wastewater treatment activities associated

with the petitioned waste and characterization of the Rockbox Residue,

the Limestone Sludge, and the Caustic Neutralized Wastewater. If the

proposed rule is finalized, the petitioned wastes will no longer be

subject to regulation under parts 262 through 268 and the permitting

standards of part 270. The EPA therefore, proposes to grant an

exclusion to the Occidental Chemical Corporation, located in Ingleside,

Texas, for the Rockbox Residue, Limestone Sludge, and Caustic

Neutralized Wastewater described in its petition.

F. Verification Testing Conditions

(1) Delisting Levels: All concentrations for the following

constituents must not exceed the following levels (ppm). For the

Rockbox Residue and the Limestone Sludge, constituents must be

measured in the waste leachate by the method specified in 40 CFR

Sec. 261.24. The constituents for the Caustic Neutralized Wastewater

must be measured in total constituents.

(A) Caustic Neutralized Wastewater

(i) Inorganic Constituents

Arsenic--0.35; Barium--14; Lead--0.11; Silver--0.14; Vanadium--

2.1; Zinc--70

(ii) Organic Constituents

Acetone--28; Bromoform--0.07; Chlorodibromomethane--0.01;

2,3,7,8-TCDD Equivalent--0.00000004

(B) Rockbox Residue

(i) Inorganic Constituents

Barium--100; Chromium--5; Copper--130; Lead--1.5; Selenium--1;

Tin--210; Vanadium--30; Zinc--1000

(ii) Organic Constituents

Acetone--400; Bromodichloromethane--0.14; Bromoform--1.0;

Chlorodibromethane--0.1; Chloroform--1.0; Dichloromethane--1.0;

Ethylbenzene--70; 2,3,7,8-TCDD Equivalent--0.000000531

(C) Limestone Sludge

(i) Inorganic Constituents

Antimony--0.6; Arsenic--5; Barium--100; Beryllium--0.4;

Chromium--10; Cobalt--210; Copper--130; Lead--1.5; Nickel--70;

Selenium--1; Silver--2.0; Vanadium--30; Zinc--1000

(ii) Organic Constituents

Acetone--400; Bromoform--1, Chlorodibromomethane--0.10;

Dichloromethane--1.0; Ethylbenzene--70; 1,1,1--Trichloroethane--20;

Toluene--700; Trichlorofluoromethane--1000; Xylene--2000; Diethyl

phthalate--3000; 2,3,7,8--TCDD Equivalent--0.0000006

This paragraph provides the levels of constituents for which

Occidental Chemical must test the leachate from the Rockbox Residue,

and the Limestone Sludge, and the water in the Caustic Neutralized

Wastewater, below which these wastes would be considered non-hazardous.

The exclusion is effective when it is signed, but the disposal can not

be implemented until the verification sampling is completed. If these

constituent levels are exceeded then that waste is considered to be

hazardous and must be managed as hazardous waste. If the annual testing

of the waste does not meet the delisting requirements described in

Paragraph 1, the facility must notify the Agency according to the

Paragraph 6. The exclusion will be suspended until a decision is

reached by the Agency. The facility shall provide sampling results

which support the rationale that the delisting exclusion should not be

withdrawn. The EPA selected the set of inorganic and organic

constituents specified after reviewing information about the

composition of the waste, descriptions of Occidental Chemical's

treatment process, previous test data provided for the three waste and

the respective health-based levels used in delisting decision-making.

The EPA established the proposed delisting levels for this paragraph by

back-calculating the Maximum Allowable Leachate (MALs) concentrations

from the health-based levels for the constituents of concern using the

EPACML chemical-specific DAFs of 100, 100, and 7 (See, previous

discussions in Section D--Agency Evaluation) i.e., MAL = HBL x DAF).

These delisting levels correspond to the allowable levels measured in

the TCLP extract of the waste.

(2) Waste Holding and Handling: Occidental Chemical must store

in accordance with its RCRA permit, or continue to dispose of as

hazardous all Rockbox Residue and the Limestone Sludge generated,

and continue to discharge the Caustic Neutralized Wastewater

generated in compliance with Occidental Chemical's NPDES permit

until the verification testing described in Condition (3)(A) and

(B), as appropriate, is completed and valid analyses demonstrate

that condition (3) is satisfied. If the levels of constituents

measured in the samples of the Rockbox Residue, the Limestone

Sludge, and the Caustic Neutralized Wastewater do not exceed the

levels set forth in Condition (1), then the waste is nonhazardous

and may be managed and disposed of in accordance with all applicable

solid waste regulations. Occidental Chemical must continue to treat

and discharge the Caustic Neutralized Wastewater as provided by the

terms of its NPDES permit. If constituent levels in a sample exceed

any of the delisting levels set in Condition (1), the waste

generated during the time period corresponding to this sample must

be managed and disposed of in accordance with Subtitle C of RCRA and

Occidental Chemical's NPDES permit.

The purpose of this paragraph is to ensure that any Rockbox Residue

and Limestone Sludge which might contain hazardous levels of inorganic

and organic constituents are managed and disposed of in accordance with

Subtitle C of RCRA. Holding the Rockbox Residue and Limestone Sludge

until characterization is complete will protect against improper

handling of hazardous material. Further, inasmuch as Occidental

Chemical has a permit to discharge under the NPDES program, it must

continue to fully meet those permit requirements and may, according to

this exception, only dispose of the Caustic Neutralized Wastewater as

provided by that permit. If the EPA determines that the data collected

under this condition do not support the data provided for the petition

or Occidental Chemical is no longer meeting the terms of its NPDES

permit, the exclusion will not cover the three wastes.

(3) Verification Testing Requirements: Sample collection and

analyses, including quality control procedures, must be performed

according to SW-846 methodologies. If EPA judges the incineration

process to be effective under the operating conditions used during

the initial verification testing, Occidental Chemical may replace

the testing required in Condition (3)(A) with the testing required

in Condition (3)(B). Occidental Chemical must continue to test as

specified in Condition (3)(A) until and unless notified by EPA in

writing that testing

[[Page 25806]]

in Condition (3)(A) may be replaced by Condition (3)(B).

(A) Initial Verification Testing: (i) During the first 40

operating days of the Incinerator Offgas Treatment System after the

final exclusion is granted, Occidental Chemical must collect and

analyze composites of the Limestone Sludge, and the Caustic

Neutralized Wastewater. Daily composites must be composed of

representative grab samples collected every 6 hours during each unit

operating cycle. The two wastes must be analyzed, prior to disposal,

for all of the constituents listed in Paragraph 1. Occidental

Chemical must report the operational and analytical test data,

including quality control information, obtained during this initial

period no later than 90 days after the generation of the two wastes.

(ii) When the Rockbox unit is decommissioned for cleanout after

the final exclusion is granted, Occidental Chemical must collect and

analyze composites of the Rockbox Residue. The waste must be sampled

after each decommissioning. Two composites must be composed of

representative grab samples collected from the Rockbox unit. The

waste must be analyzed, prior to disposal, for all of the

constituents listed in Paragraph 1. No later than 90 days after the

Rockbox is decommissioned for cleanout the first two times after

this exclusion becomes final, Occidental Chemical must report the

operational and analytical test data, including quality control

information.

If the EPA determines that the data from the initial verification

period demonstrates the treatment process is effective, Occidental

Chemical may request that EPA allow it to perform verification testing

on a quarterly basis for the Limestone Sludge and the Caustic

Neutralized Wastewater. The Rockbox Residue will be sampled during

periodic maintenance. If approved in writing by EPA, then Occidental

Chemical may begin verification testing quarterly of the Limestone

Sludge and the Caustic Neutralized Wastewater.

The EPA believes that an initial period of 40 days is sufficient

for a facility to collect sufficient data to verify the data provided

for the Limestone Sludge and the Caustic Neutralized Wastewater in the

1997 petition is representative of the waste to be delisted. If the EPA

determines that the data collected under this condition do not support

the data provided for the petition, the exclusion will not cover the

generated wastes. If the EPA determines that the data from the initial

verification period reflected in (3)(A)(i) demonstrates that the

treatment process is effective, EPA will notify Occidental Chemical in

writing that the testing conditions in (3)(A)(i) may be replaced with

the testing conditions in (3)(B). EPA also believes it is sufficient

for Occidental Chemical to collect verification data for the Rockbox

Residue when the Rockbox unit is decommissioned for cleanout.

(B) Subsequent Verification Testing: Following written

notification by EPA, Occidental Chemical may substitute the testing

conditions in (3)(B) for (3)(A)(i). Occidental Chemical must

continue to monitor operating conditions, and analyze samples

representative of each quarter of operation during the first year of

waste generation. The samples must represent the waste generated

over one quarter. (This provision does not apply to the Rockbox

Residue.)

The EPA believes that the concentrations of the constituents of

concern in the Rockbox Residue, the Limestone Sludge, and the Caustic

Neutralized Wastewater may vary somewhat over time. As a result, in

order to ensure that Occidental Chemical's treatment process can

effectively handle any variation in constituent concentrations in the

three wastes, the EPA is proposing a subsequent verification testing

condition. The proposed subsequent testing would verify that the

incinerator offgas system is operated in a manner similar to its

operation during the initial verification testing and that the Rockbox

Residue, the Limestone Sludge, and the Caustic Neutralized Wastewater,

do not exhibit unacceptable levels of toxic constituents. Therefore,

the EPA is proposing to require Occidental Chemical to analyze

representative samples of the Limestone Sludge, and the Caustic

Neutralized Wastewater on a quarterly basis during the first year of

waste generation (commencing on the anniversary date of the final

exclusion) as described in Condition (3)(B). The Rockbox Residue will

be sampled when the unit is out of commission for routine maintenance.

(C) Termination of Organic Testing for Limestone Sludge and

Caustic Neutralized Wastewater: Occidental Chemical must continue

testing as required under Condition (3)(B) for organic constituents

specified in Condition (1)(A)(ii) and (1)(C)(ii) until the analyses

submitted under Condition (3)(B) show a minimum of two consecutive

quarterly samples below the delisting levels in Conditions

(1)(A)(ii) and (1)(C)(ii). Occidental Chemical may then request that

quarterly organic testing be terminated. After EPA notifies

Occidental Chemical in writing it may terminate quarterly organic

testing. Following termination of the quarterly testing, Occidental

Chemical must continue to test a representative composite sample for

all constituents listed in Condition (1) on an annual basis (no

later than twelve months after final exclusion). If the waste

exceeds the delisting levels then the waste will not be delisted.

The EPA is proposing to terminate the subsequent testing conditions

for organics as allowed in Condition (1)(A)ii and (1)(C)(ii) after

Occidental Chemical has demonstrated the delisting levels for the waste

are consistently met. If the annual testing of the wastes does not meet

the delisting requirements described in Paragraph 1, the facility must

notify the Agency according to the requirements in Paragraph 6. The

exclusion will be suspended until a decision is reached by the Agency.

The facility shall provide sampling results which support the rationale

that the delisting exclusion should not be withdrawn. In order to

confirm that the characteristics of the wastes do not change

significantly over time, Occidental Chemical must continue to analyze a

representative sample of the wastes for organic constituents on an

annual basis (no later than twelve months after the final exclusion).

If Occidental Chemical changes operating conditions as described in

Condition (4), then Occidental Chemical must reinstate all testing in

Condition (3)(A), pending a new demonstration under this condition for

termination. Occidental Chemical must continue Organic Testing of the

Rockbox Residue for that waste to be excluded.

(4) Changes in Operating Conditions: If Occidental Chemical

significantly changes the process described in its petition or

implements any processes which generate(s) the waste(s) and which

may or could affect the composition or type waste(s) generated as

established under Condition (1) (by illustration, but not

limitation, change in equipment or operating conditions of the

treatment process), or its NPDES permit is changed, revoked or not

reissued, or if it intends to manage the Caustic Neutralized

Wastewater other than by discharge under its NPDES permit,

Occidental Chemical must notify the EPA in writing and may no longer

handle the wastes generated from the new process, or no longer

discharge as nonhazardous until the wastes meet the delisting levels

set in Condition (1) and it has received written approval to do so

from EPA.

Condition (4) would allow Occidental Chemical the flexibility of

modifying its processes (e.g., changes in equipment or change in

operating conditions) to improve its treatment process. However,

Occidental Chemical must demonstrate that the change would not affect

the composition or type of waste and request approval from the EPA.

Wastes generated during the new process demonstration must be managed

as a hazardous waste until written approval has been obtained and

Condition (1) is satisfied. If Occidental Chemical changes operating

conditions as described in Condition (5), then Occidental Chemical must

reinstate all testing in Condition (3) pending a new

[[Page 25807]]

demonstration under this condition for termination.

(5) Data Submittals: The data obtained through Condition 3 must

be submitted to Mr. William Gallagher, Chief, Region 6 Delisting

Program, EPA, 1445 Ross Avenue, Dallas, Texas 75202-2733, Mail Code,

(6PD-O) within the time period specified. Records of operating

conditions and analytical data from Condition (1) must be compiled,

summarized, and maintained on site for a minimum of five years.

These records and data must be furnished upon request by EPA, or the

State of Texas, and made available for inspection. Failure to submit

the required data within the specified time period or maintain the

required records on site for the specified time will be considered

by EPA, at its discretion, sufficient basis to revoke the exclusion

to the extent directed by EPA. All data must be accompanied by a

signed copy of the following certification statement to attest to

the truth and accuracy of the data submitted:

Under civil and criminal penalty of law for the making or

submission of false or fraudulent statements or representations

(pursuant to the applicable provisions of the Federal Code, which

include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C.

6928), I certify that the information contained in or accompanying

this document is true, accurate and complete.

As to the (those) identified section(s) of this document for

which I cannot personally verify its (their) truth and accuracy, I

certify as the company official having supervisory responsibility

for the persons who, acting under my direct instructions, made the

verification that this information is true, accurate and complete.

In the event that any of this information is determined by EPA

in its sole discretion to be false, inaccurate or incomplete, and

upon conveyance of this fact to the company, I recognize and agree

that this exclusion of waste will be void as if it never had effect

or to the extent directed by EPA and that the company will be liable

for any actions taken in contravention of the company's RCRA and

CERCLA obligations premised upon the company's reliance on the void

exclusion.

To provide appropriate documentation that Occidental Chemical's

facility is properly treating the waste, all analytical data obtained

through Condition (3), including quality control information, must be

compiled, summarized, and maintained on site for a minimum of five

years. Condition (5) requires that these data be furnished upon request

and made available for inspection by any employee or representative of

EPA or the State of Texas.

If made final, the proposed exclusion will apply only to 128 cubic

yards of Rockbox Residue, 1,114 cubic yards of Limestone Sludge, and

148,284 cubic yards of Caustic Neutralized Wastewater generated

annually at the wastewater system at the Occidental Chemical facility

after successful verification testing. Except as described in Condition

(4), the facility would be required to submit a new petition if the

treatment process specified for the Incinerator Offgas Treatment System

is significantly altered. Occidental Chemical would be required to file

a new delisting petition for any new manufacturing or production

process(es), or significant changes from the current process(es)

described in its petition which generates the three wastes or which may

or could affect the composition or type of waste generated.

Additionally if there is any change to Occidental Chemical's NPDES

permit or if it wishes to manage the Caustic Neutralized Wastewater

other than by discharge under its NPDES permit, except as provided in

Condition (4), Occidental would also be required to file a new

delisting petition. The facility must manage any of the waste in excess

of 128 cubic yards of Rockbox Residue, 1,114 cubic yards of Limestone

Sludge, and 148,284 cubic yards of Caustic Neutralized Wastewater

generated from a changed process as hazardous until a new exclusion is

granted.

Although management of the wastes covered by this petition would

not be subject to 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.

(6) Reopener.

(a) If Occidental Chemical discovers that a condition at the

facility or an assumption related to the disposal of the excluded

waste that was modeled or predicted in the petition does not occur

as modeled or predicted, then Occidental Chemical must report any

information relevant to that condition, in writing, to the Regional

Administrator or his delegate within 10 days of discovering that

condition.

(b) Upon receiving information described in paragraph (a)

regardless of its source, the Regional Administrator or his delegate

will determine whether the reported condition requires further

action. Further action may include repealing the exclusion,

modifying the exclusion, or other appropriate response necessary to

protect human health and the environment.

The purpose of paragraph 6 is to require Occidental Chemical to

disclose new or different information related to a condition at the

facility or disposal of the waste if it had or has bearing on the

delisting. This will allow EPA to reevaluate the exclusion if new or

additional information is provided to the Agency by Occidental Chemical

which indicates that information on which EPA's decision was based was

incorrect or circumstances have changed such that information is no

longer correct or would cause EPA to deny the petition if then

presented. Further, although this provision expressly requires

Occidental Chemical to report differing site conditions or assumptions

used in the petition within 10 days of discovery, if EPA discovers such

information itself or from a third party, it can act on it as

appropriate. The language being proposed is similar to those provisions

found in RCRA regulations governing no-migration petitions located at

Sec. 268.6.

EPA has recognized that current delisting regulations contain no

express procedure for reopening a decision if additional information is

received and although it believes that it has the authority under RCRA

and the Administrative Procedures Act, 5 U.S.C. 551 (1978), et seq.

(APA), to take this action, EPA believes that a clear statement of its

authority in the context of delistings is merited in light of Agency

experience. (See, e.g., Reynolds Metals Company at 62 FR 37694 and 62

FR 63458 where the delisted waste did not leach in the actual disposal

site as it had been modeled thus leading the Agency to repeal the

delisting.) Until such time as EPA codifies an express reopener

provision in the exclusion regulations, EPA will include language

similar to that expressed above in delistings. EPA is considering the

inclusion of a more specific regulatory process both defining when a

delisting should be reopened and the result of reopening a granted

exclusion and is soliciting comments on this process. Since each

delisting is waste-specific and facility-specific or process-specific,

EPA is currently reluctant to adopt a rule which might inadvertently,

for example, cause an immediate repeal where specific circumstances

would not merit so precipitous a result. In the meantime, in the event

that an immediate threat to human health or the environment presents

itself, EPA will continue to rely on its authority under the APA to

make a good cause finding to justify an emergency rulemaking suspending

notice and comment. APA section 553(b).

(7) Notification Requirements: Occidental Chemical 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.

[[Page 25808]]

IV. Effective Date

EPA intends that this rule, should 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,

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, 5 USC 553(d).

V. Regulatory Impact

Under Executive Order (EO) 12866, EPA must conduct an ``assessment

of the potential costs and benefits'' for all ``significant''

regulatory actions. The proposal to grant an exclusion is not

significant, since its effect, if promulgated, would be to reduce the

overall costs and economic impact of EPA's hazardous waste management

regulations. This reduction would be achieved by excluding waste

generated at a specific facility from EPA's lists of hazardous wastes,

thereby enabling this facility to manage its waste as nonhazardous.

There is no additional impact therefore, due to today's proposed 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. Children's Health Protection

Under EO 13045, for all significant regulatory actions as defined

by EO 12866, EPA must provide an evaluation of the environmental health

or safety effect of a proposed rule on children and an explanation of

why the proposed rule is preferable to other potentially effective and

reasonably feasible alternatives considered by EPA. This proposal is

not a significant regulatory action and is exempt from EO 13045.

VII. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,

whenever an agency is required to publish a general notice of

rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis which

describes the impact of the rule on small entities (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 small entities.

This rule if promulgated, will not have an adverse economic impact

on small entities since its effect would be to reduce the overall costs

of EPA's hazardous waste regulations. 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.

VIII. Paperwork Reduction Act

Information collection and record-keeping requirements associated

with this proposed rule have been approved by the Office of Management

and Budget (OMB) under the provisions of the Paperwork Reduction Act of

1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned

OMB Control Number 2050-0053.

IX. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995

(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,

EPA 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, EPA must identify and consider

alternatives, including the least costly, most cost-effective or least

burdensome alternative that achieves the objectives of the rule. 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 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 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.

X. Intergovernmental Partnership

Under EO 12875, EPA may not promulgate any regulation which creates

an unfunded mandate upon state, local or tribal government. 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 (See Section IX (UMRA) above) and accordingly, this action

is exempt from the requirements of EO 12875.

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. 6921(f).

Dated: April 17, 1998.

Robert Hannesschlager,

Acting Director, Multimedia Planning and Permitting Division.

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 Tables 1 and 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 Secs. 260.20 and

260.22

[[Page 25809]]

Table 1. Wastes Excluded From Non-Specific Sources

----------------------------------------------------------------------------------------------------------------

Facility Address Waste description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

Occidental Chemical, Ingleside, Texas..................... Limestone sludge, (at a

maximum generation of

1,114 cubic yards per

calendar year) Rockbox

Residue, (at a maximum

generation of 128 cubic

yards per calendar year)

and Caustic Neutralized

Wastewater, (at a maximum

generation of 148,282

cubic yards per calendar

year) generated by

Occidental Chemical using

the wastewater treatment

process to treat the

Rockbox Residue, the

Limestone Sludge, and the

Caustic Neutralized

Wastewater (EPA Hazardous

Waste No. F025, F001,

F003, and F005) generated

at Occidental Chemical.

Occidental Chemical must

implement a testing

program that meets the

following conditions for

the exclusion to be

valid:

(1) Delisting Levels: All

concentrations for the

following constituents

must not exceed the

levels (ppm). For the

Rockbox Residue and the

Limestone Sludge,

constituents must be

measured in the waste

leachate by the method

specified in 40 CFR Part

261.24. The constituents

for the Caustic

Neutralized Wastewater

must be measured in total

constituents.

(A) Caustic Neutralized

Wastewater.

(i) Inorganic Constituents

Arsenic-0.35; Barium-14;

Lead-0.11; Silver-0.14;

Vanadium-2.1; Zinc-70.

(ii) Organic Constituents

Acetone-28; Bromoform-

0.07;

Chlorodibromomethane-

0.01; 2,3,7,8-TCDD

Equivalent-0.00000004.

(B) Rockbox Residue.

(i) Inorganic Constituents

Barium-200; Chromium-10;

Copper-130; Lead-1.5;

Selenium-1; Tin-210;

Vanadium-30; Zinc-1000.

(ii) Organic Constituents

Acetone-400;

Bromodichloromethane-

0.14; Bromoform-1.0;

Chlorodibromethane-0.1;

Chloroform-1.0;

Dichloromethane-1.0;

Ethylbenzene-70; 2,3,7,8-

TCDD Equivalent-

0.000000531.

(C) Limestone Sludge.

(i) Inorganic Constituents

Antimony-0.6; Arsenic-5;

Barium-200; Beryllium-

0.4; Chromium-10; Cobalt-

210; Copper-130; Lead-

1.5; Nickel-70; Selenium-

1; Silver-2.0; Vanadium-

30; Zinc-1000.

(ii) Organic Constituents

Acetone-400; Bromoform-1,

Chlorodibromomethane-0.1;

Dichloromethane-1.0;

Ethylbenzene-70; 1,1,1-

Trichloroethane-20;

Toluene-700;

Trichlorofluoromethane-

1000; Xylene-2000;

Diethyl phthalate-3000;

2,3,7,8-TCDD Equivalent-

0.0000006.

(2) Waste Holding and

Handling: Occidental

Chemical must store in

accordance with its RCRA

permit, or continue to

dispose of as hazardous

waste all Rockbox

Residue, and the

Limestone Sludge

generated, and continue

to discharge the Caustic

Neutralized Wastewater

generated in compliance

with Occidental

Chemical's NPDES permit

until the verification

testing described in

Condition (3)(A) and

(3)(B), as appropriate,

is completed and valid

analyses demonstrate that

condition (3) is

satisfied. If the levels

of constituents measured

in the samples of the

Rockbox Residue, the

Limestone Sludge, and the

Caustic Neutralized

Wastewater do not exceed

the levels set forth in

Condition (1), then the

waste is nonhazardous and

may be managed and

disposed of in accordance

with all applicable solid

waste regulations.

Occidental Chemical must

continue to treat and

discharge the Caustic

Neutralized Wastewater as

provided by the terms of

its NPDES permit. If

constituent levels in a

sample exceed any of the

delisting levels waste

generated during the time

period corresponding to

this sample must be

managed and disposed of

in accordance with

Subtitle C of RCRA and

Occidental Chemical's

NPDES permit.

(3) Verification Testing

Requirements: Sample

collection and analyses,

including quality control

procedures, must be

performed according to SW-

846 methodologies. If EPA

judges the incineration

process to be effective

under the operating

conditions used during

the initial verification

testing, Occidental

Chemical may replace the

testing required in

condition (3)(A) with the

testing required in

Condition (3)(B).

Occidental Chemical must

continue to test as

specified in Condition

(3)(A) until and unless

notified by EPA in

writing that testing in

Condition (3)(A) may be

replaced by Condition

(3)(B).

(A) Initial Verification

Testing: (i) During the

first 40 operating days

of the Incinerator Offgas

Treatment System after

the final exclusion is

granted, Occidental

Chemical must collect and

analyze composites of the

Limestone Sludge, and the

Caustic Neutralized

Wastewater. Daily

composites must be

composed of

representative grab

samples collected every 6

hours during each unit

operating cycle. The two

wastes must be analyzed,

prior to disposal, for

all of the constituents

listed in Paragraph 1.

Occidental Chemical must

report the operational

and analytical test data,

including quality control

information, obtained

during this initial

period no later 90 days

after the generation of

the two wastes.

[[Page 25810]]

(ii) When the Rockbox unit

is decommissioned for

cleanout, after the final

exclusion is granted,

Occidental Chemical must

collect and analyze

composites of the Rockbox

Residue. Two composites

must be composed of

representative grab

samples collected from

the Rockbox unit. The

waste must be analyzed,

prior to disposal, for

all of the constituents

listed in Paragraph 1. No

later than 90 days after

the Rockbox is

decommissioned for

cleanout the first two

times after this

exclusion becomes final,

Occidental Chemical must

report the operational

and analytical test data,

including quality control

information.

(B) Subsequent

Verification Testing:

Following written

notification by EPA,

Occidental Chemical may

substitute the testing

conditions in (3)(B) for

(3)(A)(i). Occidental

Chemical must continue to

monitor operating

conditions, analyze

samples representative of

each quarter of operation

during the first year of

waste generation. The

samples must represent

the waste generated over

one quarter. (This

provision does not apply

to the Rockbox Residue.)

(C) Termination of Organic

Testing for the Limestone

Sludge and the Caustic

Neutralized Wastewater:

Occidental Chemical must

continue testing as

required under Condition

(3)(B) for organic

constituents specified in

Condition (1)(A)(ii) and

(1)(C)(ii) until the

analyses submitted under

Condition (3)(B) show a

minimum of two

consecutive quarterly

samples below the

delisting levels in

Condition (1)(A)(ii) and

(1)(C)(ii), Occidental

Chemical may then request

that quarterly organic

testing be terminated.

After EPA notifies

Occidental Chemical in

writing it may terminate

quarterly organic

testing. Following

termination of the

quarterly testing,

Occidental Chemical must

continue to test a

representative composite

sample for all

constituents listed in

Condition (1) on an

annual basis (no later

than twelve months after

the final exclusion).

(4) Changes in Operating

Conditions: If Occidental

Chemical significantly

changes the process which

generate(s) the waste(s)

and which may or could

affect the composition or

type waste(s) generated

as established under

Condition (1) (by

illustration, but not

limitation, change in

equipment or operating

conditions of the

treatment process), or

its NPDES permit is

changed, revoked or not

reissued, or if it

intends to manage the

Caustic Neutralized

Wastewater other than by

discharge under its NPDES

permit, Occidental

Chemical must notify the

EPA in writing and may no

longer handle the wastes

generated from the new

process or no longer

discharges as

nonhazardous until the

wastes meet the delisting

levels set in Condition

(1) and it has received

written approval to do so

from EPA.

(5) Data Submittals: The

data obtained through

Condition 3 must be

submitted to Mr. William

Gallagher, Chief, Region

6 Delisting Program, U.S.

EPA, 1445 Ross Avenue,

Dallas, Texas 75202-2733,

Mail Code, (6PD-O) within

the time period

specified. Records of

operating conditions and

analytical data from

Condition (1) must be

compiled, summarized, and

maintained on site for a

minimum of five years.

These records and data

must be furnished upon

request by EPA, or the

State of Texas, and made

available for inspection.

Failure to submit the

required data within the

specified time period or

maintain the required

records on site for the

specified time period or

maintain the required

records on site for the

specified time will be

considered by EPA, at its

discretion, sufficient

basis to revoke the

exclusion to the extent

directed by EPA. All data

must be accompanied by a

signed copy of the

following certification

statement to attest to

the truth and accuracy of

the data submitted:

Under civil and criminal

penalty of law for the

making or submission of

false or fraudulent

statements or

representations (pursuant

to the applicable

provisions of the Federal

Code, which include, but

may not be limited to, 18

USC Sec. 1001 and 42 USC

Sec. 6928), I certify

that the information

contained in or

accompanying this

document is true,

accurate and complete.

As to the (those)

identified section(s) of

this document for which I

cannot personally verify

its (their) truth and

accuracy, I certify as

the company official

having supervisory

responsibility for the

persons who, acting under

my direct instructions,

made the verification

that this information is

true, accurate and

complete.

In the event that any of

this information is

determined by EPA in its

sole discretion to be

false, inaccurate or

incomplete, and upon

conveyance of this fact

to the company, I

recognize and agree that

this exclusion of waste

will be void as if it

never had effect or to

the extent directed by

EPA and that the company

will be liable for any

actions taken in

contravention of the

company's RCRA and CERCLA

obligations premised upon

the company's reliance on

the void exclusion.

(6) Reopener.

(a) If Occidental Chemical

discovers that a

condition at the facility

or an assumption related

to the disposal of the

excluded waste that was

modeled or predicted in

the petition does not

occur as modeled or

predicted, then

Occidental Chemical must

report any information

relevant to that

condition, in writing, to

the Director of the

Multimedia Planning and

Permitting Division or

his delegate within 10

days of discovering that

condition.

(b)Upon receiving

information described in

paragraph (a) from any

source, the Director or

his delegate will

determine whether the

reported condition

requires further action.

Further action may

include revoking the

exclusion, modifying the

exclusion, or other

appropriate response

necessary to protect

human health and the

environment.

[[Page 25811]]

(7) Notification

Requirements: Occidental

Chemical must provide a

one-time written

notification to any State

Regulatory Agency to

which or through which

the debited 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.

* * * * * *

*

----------------------------------------------------------------------------------------------------------------

Table 2. Wastes Excluded From Specific Sources

----------------------------------------------------------------------------------------------------------------

Facility Address Waste description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

Occidental Chemical.......................... Ingleside, Texas..................... Limestone sludge, (at a

maximum generation of

1,114 cubic yards per

calendar year) Rockbox

Residue, (at a maximum

generation of 128 cubic

yards per calendar year)

and Caustic Neutralized

Wastewater, (at a maximum

generation of 148,282

cubic yards per calendar

year) generated by

Occidental Chemical using

the wastewater treatment

process to treat the

Rockbox Residue, the

Limestone Sludge, and the

Caustic Neutralized

Wastewater (EPA Hazardous

Waste No. K019, K020.

Occidental Chemical must

implement a testing

program that meets

conditions found in Table

1. Wastes Excluded From

Non-Specific Sources for

the petition to be valid.

* * * * * *

*

----------------------------------------------------------------------------------------------------------------

[FR Doc. 98-12427 Filed 5-8-98; 8:45 am]

BILLING CODE 6560-50-P