Hazardous Waste Management System; Proposed Exclusion for Identifying and Listing Hazardous Waste

gration of

hazardous constituents from this waste. Their process also minimizes

short-term and long-term threats from the petitioned waste to human

health and the environment.

DATES: We will accept comments until October 4, 1999. We will stamp

comments postmarked after the close of the comment period as ``late.''

These ``late'' comments may not be considered in formulating a final

decision.

ADDRESSES: Please send three copies of your comments: Send two copies

to William Gallagher, Delisting Section, Multimedia Planning and

Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross

Avenue, Dallas, Texas 75202. Send the third copy 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-99-TXDEL-DURATHERM.''

You should address requests for a hearing to the Acting Director,

Robert E. Hannesschlager, Multimedia Planning and Permitting Division

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

75202.

Your requests for a hearing must reach EPA by September 2, 1999.

The request must contain the information prescribed in Sec. 260.20(d).

FOR FURTHER INFORMATION CONTACT: For technical information concerning

this notice, contact Michelle Peace, Multimedia Planning and Permitting

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

Dallas, TX 75202, (214) 665-7430.

SUPPLEMENTARY INFORMATION: The information in this section is organized

as follows:

uest must contain the information prescribed in Sec. 260.20(d).

FOR FURTHER INFORMATION CONTACT: For technical information concerning

this notice, contact Michelle Peace, Multimedia Planning and Permitting

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

Dallas, TX 75202, (214) 665-7430.

SUPPLEMENTARY INFORMATION: The information in this section is organized

as follows:

I. Overview Information

A. What action is EPA proposing?

B. Why is EPA proposing to approve this delisting?

C. How will DuraTherm manage the waste if it is delisted?

D. When would the proposed delisting exclusion be finalized?

E. How would this action affect states?

II. Background

A. What is the history of the delisting program?

B. What is a delisting petition, and what does it require of a

petitioner?

C. What factors must EPA consider in deciding whether to grant a

delisting petition?

III. EPA's Evaluation of the Waste Data

A. What wastes did DuraTherm petition EPA to delist?

B. Who is DuraTherm, and what process do they use?

C. How did DuraTherm sample and analyze the waste data in this

petition?

D. What were the results of DuraTherm's analysis?

E. How did EPA evaluate the risk of delisting this waste?

F. What did EPA conclude about DuraTherm's analysis?

G. What other factors did EPA consider?

H. What is EPA's final evaluation of this delisting petition?

IV. Next Steps

A. With what conditions must the petitioner comply?

B. What happens if DuraTherm violates the terms and conditions?

V. Public Comments

A. How may I as an interested party submit comments?

B. How may I review the docket or obtain copies of the proposed

exclusions?

I. Overview Information

a. What Action is EPA Proposing?

The EPA is proposing:

(1) To grant DuraTherm's petition to have their desorber solids

excluded, or delisted, from the definition of a hazardous waste; and

ates the terms and conditions?

V. Public Comments

A. How may I as an interested party submit comments?

B. How may I review the docket or obtain copies of the proposed

exclusions?

I. Overview Information

a. What Action is EPA Proposing?

The EPA is proposing:

(1) To grant DuraTherm's petition to have their desorber solids

excluded, or delisted, from the definition of a hazardous waste; and

(2) to use a fate and transport model to evaluate the potential impact

of the petitioned waste on human health and the environment. The Agency

uses this model to predict the concentration of hazardous constituents

released from the petitioned waste once it is disposed.

B. Why is EPA Proposing To Approve This Delisting?

DuraTherm petitioned the Agency to exclude, or delist, the desorber

solids because they do not believe that the petitioned waste meets the

criteria for which EPA listed it. DuraTherm also believes no additional

constituents or factors could cause the wastes to be hazardous.

Based on our review, described below, the EPA agrees with the

petitioner that the waste is nonhazardous with respect to the original

listing criteria. (If our review had found that the waste remained

hazardous based on the factors for which DuraTherm originally listed

the waste, we would have proposed to deny the petition.)

In reviewing this petition, we considered the original listing

criteria and the additional factors required by the Hazardous and Solid

Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C.

6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste

against the listing criteria and factors cited in Secs. 261.11(a)(2)

and (a)(3).

We also evaluated the waste for other factors or criteria to assess

whether these additional factors could cause the waste to be hazardous

s required by the Hazardous and Solid

Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C.

6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste

against the listing criteria and factors cited in Secs. 261.11(a)(2)

and (a)(3).

We also evaluated the waste for other factors or criteria to assess

whether these additional factors could cause the waste to be hazardous.

These factors included, (1)whether the waste is considered acutely

toxic; (2) the toxicity of the constituents, (3) the concentration of

the constituents in the waste, (4) the waste constituent's tendency to

migrate and to bioaccumulate, (5) its persistence in the environment

once released from the waste, (6) plausible and specific types of

management of the petitioned waste, (7) the quantity of waste produced,

and (8) waste variability.

The EPA believes that the petitioned waste does not meet the

criteria for which we listed the waste, and therefore, should be

delisted. The EPA's decision to delist waste from DuraTherm's facility

is based on the description of the thermal desorption treatment system

and analytical data from the San Leon facility submitted to support

today's rule.

C. How Will DuraTherm Manage the Waste if It Is Delisted?

If the petitioned waste is delisted, DuraTherm intends to manage it

in one of three off-site municipal solid waste landfills. If the waste

is stabilized, DuraTherm must ensure that the stabilized waste will

also meet the delisting levels. DuraTherm currently disposes of the

petitioned waste (desorber solids) generated at its facility in two

off-site RCRA hazardous waste landfills that are not owned/operated by

DuraTherm.

D. When Would the Proposed Delisting Exclusion Be Finalized?

e municipal solid waste landfills. If the waste

is stabilized, DuraTherm must ensure that the stabilized waste will

also meet the delisting levels. DuraTherm currently disposes of the

petitioned waste (desorber solids) generated at its facility in two

off-site RCRA hazardous waste landfills that are not owned/operated by

DuraTherm.

D. When Would the Proposed Delisting Exclusion Be Finalized?

The HSWA specifically requires the EPA to provide notice and an

opportunity for comment before granting or denying a final exclusion.

Thus, EPA will not grant the exclusion until it addresses all timely

public comments (including those at public hearings, if any) on today's

proposal.

This rule, if finalized, will become effective immediately upon

final publication. The HSWA amended Sec. 3010 of RCRA allows 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.

The EPA believes that this exclusion should be effective

immediately upon final publication because a six-month deadline is not

necessary to achieve the purpose of Sec. 3010, and a later effective

date would impose unnecessary hardship and expense on this petitioner.

These reasons also provide a basis for making this rule effective

immediately, upon final publication, under the Administrative Procedure

Act, 5 U.S.C. 553(d).

E. What States Would Be Affected By This Action?

blication because a six-month deadline is not

necessary to achieve the purpose of Sec. 3010, and a later effective

date would impose unnecessary hardship and expense on this petitioner.

These reasons also provide a basis for making this rule effective

immediately, upon final publication, under the Administrative Procedure

Act, 5 U.S.C. 553(d).

E. What States Would Be Affected By This Action?

Because EPA is issuing today's exclusion under the Federal RCRA

delisting program, only States subject to Federal RCRA delisting

provisions would be affected. This would exclude two categories of

States: States having a dual system that includes Federal RCRA

requirements and their own requirements, and States who have received

our authorization to make their own delisting decisions.

Here are the details: We allow states to impose their own non-RCRA

regulatory requirements that are more stringent than EPA's, under

section 3009 of RCRA. These more stringent requirements may include a

provision that prohibits a federally issued exclusion from taking

effect in the State. Because a dual system (that is, both Federal

(RCRA) and State (non-RCRA) programs) may regulate a petitioner's

waste, we urge petitioners to contact the State regulatory authority to

establish the status of their wastes under the State law.

The EPA has also authorized some States (for example, Louisiana,

Georgia, Illinois) to administer a delisting program in place of the

Federal program, that is, to make State delisting decisions. Therefore,

this exclusion does not apply in those authorized States. If DuraTherm

transports the petitioned waste to or manages the waste in any State

with delisting authorization, DuraTherm must obtain delisting

authorization from that State before they can manage the waste as

nonhazardous in the State.

II. Background

A. What Is the History of the Delisting Program?

te delisting decisions. Therefore,

this exclusion does not apply in those authorized States. If DuraTherm

transports the petitioned waste to or manages the waste in any State

with delisting authorization, DuraTherm must obtain delisting

authorization from that State before they can manage the waste as

nonhazardous in the State.

II. Background

A. What Is the History of the Delisting Program?

The EPA published an amended list of hazardous wastes from

nonspecific and specific sources on January 16, 1981, as part of its

final and interim final regulations implementing Section 3001 of RCRA.

The EPA has amended this list several times and published it in

Secs. 261.31 and 261.32.

We list these wastes as hazardous because: (1) they typically and

frequently exhibit one or more of the characteristics of hazardous

wastes identified in Subpart C of Part 261 (that is, ignitability,

corrosivity, reactivity, and toxicity) or (2) they meet the criteria

for listing contained in Secs. 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 described

in these regulations generally is hazardous, a specific waste from an

individual facility meeting the listing description may not be.

For this reason, Secs. 260.20 and 260.22 provide an exclusion

procedure, called delisting, which allows persons to demonstrate that

EPA should not regulate a specific waste from a particular generating

facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does It Require of a

Petitioner?

pecific waste from an

individual facility meeting the listing description may not be.

For this reason, Secs. 260.20 and 260.22 provide an exclusion

procedure, called delisting, which allows persons to demonstrate that

EPA should not regulate a specific waste from a particular generating

facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does It Require of a

Petitioner?

A delisting petition is a request from a facility to EPA or an

authorized State to exclude wastes from the list of hazardous wastes.

The facility petitions the Agency because they do not consider the

wastes hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes

generated at a particular facility do not meet any of the criteria for

the listed wastes. The criteria for which EPA lists a waste are in

Sec. 261.11 and in the background documents for the listed wastes.

In addition, a petitioner must demonstrate that the waste does not

exhibit any of the hazardous waste characteristics (that is,

ignitability, reactivity, corrosivity, and toxicity) and present

sufficient information for the EPA to decide whether factors other than

those for which the waste was listed warrant retaining it as a

hazardous waste. See Sec. 260.22, 42 U.S.C. Sec. 6921(f) and the

background documents for the listed wastes.

Generators remain obligated under RCRA to confirm whether their

waste remains nonhazardous based on the hazardous waste characteristics

even if EPA has ``delisted'' the wastes.

C. What Factors Must EPA Consider in Deciding Whether To Grant a

Delisting Petition?

rant retaining it as a

hazardous waste. See Sec. 260.22, 42 U.S.C. Sec. 6921(f) and the

background documents for the listed wastes.

Generators remain obligated under RCRA to confirm whether their

waste remains nonhazardous based on the hazardous waste characteristics

even if EPA has ``delisted'' the wastes.

C. What Factors Must EPA Consider in Deciding Whether To Grant a

Delisting Petition?

Besides considering the criteria in Sec. 260.22(a), in 42 U.S.C.

6921(f), and in the background documents for the listed wastes, EPA

must consider any factors (including additional constituents) other

than those for which we listed the waste if a reasonable basis exists

that these additional factors could cause the waste to be hazardous.

See the Hazardous and Solid Waste Amendments (HSWA) of 1984.

The EPA must also consider as hazardous wastes mixtures containing

listed hazardous wastes and wastes derived from treating, storing, or

disposing of listed hazardous waste. See Secs. 261.3(a)(2)(iv) and

(c)(2)(I), called the ``mixture'' and ``derived-from'' rules,

respectively. These wastes are also eligible for exclusion and remain

hazardous wastes until excluded.

The ``mixture'' and ``derived-from'' rules are now final, after

having been vacated, remanded, and reinstated. 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. 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 FR 7628). These rules became final on October 30, 1992

(57 FR 49278). Consult these references for more information about

mixtures derived from wastes.

III. EPA's Evaluation of the Waste Information and Data

A. What Wastes Did DuraTherm Petition EPA To Delist?

, 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). Consult these references for more information about

mixtures derived from wastes.

III. EPA's Evaluation of the Waste Information and Data

A. What Wastes Did DuraTherm Petition EPA To Delist?

On November 6, 1998, DuraTherm in San Leon, Texas, petitioned the

EPA for a standard exclusion of 20,000 cubic yards of desorber solids,

per calendar year, resulting from its thermal desorption treatment

process. The Agency has presently listed the resulting waste under

Sec. 261.3(c)(2)(I) (the ``derived from'' rule), as EPA Hazardous Waste

No. F037, F038, K048, K049, K050 and K051. Table 1 lists the

constituents of concern for these waste codes.

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

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

Waste Code Basis for Characteristics/Listing

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

F037............................. Benzene, benzo(a)pyrene, Chrysene,

lead, chromium.

F038............................. Benzene, benzo(a)pyrene, Chrysene,

lead, chromium.

K048............................. Hexavalent Chromium, Lead

K049............................. Hexavalent Chromium, Lead.

K050............................. Hexavalent Chromium.

K051............................. Hexavalent Chromium, Lead.

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

B. What Information and Analyses Did DuraTherm Submit To Support This

Petition?

To support its petition, DuraTherm submitted:

(1) Descriptions of its thermal desorption processes associated

with petitioned wastes;

(2) results of the total constituent list for 40 CFR part 264

Appendix IX volatiles, semivolatiles, and metals except pesticides,

herbicides, and PCBs;

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

B. What Information and Analyses Did DuraTherm Submit To Support This

Petition?

To support its petition, DuraTherm submitted:

(1) Descriptions of its thermal desorption processes associated

with petitioned wastes;

(2) results of the total constituent list for 40 CFR part 264

Appendix IX volatiles, semivolatiles, and metals except 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 metals concentrations in the Multiple Extraction

Procedure extract, and

(8) results of ignitability.

DuraTherm tested and analyzed the waste stream under five

conditions to properly account for variables in the waste stream:

during start-up operations, shut-down operations, slow feed rates, fast

feed rates, and normal operations. For wastes that failed to meet the

estimated delisting levels, DuraTherm stabilized the wastes to prevent

leaching metal constituents from the wastes. The facility submitted

results from the Multiple Extraction Procedure run on the stabilized

materials.

C. Who Is DuraTherm, and What Process Do They Use To Generate the

Petitioned Waste?

DuraTherm is an environmental waste management and resource

recovery company specializing in separation technologies applicable to

hydrocarbon contaminated wastes. The company has operated a RCRA Part B

permitted thermal desorber facility since 1994. The facility processes

large volumes of hazardous waste from petroleum industries. The

DuraTherm process recovers hydrocarbons from hydrocarbon contaminated

soils and sludges and reduces the volume of solids requiring landfill

disposal. The thermal desorption process uses high temperatures to

volatilize organics from a waste matrix in a nonoxidizing atmosphere,

while pulverizing the waste material

cility processes

large volumes of hazardous waste from petroleum industries. The

DuraTherm process recovers hydrocarbons from hydrocarbon contaminated

soils and sludges and reduces the volume of solids requiring landfill

disposal. The thermal desorption process uses high temperatures to

volatilize organics from a waste matrix in a nonoxidizing atmosphere,

while pulverizing the waste material.

The thermal desorption system:

(1) Consists of a rotating drum that a gas-fired convection heater

externally heats.

(2) Has support systems for feed, vapor condensation, recovery and

phase separation of liquids, solids, cooling and handling and airs

pollution control devices.

(3) Uses countercurrent inert gas or nitrogen purge/sweep to

maintain oxygen levels below those required for combustion. The purge/

sweep system also directs volatilized contaminants to the vapor exit.

(4) Uses a continuous feed system. Feed rates can vary from 2,000

to 8,000 pounds per hour depending on moisture content. Weight scales

in the hopper monitor the feed rates.

Hot air that is circulated around the drum heats the rotary drum. A

high temperature fan pulls the hot air away

from the enclosed burner box through the stationary heater shell and

across the finned section of the rotary drum.

The solids are removed from the drum by water jacketed hollow shaft

screw conveyors that are split to two parallel lines and then

discharged through an air lock into roll-off containers. These

containers are sealed under hydraulically controlled lids to eliminate

particulate emissions. The facility moves roll-off containers of filled

with desorber solids to a container storage area.

DuraTherm then samples and tests the desorber solids. They ship the

waste when the analysis is complete and results indicate the materials

meet applicable land disposal restrictions.

DuraTherm sells the recovered oil that meets the used oil

specifications as product

nate

particulate emissions. The facility moves roll-off containers of filled

with desorber solids to a container storage area.

DuraTherm then samples and tests the desorber solids. They ship the

waste when the analysis is complete and results indicate the materials

meet applicable land disposal restrictions.

DuraTherm sells the recovered oil that meets the used oil

specifications as product. The company sells the oil that fails the

used oil specifications to petroleum refiners for use in the refining

process.

D. How Did DuraTherm Sample and Analyze the Data in This Petition?

DuraTherm generated the waste samples from the thermal desorption

unit under five different operating conditions: at start-up, shutdown,

high feed rates, low feed rates, and under normal operating conditions.

For sampling, DuraTherm 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 in 40 CFR

Appendix IX part 264.

During a twenty-one day operational period, DuraTherm conducted its

sampling. Using the list of constituents of concern, DuraTherm

developed a sampling list based on the availability of test methods and

process knowledge. DuraTherm analyzed the forty composite samples:

(1) For the total concentrations (that is, the mass of a particular

constituent per mass of waste) of selected volatiles and semivolatiles,

and metals from Appendix IX.

(2) 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.

(that is, the mass of a particular

constituent per mass of waste) of selected volatiles and semivolatiles,

and metals from Appendix IX.

(2) 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.

(3) for TCLP concentrations (that is, the mass of a particular

constituent per unit volume of extract) of selected volatiles,

semivolatiles, and metals on the Appendix IX list.

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

DuraTherm Used These Methods To Quantify

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

SW-846 Method 8260A, 8270B, and 6010... The total constituent

concentrations of 40 CFR, part

Sec. 264 Appendix IX

Volatiles Appendix IX

Semivolatiles (excluding PCBs,

Pesticides, Herbicides) and

Appendix IX Metals.

SW-846 Methods 1311, 8260A, 8270B, The TCLP concentrations of

6010, 8290. constituents in the extract.

SW-846 1320............................ The concentration of metal

constituents in the extract

after the Multiple Extraction

Procedure.

SW-846 Methods 7470A, 7471A............ Mercury.

SW-846 9071A........................... Total oil and grease.

SW-846 9045A........................... pH.

SW-846 9030............................ Reactive Sulfide.

SW-846 9010A........................... Reactive Cyanide.

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

E. What Were the Results of DuraTherm's Analysis?

dure.

SW-846 Methods 7470A, 7471A............ Mercury.

SW-846 9071A........................... Total oil and grease.

SW-846 9045A........................... pH.

SW-846 9030............................ Reactive Sulfide.

SW-846 9010A........................... Reactive Cyanide.

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

E. What Were the Results of DuraTherm's Analysis?

The Desorber Solids do not meet the definitions for characteristic

waste as defined by Secs. 261.21-261.24. Table 2 presents the maximum

total constituent and leachate concentrations for the Desorber Solids.

Twenty-six of the forty samples tested exceeded the maximum

allowable leachate concentration for antimony. For this petition the

maximum allowable leachate concentration for antimony is 0.162 mg/L.

The EPA did not base its listing of F037, F038, K048, K049, K050 or

K051 on the presence of antimony. One of the twenty-six waste samples

exceeded the maximum allowable leachate concentration for lead (0.405

mg/L). We eliminated these samples from the delisting evaluation. The

EPA evaluated fourteen samples of waste. We believe that these fourteen

samples are representative of the waste codes to be delisted. DuraTherm

also anticipated the failures, stabilized the waste with Portland

Cement, and analyzed three of these samples using the Multiple

Extraction Procedure. The Multiple Extraction Procedure detected metals

concentrations for zinc (3.98 mg/l), antimony (0.15 mg/l), barium (3.37

mg/l), chromium (0.01 mg/l), and vanadium (0.03 mg/l). These

concentrations were below the maximum allowable leachate concentrations

EPA sets as delisting criteria.

he waste with Portland

Cement, and analyzed three of these samples using the Multiple

Extraction Procedure. The Multiple Extraction Procedure detected metals

concentrations for zinc (3.98 mg/l), antimony (0.15 mg/l), barium (3.37

mg/l), chromium (0.01 mg/l), and vanadium (0.03 mg/l). These

concentrations were below the maximum allowable leachate concentrations

EPA sets as delisting criteria.

Table 2. Maximum Total Constituent and Leachate Concentrations Desorber

Solids \1\

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

Total constituent Leachate

Constituents analyses (mg/kg) analyses (mg/l)

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

Antimony......................... 107 0.14

Arsenic.......................... 67.1 0.67

Barium........................... 7,750 2.86

Benzene.......................... 5.56 0.0129

Benzo (a) anthracene............. 0.241 ND

Beryllium........................ 4.73 0.006

Bis ethylhexyl phthalate......... 0.356 ND

Butanone (MEK)................... 1.76 0.0315

Cadmium.......................... 7.19 0.11

Carbon Disulfide................. 0.67 ND

Chromium......................... 987 0.18

Chrysene......................... 0.08 ND

o-Cresol......................... 0.134 0.0044

m,p cresols...................... 0.088 0.0053

Ethylbenzene..................... 0.15 ND

Fluoranthene..................... 0.166 ND

Lead............................. 3,910 0.23

Nickel........................... 1,310 2.37

Phenanthrene..................... 0.284 ND

Phenol........................... 0.259 0.0135

Pyrene........................... 0.153 ND

Selenium......................... 58.8 0.22

Silver........................... 8.05 0.02

Styrene.......................... 0.38 ND

Toluene.......................... 1.16 0.0008

Vanadium......................... 3,760 0.11

Xylene........................... 0.17 ND

Zinc............................. 6,290 26.5

Reactive sulfide................. 60 ................

Total sulfide...................

53 ND

Selenium......................... 58.8 0.22

Silver........................... 8.05 0.02

Styrene.......................... 0.38 ND

Toluene.......................... 1.16 0.0008

Vanadium......................... 3,760 0.11

Xylene........................... 0.17 ND

Zinc............................. 6,290 26.5

Reactive sulfide................. 60 ................

Total sulfide.................... 21,800 ................

Total cyanide.................... 2.3 ................

Oil and grease................... 4,700 ................

pH............................... 5.97-12.4 ................

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

ND Denotes that the constituent was not detected at the detection limit

specified in the table.

1 These levels represent the highest concentration of each constituent

found in any sample. These levels do not necessarily represent the

specific levels found in one sample.

F. How Did EPA Evaluate the Risk of Delisting This Waste?

The EPA considered the appropriateness of alternative waste

management scenarios for DuraTherm's desorber solids. Based on the

information provided in the petition, we decided that disposing of the

desorber solids in a municipal solid waste landfill is the most

reasonable, worse-case scenario for the desorber solids.

Under a landfill disposal scenario, the major exposure route of

concern for any hazardous constituents would be ingestion of

contaminated ground water. The EPA, therefore, evaluated DuraTherm's

petitioned wastes using the modified EPA Composite Model for Landfills/

Surface Impoundments (EPACML). The model predicts the potential for

ground water

le, worse-case scenario for the desorber solids.

Under a landfill disposal scenario, the major exposure route of

concern for any hazardous constituents would be ingestion of

contaminated ground water. The EPA, therefore, evaluated DuraTherm's

petitioned wastes using the modified EPA Composite Model for Landfills/

Surface Impoundments (EPACML). The model predicts the potential for

ground water

contamination from wastes disposed of in a landfill.

You can find a detailed description of the EPACML model, the

disposal assumptions, and the modifications made for delisting in 56 FR

32993 (July 18, 1991), 56 FR 67197 (December 30, 1991) and the RCRA

public docket. This model includes both unsaturated and saturated zone

transport modules. It uses the reasonable worse-case contaminant levels

in ground water at a compliance point; that is, a receptor well serving

as a drinking-water supply.

Specifically, the model estimates the dilution/attenuation factor

(DAF) resulting from subsurface processes such as three-dimensional

dispersion and dilution from ground water recharge for a specific

volume of waste. The EPA requests comments on using the EPACML to

evaluate DuraTherm's desorber solids.

To evaluate DuraTherm's petitioned waste, we used the EPACML to

evaluate the mobility of the hazardous constituents detected in the

extract of samples of DuraTherm's desorber solids. Typically, the EPA

uses the maximum annual waste volume to derive a petition-specific DAF.

The DAFs are currently calculated assuming that an ongoing process

generates wastes for 20 years. The DAF for the waste volume of desorber

solids is 20,000 cubic yards/year, assuming 20 years is 27.

The EPA's evaluation of the desorber solids using a DAF of 27, an

estimated maximum waste volume of 20,000 cubic yards, and the maximum

reported TCLP concentrations (see Table 2), yielded compliance point

concentrations (see Table 3) that are below the current health-based

levels.

r 20 years. The DAF for the waste volume of desorber

solids is 20,000 cubic yards/year, assuming 20 years is 27.

The EPA's evaluation of the desorber solids using a DAF of 27, an

estimated maximum waste volume of 20,000 cubic yards, and the maximum

reported TCLP concentrations (see Table 2), yielded compliance point

concentrations (see Table 3) that are below the current health-based

levels.

Table 3.--Compliance Point Concentrations

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

Compliance

Constituents point Regulatory

concentration limit

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

Antimony..................................... 0.005 0.006

Arsenic...................................... 0.02 0.05

Barium....................................... 0.106 2

Benzene...................................... 0.0005 0.005

Beryllium.................................... 0.0002 0.004

Butanone (MEK)............................... 0.0012 20

Cadmium...................................... 0.004 0.005

Chromium..................................... 0.006 0.1

o Cresol..................................... 0.002 2

m,p cresols.................................. 0.009 0.2

Lead......................................... 0.008 0.015

Nickel....................................... 0.087 0.1

Phenol....................................... 0.009 20

Selenium..................................... 0.008 0.05

Silver....................................... 0.0007 0.2

Styrene...................................... 0.0002 0.1

Toluene...................................... 0.0004 1

Vanadium..................................... 0.004 0.2

Zinc......................................... 0.981 10

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

.................................... 0.008 0.05

Silver....................................... 0.0007 0.2

Styrene...................................... 0.0002 0.1

Toluene...................................... 0.0004 1

Vanadium..................................... 0.004 0.2

Zinc......................................... 0.981 10

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

The maximum reported or calculated leachate concentrations of

barium, benzene, and selenium in the desorber solids yielded compliance

point concentrations below the health-based levels used in the

delisting decision-making.

The EPA did not evaluate the mobility of the remaining constituents

(for example, anthracene and pyrene) from DuraTherm's waste because

DuraTherm did not detect them in the leachate using the appropriate

analytical test methods (see Table 2). As explained above, we do not

evaluate nondetectable concentrations of a constituent of concern in a

petitioner's modeling efforts for delisting.

We believe the TCLP is the appropriate analytical method to use in

evaluating this petition. DuraTherm's waste streams range in pH between

5.97 and 12.4. We also know the disposal scenarios used. The EPA

believes that the TCLP will adequately predict the leachability of

constituents in the waste. To confirm that the waste will not leach at

concentrations that may affect human health and the environment, EPA

will require DuraTherm to analyze the constituents in the waste at

varying pH conditions during the verification testing.

G. What Did EPA Conclude About DuraTherm's Analysis?

After reviewing DuraTherm's processes, the EPA concludes that:

(1) No additional hazardous constituents of concern are likely to

be present or formed as reaction products or by-products in DuraTherm's

waste.

ment, EPA

will require DuraTherm to analyze the constituents in the waste at

varying pH conditions during the verification testing.

G. What Did EPA Conclude About DuraTherm's Analysis?

After reviewing DuraTherm's processes, the EPA concludes that:

(1) No additional hazardous constituents of concern are likely to

be present or formed as reaction products or by-products in DuraTherm's

waste.

(2) the petitioned waste does not exhibit any of the

characteristics of ignitability, corrosivity, or reactivity. See

Secs. 261.21, 261.22, and 261.23, respectively.

H. What Other Factors Did EPA Consider in Its Evaluation?

During the evaluation of DuraTherm's petition, the EPA also

considered the potential impact of the petitioned waste via air

emission and surface run-off.

Potential Impact Via Air Emission

The Agency evaluated the potential hazards resulting from airborne

exposure to the hazardous constituents released from the desorber

solids. We investigated the potential hazard from exposure to

particulates released from the surface of an open landfill.

We considered exposure to hazardous constituents through: (1)

Inhalation of particulates and absorption into the lungs, (2) ingestion

of particulates eliminated from respiratory passages and subsequently

swallowed, and (3) air deposition of particulates and subsequent

ingestion of the soil/waste mixture.

We believe that exposure to airborne contaminants from DuraTherm's

petitioned wastes is unlikely. DuraTherm's waste should have no

appreciable air releases under the proposed disposal conditions.

The results of this worse-case analysis suggested no substantial

present or potential hazard to human health from airborne exposure to

constituents from DuraTherm's desorber solids.

The estimated levels of the hazardous constituents of concern

released into the air are below health-based levels for human health,

ingestion, and inhalation levels of concern, and the EPA Concentration-

Based Exemption Criteria for Soils (57 FR 21450, May 20, 1992)

substantial

present or potential hazard to human health from airborne exposure to

constituents from DuraTherm's desorber solids.

The estimated levels of the hazardous constituents of concern

released into the air are below health-based levels for human health,

ingestion, and inhalation levels of concern, and the EPA Concentration-

Based Exemption Criteria for Soils (57 FR 21450, May 20, 1992).

For a description of the EPA's assessment of the potential impact

of DuraTherm's waste on airborne dispersion of waste contaminants, see

the RCRA public docket for today's proposed rule.

Potential Impact Via Surface Run-off Water Routes

The EPA also considered the potential impact of the petitioned

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

structures at municipal solid waste landfills can effectively control

surface water runoff, as the Subtitle D regulations prohibit pollutant

discharges into surface waters. See 56 FR 50978, October 9, 1991.

The concentrations of any hazardous constituents dissolved in the

run-off might 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.

We believe leachate derived from the waste is unlikely to directly

enter a surface water body. The leachate will not 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. The leachable concentration shows the

fraction of the constituent that mobilizes in surface water and ground

water.

For the reasons discussed above, EPA believes that the

contamination of surface water through runoff from the waste disposal

area is very unlikely. Nevertheless, we evaluated the potential impacts

on surface water if release of constituents of DuraTherm's waste by

runoff and erosion occurs

concentration shows the

fraction of the constituent that mobilizes in surface water and ground

water.

For the reasons discussed above, EPA believes that the

contamination of surface water through runoff from the waste disposal

area is very unlikely. Nevertheless, we evaluated the potential impacts

on surface water if release of constituents of DuraTherm's waste by

runoff and erosion occurs. See the RCRA public docket for today's

proposed rule. The estimated levels of the hazardous constituents of

concern in surface water are below health-based levels for human health

and the EPA Chronic Water Quality Criteria for aquatic organisms (EPA,

OWRS, 1987).

The EPA, therefore, concluded that DuraTherm's desorber solids

waste is not a substantial or potential hazard to human health and the

environment via surface water exposure.

I. What Is EPA's Final Evaluation of This Delisting Petition?

The descriptions of the DuraTherm hazardous waste process and

analytical characterization, with the proposed verification testing

requirements (as discussed later in this notice), provide a reasonable

basis for EPA to grant the exclusion. We conclude DuraTherm's process

will substantially reduce the likelihood of migration of hazardous

constituents from the petitioned waste. Their process also minimizes

short-term and long-term threats from the petitioned waste to human

health and the environment.

Thus, EPA believes we should grant DuraTherm a conditional

exclusion for the desorber solids. The EPA believes the data submitted

in support of the petition show DuraTherm's process can render the

desorber solids nonhazardous.

We have reviewed the sampling procedures used by DuraTherm and have

determined they satisfy EPA criteria for collecting representative

samples of variable constituent concentrations in the desorber solids

raTherm a conditional

exclusion for the desorber solids. The EPA believes the data submitted

in support of the petition show DuraTherm's process can render the

desorber solids nonhazardous.

We have reviewed the sampling procedures used by DuraTherm and have

determined they satisfy EPA criteria for collecting representative

samples of variable constituent concentrations in the desorber solids.

The data submitted in support of the petition show that constituents in

DuraTherm's waste are presently below the compliance point

concentrations used in the delisting decision-making and would not pose

a substantial hazard to the environment. The EPA believes that

DuraTherm has successfully demonstrated that the desorber solids are

nonhazardous.

The EPA therefore, proposes to grant a conditional exclusion to the

DuraTherm Corporation, in San Leon, Texas, for the desorber solids

described in its petition. The EPA's decision to conditionally exclude

this waste is based on descriptions of the treatment activities

associated with the petitioned waste and characterization of the

desorber solids.

If we finalize the proposed rule, the Agency will no longer

regulate the petitioned waste under parts 262 through 268 and the

permitting standards of part 270.

IV. Next Steps

A. With What Conditions Must the Petitioner Comply?

The petitioner, DuraTherm, must comply with the requirements in 40

CFR part 261, Appendix IX, Tables 1 and 2. The text below gives the

rationale and details of those requirements.

the proposed rule, the Agency will no longer

regulate the petitioned waste under parts 262 through 268 and the

permitting standards of part 270.

IV. Next Steps

A. With What Conditions Must the Petitioner Comply?

The petitioner, DuraTherm, must comply with the requirements in 40

CFR part 261, Appendix IX, Tables 1 and 2. The text below gives the

rationale and details of those requirements.

(1) Delisting Levels

This paragraph provides the levels of constituents that DuraTherm

must test the leachate from the desorber solids, below which these

wastes would be considered nonhazardous.

The EPA selected the set of inorganic and organic constituents

specified in Paragraph (1) because of information in the petition. We

compiled the list from the composition of the waste, descriptions of

DuraTherm's treatment process, previous test data provided for the

waste, and the respective health-based levels used in delisting

decision-making.

We established the proposed delisting levels by calculating the

Maximum Allowable Leachate (MALs) concentrations from the Health-based

levels (HBL) for the constituents of concern and the EPACML chemical-

specific DAF of 27, that is, MAL = HBL x DAF. We also limited the

MALs so the concentrations would not exceed non waste water

concentrations in the Land Disposal Restriction treatment standards for

F037, F038, K048, K049, K050, and K051 in 40 CFR part 268. These

delisting levels correspond to the allowable levels measured in the

TCLP extract of the waste.

s of concern and the EPACML chemical-

specific DAF of 27, that is, MAL = HBL x DAF. We also limited the

MALs so the concentrations would not exceed non waste water

concentrations in the Land Disposal Restriction treatment standards for

F037, F038, K048, K049, K050, and K051 in 40 CFR part 268. These

delisting levels correspond to the allowable levels measured in the

TCLP extract of the waste.

(2) Waste Holding and Handling

The purpose of this paragraph is to ensure that DuraTherm manages

and disposes of any desorber solids that might contain hazardous levels

of inorganic and organic constituents according to Subtitle C of RCRA.

Holding the desorber solids until characterization is complete will

protect against improper handling of hazardous material. If EPA

determines that the data collected under this Paragraph do not support

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

petitioned waste. The exclusion is effective when we sign it, but the

disposal cannot begin until the verification sampling is completed.

(3) Verification Testing Requirements

(A) Initial Verification Testing:

If the EPA determines that the data from the initial verification

period shows the treatment process is effective, DuraTherm may request

that EPA allow it to conduct verification testing quarterly. If EPA

approves this request in writing, then DuraTherm may begin verification

testing quarterly.

The EPA believes that an initial period of 60 days is adequate for

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

for the desorber solids, in the 1998 petition, is representative.

We are requiring DuraTherm to conduct a multiple pH analysis

because in our experience more leaching can occur from disposed waste

when the pH of the waste is extremely acidic or basic. DuraTherm's

desorber solids vary greatly in pH, from 5.97 to 12.4. The pH of the

desorber solid cannot exceed a pH of 12.5 when measured using SW-846,

Method 9045C

ds, in the 1998 petition, is representative.

We are requiring DuraTherm to conduct a multiple pH analysis

because in our experience more leaching can occur from disposed waste

when the pH of the waste is extremely acidic or basic. DuraTherm's

desorber solids vary greatly in pH, from 5.97 to 12.4. The pH of the

desorber solid cannot exceed a pH of 12.5 when measured using SW-846,

Method 9045C. DuraTherm must analyze 10 samples of the desorber solids

using a multiple pH extraction procedure. The 10 waste samples should

consist of both the non-stabilized and stabilized residual solids

samples. If none of the samples collected during the 60 day test period

need to be stabilized, DuraTherm should provide multiple pH data on the

first sample of stabilized wastes generated. The multiple pH test is

similar to the TCLP, but the test uses different pH extraction fluids.

DuraTherm should design the analytical test to show that the petitioned

waste when disposed of in an acidic and basic landfill environment

would not leach concentrations above the levels of regulatory concern.

The third condition should reflect how the petitioned waste will behave

when it is disposed in a landfill environment similar to the pH of the

waste. The EPA believes that evaluating the leachate generated from

using extraction fluids over a range of pHs can simulate general

disposal conditions and provide added assurance that the waste will

remain nonhazardous when disposal conditions change. The petitioner

must perform these analyses to confirm that the leachate concentrations

do not exceed the concentrations in Paragraph 1 over a wide pH range.

While the waste's pH does vary, the Agency believes that under the

various pH conditions the waste will remain stable, and thus will

proceed with the promulgation of the proposed decision.

If we determine that the data collected under this Paragraph do not

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

cover the generated wastes

ations in Paragraph 1 over a wide pH range.

While the waste's pH does vary, the Agency believes that under the

various pH conditions the waste will remain stable, and thus will

proceed with the promulgation of the proposed decision.

If we determine that the data collected under this Paragraph do not

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

cover the generated wastes. If the data from the initial verification

period demonstrate that the treatment process is effective, DuraTherm

may request quarterly testing. EPA will notify DuraTherm, in writing,

if and when they may replace the testing conditions in paragraph

(3)(A)(i) with the testing conditions in (3)(B).

(B) Subsequent Verification Testing:

The EPA believes that the concentrations of the constituents of

concern in the desorber solids may vary over time. As a result, to

ensure that DuraTherm's treatment process can effectively handle any

variation in constituent concentrations in the waste, we are proposing

a subsequent verification testing condition.

The proposed subsequent testing would verify that DuraTherm

operates the thermal desorption as it did during the initial

verification testing. It would also verify that the desorber solids do

not exhibit unacceptable levels of toxic constituents. The EPA is

proposing to require DuraTherm to analyze representative samples of the

desorber solids quarterly during the first year of waste generation.

DuraTherm would begin quarterly sampling on the anniversary date of the

final exclusion as described in Paragraph (3)(B). They must also use

the multiple pH extraction procedure for samples collected during the

quarterly and annual sampling.

(C) Termination of Organic Testing:

The EPA is proposing to end the subsequent testing conditions for

organics during the first year in Paragraph (1)(C) after DuraTherm has

demonstrated that the waste consistently meets the delisting levels.

Annual testing requires the full list of components in Paragraph 1

extraction procedure for samples collected during the

quarterly and annual sampling.

(C) Termination of Organic Testing:

The EPA is proposing to end the subsequent testing conditions for

organics during the first year in Paragraph (1)(C) after DuraTherm has

demonstrated that the waste consistently meets the delisting levels.

Annual testing requires the full list of components in Paragraph 1.

If the annual testing of the waste does not meet the delisting

requirements in Paragraph 1, DuraTherm must notify the Agency according

to the requirements in Paragraph 6. We will take the appropriate

actions necessary to protect human health and the environment. The

facility must provide sampling results that support the rationale that

the delisting exclusion should not be withdrawn.

To confirm that the characteristics of the waste do not change

significantly over time, DuraTherm must continue to analyze a

representative sample of the waste for organic constituents annually.

If operating conditions change as described in Paragraph (4); DuraTherm

must reinstate all testing in Paragraph (1)(A). They must prove through

a new demonstration that their waste meets the conditions of the

exclusion. DuraTherm must continue organic testing of the desorber

solids for the exclusion of that waste.

(4) Changes in Operating Conditions

Paragraph (4) would allow DuraTherm the flexibility of modifying

its processes (for example, changes in equipment or change in operating

conditions) to improve its treatment process. However, DuraTherm must

prove the effectiveness of the modified process and request approval

from the EPA. DuraTherm must manage wastes generated during the new

process demonstration as hazardous waste until they have obtained

written approval and Paragraph (3) is satisfied.

its processes (for example, changes in equipment or change in operating

conditions) to improve its treatment process. However, DuraTherm must

prove the effectiveness of the modified process and request approval

from the EPA. DuraTherm must manage wastes generated during the new

process demonstration as hazardous waste until they have obtained

written approval and Paragraph (3) is satisfied.

(5) Data Submittals

To provide appropriate documentation that DuraTherm's facility is

properly treating the waste, DuraTherm must compile, summarize, and

keep delisting records on-site for a minimum of five years. They should

keep all analytical data obtained through Paragraph (3) including

quality control information for five years. Paragraph (5) requires that

DuraTherm furnish these data upon request for inspection by any

employee or representative of EPA or the State of Texas.

If the proposed exclusion is made final, it will apply only to

20,000 cubic yards of desorber solids, generated annually at the

DuraTherm facility after successful verification testing.

We would require DuraTherm to file a new delisting petition under

any of the following circumstances:

(a) If they significantly alter the thermal desorption treatment

system except as described in Paragraph (4)

(b) If they use any new manufacturing or production process(es), or

significantly change from the current process(es) described in their

petition; or

successful verification testing.

We would require DuraTherm to file a new delisting petition under

any of the following circumstances:

(a) If they significantly alter the thermal desorption treatment

system except as described in Paragraph (4)

(b) If they use any new manufacturing or production process(es), or

significantly change from the current process(es) described in their

petition; or

(c) If they make any changes that could affect the composition or

type of waste generated.

DuraTherm must manage waste volumes greater than 20,000 cubic yards

of desorber solids as hazardous until we grant a new exclusion.

When this exclusion becomes final, DuraTherm's management of the

wastes covered by this petition would be relieved from Subtitle C

jurisdiction. DuraTherm must either treat, store, or dispose of the

waste in an on-site facility. If not, DuraTherm must ensure that it

delivers the waste to an off-site storage, treatment, or disposal

facility that has a State permit, license, or register to manage

municipal or industrial solid waste.

(6) Reopener Language

The purpose of Paragraph 6 is to require DuraTherm to disclose new

or different information related to a condition at the facility or

disposal of the waste if it is pertinent to the delisting. DuraTherm

must also use this procedure, if the waste sample in the annual testing

fails to meet the levels found in Paragraph 1. This provision will

allow EPA to reevaluate the exclusion if a source provides new or

additional information to the Agency. The EPA will evaluate the

information on which we based the decision to see if it is still

correct, or if circumstances have changed so that the information is no

longer correct or would cause EPA to deny the petition if presented.

This provision expressly requires DuraTherm to report differing

site conditions or assumptions used in the petition in addition to

failure to meet the annual testing conditions within 10 days of

discovery

hich we based the decision to see if it is still

correct, or if circumstances have changed so that the information is no

longer correct or would cause EPA to deny the petition if presented.

This provision expressly requires DuraTherm to report differing

site conditions or assumptions used in the petition in addition to

failure to meet the annual testing conditions 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 at Sec. 268.6.

The EPA believes that we have the authority under RCRA and the

Administrative Procedures Act, 5 U.S.C. 551 (1978) et seq., to reopen a

delisting decision. We may reopen a delisting decision when we receive

new information that calls into question the assumptions underlying the

delisting.

The Agency believes a clear statement of its authority in

delistings is merited in light of Agency experience. See Reynolds

Metals Company at 62 FR 37694 and 62 FR 63458 where the delisted waste

leached at greater concentrations in the environment than the

concentrations predicted when conducting the TCLP, thus leading the

Agency to repeal the delisting. If an immediate threat to human health

and the environment presents itself, EPA will continue to address these

situations case by case. Where necessary, EPA will make a good cause

finding to justify emergency rulemaking. See APA 553 (b).

hed at greater concentrations in the environment than the

concentrations predicted when conducting the TCLP, thus leading the

Agency to repeal the delisting. If an immediate threat to human health

and the environment presents itself, EPA will continue to address these

situations case by case. Where necessary, EPA will make a good cause

finding to justify emergency rulemaking. See APA 553 (b).

(7) Notification Requirements

In order to adequately track wastes that have been delisted, EPA is

requiring that DuraTherm provide a one-time notification to any State

regulatory agency through which or to which the delisted waste is being

carried. DuraTherm must provide this notification within 60 days of

commencing this activity.

D. What Happens if DuraTherm Violates the Terms and Conditions?

If DuraTherm violates the terms and conditions established in the

exclusion, the Agency will start procedures to withdraw the exclusion.

Where there is an immediate threat to human health and the environment,

the Agency will

continue to evaluate these events on a case-by-case basis. The Agency

expects DuraTherm to conduct the appropriate waste analysis and comply

with the criteria explained above in Paragraphs 3, 4, 5 and 6 of the

exclusion.

V. Public Comments

A. How May I as an Interested Party Submit Comments?

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.

Please send three copies of your comments: Send two copies to

William Gallagher, Delisting Section, Multimedia Planning and

Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross

Avenue, Dallas, Texas 75202. Send the third copy 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-99-TXDEL-DURATHERM.

You should address requests for a hearing to the Acting Director,

Robert E

ing and

Permitting Division (6PD-O), Environmental Protection Agency, 1445 Ross

Avenue, Dallas, Texas 75202. Send the third copy 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-99-TXDEL-DURATHERM.

You should address requests for a hearing to the Acting Director,

Robert E. Hannesschlager, Multimedia Planning and Permitting Division

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

75202.

B. How May I Review the Docket or Obtain Copies of the Proposed

Exclusion?

You may review the RCRA regulatory docket for this proposed rule at

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

Texas 75202. It is available for viewing in the EPA Freedom of

Information Act Review Room 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.

VI. Regulatory Impact

Under Executive Order (E.O.) 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, thus enabling a facility

to manage its waste as nonhazardous.

Because there is no additional impact from today's proposed rule,

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 E.O. 12866.

VII. Regulatory Flexibility Act

us enabling a facility

to manage its waste as nonhazardous.

Because there is no additional impact from today's proposed rule,

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 E.O. 12866.

VII. Regulatory Flexibility Act

Under 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 (that is, 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 a 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 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.

VIII. Paperwork Reduction Act

Information collection and record-keeping requirements associated

with this proposed rule have been approved by the OMB under the

provisions of the Paperwork Reduction Act of 1980 (Public Law (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

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 OMB under the

provisions of the Paperwork Reduction Act of 1980 (Public Law (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), Pub. L. 104-4, which was signed into law on March 22, 1995, 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 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 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

intergovermental 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

hem meaningful and timely input in

the development of EPA regulatory proposals with significant Federal

intergovermental 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 delisting decision is deregulatory in

nature and does not impose any enforceable duty on any State, local, or

tribal governments or the private sector. In addition, the proposed

delisting decision does not establish any regulatory requirements for

small governments and so does not require a small government agency

plan under UMRA section 203.

X. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the OMB a

description of the extent of EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

XI. Executive Order 13045

ernments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

XI. Executive Order 13045

The E.O. 13045 is entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997). This order applies to any rule that EPA determines: (1) Is

economically significant as defined under Executive Order 12866, and

(2) the environmental health or safety risk addressed by the rule has a

disproportionate effect on children. If the regulatory action meets

both criteria, the Agency must evaluate the environmental health or

safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency. This

proposed rule is not subject to E.O. 13045 because this is not an

economically significant regulatory action as defined by E.O. 12866.

XII. Executive Order 13084

Because this action does not involve any requirements that affect

Indian Tribes, the requirements of section 3(b) of E.O. 13084 do not

apply.

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects

that communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments

do not

apply.

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects

that communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments.

If the mandate is unfunded, EPA must provide to the Office

Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation.

In addition, E.O. 13084 requires EPA to develop an effective

process permitting elected and other representatives of Indian tribal

governments ``to meaningful and timely input'' in the development of

regulatory policies on matters that significantly or uniquely affect

their communities of Indian tribal governments. This action does not

involve or impose any requirements that affect Indian Tribes.

Accordingly, the requirements of section 3(b) of E.O. 13084 do not

apply to this rule.

XIII. National Technology Transfer and Advancement Act

Under section 12(d) if the National Technology Transfer and

Advancement Act (NTTAA), the Agency is directed to use voluntary

consensus standards in its regulatory activities unless doing so would

be inconsistent with applicable law or otherwise impractical.

Voluntary consensus standards are technical standards (for example,

materials specifications, test methods, sampling procedures, business

practices, etc.) that are developed or adopted by voluntary consensus

standard bodies. Where EPA does not use available and potentially

applicable voluntary consensus standards, the NTTAA requires that

Agency to provide Congress, through the OMB, an explanation of the

reasons for not using such standards

ards (for example,

materials specifications, test methods, sampling procedures, business

practices, etc.) that are developed or adopted by voluntary consensus

standard bodies. Where EPA does not use available and potentially

applicable voluntary consensus standards, the NTTAA requires that

Agency to provide Congress, through the OMB, an explanation of the

reasons for not using such standards.

This rule does not establish any new technical standards, and thus

the Agency has no need to consider the use of voluntary consensus

standards in developing this rule.

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: July 13, 1999.

Robert E. Hannesschlager,

Acting Division 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--IDENTIFYING AND LISTING 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

Table 1.--Wastes Excluded From Non-Specific Sources

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

Facility and address Waste description

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

* * * * * *

*

DuraTherm, Incorporated San Leon, Texas... Desorber solids, (at a maximum generation of 20,000 cubic yards per

calendar year) generated by DuraTherm using the thermal desorption

treatment process, (EPA Hazardous Waste No

---------

Facility and address Waste description

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

* * * * * *

*

DuraTherm, Incorporated San Leon, Texas... Desorber solids, (at a maximum generation of 20,000 cubic yards per

calendar year) generated by DuraTherm using the thermal desorption

treatment process, (EPA Hazardous Waste No. F037 and F038) and that

is disposed of in Subtitle D landfills after [publication date of

the Final exclusion].

For the exclusion to be valid, DuraTherm must implement a testing

program that meets the following Paragraphs:

(1) Delisting Levels: All leachable concentrations for those

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

petitioner must use an acceptable leaching method, for example SW-

846, Method 1311 to measure constituents in the waste leachate.

Desorber solids--

(i) Inorganic Constituents Arsenic--1.35; Antimony--0.162; Barium-

21.0; Beryllium--0.108; Cadmium-0.135; Chromium-2.7; Lead-0.405;

Nickel--2.7; Selenium-0.82; Silver-0.43; Vanadium-4.3; Zinc-270.

(ii) Organic Constituents Anthracene--0.28; Benzene--0.135;

Benzo(a) anthracene--0.059; Benzo(b)fluoranthene--0.11;

Benzo(a)pyrene--0.061;Bis-ethylhexylphthalate--0.28; Carbon

Disulfide--3.8; Chlorobenzene--0.057; Chrysene--0.059; o,m,p

Cresols--54; Dibenzo(a,h) anthracene--0.055; 2,4 Dimethyl

phenol--18.9; Dioctyl phthalate--0.017; Ethylbenzene--0.057;

Fluoranthene--0.068; Fluorene--0.059; Naphthalene--0.059;

Phenanthrene--0.059; Phenol--6.2; Pyrene--0.067; Styrene--2.7;

Trichloroethylene--0.054; Toluene--0.08; Xylene--0.032

;Bis-ethylhexylphthalate--0.28; Carbon

Disulfide--3.8; Chlorobenzene--0.057; Chrysene--0.059; o,m,p

Cresols--54; Dibenzo(a,h) anthracene--0.055; 2,4 Dimethyl

phenol--18.9; Dioctyl phthalate--0.017; Ethylbenzene--0.057;

Fluoranthene--0.068; Fluorene--0.059; Naphthalene--0.059;

Phenanthrene--0.059; Phenol--6.2; Pyrene--0.067; Styrene--2.7;

Trichloroethylene--0.054; Toluene--0.08; Xylene--0.032

(2) Waste Holding and Handling: DuraTherm must store the desorber

solids as described in its RCRA permit, or continue to dispose of

as hazardous all desorber solids generated, until they have

completed verification testing described in Paragraph (3)(A) and

(B), as appropriate, and valid analyses show that paragraph (1) is

satisfied.

(B) Levels of constituents measured in the samples of the desorber

solids that do not exceed the levels set forth in Paragraph (1) are

nonhazardous. DuraTherm can manage and dispose the nonhazardous

desorber solids according to all applicable solid waste

regulations.

(C) If constituent levels in a sample exceed any of the delisting

levels set in Paragraph (1), DuraTherm must retreat or stabilize

the batches of waste used to generate the representative sample

until it meets the levels. DuraTherm must repeat the analyses of

the treated or stabilized waste.

(D) If the facility has not treated or stabilized the waste,

DuraTherm must manage and dispose the waste generated under

Subtitle C of RCRA.

ceed any of the delisting

levels set in Paragraph (1), DuraTherm must retreat or stabilize

the batches of waste used to generate the representative sample

until it meets the levels. DuraTherm must repeat the analyses of

the treated or stabilized waste.

(D) If the facility has not treated or stabilized the waste,

DuraTherm must manage and dispose the waste generated under

Subtitle C of RCRA.

(3) Verification Testing Requirements: DuraTherm must perform sample

collection and analyses, including quality control procedures,

according to SW-846 methodologies. If EPA judges the process to be

effective under the operating conditions used during the initial

verification testing, DuraTherm may replace the testing required in

Paragraph (3)(A) with the testing required in Paragraph (3)(B).

DuraTherm must continue to test as specified in Paragraph (3)(A)

until and unless notified by EPA in writing that testing in

Paragraph (3)(A) may be replaced by Paragraph (3)(B).

(A) Initial Verification Testing: After EPA grants the final

exclusion, DuraTherm must do the following:

(i) Collect and analyze composites of the desorber solids.

(ii) Make two composites of representative grab samples

collected.

(iii) Analyze the waste, before disposal, for all of the

constituents listed in Paragraph 1.

(iv) Sixty (60) days after this exclusion becomes final, report

the operational and analytical test data, including quality

control information.

Therm must do the following:

(i) Collect and analyze composites of the desorber solids.

(ii) Make two composites of representative grab samples

collected.

(iii) Analyze the waste, before disposal, for all of the

constituents listed in Paragraph 1.

(iv) Sixty (60) days after this exclusion becomes final, report

the operational and analytical test data, including quality

control information.

(v) Submit the test plan for conducting the multiple pH leaching

procedure to EPA for approval at least 10 days before conducting

the analysis.

(vi) Conduct a multiple pH leaching procedure on 10 samples

collected during the sixty-day test period.

(vii) The ten samples should include both non-stabilized and

stabilized residual solids. If none of the samples collected

during the sixty-day test period need to be stabilized,

DuraTherm should provide multiple pH data on the first sample of

stabilized wastes generated.

(vii) Perform the toxicity characteristic leaching procedure

using three different pH extraction fluids to simulate disposal

under three conditions. Simulate an acidic landfill environment,

basic landfill environment, and a landfill environment similar

to the pH of the waste.

(B) Subsequent Verification Testing: Following written notification

by EPA, DuraTherm may substitute the testing conditions in (3)(B)

for (3)(A)(i). DuraTherm must continue to monitor operating

conditions, and analyze representative samples each quarter of

operation during the first year of waste generation. The samples

must represent the waste generated in one quarter. DuraTherm must

run the multiple pH procedure on these waste samples.

(C) Termination of Organic Testing:

rm may substitute the testing conditions in (3)(B)

for (3)(A)(i). DuraTherm must continue to monitor operating

conditions, and analyze representative samples each quarter of

operation during the first year of waste generation. The samples

must represent the waste generated in one quarter. DuraTherm must

run the multiple pH procedure on these waste samples.

(C) Termination of Organic Testing:

(i) DuraTherm must continue testing as required under Paragraph

(3)(B) for organic constituents in Paragraph (1)(A)(ii), until

the analytical results submitted under Paragraph (3)(B) show a

minimum of two consecutive samples below the delisting levels in

Paragraph (1)(A)(i), DuraTherm may then request that EPA stop

quarterly organic testing. After EPA notifies DuraTherm in

writing, the company may end quarterly organic testing.

(ii) Following cancellation of the quarterly testing, DuraTherm

must continue to test a representative composite sample for all

constituents listed in Paragraph (1) annually (by twelve months

after final exclusion).

(4) Changes in Operating Conditions: If DuraTherm significantly

changes the process described in its petition or starts any

processes that generate(s)the waste that may or could affect the

composition or type of waste generated as established under

Paragraph (1) (by illustration, but not limitation, changes in

equipment or operating conditions of the treatment process), they

must notify EPA in writing; they may no longer handle the wastes

generated from the new process as nonhazardous until the wastes

meet the delisting levels set in Paragraph (1) and they have

received written approval to do so from EPA.

generated as established under

Paragraph (1) (by illustration, but not limitation, changes in

equipment or operating conditions of the treatment process), they

must notify EPA in writing; they may no longer handle the wastes

generated from the new process as nonhazardous until the wastes

meet the delisting levels set in Paragraph (1) and they have

received written approval to do so from EPA.

(5) Data Submittals: DuraTherm must submit the information described

below. If DuraTherm fails to submit the required data within the

specified time or maintain the required records on-site for the

specified time, EPA, at its discretion, will consider this

sufficient basis to reopen the exclusion as described in Paragraph

6. DuraTherm must:

(A) Submit the data obtained through Paragraph 3 to Mr. William

Gallagher, Chief, Region 6 Delisting Program, EPA, 1445 Ross

Avenue, Dallas, Texas 75202-2733, Mail Code, (6PD-O) within the

time specified.

(B) Compile records of operating conditions and analytical data from

Paragraph (3), summarized, and maintained on-site for a minimum of

five years.

(C) Furnish these records and data when EPA or the State of Texas

request them for inspection.

(D) Send along with all data 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. Sec. 1001 and 42 U.S.C. Sec.

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

this document is true, accurate and complete

he

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. Sec. 1001 and 42 U.S.C. 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.

If 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 Language--

(A) If, anytime after disposal of the delisted waste, DuraTherm

possesses or is otherwise made aware of any environmental data

(including but not limited to leachate data or groundwater

monitoring data) or any other data relevant to the delisted waste

indicating that any constituent identified for the delisting

verification testing is at level higher than the delisting level

allowed by the Regional Administrator or his delegate in granting

the petition, then the facility must report the data, in writing,

to the Regional Administrator or his delegate within 10 days of

first possessing or being made aware of that data

to the delisted waste

indicating that any constituent identified for the delisting

verification testing is at level higher than the delisting level

allowed by the Regional Administrator or his delegate in granting

the petition, then the facility must report the data, in writing,

to the Regional Administrator or his delegate within 10 days of

first possessing or being made aware of that data.

(B) If the annual testing of the waste does not meet the delisting

requirements in Paragraph 1, DuraTherm must report the data, in

writing, to the Regional Administrator or his delegate within 10

days of first possessing or being made aware of that data.

(C) If DuraTherm fails to submit the information described in

paragraphs (5),(6)(A) or (6)(B) or if any other information is

received from any source, the Regional Administrator or his

delegate will make a preliminary determination as to whether the

reported information requires Agency action to protect human health

or the environment. Further action may include suspending, or

revoking the exclusion, or other appropriate response necessary to

protect human health and the environment.

(D) If the Regional Administrator or his delegate determines that

the reported information does require Agency action, the Regional

Administrator or his delegate will notify the facility in writing

of the actions the Regional Administrator or his delegate believes

are necessary to protect human health and the environment. The

notice shall include a statement of the proposed action and a

statement providing the facility with an opportunity to present

information as to why the proposed Agency action is not necessary.

The facility shall have 10 days from the date of the Regional

Administrator or his delegate's notice to present such information

believes

are necessary to protect human health and the environment. The

notice shall include a statement of the proposed action and a

statement providing the facility with an opportunity to present

information as to why the proposed Agency action is not necessary.

The facility shall have 10 days from the date of the Regional

Administrator or his delegate's notice to present such information.

(E) Following the receipt of information from the facility described

in paragraph (6)(D) or (if no information is presented under

paragraph (6)(D)) the initial receipt of information described in

paragraphs (5), (6)(A) or (6)(B), the Regional Administrator or his

delegate will issue a final written determination describing the

Agency actions that are necessary to protect human health or the

environment. Any required action described in the Regional

Administrator or his delegate's determination shall become

effective immediately, unless the Regional Administrator or his

delegate provides otherwise.

(7) Notification Requirements: DuraTherm must do following before

transporting the delisted waste: Failure to provide this

notification will result in a violation of the delisting petition

and a possible revocation of the decision.

(A) Provide a one-time written notification to any State Regulatory

Agency to which or through which they will transport the delisted

waste described above for disposal, 60 days before beginning such

activities.

(B) Update the one-time written notification if they ship the

delisted waste into a different disposal facility.

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

n to any State Regulatory

Agency to which or through which they will transport the delisted

waste described above for disposal, 60 days before beginning such

activities.

(B) Update the one-time written notification if they ship the

delisted waste into a different disposal facility.

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

Table 2.--Wastes Excluded From Specific Sources

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

Facility and address Waste description

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

* * * * * *

*

DuraTherm, Incorporated San Leon, Texas Desorber Solids, (at a maximum generation of 20,000 cubic yards per

calendar year) generated by DuraTherm using the treatment process to

treat the Desorber solids, (EPA Hazardous Waste No. K048, K049, K050,

and K051 and disposed of in a Subtitle D landfill. DuraTherm must

implement the testing program found in Table 1. Wastes Excluded From

Non-Specific Sources, for the petition to be valid.

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

[FR Doc. 99-21422 Filed 8-17-99; 8:45 am]

BILLING CODE 6560-50-P