[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Proposed Rules]
[Pages 77690-77700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28199]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7855-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: EPA is proposing to grant a petition submitted by Shell Oil 
Company (Shell Oil Company) to exclude (or delist) a certain liquid 
waste generated by its Houston, TX Deer Park

[[Page 77691]]

facility from the lists of hazardous wastes.
    EPA used the Delisting Risk Assessment Software (DRAS) in the 
evaluation of the impact of the petitioned waste on human health and 
the environment.
    EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, EPA would conclude that Shell Oil Company's 
petitioned waste is nonhazardous with respect to the original listing 
criteria. EPA would also conclude that Shell Oil Company's process 
minimizes short-term and long-term threats from the petitioned waste to 
human health and the environment.

DATES: EPA will accept comments until February 11, 2005. EPA will stamp 
comments received after the close of the comment period as late. These 
late comments may not be considered in formulating a final decision. 
Your requests for a hearing must reach EPA by January 12, 2005. The 
request must contain the information prescribed in 40 CFR 260.20(d).

ADDRESSES: Please send three copies of your comments. You should send 
two copies to the Section Chief of the Corrective Action and Waste 
Minimization Section, Multimedia Planning and Permitting Division (6PD-
C), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202. You should send a third copy to Nicole Bealle, Waste Team 
Leader, Texas Commission on Environmental Quality, 5425 Polk Avenue, 
Suite A, Houston, TX 77023. Identify your comments at the top with this 
regulatory docket number: ``F-04-TEXDEL-Shell Oil.''
    You should address requests for a hearing to Ben Banipal, Chief of 
the Corrective Action and Waste Minimization Section, Multimedia 
Planning and Permitting Division (6PD-C), Environmental Protection 
Agency, 1445 Ross Avenue, Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT: Comments may also be submitted 
electronically to Michelle Peace at <a href="/cdn-cgi/l/email-protection#4030252123256e2d292328252c2c25002530216e272f36"><span class="__cf_email__" data-cfemail="e09085818385ce8d898388858c8c85a0859081ce878f96">[email protected]</span></a>.

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 Shell Oil Company Manage the Waste, if it Is 
Delisted?
    D. When Would the Proposed Delisting Exclusion be Finalized?
    E. How Would This Action Affect the 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 Information and Data
    A. What Wastes Did Shell Oil Company Petition EPA To Delist?
    B. Who Is Shell Oil Company and What Process Does it use To 
Generate the Petitioned Waste?
    C. How Did Shell Oil Company Sample and Analyze the Data in This 
Petition?
    D. What Were the Results of Shell Oil Company's Analysis?
    E. How did EPA Evaluate the Risk of Delisting This Waste?
    F. What Did EPA Conclude About Shell Oil Company's Analysis?
    G. What Other Factors Did EPA Consider in its Evaluation?
    H. What Is EPA's Evaluation of This Delisting Petition?
IV. Next Steps
    A. With What Conditions Must the Petitioner Comply?
    B. What Happens if Shell Oil Company 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?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is EPA Proposing?

    EPA is proposing:
    (1) To grant Shell Oil Company's delisting petition to have its 
multisource landfill leachate underlying the Minimum Technology 
Requirements (MTR) hazardous waste landfill excluded, or delisted, from 
the definition of a hazardous waste; and subject to certain 
verification and monitoring conditions.
    (2) To use the Delisting Risk Assessment Software (DRAS) to 
evaluate the potential impact of the petitioned waste on human health 
and the environment. The Agency used 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?

    Shell Oil Company's petition requests an exclusion from the F039 
waste listing pursuant to 40 CFR 260.20 and 260.22. Shell Oil Company 
does not believe that the petitioned waste meets the criteria for which 
EPA listed it. Shell Oil Company also believes no additional 
constituents or factors could cause the waste to be hazardous. EPA's 
review of this petition included consideration of the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all sectional 
references are to 40 CFR unless otherwise indicated). In making the 
initial delisting determination, EPA evaluated the petitioned waste 
against the listing criteria and factors cited in Sec. Sec.  
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the 
petitioner that the waste is nonhazardous with respect to the original 
listing criteria. (If EPA had found, based on this review, that the 
waste remained hazardous based on the factors for which the waste was 
originally listed, EPA would have proposed to deny the petition.) EPA 
evaluated the waste with respect to other factors or criteria to assess 
whether there is a reasonable basis to believe that such additional 
factors could cause the waste to be hazardous. EPA considered whether 
the waste is acutely toxic, the concentration of the constituents in 
the waste, their tendency to migrate and to bioaccumulate, their 
persistence in the environment once released from the waste, plausible 
and specific types of management of the petitioned waste, the 
quantities of waste generated, and waste variability. EPA believes that 
the petitioned waste does not meet the listing criteria and thus should 
not be a listed waste. EPA's proposed decision to delist waste from 
Shell Oil Company's facility is based on the information submitted in 
support of this rule, including descriptions of the wastes and 
analytical data from the Deer Park, TX facility.

C. How Will Shell Oil Company Manage the Waste if it Is Delisted?

    If the leachate is delisted, Shell will make piping modifications 
to allow the leachate to be routed to the North Effluent Treater (NET) 
for treatment. The treated effluent will be discharged through an Texas 
Pollutant Discharge Elimination System (TPDES) permitted outfall.

[[Page 77692]]

D. When Would the Proposed Delisting Exclusion be Finalized?

    RCRA section 3001(f) specifically requires 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 this proposal.
    RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months when the regulated facility 
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.
    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 section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How Would This Action Affect the States?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. 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, EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under the state law.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, Illinois) to administer an RCRA 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 unless that state makes the rule part of its authorized program. 
If Shell Oil Company transports the petitioned waste to or manages the 
waste in any state with delisting authorization, Shell Oil Company must 
obtain delisting authorization from that state before it can manage the 
waste as nonhazardous in the state.

II. Background

A. What Is the History of the Delisting Program?

    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. EPA has 
amended this list several times and published it in Sec. Sec.  261.31 
and 261.32.
    EPA lists these wastes as hazardous because: (1) The wastes 
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), (2) the wastes 
meet the criteria for listing contained in Sec. Sec.  261.11(a)(2) or 
(a)(3), or (3) the wastes are mixed with or derived from the treatment, 
storage or disposal of such characteristic and listed wastes and which 
therefore become hazardous under Sec. Sec.  261.3(a)(2)(iv) or 
(c)(2)(i), known as the ``mixture'' or ``derived-from'' rules, 
respectively.
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations or resulting from the operation of the 
mixture or derived-from rules generally is hazardous, a specific waste 
from an individual facility may not be hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove 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 EPA because it does 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 
which the waste was listed. The criteria for which EPA lists a waste 
are in part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See part 261 and the background documents for the 
listed waste.)
    Generators remain obligated under RCRA to confirm whether their 
waste remains nonhazardous based on the hazardous waste characteristics 
even if EPA has ``delisted'' the waste.

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

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 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 EPA listed the waste, if a 
reasonable basis exists that these additional factors could cause the 
waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and 
(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. See 66 FR 27266 (May 16, 2001).

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

A. What Waste Did Shell Oil Company Petition EPA To Delist?

    On January 29, 2003, Shell Oil Company petitioned EPA to exclude 
from the lists of hazardous wastes contained in Sec.  261.31, 
multisource landfill leachate (F039) generated from its facility 
located in Deer Park, Texas. The waste falls under the classification 
of listed waste pursuant to Sec.  261.31. Specifically, in its 
petition, Shell Oil Company requested that EPA grant a standard 
exclusion for 3.36 million gallons (16,619 cu. yards) per year of the 
multisource landfill leachate.

B. Who Is Shell Oil Company and What Process Does it Use To Generate 
the Petitioned Waste?

    Shell Oil Company refines high sulfur crude oil from Mexico into 
products including gasoline, kerosene, jet fuel, fuel oil, lube oil and 
others. The hazardous wastes included incinerator ash, spent catalysts 
and filters,

[[Page 77693]]

Chloronated Plate Interceptor (CPI) sludge from the refinery wastewater 
treatment plant, NET and primary solids from Shell Chemical and the 
South Effluent Treater (SET). The wastes disposed of in the minimum 
technological requirements (MTR) landfill for the past four years have 
been Class 1 and Class 2 nonhazardous wastes. The landfill is designed 
to meet the minimum technological requirements specified in 40 CFR 
Sec.  264.301. The design includes a primary leachate collection system 
and liner (underlying the deposited waste) followed by a secondary 
leachate collection system. Leachate from this landfill requires 
offsite disposal as an F039 (multisource leachate) listed waste. 
However, analytical data collected monthly for this aqueous stream 
shows that it is not a characteristic waste and contains little to no 
detectable concentrations of organic constituents.

C. How Did Shell Oil Company Sample and Analyze the Data in This 
Petition?

    To support its petition, Shell Oil Company submitted:
    (1) Historical information on past waste generation and management 
practices;
    (2) Results of the total constituent list for 40 CFR part 264 
Appendix IX volatiles, semivolatiles, metals, pesticides, herbicides, 
dioxins and PCBs;
    (3) Results of the constituent list for 40 CFR part 264 Appendix IX 
on Toxicity Characteristic Leaching Procedure (TCLP) extract for 
volatiles, semivolatiles, and metals;
    (4) Analytical constituents of concern for F039;
    (5) Results from total oil and grease analyses;
    (6) Multiple pH testing for the petitioned waste.

D. What Were the Results of Shell Oil Company's Analyses?

    EPA believes that the descriptions of the Shell Oil Company 
analytical characterization provide a reasonable basis to grant Shell 
Oil Company's petition for an exclusion of the multisource landfill 
leachate. EPA believes the data submitted in support of the petition 
show the multisource landfill leachate is non-hazardous. Analytical 
data for the multisource landfill leachate samples were used in the 
DRAS to develop delisting levels. The data summaries for detected 
constituents are presented in Table I. EPA has reviewed the sampling 
procedures used by Shell Oil Company and has determined that it 
satisfies EPA criteria for collecting representative samples of the 
variations in constituent concentrations in the multisource landfill 
leachate. In addition, the data submitted in support of the petition 
show that constituents in Shell Oil Company's waste are presently below 
health-based levels used in the delisting decision-making. EPA believes 
that Shell Oil Company has successfully demonstrated that the 
multisource landfill leachate is non-hazardous.

  Table I.--Maximum TCLP Concentrations and Maximum Allowable Delisting
   Concentration of the Multisource Landfill Leachate at the Shell Oil
                   Company Deer Park, TX Facility \1\
------------------------------------------------------------------------
                                                       Maximum allowable
                                    TCLP analyses (mg/     delisting
            Constituent                     l)           concentration
                                                         levels (mg/l)
------------------------------------------------------------------------
Antimony..........................             0.0092             0.0204
Arsenic...........................              0.011          \2\ 0.385
Barium............................              0.252               2.92
Copper............................            0.00553             418.00
Chromium..........................             0.0122                5.0
Cobalt............................             0.0126               2.25
Nickel............................             0.0368               1.13
Selenium..........................             0.0128             0.0863
Acetone...........................              0.033               1.46
Acetophenone......................             0.0031               1.58
Benzene...........................              0.013              0.022
Dichloroethane, 1,2...............             0.0014             0.0803
Ethylbenzene......................            0.00098               4.51
Napthalene........................             0.0061               1.05
Phenanthrene \3\..................             0.0014               1.39
Phenol............................              0.056               9.46
TCDD,2,3,7,8......................      0.00000000325          0.0000926
Trichloropropane..................            0.00025           0.000574
Xylenes (total)...................             0.0016             97.60
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.
\2\ EPA defers to the maximum allowable delisting concentration based on
  the MCL. As a result, Shell Oil Company's analytical sampling results
  and consequent DRAS analysis meet the criteria for the proposed
  delisting petition approval.
\3\ The DRAS program does not have a delisting concentration for
  phenanthrene. Consequently EPA substituted anthracene into the DRAS
  program to set a delisting level for phenanthrene. Anthracene has
  similar toxicological and health based properties as phenanthrene. The
  DRAS program contains a complete risk-based dataset for anthracene.
  Shell Oil Company's phenanthrene analytical sampling results and
  consequent DRAS analysis using anthracene input parameters meet the
  criteria for the proposed phenanthrene delisting level.
\4\ Shell ran TCLP analysis only for the liquid wastes, total analysis
  were excluding because similar analytical results would be provided.

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

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e., groundwater, 
surface water, air) for hazardous constituents present in the 
petitioned waste. EPA determined that disposal in a surface impoundment 
is the most reasonable, worst-case disposal scenario for Shell Oil 
Company's petitioned waste. EPA applied the Delisting Risk Assessment 
Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 
75637

[[Page 77694]]

(December 4, 2000), to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned waste 
after disposal and determined the potential impact of the disposal of 
Shell Oil Company's petitioned waste on human health and the 
environment. A copy of this software can be found on the world wide web 
at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. In assessing 
potential risks to groundwater, EPA used the maximum estimated waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
groundwater at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 
10<SUP>-</SUP>\5\ and non-cancer hazard index of 0.1), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and EPA health-based numbers. Using the maximum 
compliance-point concentrations and EPA's Composite Model for Leachate 
Migration with Transformation Products (EPACMTP) fate and transport 
modeling factors, the DRAS further back-calculates the maximum 
permissible waste constituent concentrations not expected to exceed the 
compliance-point concentrations in groundwater.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible groundwater contamination 
resulting from disposal of the petitioned waste in a 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 some reasonable 
worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    The DRAS also uses the maximum estimated waste volumes and the 
maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization from the surface impoundment). As in the above 
groundwater analyses, the DRAS uses the risk level, the health-based 
data and standard risk assessment and exposure algorithms to predict 
maximum compliance-point concentrations of waste constituents at a 
hypothetical point of exposure. Using fate and transport equations, the 
DRAS uses the maximum compliance-point concentrations and back-
calculates the maximum allowable waste constituent concentrations (or 
``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed. The waste must be disposed in the type of unit the fate and 
transport model evaluates.
    EPA also considers the applicability of groundwater monitoring data 
during the evaluation of delisting petitions. In this case, Shell Oil 
Company will dispose of its wastewater in its TPDES permitted NET unit, 
with existing groundwater contamination sources. The groundwater 
contamination is currently being addressed and managed through a RCRA 
Corrective Actions Program. Consequently the groundwater data would not 
be relevant to this exclusion. Therefore, EPA has determined that it 
would be unnecessary to request groundwater monitoring data.
    EPA believes that the descriptions of Shell Oil Company hazardous 
waste process and analytical characterization provide a reasonable 
basis to conclude that the likelihood of migration of hazardous 
constituents from the petitioned waste will be substantially reduced so 
that short-term and long-term threats to human health and the 
environment are minimized.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of results from the DRAS and maximum 
TCLP concentrations found in Table I, the petitioned waste should be 
delisted because no constituents of concern tested are likely to be 
present or formed as reaction products or by-products in Shell Oil 
Company's waste.

F. What Did EPA Conclude About Shell Oil Company's Analysis?

    EPA concluded, after reviewing Shell Oil Company'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 the waste. In addition, on the basis of explanations and 
analytical data provided by Shell Oil Company, pursuant to Sec.  
260.22, EPA concludes that the petitioned waste do not exhibit any of 
the characteristics of ignitability, corrosivity, reactivity or 
toxicity. See Sec. Sec.  261.21, 261.22 261.23 and 261.24, 
respectively.

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

    During the evaluation of Shell Oil Company's petition, EPA also 
considered the potential impact of the petitioned waste via non-
groundwater routes (i.e., air emission and surface runoff). With regard 
to airborne dispersion in particular, EPA believes that exposure to 
airborne contaminants from Shell Oil Company's petitioned waste is 
unlikely. Therefore, no appreciable air releases are likely from Shell 
Oil Company waste under any likely disposal conditions. EPA evaluated 
the potential hazards resulting from the unlikely scenario of airborne 
exposure to hazardous constituents released from Shell Oil Company's 
waste in an open surface impoundment. 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 Shell Oil Company's multisource landfill leachate.

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

    The descriptions of Shell Oil Company's 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. The data submitted in support of 
the petition show that constituents in the waste are below the maximum 
allowable leachable concentrations (see Table I). EPA believes Shell 
Oil Company's process will substantially reduce the likelihood of 
migration of hazardous constituents from the petitioned waste. Shell 
Oil Company's process also minimizes short-term and long-term threats 
from the petitioned waste to human health and the environment.
    Thus, EPA believes Shell Oil Company should be granted an exclusion 
for the multisource landfill leachate. EPA believes the data submitted 
in support of the petition show Shell Oil Company's multisource 
landfill leachate is non-hazardous. EPA has reviewed the sampling 
procedures used by Shell Oil Company and has determined that it 
satisfies EPA criteria for collecting representative samples of 
variable constituent concentrations in the multisource landfill 
leachate. The data submitted in support of the petition

[[Page 77695]]

show that constituents in Shell Oil Company's waste are presently below 
the compliance point concentrations used in the delisting decision and 
would not pose a substantial hazard to the environment. EPA believes 
that Shell Oil Company has successfully demonstrated that the 
multisource landfill leachate is non-hazardous.
    EPA therefore, proposes to grant an exclusion to Shell Oil Company, 
in Deer Park, Texas, for the multisource landfill leachate described in 
its petition. EPA's decision to exclude this waste is based on 
descriptions of the treatment activities associated with the petitioned 
waste and characterization of the multisource landfill leachate.
    If EPA finalizes the proposed rule, EPA 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, Shell Oil Company, must comply with the 
requirements in 40 CFR part 261, Appendix IX, Table 1. The text below 
gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituents for which Shell 
Oil Company must test the multisource landfill leachate, below which 
these wastes would be considered non-hazardous.
    EPA selected the set of inorganic and organic constituents 
specified in Paragraph (1) of 40 CFR part 261, Appendix IX, Table 1, 
(the exclusion language) based on information in the petition. EPA 
compiled the inorganic and organic constituents list from the 
composition of the waste, descriptions of Shell Oil Company's treatment 
process, previous test data provided for the waste, and the respective 
health-based levels used in delisting decision-making. These delisting 
levels correspond to the allowable levels measured in the total 
concentrations. The limits described here do not relieve Shell Oil 
Company of its duty to comply with discharge limits in its TPDES 
permit.
(2) Waste Holding and Handling
    The purpose of this paragraph is to ensure that Shell Oil Company 
manages and disposes of any multisource landfill leachate that contains 
hazardous levels of inorganic and organic constituents according to 
Subtitle C of RCRA. Managing the multisource landfill leachate as a 
hazardous waste until initial verification testing is performed 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 upon publication in the 
Federal Register but the disposal as non-hazardous cannot begin until 
the verification sampling is completed.
(3) Verification Testing Requirements
    Shell Oil Company must complete a rigorous verification testing 
program on the multisource landfill leachate to assure that the treated 
multisource landfill leachate does not exceed the maximum levels 
specified in Paragraph (1) of the exclusion language. This verification 
program operates on two levels.
    The first part of the verification testing program consists of 
testing the multisource landfill leachate for specified indicator 
parameters as per Paragraph (1) of the exclusion language.
    If EPA determines 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 
testing program demonstrate that the leachate meets the delisting 
levels, Shell Oil Company may request quarterly testing. EPA will 
notify Shell Oil Company, in writing, if and when it may replace the 
testing conditions in paragraph (3)(A) with the testing conditions in 
(3)(B) of the exclusion language.
    The second part of the verification testing program is the 
quarterly testing of representative samples of multisource landfill 
leachate for all constituents specified in Paragraph (1) of the 
exclusion language. EPA believes that the concentrations of the 
constituents of concern in the multisource landfill leachate may vary 
over time. Consequently this program will ensure that the leachate is 
evaluated in terms of variation in constituent concentrations in the 
waste over time.
    The proposed subsequent testing would verify that Shell Oil Company 
operates a landfill where the constituent concentrations of the 
multisource landfill leachate do not exhibit unacceptable temporal and 
spatial levels of toxic constituents.
    EPA is proposing to require Shell Oil Company to analyze 
representative samples of the multisource landfill leachate quarterly 
during the first year of waste generation. Shell Oil Company would 
begin quarterly sampling 60 days after the final exclusion as described 
in Paragraph (3)(B) of the exclusion language.
    EPA, per Paragraph 3(C) of the exclusion language, is proposing to 
end the subsequent testing conditions after the first year, if Shell 
Oil Company has demonstrated that the waste consistently meets the 
delisting levels. To confirm that the characteristics of the waste do 
not change significantly over time, Shell Oil Company must continue to 
analyze a representative sample of the waste on an annual basis. Annual 
testing requires analyzing the full list of components in Paragraph (1) 
of the exclusion language. If operating conditions change as described 
in Paragraph (4) of the exclusion language; Shell Oil Company must 
reinstate all testing in Paragraph (1) of the exclusion language. Shell 
Oil Company must prove through a new demonstration that their waste 
meets the conditions of the exclusion.
    If the annual testing of the waste does not meet the delisting 
requirements in Paragraph 1, Shell Oil Company must notify EPA 
according to the requirements in Paragraph 6 of the exclusion language. 
The facility must provide sampling results that support the rationale 
that the delisting exclusion should not be withdrawn.
(4) Changes in Operating Conditions
    Paragraph (4) of the exclusion language would allow Shell Oil 
Company the flexibility of modifying its processes (for example, 
changes in equipment or change in operating conditions) to improve its 
treatment process. However, Shell Oil Company must prove the 
effectiveness of the modified process and request approval from EPA. 
Shell Oil Company must manage wastes generated during the new process 
demonstration as hazardous waste until it has obtained written approval 
and Paragraph (3) of the exclusion language is satisfied.
(5) Data Submittals
    To provide appropriate documentation that Shell Oil Company's 
multisource landfill leachate is meeting the delisting levels, Shell 
Oil Company must compile, summarize, and keep delisting records on-site 
for a minimum of five years. It should keep all analytical data 
obtained through Paragraph (3) of the exclusion language including 
quality control information for five years. Paragraph (5) of the 
exclusion language requires that Shell Oil Company furnish these data 
upon request for inspection by any employee or representative of EPA or 
the state of Texas.

[[Page 77696]]

    If the proposed exclusion is made final, it will apply only to 3.36 
million gallons (16,619 cu. yards) per year of multisource landfill 
leachate, generated at the Shell Oil Company facility after successful 
verification testing.
    EPA would require Shell Oil Company to file a new delisting 
petition under any of the following circumstances:
    (a) If it significantly alters the manufacturing process treatment 
system except as described in Paragraph (4) of the exclusion language;
    (b) If it uses any new manufacturing or production process(es), or 
significantly changes from the current process(es) described in their 
petition; or
    (c) If it makes any changes that could affect the composition or 
type of waste generated.
    Shell Oil Company must manage waste volumes greater than 3.36 
million gallons (16,619 cu. yards) per year of multisource landfill 
leachate as hazardous until EPA grants a new exclusion.
    When this exclusion becomes final, Shell Oil Company's management 
of the wastes covered by this petition would be relieved from Subtitle 
C jurisdiction. Shell Oil Company must either treat, store, or dispose 
of the waste in an on-site facility. If not, Shell Oil Company 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
    The purpose of Paragraph (6) of the exclusion language is to 
require Shell Oil Company 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. Shell Oil Company 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 EPA. EPA will evaluate the information on which EPA 
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 Shell Oil Company 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.
    EPA believes that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. Sec.  551 (1978) et seq., 
to reopen a delisting decision. EPA may reopen a delisting decision 
when it receives new information that calls into question the 
assumptions underlying the delisting.
    EPA believes a clear statement of its authority in delistings is 
merited in light of EPA's 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 EPA to repeal the delisting. If 
an immediate threat to human health and the environment presents 
itself, EPA will continue to address these situations on a case by case 
basis. Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA Sec.  553 (b).
(7) Notification Requirements
    In order to adequately track wastes that have been delisted, EPA is 
requiring that Shell Oil Company provide a one-time notification to any 
state regulatory agency through which or to which the delisted waste is 
being carried. Shell Oil Company must provide this notification 60 days 
before commencing this activity.

B. What Happens if Shell Oil Company Violates the Terms and Conditions?

    If Shell Oil Company violates the terms and conditions established 
in the exclusion, EPA will start procedures to withdraw the exclusion. 
Where there is an immediate threat to human health and the environment, 
EPA will evaluate the need for enforcement activities on a case-by-case 
basis. EPA expects Shell Oil Company to conduct the appropriate waste 
analysis and comply with the criteria explained above in Paragraph (1) 
of the exclusion.

V. Public Comments

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

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to Section Chief of 
the Corrective Action and Waste Minimization Section (6PD-C), 
Multimedia Planning and Permitting Division, Environmental Protection 
Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy 
to Nicole Bealle, Waste Team Leader, Texas Commission on Environmental 
Quality, 5425 Polk Avenue Suite A, Houston, TX 77023. Identify your 
comments at the top with this regulatory docket number: ``F-04-TEXDEL-
Shell Oil.'' You may submit your comments electronically to Michelle 
Peace at <a href="/cdn-cgi/l/email-protection#760613171513581b1f151e131a1a133613061758111900"><span class="__cf_email__" data-cfemail="f18194909294df9c989299949d9d94b1948190df969e87">[email protected]</span></a>.
    You should submit requests for a hearing to Ben Banipal, Section 
Chief of the Corrective Action and Waste Minimization Section (6PD-C), 
Multimedia Planning and Permitting Division, U. S. 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 EPA Freedom of Information 
Act Review Room from 9 a.m. to 4 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 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 this 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 Executive Order 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

[[Page 77697]]

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, EPA hereby certifies 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 (Public Law 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 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. 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.
    EPA finds that this 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 13045

    The Executive Order 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, EPA 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 EPA. This proposed rule is not 
subject to E.O. 13045 because this is not an economically significant 
regulatory action as defined by Executive Order 12866.

XI. Executive Order 13084

    Because this action does not involve any requirements that affect 
Indian Tribes, the requirements of section 3(b) of Executive Order 
13084 do not apply.
    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the 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, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments to have ``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 Executive 
Order 13084 do not apply to this rule.

XII. National Technology Transfer and Advancement Act

    Under Section 12(d) of the National Technology Transfer and 
Advancement Act, EPA is directed to use voluntary consensus standards 
in its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, business practices, etc.) developed or adopted by 
voluntary consensus standard bodies. Where available and potentially 
applicable voluntary consensus standards are not used by EPA, the Act 
requires that EPA 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, 
EPA has no need to consider the use of voluntary consensus standards in 
developing this final rule.

XIII. Executive Order 13132 Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that impose substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with

[[Page 77698]]

state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts state law unless EPA consults 
with state and local officials early in the process of developing the 
proposed regulation.
    This action does not have federalism implication. It will not have 
a substantial direct effect on states, on the relationship between the 
national government and the states, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, because it affects only one facility.

Lists 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: November 9, 2004.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Table 1 of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22.

                               Table 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
            Facility                          Address                            Waste Description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Shell Oil Company...............  Deer Park, TX..................  Multisource landfill leachate (EPA Hazardous
                                                                    Waste No. F039) generated at a maximum
                                                                    annual rate of 3.36 million gallons (16,619
                                                                    cu. yards) per calendar year after [insert
                                                                    publication date of the final rule] and
                                                                    disposed in accordance with the TPDES
                                                                    permit.
                                                                   The Delisting Levels set do not relieve Shell
                                                                    Oil Company of its duty to comply with the
                                                                    limits set in its TPDES permit. For the
                                                                    exclusion to be valid, Shell Oil Company
                                                                    must implement a verification testing
                                                                    program that meets the following Paragraphs:
                                                                   (1) Delisting Levels: All total
                                                                    concentrations for those constituents must
                                                                    not exceed the following levels (mg/l). The
                                                                    petitioner must analyze the aqueous waste on
                                                                    a total basis to measure constituents in the
                                                                    multisource landfill leachate.
                                                                   Multisource landfill leachate (i) Inorganic
                                                                    Constituents Antimony-0.0204; Arsenic-0.385;
                                                                    Barium-2.92; Copper-418.00; Chromium-5.0;
                                                                    Cobalt-2.25; Nickel-1.13; Selenium-0.0863;
                                                                    Thallium-0.005
                                                                   (ii) Organic Constituents Acetone-1.46;
                                                                    Acrylonitrile-0.00745; Acetophenone-1.58;
                                                                    Benzene-0.0222; Cresol, p-0.0788; Bis(2-
                                                                    chlorethyl)ether-0.00583; Bis(2-
                                                                    ethylhexyl)phthlate-15800.00;
                                                                    Dichlorobenzene, 1,3-0.00478;
                                                                    Dichloroethane, 1,2-0.0803; Dimethoate-3.15;
                                                                    Dimethyphenol, 2,4-0.405; Dinitrophenol-
                                                                    0.0293; Dinitrotoluene, 2,4-0.00451;
                                                                    Dinitrololuene, 2,6-0.00451;
                                                                    Diphenylthydrazine-0.00484;
                                                                    Dichloroethylene, 1,1-0.00719; Ethylbenzene-
                                                                    4.51; Kepone-0.00407; Methacrylonitrile-
                                                                    0.00146; Methanol-7.32; Napthalene-1.05;
                                                                    Nitrobenzene 0.00788; Nitrosodiethylamine-
                                                                    0.000258; Nitrosodimethylamine-0.000076;
                                                                    Nitrosodi-n-butylamine-0.000826; N-Nitrosodi-
                                                                    n-propylamine-0.000553; N-Nitrosopiperdine-
                                                                    0.000102; N-Nitrosopyrrolidine-0.000841; N-
                                                                    Nitrosomethylethylamine-0.000176; PCB's-
                                                                    0.000841; Pentachlorophenol-1.58; Phenol-
                                                                    9.46; Pyridine-0.0146; 2,3,7,8-TCDD
                                                                    equivalents as TEQ-0.0000926;
                                                                    Trichloropropane-0.000574; Vinyl Chloride-
                                                                    0.0019; Xylenes (total)-97.60
                                                                   (2) Waste Management:
                                                                   (A) Shell Oil Company must manage as
                                                                    hazardous all multisource landfill leachate
                                                                    generated, until it has completed initial
                                                                    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 multisource landfill leachate
                                                                    that do not exceed the levels set forth in
                                                                    Paragraph (1) are non-hazardous. Shell Oil
                                                                    Company can manage and dispose of the non-
                                                                    hazardous multisource landfill leachate
                                                                    according to all applicable solid waste
                                                                    regulations.
                                                                   (C) If constituent levels in a sample exceed
                                                                    any of the Delisting Levels set in Paragraph
                                                                    (1), Shell Oil Company can collect one
                                                                    additional sample and perform expedited
                                                                    analyses to verify if the constituent
                                                                    exceeds the delisting level. If this sample
                                                                    confirms the exceedance, Shell Oil Company
                                                                    must, from that point forward, treat the
                                                                    waste as hazardous until it is demonstrated
                                                                    that the waste again meets the levels in
                                                                    Paragraph (1).
                                                                   (D) If the facility has not treated the
                                                                    waste, Shell Oil Company must manage and
                                                                    dispose of the waste generated under
                                                                    Subtitle C of RCRA from the time that it
                                                                    becomes aware of any exceedance.
                                                                   (E) Upon completion of the Verification
                                                                    Testing described in Paragraph 3(A) and (B)
                                                                    as appropriate and the transmittal of the
                                                                    results to EPA, and if the testing results
                                                                    meet the requirements of Paragraph (1),
                                                                    Shell Oil Company may proceed to manage its
                                                                    multisource landfill leachate as non-
                                                                    hazardous waste. If Subsequent Verification
                                                                    Testing indicates an exceedance of the
                                                                    Delisting Levels in Paragraph (1), Shell Oil
                                                                    Company must manage the multisource landfill
                                                                    leachate as a hazardous waste until two
                                                                    consecutive quarterly testing samples show
                                                                    levels below the Delisting Levels in Table
                                                                    I.

[[Page 77699]]

 
                                                                   (3) Verification Testing Requirements: Shell
                                                                    Oil Company must perform sample collection
                                                                    and analyses, including quality control
                                                                    procedures, according to appropriate methods
                                                                    such as those found in SW-846 or other
                                                                    reliable sources (with the exception of
                                                                    analyses requiring the use of SW-846 methods
                                                                    incorporated by reference in 40 CFR 260.11,
                                                                    which must be used without substitution). If
                                                                    EPA judges the process to be effective under
                                                                    the operating conditions used during the
                                                                    initial verification testing, Shell Oil
                                                                    Company may replace the testing required in
                                                                    Paragraph (3)(A) with the testing required
                                                                    in Paragraph (3)(B). Shell Oil Company 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, Shell Oil
                                                                    Company must do the following:
                                                                   (i) Within 60 days of this exclusion becoming
                                                                    final, collect eight samples, before
                                                                    disposal, of the multisource landfill
                                                                    leachate.
                                                                   (ii) The samples are to be analyzed and
                                                                    compared against the Delisting Levels in
                                                                    Paragraph (1)
                                                                   (iii) Within sixty (60) days after this
                                                                    exclusion becomes final, Shell Oil Company
                                                                    will report initial verification analytical
                                                                    test data for the multisource landfill
                                                                    leachate, including analytical quality
                                                                    control information for the first thirty
                                                                    (30) days of operation after this exclusion
                                                                    becomes final. If levels of constituents
                                                                    measured in the samples of the multisource
                                                                    landfill leachate that do not exceed the
                                                                    levels set forth in Paragraph (1) are also
                                                                    non-hazardous in two consecutive quarters
                                                                    after the first thirty (30) days of
                                                                    operation after this exclusion become
                                                                    effective, Shell Oil Company can manage and
                                                                    dispose of the multisource landfill leachate
                                                                    according to all applicable solid waste
                                                                    regulations.
                                                                   (B) Subsequent Verification Testing:
                                                                    Following written notification by EPA, Shell
                                                                    Oil Company may substitute the testing
                                                                    conditions in (3)(B) for (3)(A). Shell Oil
                                                                    Company must continue to monitor operating
                                                                    conditions, and analyze two representative
                                                                    samples of the multisource landfill leachate
                                                                    for each quarter of operation during the
                                                                    first year of waste generation. The samples
                                                                    must represent the waste generated during
                                                                    the quarter. After the first year of
                                                                    analytical sampling verification sampling
                                                                    can be performed on a single annual sample
                                                                    of the multisource landfill leachate. The
                                                                    results are to be compared to the Delisting
                                                                    Levels in Condition (1).
                                                                   (C) Termination of Testing:
                                                                   (i) After the first year of quarterly
                                                                    testing, if the Delisting Levels in
                                                                    Paragraph (1) are being met, Shell Oil
                                                                    Company may then request that EPA not
                                                                    require quarterly testing. After EPA
                                                                    notifies Shell Oil Company in writing, the
                                                                    company may end quarterly testing.
                                                                   (ii) Following cancellation of the quarterly
                                                                    testing, Shell Oil Company must continue to
                                                                    test a representative sample for all
                                                                    constituents listed in Paragraph (1)
                                                                    annually.
                                                                   (4) Changes in Operating Conditions: If Shell
                                                                    Oil Company significantly changes the
                                                                    process described in its petition or starts
                                                                    any processes that generate(s) the waste
                                                                    that may or could significantly 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), it must notify EPA in
                                                                    writing; it 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 it
                                                                    has received written approval to do so from
                                                                    EPA.
                                                                   (5) Data Submittals: Shell Oil Company must
                                                                    submit the information described below. If
                                                                    Shell Oil Company 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. Shell Oil Company must:
                                                                   (A) Submit the data obtained through
                                                                    Paragraph 3 to the Section Chief, Region 6
                                                                    Corrective Action and Waste Minimization
                                                                    Section, EPA, 1445 Ross Avenue, Dallas,
                                                                    Texas 75202-2733, Mail Code, (6PD-C) 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.
                                                                   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:

[[Page 77700]]

 
                                                                   (A) If, anytime after disposal of the
                                                                    delisted waste, Shell Oil Company 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 Division
                                                                    Director in granting the petition, then the
                                                                    facility must report the data, in writing,
                                                                    to the Division Director 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, Shell Oil Company must report
                                                                    the data, in writing, to the Division
                                                                    Director within 10 days of first possessing
                                                                    or being made aware of that data.
                                                                   (C) If Shell Oil Company 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
                                                                    Division Director will make a preliminary
                                                                    determination as to whether the reported
                                                                    information requires EPA action to protect
                                                                    human health and/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 Division Director determines that
                                                                    the reported information does require
                                                                    action, EPA's Division Director will notify
                                                                    the facility in writing of the actions the
                                                                    Division Director 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 action by
                                                                    EPA is not necessary. The facility shall
                                                                    have 10 days from the date of the Division
                                                                    Director'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 Division Director will
                                                                    issue a final written determination
                                                                    describing EPA's actions that are necessary
                                                                    to protect human health and/or the
                                                                    environment. Any required action described
                                                                    in the Division Director's determination
                                                                    shall become effective immediately, unless
                                                                    the Division Director provides otherwise.
                                                                   (7) Notification Requirements: Shell Oil
                                                                    Company must do the 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 it will transport the delisted
                                                                    waste described above for disposal, 60 days
                                                                    before beginning such activities.
                                                                   (B) Update the one-time written notification
                                                                    if it ships the delisted waste into a
                                                                    different disposal facility.
                                                                   (C) Failure to provide this notification will
                                                                    result in a violation of the delisting
                                                                    variance and a possible revocation of the
                                                                    decision.
 
                                                  * * * * * * *
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[FR Doc. 04-28199 Filed 12-27-04; 8:45 am]
BILLING CODE 6560-50-P


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