[Federal Register Volume 65, Number 79 (Monday, April 24, 2000)]
[Rules and Regulations]
[Pages 21651-21657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10038]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6583-6]


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

AGENCY:  Environmental Protection Agency.

ACTION:  Final rule.

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

SUMMARY:  The Environmental Protection Agency (EPA) is granting a 
petition submitted by DuraTherm, Inc., (DuraTherm) to exclude from 
hazardous waste control (or delist) a certain solid waste. This action 
responds to the petition submitted by DuraTherm to delist the desorber 
solids on a ``generator specific'' basis from the lists of hazardous 
waste.
    After careful analysis, the EPA has concluded that the petitioned 
waste is not hazardous waste when disposed of in subtitle D landfills. 
This exclusion applies to desorber solids generated at DuraTherm's San 
Leon, Texas, facility. Accordingly, this final rule excludes the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA) when disposed 
of in subtitle D landfills but imposes testing conditions to ensure 
that the future-generated wastes remain qualified for delisting.

EFFECTIVE DATE:  April 24, 2000.

ADDRESSES:  The public docket for this final rule is located at the 
U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202, and is available for viewing in the EPA Freedom of 
Information Act review room on the 7th floor from 9:00 a.m. to 4:00 
p.m., Monday through Friday, excluding Federal holidays. Call (214) 
665-6444 for appointments. The reference number for this docket is ``F-
99-TXDEL-DURATHERM.'' The public may copy material from any regulatory 
docket at no cost for the first 100 pages and at a cost of $0.15 per 
page for additional copies.

FOR FURTHER INFORMATION CONTACT:  For general information, contact Bill 
Gallagher, at (214) 665-6775. For technical information concerning this 
document, contact Michelle Peace, U.S. Environmental Protection Agency, 
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this delisting?
    C. What are the limits of this exclusion?
    D. How will DuraTherm manage the waste if it is delisted?
    E. When is the final delisting exclusion effective?
    F. How does this action affect states?
II. Background
    A. What is a delisting?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Data
    A. What wastes did DuraTherm petition EPA to delist?
    B. How much wastes did DuraTherm propose to delist?
    C. How did DuraTherm sample and analyze the waste data in this 
petition?
IV. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. How will DuraTherm segregate the petitioned waste from the 
other wastes accepted and processed in the thermal desorption unit?
    C. Why is EPA applying the Land Disposal Restrictions to the 
petitioned wastes?
V. Regulatory Impact
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Congressional Review Act
X. Executive Order 12875
XI. Executive Order 13045
XII. Executive Order 13084
XIII. National Technology Transfer and Advancements Act
XIV. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is EPA Finalizing?

    The EPA is finalizing:
    (1) the decision to grant DuraTherm's petition to have their 
desorber solids excluded, or delisted, from the definition of a 
hazardous waste; and
    (2) the use of the EPA Composite Model for Landfills as the fate 
and transport model 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.
    After evaluating the petition, EPA proposed, on August 18, 1999 to 
exclude the DuraTherm waste from the lists of hazardous wastes under 
Secs. 261.31 and 261.32 (see 64 FR 44866).

B. Why Is EPA Approving This Delisting?

    DuraTherm petitioned to exclude the desorber solids because it does 
not believe that the petitioned waste meets the criteria for which it 
was listed.
    DuraTherm also believes that the waste does not contain any other 
constituents that would render it hazardous. Review of this petition 
included consideration of the original listing criteria, as well as the 
additional listing criteria and the additional factors required by the 
Hazardous and Solid Waste Amendments (HSWA) of 1984. See section 222 of 
HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).
    For reasons stated in both the proposal and this document, EPA 
believes that DuraTherm's desorber solids should be excluded from 
hazardous waste control. The EPA therefore is granting a final 
exclusion to DuraTherm, located in San Leon, Texas, for its Desorber 
Solids.

C. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in Table 1 of part 261 and the conditions 
contained herein are satisfied. The maximum annual volume of the 
Desorber Solids is 20,000 cubic yards.

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

    The Desorber Solids is currently disposed of in an off-site 
hazardous

[[Page 21652]]

waste landfill. When delisted, the waste will be disposed of in an off-
site subtitle D industrial landfill.

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective April 24, 2000. The HSWA of 1984 amended 
section 3010 of RCRA to allow rules to become effective in less than 
six months when the regulated community does not need the six-month 
period to come into compliance. That is the case here because this rule 
reduces, rather than increases, the existing requirements for persons 
generating hazardous wastes. These reasons also provide a basis for 
making this rule effective immediately, upon publication, under the 
Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

F. How Does This Action Affect States?

    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 a Delisting Petition?

    A delisting petition is a request from a generator to EPA or 
another agency with jurisdiction to exclude from the list of hazardous 
wastes, wastes the generator does not consider hazardous under RCRA.

B. What Regulations Allow Facilities To Delist a Waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control by excluding them from 
the lists of hazardous wastes contained in Secs. 261.31 and 261.32. 
Specifically, section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
265 and 268 of Title 40 of the Code of Federal Regulations. Section 
260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

C. What Information Must the Generator Supply?

    Petitioners must provide sufficient information to EPA to allow the 
EPA to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste, that such factors do not 
warrant retaining the waste as a hazardous waste.

III. EPA's Evaluation of the Waste Data

A. What Waste 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. How Much Waste Did DuraTherm Propose To Delist?

    Specifically, in its petition, DuraTherm requested that EPA grant a 
standard exclusion for 20,000 cubic yards of desorber solids generated 
per calender year.

C. How Did DuraTherm Sample and Analyze the Waste Data in 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.

IV. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    The EPA received public comments on August 18, 1999, proposal from 
one interested party, Environmental Issues Management.

[[Page 21653]]

B. How Will DuraTherm Segregate the Petitioned Waste From the Other 
Wastes Accepted and Processed in the Thermal Desorption Unit?

    Environmental Issues Management comments that the Agency failed to 
identify the rationale and method to isolate listed waste streams under 
consideration for delisting from other listed waste streams processed 
by DuraTherm which were not included within DuraTherm's delisting 
demonstration. DuraTherm may accept several other waste streams in 
addition to the waste streams being delisted. DuraTherm's acceptable 
waste streams include chlorinated organics, vinyl chloride and ethylene 
dichloride. The facility runs different batches of waste for different 
facilities. Initially, DuraTherm generates a waste profile for the 
material. They return the waste profile to the generator. When the 
wastes are accepted by DuraTherm, they must meet the profile identified 
by DuraTherm. To ensure that no cross contamination of these batches 
occur, the first batch of the petitioned wastes processed after a batch 
of chlorinated organics for instance, will be designated as ``Hazardous 
Wastes.'' To ensure that subsequent batches are free of any remaining 
waste codes, DuraTherm must analyze the first batch for constituents 
for which the waste codes are listed. Subsequent batches of the 
F037,F038, K049, K050, K051 wastes are eligible for delisting if they 
meet the criteria described in Table 1 of appendix IX, part 261 and no 
constituents of the previously processed residues are detected. The EPA 
has amended the conditions in Table 1, Paragraph 2(B) to reflect the 
change.

C. Why Is EPA Applying the Land Disposal Restrictions to the Petitioned 
Wastes?

    Environmental Issues Management believes that the Agency's use of 
the Land Disposal Restrictions (LDR) to establish Maximum Allowable 
Concentrations is overly conservative and results in redundant 
regulation. The Agency used to the LDR treatment concentrations as 
delisting limits for three of the 12 metals constituents and all 25 of 
the organic constituents. The maximum concentration of the three metals 
detected in petitioned waste was less than the calculated delisting 
levels and the LDR treatment standards for the metals. For example, for 
chromium the calculated delisting level was 2.70 
mg/l and the LDR treatment standard was 0.6 mg/l; However, the maximum 
concentration of chromium detected in the samples was 0.18 mg/l. This 
concentration is less than the calculated delisting level and the LDR 
treatment standard for chromium. The maximum concentrations of the 
semi-volatile and volatile organic constituents in the petitioned 
wastes were also less than the LDR treatment standards. For example, 
the maximum concentration of phenol detected in the waste was 0.2437 
mg/l and the LDR treatment standard was 6.2 mg/l. The maximum 
concentration of xylene in the waste streams was 0.0017 mg/l and the 
LDR treatment standard was 0.032 mg/l. DuraTherm's treatment process 
did not have any problems achieving the more protective levels, in fact 
no additional treatment was needed to meet the LDR treatment standards. 
The proposed delisting levels for this petition allow for further 
protection of human health and the environment with very little impact 
on DuraTherm's operation of their treatment process.

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. The final to grant an exclusion is not significant, since its 
effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thereby enabling this 
facility to manage its waste as nonhazardous. There is no additional 
impact therefore, due to today's final rule. Therefore, this proposal 
would not be a significant regulation and no cost/benefit assessment is 
required. The Office of Management and Budget (OMB) has also exempted 
this rule from the requirement for OMB review under section (6) of 
Executive Order 12866.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis which 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required however if the 
Administrator or delegated representative certifies that the rule will 
not have any impact on 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. Accordingly, I hereby certify 
that this regulation, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. This 
regulation therefore, does not require a regulatory flexibility 
analysis.

VII. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this proposed rule have been approved by the 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.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA must prepare a written statement for rules with Federal mandates 
that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the UMRA, EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. 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 intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon State, local, or tribal governments or the private sector. The EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon State, local, or 
tribal governments or the private sector. In addition, the delisting 
does not establish any regulatory requirements for small governments 
and so does not

[[Page 21654]]

require a small government agency plan under UMRA section 203.

IX. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. The EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, the Comptroller General of the United States prior to 
publication of the final rule in the Federal Register. This rule is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will become 
effective on the date of publication in the Federal Register.

X. Executive Order 12875

    Under Executive Order 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, Executive Order 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 Executive Order 12875 do not apply to 
this rule.

XI. 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, 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 rule is 
not subject to Executive Order 13045 because this is not an 
economically significant regulatory action as defined by Executive 
Order 12866.

XII. Executive Order 13084

    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 OMB, 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 
meaningful and timely input'' in the development of regulatory policies 
on matters that significantly or uniquely affect their communities of 
indian tribal governments. Today's rule does not significantly or 
uniquely affect the communities of indian tribal governments. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

XIII. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), directs the EPA 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 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 final rule.

XIV. 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 State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the Agency 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.

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).


[[Page 21655]]


    Dated: April 11, 2000.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division.

    For the reasons set out in the preamble, 40 CFR part 261 is 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, 6924(y) and 
6938.

    2. In Tables 1 and 2 in appendix IX 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                 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 April
                                                   24, 2000.
                                                  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--54.0;
                                                   Beryllium--0.108;
                                                   Cadmium--0.135;
                                                   Chromium--0.6; Lead--
                                                   0.405; Nickel--2.7;
                                                   Selenium--1.0;
                                                   Silver--5.0;
                                                   Vanadium--5.4; 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
                                                  (2) Waste Holding and
                                                   Handling: (A)
                                                   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) In order to
                                                   isolate wastes that
                                                   have been processed
                                                   in the unit prior to
                                                   one of the waste
                                                   codes to be delisted,
                                                   DuraTherm must
                                                   designate the first
                                                   batch of F037, F038,
                                                   K048, K049, K050, or
                                                   K051 wastes as
                                                   hazardous. Subsequent
                                                   batches of these
                                                   wastes which satisfy
                                                   paragraph (1) are
                                                   eligible for
                                                   delisting if they
                                                   meet the criteria in
                                                   paragraph (1) and no
                                                   additional
                                                   constituents (other
                                                   than those of the
                                                   delisted waste
                                                   streams) from the
                                                   previously processed
                                                   wastes are detected.
                                                  (C) 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.
                                                  (D) 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 in
                                                   paragraph(1).
                                                   DuraTherm must repeat
                                                   the analyses of the
                                                   treated waste.
                                                  (E) If the facility
                                                   has not treated 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.
                                                  (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 and submit
                                                   the results within 60
                                                   days of completion.
                                                   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.

[[Page 21656]]

 
                                                  (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.
                                                  (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. 1001
                                                   and 42 U.S.C. 6928),
                                                   I certify that the
                                                   information contained
                                                   in or accompanying
                                                   this document is
                                                   true, accurate and
                                                   complete.
                                                  As to the (those)
                                                   identified section(s)
                                                   of this document for
                                                   which I cannot
                                                   personally verify its
                                                   (their) truth and
                                                   accuracy, I certify
                                                   as the company
                                                   official having
                                                   supervisory
                                                   responsibility for
                                                   the persons who,
                                                   acting under my
                                                   direct instructions,
                                                   made the verification
                                                   that this information
                                                   is true, accurate and
                                                   complete.
                                                  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.
                                                  (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.
                                                  (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.

[[Page 21657]]

 
                                                  (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.
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------


             Table 2.--Wastes Excluded From Specific Sources
------------------------------------------------------------------------
        Facility                 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. 00-10038 Filed 4-21-00; 8:45 am]
BILLING CODE 6560-50-P