42110 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 148, 261, 266, 268, 271,

and 302

[SWH–FRL–6122–7]

RIN 2050–AD88

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Petroleum Refining

Process Wastes; Land Disposal

Restrictions for Newly Identified

Wastes; And CERCLA Hazardous

Substance Designation and Reportable

Quantities

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is amending the

regulations for hazardous waste

management under the Resource

Conservation and Recovery Act (RCRA)

to reduce hazards to human health and

the environment from wastes generated

from petroleum refining. EPA is listing

as hazardous four wastes generated

during petroleum refining and is issuing

a decision not to list ten other

petroleum refining wastes.

This action is taken under the

authority of RCRA 3001(b)(1), which

authorizes EPA to list wastes as

hazardous, and 3001(e)(2), which

directs EPA to make a decision whether

to list as hazardous the various

petroleum refining wastes. The effect of

listing these four wastes will be to

subject them to stringent management

and treatment standards under RCRA

and to emergency notification

requirements for releases of hazardous

substances to the environment. These

notifications are required under the

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA or Superfund) and the

Emergency Planning and Community

Right to Know Act (EPCRA). EPA is also

issuing Reportable Quantity (RQ)

adjustments for these notifications.

This action also makes certain

changes to the RCRA regulations to

promote the environmentally sound

recycling of oil-bearing residuals.

Specifically, the Agency is excluding

certain recycled secondary materials

from the definition of solid waste. These

materials include oil-bearing residuals

from petroleum refineries when they are

inserted into the petroleum refining

process, oil from associated

petrochemical facilities inserted into the

petroleum refining process, and spent

caustic from liquid treating operations

when used as a feedstock to make

certain chemical products. This rule

also clarifies an existing exclusion for

recovered oil from certain petroleum

industry sources.

Finally, EPA is applying universal

treatment standards (UTS) under the

Land Disposal Restrictions program to

the petroleum refining wastes listed in

this rulemaking. The listed wastes must

be treated to meet these treatment

standards for specific constituents prior

to land disposal.

EFFECTIVE DATES: This final rule is

effective February 8, 1999, except for

the amendments to §§ 261.3(c)(2)(ii)(B),

261.4(a), 261.6(a)(3)(iv)(C) and

261.100(b)(3) and the removal of

§ 261.6(a)(3)(v) which are effective

August 6, 1998.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

Crystal Gateway I, First Floor, 1235

Jefferson Davis Highway, Arlington, VA.

The Docket Identification Number is F–

98–PRLF–FFFFF. The RIC is open from

9 a.m. to 4 p.m., Monday through

Friday, excluding federal holidays. To

review docket materials, it is

recommended that the public make an

appointment by calling 703 603–9230.

The public may copy a maximum of 100

pages from any regulatory docket at no

charge. Additional copies cost $0.15/

page. The index and some supporting

materials are available electronically.

See the beginning of the Supplementary

Information section for information on

accessing them.

FOR FURTHER INFORMATION CONTACT: The

RCRA/Superfund Hotline, toll-free, at

(800) 424–9346 or at (703) 920–9810.

The TDD Hotline number is (800) 553–

7672 (toll-free) or (703) 486–3323 in the

Washington, DC., metropolitan area.

For technical information on the

RCRA hazardous waste listings, contact

Maximo (Max) Diaz, Jr., or Robert

Kayser, Office of Solid Waste (5304W),

U.S. Environmental Protection Agency,

1235 Jefferson Davis Highway,

Arlington, VA, (703) 308-0439. [E-mail

addresses and telephone numbers:

diaz.max@epamail.epa.gov, (703) 308–

0439; kayser.robert@epamail.epa.gov,

(703) 308–7304.] For information related

to the exclusions from the definition of

solid waste, contact Ross Elliott at the

same address.

[elliott.ross@epamail.epa.gov; (703)

308–8748.]

For technical information on the

CERCLA aspects of this rule, contact:

Ms. Elizabeth Zeller, Office of

Emergency and Remedial Response

(5204G), U.S. Environmental Protection

Agency, 401 M Street, SW, Washington,

D.C., 20460, (703) 603–8744.

SUPPLEMENTARY INFORMATION: The index

and the supporting materials are

available on the Internet. Follow these

instructions to access the information

electronically:

www:http://www.epa.gov/epaoswer/

osw/hazwaste.htm#id

FTP: ftp.epa.gov

Login: anonymous

Password: your Internet address

Files are located in /pub/epaoswer

The contents of the preamble to this

final rule are listed in the following

outline:

I. Affected Entities

II. Legal Authority and Background

A. Listing Decisions

B. Definition of Solid Waste and

Exclusions

III. Summary of Proposal and Notice of Data

Availability

A. Proposed Exclusions

1. Exclusion of Oil-Bearing Hazardous

Secondary Materials Inserted into

Petroleum Refining, Including Petroleum

Coking

2. Recovered Oil From Associated

Petrochemical Facilities

3. Use of Spent Caustics as Feedstock

B. Proposed Listing Decisions

1. Summary of Proposed Decisions

2. Summary of Proposed Risk Assessment

Approach

C. Notice of Data Availability

IV. Changes to the Proposed Rule

A. Definition of Solid Waste Exclusions

1. Exclusion of Oil-Bearing Hazardous

Secondary Materials Inserted into

Petroleum Refining, Including Petroleum

Coking

2. Recovered Oil From Associated

Petrochemical Facilities

3. Use of Spent Caustic as Feedstock

B. Listing Determinations

C. Other Exemptions

1. Headworks Exemption

2. Exemption for Catalyst Support

3. Third Party Recycling of Spent

Petroleum Catalysts

V. Response to Comments and Rationale for

Final Rule

A. Proposed Modifications to the

Definition of Solid Waste

1. Exclusion of Oil-Bearing Hazardous

Secondary Materials Inserted into

Petroleum Refining, Including Petroleum

Coking

2. Recovered Oil From Associated

Petrochemical Facilities

B. Modeling Approaches and Risk

Assessment

1. Sampling and Analysis of Refinery

Wastes

2. Waste Management Assumptions

3. Codisposal of Wastes

4. Impact of Hazardous Characteristic

Regulations

5. Other General Risk Issues

6. Specific Groundwater Modeling Issues

7. Specific Nongroundwater Modeling

Issues
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42111

C. Residual-Specific Comments

1. Crude Oil Storage Tank Sediment

2. Clarified Slurry Oil Sediment

3. Catalyst From Hydrotreating and

Hydrorefining

4. Catalyst From Sulfuric Acid Alkylation

5. Spent Caustic From Liquid Treating

6. Off-Specification Product and Fines

From Thermal Processes

7. Catalyst and Fines From Catalytic

Cracking

8. HF Alkylation Sludge

9. Sludge From Sulfur Complex and

Hydrogen Sulfide Removal Facilities

10. Catalyst From Sulfur Complex and

Hydrogen Sulfide Removal Facilities

11. Unleaded Gasoline Storage Tank

Sediment

12. Catalyst From Reforming

13. Sludge From Sulfuric Acid Alkylation

D. Headworks Exemption

1. Application to Listed Catalysts

2. Clarification of Scope

3. Comments Opposing the Exemption

E. Third Party Recycling of Spent

Petroleum Catalysts

VI. Land Disposal Restrictions

A. Treatment Standards for Newly

Identified Wastes

B. Response to Comments

1. Constituents of Concern

2. Sulfides

3. Underlying Hazardous Constituents

4. High Temperature Metals Recovery

5. Vanadium

6. Revisions to Proposed Standards

C. Capacity Determination for Newly

Identified Wastes

1. Introduction

2. Capacity Analysis Results Summary

VII. Compliance and Implementation

A. State Authority

1. Applicability of Rules in Authorized

States

2. Effect on State Authorizations

B. Effective Date

C. Section 3010 Notification

D. Generators and Transporters

E. Facilities Subject to RCRA Permit

Requirements

1. Facilities Newly Subject to RCRA Permit

2. Existing Interim Status Facilities

3. Permitted Facilities

4. Units

5. Closure

F. Landfill Leachate

VIII. CERCLA Designation and Reportable

Quantities

A. Reporting Requirements

B. Standard and Alternative RQ

Adjustment Methodology

C. Basis for RQ Adjustments in Final Rule

D. Response to Comments

IX. Executive Order 12866

X. Economic Analysis

A. Compliance Costs for Listings Including

LDR Impacts and the Exclusion for OilBearing Hazardous Secondary Materials

1. Universe of Petroleum Refineries and

Waste Volumes

2. Methodology for Estimating Industry

Economic Impact and Incremental

Compliance Cost

3. Potential Remedial Action Costs Within

the Refining Industry

4. Summary of Compliance Cost Results

B. Details of Industry Economic Impact

XI. Regulatory Flexibility Act

XII. Submission to Congress and the General

Accounting Office

XIII. Unfunded Mandates

XIV. Paperwork Reduction Act

XV. National Technology Transfer and

Advancement Act

XVI. Executive Order 13045—Protection of

Children from Environmental Health

Risks and Safety Risks

I. Affected Entities

Entities potentially affected by this

action are those which handle either the

waste streams being added to EPA’s list

of hazardous wastes under RCRA and to

the CERCLA list, or entities which need

to respond to releases. Affected entities

include:

Category Affected entities

Industry ............................................................... Generators of the following listed wastes, or entities that treat, store, transport, or dispose of

these wastes.

K169—Crude oil storage tank sediment from petroleum refining operations.

K170—Clarified slurry oil storage tank sediment and/or in-line filter/separation solids from petroleum refining operations.

K171—Spent hydrotreating catalyst from petroleum refining operations, including guard beds

used to desulfurize feeds to other catalytic units (this listing does not include inert support

media).

K172—Spent hydrorefining catalyst from petroleum refining operations, including guard beds

used to desulfurize feeds to other catalytic units (this listing does not include inert support

media).

State, Local, Tribal Govt ..................................... State and local emergency planning entities.

Federal Govt ....................................................... National Response Center, and any Federal Agency that handles the listed waste or chemical.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this action. This table lists

those entities of which EPA now is

aware that potentially could be affected

by this action. Other entities not listed

in the table also could be affected. To

determine whether your facility is

regulated by this action, you should

examine 40 CFR Parts 260 and 261

carefully in concert with the amended

rules found at the end of this Federal

Register notice. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

II. Legal Authority and Background

These regulations are being

promulgated under the authority of

sections 2002(a) and 3001(a), (b) and

(e)(2), 3004 (g) and (m) of the Solid

Waste Disposal Act (commonly referred

to as RCRA), as amended, 42 U.S.C.

6912(a), and 6921(b) and (e)(2), and

section 102(a) of CERCLA, 42 U.S.C.

9602(a).

A. Listing Decisions

Section 3001(a) of RCRA requires EPA

to promulgate criteria for identifying

characteristics of hazardous wastes and

for listing hazardous wastes. Section

3001(b) authorizes EPA to promulgate

regulations, based on these criteria,

identifying and listing hazardous

wastes. Section 3001(e)(2) of RCRA

requires EPA to determine whether to

list, as hazardous, wastes generated by

specific industries and production

processes, including petroleum refining

wastes. Hazardous waste, for purposes

of this rule, is defined at section

1004(5)(B) of RCRA as solid waste

which may pose a substantial present or

potential hazard to human health or the

environment when improperly

managed.

Hazardous wastes are subject to

management and treatment

requirements of RCRA Subtitle C, which

establishes stringent federal

requirements, including the need to

obtain facility operating permits for

persons who generate, transport, treat,

store, or dispose of such waste. Solid

wastes which are not hazardous may be

disposed of at facilities which are

overseen by state and local

governments. These are the so-called

RCRA subtitle D facilities, which

generally impose less stringent

requirements on management of wastes.
42112 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

1See the proposed rule (specifically 60 FR 57752

to 57753) for a detailed discussion on the

background to these regulatory issues.

EPA’s regulations at 40 CFR 261.20

provide that hazardous wastes may be

classified as ‘‘characteristic’’ wastes if

they have the properties described at 40

CFR 261.21 through 261.24, which

would cause them to be classified as

having the characteristics of ignitability,

corrosivity, reactivity, or toxicity.

Characteristic wastes are identified by

sampling a waste, or using appropriate

company records concerning the nature

of the waste, to determine whether a

waste has the relevant properties. There

is no regulatory requirement to conduct

sampling, but persons managing

materials that are found to be

characteristic hazardous wastes are

subject to enforcement actions under

RCRA.

Criteria for listing hazardous wastes

are found at 40 CFR 261.11(a)(3), which

provides that wastes may be listed as

hazardous if they contain hazardous

constituents identified in appendix VIII

of 40 CFR part 261 and the Agency

concludes, after considering eleven

factors enumerated in § 261.11(a)(3),

that the waste is capable of posing a

substantial present or potential hazard

to human health or the environment

when improperly managed. A substance

is listed in appendix VIII if it has been

shown in scientific studies to have toxic

effects on life forms.

EPA’s regulations at 40 CFR 261.31

through 261.33 contain the various

hazardous wastes the Agency has listed

from time to time. Section 261.31 lists

wastes generated from non-specific

sources, known as ‘‘F-wastes,’’ and

§ 261.32 lists hazardous wastes

generated from specific sources, known

as ‘‘K-wastes.’’ Pursuant to the

requirement of RCRA section 3001(e)(2)

to list refinery wastes, EPA has

previously listed various petroleum

refinery wastes designated as F037,

F038, and K048 through K052. Section

261.33 lists as hazardous discarded

commercial chemical products and

other materials that become hazardous

wastes, known as ‘‘P-wastes’’ or ‘‘Uwastes,’’ when they are discarded or

intended to be discarded.

Therefore, newly listed wastes in this

rule will be added to the K-waste list.

Once listed, wastes must be managed as

RCRA Subtitle C hazardous wastes. No

testing of waste samples is required as

for characteristic hazardous wastes.

On June 12, 1997, EPA entered into a

proposed amended consent decree in a

lawsuit filed by the Environmental

Defense Fund (EDF)—EDF v. Browner,

Civ. No. 89–0598 (D.D.C.). The consent

decree sets out a series of deadlines for

promulgating RCRA rules. Paragraph

1.k. of the proposed amended consent

decree obligated EPA to promulgate a

final listing determination on or before

May 29, 1998 (EPA and EDF have since

agreed to extend this date to June 29,

1998), for 14 additional petroleum

refining process residuals. Today, EPA

is issuing final listing determinations for

these residuals (hereafter, ‘‘listing

residuals’’) in accordance with the

proposed consent decree’s deadline.

The consent decree also identified

another 15 petroleum refining residuals

for which EPA agreed to conduct a

study (hereafter, ‘‘study residuals’’).

EPA published the study in 1996. (See

Study of Selected Petroleum Refining

Residuals-Industry Study, August 1996;

EPA530–R–96–018.)

All hazardous wastes listed under

RCRA and codified in 40 CFR 261.31

through 261.33, as well as any solid

waste that exhibits one or more of the

characteristics of a RCRA hazardous

waste, described in 40 CFR 261.20

through 261.24, are also hazardous

substances under CERCLA, as provided

in CERCLA section 101(14)(C). CERCLA

hazardous substances are listed in Table

302.4 at 40 CFR 302.4 along with their

reportable quantities (RQs). Today’s rule

also establishes RQs for the newly listed

wastes.

Today’s listing determination follows

the elements of EPA’s hazardous waste

listing policy presented in the dyes and

pigments listing determination proposal

(59 FR 66072, December 22, 1994). A

description of how elements of EPA’s

listing policy were applied in today’s

listing determination is found in Section

III.F.2., ‘‘Risk Analysis,’’ of the preamble

for the proposed rule. Section V.C of

this preamble discusses EPA’s responses

to comments and final decisions as they

relate to the various elements of the

listing policy and their applicability to

this rule.

B. Definition of Solid Waste and

Exclusions

The jurisdictional boundaries of

RCRA are established primarily by the

definition of solid waste. When

hazardous sludges, by-products, and

spent materials (often referred to as a

group as ‘‘secondary materials’’) are

recycled, a question exists as to whether

such materials are ‘‘solid wastes’’ and so

potentially within EPA’s subtitle C

jurisdiction. The regulatory definition of

solid waste, found at 40 CFR 261.2,

answers these questions, since only

materials which meet this definition are

even potentially subject to the subtitle C

regulatory program set out at 40 CFR

Parts 262–268. Secondary materials may

be excluded from the definition of solid

waste, and therefore from regulation

under this regulatory program, if they

are recycled in certain ways. The

current definition of solid waste at 40

CFR 261.2 excludes secondary materials

from the definition of solid waste that

are used directly (i.e., without

reclamation) as ingredients in

manufacturing processes to make new

products, used directly as effective

substitutes for commercial products, or

returned directly to the original process

from which they are generated as a

substitute for raw material feedstock.

(See 40 CFR 261.2(e)(1)). As discussed

in the January 4, 1985, rulemaking that

promulgated this regulatory framework,

these are activities which, as a general

matter, resemble ongoing manufacturing

operations more than conventional

waste management and so are more

appropriately classified as not involving

solid wastes. (See 50 FR at 637–640).

However, these exclusions do not

apply to materials that are either

contained in, or used to produce, fuels

and, therefore, do not generally apply to

secondary materials recycled as part of

the petroleum refining process (see 40

CFR 261.2(e)(2)(ii)). Petroleum industry

representatives have long argued that

oil-bearing secondary materials used as

ingredients in a petroleum refining

process to make fuel should be excluded

from the definition of solid waste under

RCRA.1

While these exclusions from the

definition of solid waste are not

available to hazardous secondary

materials generated by, and used as

ingredients in, the petroleum refining

industry, these hazardous secondary

materials, or the fuels produced from

them, may be exempt from all regulatory

requirements under 40 CFR

261.6(a)(3)(iii)–(v). These exemptions

from regulatory requirements, however,

did not resolve the jurisdictional debate

involving the continued processing of

hazardous secondary materials into

fuels.

Regarding this debate ,the plain

reading of the statute has been

supplemented by case law providing

parameters within which to determine

whether secondary materials being

recycled are or are not solid wastes. In

its decision in American Mining

Congress v. EPA, (824 F. 2d 1177 (D.C.

Cir. 1987) (AMC I)), the D.C. Circuit

Court held that EPA’s rules defining the

statutory term ‘‘solid waste’’ (RCRA

Section 1004(27)) exceeded the

Agency’s statutory authority to the

extent that the rules asserted

jurisdiction over ‘‘materials that are

recycled and reused in an ongoing

manufacturing or industrial process’’
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42113

(Id. at 1186 (emphasis original)). The

Court held that ‘‘[b]ecause these

materials have not yet become part of

the waste disposal problem’’ (Id.), they

are not yet ‘‘discarded’’ within the

meaning of Section 1004(27) and so

cannot be considered to be ‘‘solid

wastes.’’

On January 8, 1988, EPA responded to

the AMC I decision by proposing to

exclude, from the regulatory definition

of solid waste, oil-bearing petroleum

residuals that are returned for further

refining ‘‘as part of one continuous and

ongoing process.’’ (see 53 FR FR 525,

Jan. 8, 1988). More specifically, EPA

proposed to exclude oil-bearing residues

from the refining process when those

residues are generated on-site and

reinserted on-site into the petroleum

refining process (including the coker),

provided that the residues were not

speculatively accumulated or stored in

a manner involving land placement.

Subsequent decisions have

established that the decision in AMC I

is relatively narrow. In particular, courts

have rejected the argument that

‘‘potential reuse of a material prevents

the Agency from classifying it as

‘discarded’ ’’ (see, American Mining

Congress v. EPA, 907 F. 2d 1179, 1186

(D.C. Cir. 1990) (AMC II)). The proper

test as to when, as a matter of law, the

Agency is foreclosed from classifying a

material as a solid waste is when a

material is ‘‘destined for immediate

reuse in another phase of the industry’s

ongoing production process’’ and that

has ‘‘not yet become part of the waste

disposal problem’’ (Id. at 1186

(emphasis original)). EPA retains

considerable discretion in ascertaining

how to apply this standard.

For example, secondary materials

generated by one industry and sent to

another industry for reclamation could

be classified as solid wastes (although

EPA retains some discretion as to

whether to make that determination)

(see, American Petroleum Inst. v. EPA,

906 F. 2d 726, 740–41 (D.C. Cir. 1990);

Ilco v. EPA, 996 F. 2d 1126 (11th Cir.

(1993); Owen Electric Steel v. Browner,

37 F. 3d 146 (4th Cir. 1994)). Similarly,

secondary materials generated onsite,

stored in surface impoundments, and

reclaimed within the process which

generated them could also be classified

as solid wastes (see AMC II). EPA must

normally justify determinations that a

secondary material being recycled is not

a solid waste by showing how the

determination is consistent with RCRA’s

objective to ‘‘establish a cradle-to-grave

regulatory structure for the safe

handling of hazardous wastes’’ (see API,

906 F. 2d at 741).

On July 28, 1994, EPA finalized parts

of the January 8, 1988, proposal

pertaining to petroleum refining

industry operations. As noted in that

final rule, post-AMC I decisions make

clear that the statute affords EPA great

latitude to set the jurisdictional

parameters of RCRA. As a consequence,

the July 28, 1994, final rule excluded a

more limited set of materials and

imposed greater restrictions on where

the materials can be inserted within the

petroleum refining process, than what

was proposed on January 8, 1988.

Specifically, in its January 1988

proposal, EPA did not distinguish

between recovered oil (i.e., oil

reclaimed from secondary materials,

such as wastewater, generated from

normal petroleum refining, exploration

and production, and transportation

practices) and oil-bearing hazardous

sludges, nor did it distinguish between

the petroleum coker and other

petroleum process units in defining the

scope of the proposed petroleum

refining exclusion. In the July 28, 1994,

final rule, EPA limited the exclusion to

recovered oil that is inserted into the

petroleum refining process prior to

distillation and catalytic cracking. Thus,

it did not apply to recovered oil

reinserted into the petroleum coker (see

40 CFR 261.4(a)(12) and 59 FR at

38541–38542, July 28, 1994). In at least

one respect, the July 28, 1994, final rule

was somewhat broader than what was

proposed. The final exclusion applied to

materials generated from petroleum

industry sources other than refineries,

while the January 8, 1988, rule proposed

to exclude only oil-bearing materials

generated at a refinery and reinserted

into that refinery’s refining process.

After promulgation of the July 28,

1994, final rule excluding certain

recovered oil, the EPA published a

direct final rule on March 26, 1996, to

correct an inadvertent error in the

regulatory text of the exclusion (see 61

FR 13103). Specifically, the direct final

rule amended the words describing the

point of insertion for recovered oil into

the petroleum refining process (i.e.,

‘‘prior to crude distillation or catalytic

cracking’’) that was a condition of the

exclusion. The original intent was to

exclude recovered oil inserted into the

refining process where the process

removes at least some contaminants

(which does not include cokers). After

promulgating the exclusion, the Agency

learned that delineating where

recovered oil could or could not be

inserted (and be excluded) using the

words ‘‘prior to crude distillation or

catalytic cracking’’ was unintentionally

restrictive, i.e., those operations were

common examples but there were other

refinery units where contaminants were

removed as well. In addition to the

amended regulatory text, the Agency

also clarified that the recovered oil

exclusion applied to oil recovered from

shared wastewater treatment systems at

petroleum refineries co-located with

petrochemical facilities (see 61 FR

13104). Because the Agency received no

adverse comment as of April 9, 1996, on

the amended regulatory text, the direct

final rule became effective on May 28,

1996.

Today’s final rule, which deals

specifically with petroleum residuals,

gives EPA the opportunity to address

some larger, longstanding issues

involving where the boundaries of

RCRA should be drawn regarding

jurisdiction over oil-bearing hazardous

secondary materials which are

generated by, and recycled within, the

petroleum industry. Therefore, in

addition to addressing specific

regulatory issues that may arise as a

result of a decision to list an individual

petroleum waste stream, the Agency is

issuing more comprehensive revisions

to the RCRA regulations relating to

regulatory jurisdiction over these

materials when this type of intraindustry recycling occurs.

III. Summary of Proposal and Notice of

Data Availability

A. Proposed Exclusions

The proposed rule discussed the

applicability of the definition of solid

waste to the waste streams being

evaluated for listing, but also related to

a broader class of petroleum wastes.

This is discussed briefly below.

1. Exclusion of Oil-Bearing Hazardous

Secondary Materials Inserted Into

Petroleum Refining, Including

Petroleum Coking

In the November 20, 1995, proposal,

the Agency proposed to exclude oilbearing secondary materials generated

within the petroleum industry that are

inserted into the petroleum coker (see

60 FR at 57754–57755). Generally, these

secondary materials are generated as

either residues of various refining

processes or wastewater treatment

systems which collect process waters

(and oil) from the entire facility. (Note

that these secondary materials,

primarily wastewater treatment sludges,

do not meet the definition of ‘‘recovered

oil’’ because the contained oil is a small

percentage of the total.) Secondary

materials, such as wastewater treatment

sludges, that contain a high percentage

of oil are often processed to recover the

oil for further refining (e.g., when there
42114 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

2Recovered oil, as defined within the context the

exclusion from the definition of solid waste

promulgated in the July 28, 1994, final rule,

includes materials that are primarily oil and that are

recovered from any phase of petroleum exploration,

production, refining, and transportation related

thereto. Oil recovered from petrochemical facilities

associated with petroleum refineries, whether from

shared wastewater treatment systems at co-located

facilities, or from other ‘‘dry’’ streams recovered

from petrochemical process units, are referred to

here as ‘‘petrochemical recovered oil.’’

is free oil). However, the typical oil

recovery process (e.g., centrifugation)

cannot recover all of the oil from these

secondary materials, leaving a not

insignificant amount of oil in the

secondary materials that can only be

recovered thermally.

In conventional petroleum coking

operations (also known as ‘‘delayed

coking’’), heavy oil-bearing feedstocks,

typically bottoms from crude oil

distillation or vacuum distillation (also

referred to as ‘‘resids,’’ representing the

heaviest oil fraction of the crude oil

feedstock) are placed into a coke drum.

This material is then heated to high

temperatures, thermally breaking or

‘‘cracking’’ the long-chain hydrocarbon

molecules found in heavy oil feedstock

into short-and middle-chain oil

fractions that are then recovered,

condensed, and sent for further refining

into high-value fuel products. The

remains of the heavy oil-bearing

feedstock (which is primarily carbon

and some inorganic contaminants)

forms the coke product, typically used

as a fuel.

The last step of the conventional

coking operation involves the injection

of water to quench the coke product.

Water is injected in the base of the coke

drum and works its way up through the

coke product, cooling the coke as it

goes. This quenching also serves to

remove light ends entrained within the

coke product, similar to steam stripping.

(The light ends recovered during the

quenching process are likewise

condensed and further refined into

high-value fuel products.) Once cool

enough, the coke product is typically

removed from the coke drum using high

pressure water drilling. For the

purposes of this preamble discussion, it

is important to distinguish between the

two aspects of the coking operation. The

first aspect, referred to in this preamble

as ‘‘conventional coking,’’ involves the

recovery of light-end hydrocarbons from

the resids feedstock and produces the

coke product. The second aspect,

referred to here as the ‘‘quenching

process,’’ involves the injection of water

into the high-temperature coke to cool it

down after the conventional coking

process.

In the preamble discussion in the

November 20, 1995, proposal, the

Agency presented its determination that

the petroleum coker is an integral part

of the petroleum refinery process, with

recovered middle-and light-end

hydrocarbons as its primary product

and petroleum coke as a co-product.

Based on the information on hand

comparing the composition of oilbearing hazardous secondary materials

to typical feedstocks to the coker, and

the fact that the coke produced using

oil-bearing hazardous secondary

materials demonstrated no significant

increase in hazardous metals

concentrations, the Agency proposed to

exclude such oil-bearing secondary

materials when used in the production

of petroleum coke. EPA believed this

exclusion was further justified because

the hazardous secondary materials are

managed in a manner to prevent release,

commensurate with management of

nonhazardous oil-bearing feedstocks.

(See 60 FR 57754–57755). In addition,

the proposed exclusion was conditioned

on there being no speculative

accumulation or land placement (thus

ensuring that the secondary materials

would not be stored such that they

could become part of the waste disposal

problem), and that the coke product

itself not exhibit a characteristic of

hazardous waste, which, along with

existing product specifications, would

serve to ensure that the quality of the

coke product would not degrade

through the use of hazardous secondary

materials such that it would become

part of the waste disposal problem.

At the time of the proposal, the

Agency did not distinguish between oilbearing hazardous secondary materials

used in either of the two aspects of the

coking operations, i.e., in the

conventional coking process (where

secondary materials would be used as

feedstocks) or during the quenching

process (where secondary materials are

mixed with water and injected into the

coke during the quenching process).

While the Agency was aware that oilbearing hazardous secondary materials

were being used in the quenching

process at some refineries, the primary

focus and intent of EPA’s proposed

exclusion was for secondary materials

used as feedstock in the conventional

coking process, with a secondary

consideration being whether these

secondary materials legitimately could

be used in the quenching process. As

the Agency learned through comments

received, the hazardous secondary

materials in question (i.e., listed

hazardous wastes generated by

petroleum refineries) are rarely, if

indeed ever, used as feedstock along

with the resids. EPA, therefore, has

since focused its attention on the role of

oil-bearing hazardous secondary

materials in the quenching process,

maintaining the key consideration that

the exclusion is only intended for oilbearing hazardous secondary materials

used in a manner consistent with the

main production purpose of the coking

process, i.e., the recovery of light-end

hydrocarbons for further refining and

the production of a marketable coke

product.

2. Recovered Oil From Associated

Petrochemical Facilities

In the November 20, 1995 proposal,

EPA proposed to add an exclusion at 40

CFR 261.4(a)(13) for recovered oil 2 that

is generated by certain organic chemical

industry facilities and inserted into

petroleum refining processes provided

that certain conditions are met (i.e., the

petrochemical recovered oil is not

stored in a manner involving placement

on the land, or accumulated

speculatively before being recycled) (see

60 FR at 57755. The proposed exclusion

only applied to petrochemical recovered

oil from organic chemical

manufacturing facilities that were

within the SIC code 2869, and was

further limited to situations where the

petrochemical and petroleum refinery

facilities were either co-located, or

under common ownership (co-owned).

(Id).

As described in the proposed rule, the

recovered oil exclusion that was

promulgated in the July 28, 1994, final

rule did not apply to oil from organic

chemical industry operations except in

cases where petrochemical and

petroleum refining operations share a

common wastewater treatment system.

In these instances, because a portion of

the oil recovered during wastewater

treatment and returned to petroleum

refining originates from organic

chemical manufacturing, some industry

representatives questioned whether a

‘‘petroleum industry’’ exclusion would

apply. However, because of the

predominance of petroleum refining

wastewaters in the shared wastewater

treatment systems, and the degree of

integration between these facilities, the

Agency believed that it was appropriate

to apply the July 28, 1994, recovered oil

exclusion to the oil recovered from

shared petrochemical and petroleum

refining wastewater treatment systems.

(see 61 FR at 13104). The EPA

subsequently became aware that some

petrochemical facilities recover oil from

their process streams in a manner

distinct from wastewater treatment

operations and send this material (socalled ‘‘dry’’ hydrocarbon streams) to
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42115

3September 13, 1995, letter to Becky Daiss (EPA

Office of Solid Waste) from Michael W. Steinberg

(Morgan, Lewis & Bockius).

petroleum refineries for insertion into

the refining process. In some cases these

hydrocarbon materials might or might

not be viewed as solid wastes when

returned to petroleum refining

operations as feedstocks in producing

the normal slate of refinery produced

fuels. After promulgation of the July 28,

1994, rule, EPA received information

from the chemical manufacturing

industry indicating that these ‘‘dry’’

hydrocarbon streams recovered from

their operations are comparable to oil

recovered from petroleum refining

operations, i.e., are chemically

comparable to the recovered oil already

excluded from being a solid waste. As

explained in more detail in the

proposed rule, the exclusion for

petrochemical recovered oil was

therefore based upon two specific

arguments raised by both the chemical

manufacturing and petroleum refining

industries. First, knowledge of the

composition of these petrochemical

recovered oil streams is very important

because of the potential for adverse

impacts on both refinery operations

(e.g., equipment corrosion, catalyst

fouling) and product quality (e.g.,

introduction of contaminants that

degrade motor fuels) if these streams

contain constituents not typically

encountered in normal refinery

feedstocks. Second, analytical data the

Agency received prior to proposal

supported industry’s premise that

recovered oil from petrochemical

operations is similar in composition to

that from petroleum refining, and is

therefore suitable for insertion into the

petroleum refining process.3 EPA based

the proposed exclusion for

petrochemical recovered oil on a very

limited set of data from integrated

petrochemical and petroleum refineries

that were either co-located or co-owned,

and EPA believed that this was a typical

arrangement for the return of these

hydrocarbon streams to petroleum

refineries (see 60 FR at 57756). In the

proposal, EPA solicited additional data

which could support broadening the

exclusion to recovered oil from other

SIC codes representing other types of

associated chemical manufacture (e.g.,

plastics and resins, synthetic rubber,

cyclic crude and intermediate

producers). (Id).

3. Use of Spent Caustics as Feedstock

EPA proposed an exclusion from the

definition of solid waste that would

clarify that spent liquid treating caustics

from petroleum refineries used as

feedstock in the manufacture of

naphthenic and cresylic acid products

are not solid wastes. EPA believed that,

when used in this manner, spent caustic

is a valuable commercial feedstock that

is used in the manufacture of

commercial chemical products.

Therefore, EPA proposed to add a new

§ 261.4(a)(14) to exclude spent caustic

when used in this manner.

B. Proposed Listing Decisions

1. Summary of Proposed Decisions

EPA evaluated 14 wastes (the consent

decree ‘‘listing residuals’’) in the

petroleum refining industry, proposing

to list 3 of these wastes as hazardous

and not the other 11 wastes. Further

general background for this rule is

provided in the preamble to the

proposed rule at 60 FR 57748–57749. As

a result of numerous comments on the

proposed rule, EPA conducted

additional analyses for these wastes,

resulting in the Agency’s publishing a

Notice of Data Availability (NODA) on

April 8, 1997 (62 FR 16747). This

Section summarizes the issues raised in

the proposed rule and the following

Section describes the NODA.

The Agency proposed to list as

hazardous the following three wastes:

K170—Clarified slurry oil storage tank

sediment and/or in-line filter/

separation solids from petroleum

refining operations.

K171—Spent hydrotreating catalysts

from petroleum refining operations.

(This listing does not include ceramic

support media.)

K172—Spent hydrorefining catalysts

from petroleum refining operations.

(This listing does not include ceramic

support media.)

The Agency proposed not to list as

hazardous the following eleven residual

categories:

• Crude oil storage tank sediment

• Unleaded gasoline storage tank sediment

• Off-specification product and fines from

thermal processes

• Catalyst from reforming

• Catalyst from sulfuric acid alkylation

• Sludge from sulfuric acid alkylation

• Hydrofluoric acid alkylation sludge

• Spent caustic from liquid treating

• Catalyst and fines from catalytic cracking

• Catalyst from sulfur complex and hydrogen

sulfide removal facilities

• Sludge from sulfur complex and hydrogen

sulfide removal facilities.

EPA also noted that its decision not to

list crude oil storage tank sediment was

a close call, and that the Agency may

choose to list this waste as K169,

depending on further evaluation of the

data and comments.

The proposed listing determinations

were based on the Agency’s evaluations

at the time as to whether the wastes met

the criteria in 40 CFR 261.11(a) for

listing wastes as hazardous. EPA

assessed and considered the factors

contained in these criteria primarily by

incorporating them as elements in a risk

assessment. A detailed summary of the

risk assessment methodology is found in

the preamble to the proposed rule,

Section III.F, ‘‘Description of Health and

Risk Assessments’’ (60 FR 57756–

57762). EPA’s view at the time of

proposal, the applicability of the risk

assessment to particular waste streams,

and the proposed reasoning for the

listing decisions are found in Section

III.G., ‘‘Waste-Specific Listing

Determination Rationales’’ (60 FR at

57762–57776).

EPA also proposed a number of

exemptions for the wastes proposed for

listing, described below.

Headworks Exemption

In the proposal, EPA noted that some

refineries manage the wastes EPA

proposed for listing in their wastewater

treatment system, while and others may

scour residual sludge of the wastes

proposed for listing during vessel

cleaning or tank washing into the

refinery wastewater treatment system. A

consequence of listing these wastes as

hazardous would be to cause all

wastewaters and wastewater treatment

sludges to be derived from those wastes.

The Agency noted in the proposal

that, provided the residuals derived

from the wastes proposed for listing are

discharged to the oil recovery sewer

system, the residuals carried into the

wastewater system would be removed

during primary treatment as sludges or

other wastes that are already regulated

hazardous wastes (e.g., K048, K051,

F037, or F038). Accordingly, the Agency

proposed not to include these

wastewaters in its listing determinations

and to modify an existing regulation at

40 CFR 261.3(a)(2)(iv) to provide that

these wastewaters would not be

considered hazardous wastes. This

exemption, known as the ‘‘headworks

exemption,’’ was discussed in the

preamble for the proposed rule at 60 FR

57750 and 57781. The proposal noted

that the exemption would apply to

wastewaters containing clarified slurry

Oil (CSO) sediment and, if EPA decided

to list crude oil storage tank sediment in

the final rule, this waste as well.

Exemption for Catalyst Support

Upon removal from catalyst beds and/

or during catalyst regeneration or

reclamation, spent catalysts are

separated from the support media that
42116 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

are used in the catalytic reactors to

optimize mixing and flow within the

reactor beds. The Agency proposed an

exclusion from RCRA regulation (under

40 CFR 261.3(c)(2)(ii)) for these support

media because the support media are

generally inert ceramics, separate from

the catalyst, and commonly managed

separately.

Third Party Recycling of Spent

Petroleum Catalysts

Spent hydrotreating and

hydrorefining catalysts, two of the

wastes proposed for listing (as K171 and

K172, respectively), are frequently

regenerated for reuse or reclaimed offsite to recover nonprecious metals (e.g.,

nickel, molybdenum, cobalt, and

vanadium) and other compounds sold

as products (i.e., aluminum sulfate

derived from the alumina substrate

material).

In the proposed rule preamble in

Section III.J.1., ‘‘Third Party

Regeneration/Reclamation of Spent

Petroleum Catalysts’’ (60 FR 57781),

EPA proposed to clarify the regulatory

status of units that regenerate or reclaim

these catalysts. The proposal would

have clarified that these units are

specifically excluded from regulation as

industrial furnaces under EPA’s boiler

and industrial furnace (BIF) rules at 40

CFR Part 266, Subpart H. The proposed

clarification was based on a number of

factors, including EPA’s view that the

units differed from those considered for

the BIF rule and the Agency’s general

view that it did not want to impose an

unnecessary regulatory burden that may

serve to discourage environmentally

safe recycling of spent petroleum

catalysts.

The proposal also stated, however,

that EPA had not fully evaluated the

prevalence and adequacy of existing

emission controls and the potential for

uncontrolled emissions of toxic organic

compounds, toxic metals, and

particulate matter from spent

hydrotreating and hydrorefining

catalysts. Accordingly, the Agency

stated that if it found that emissions

from these units pose a threat to human

health and the environment, it would

reconsider the proposed clarification of

the BIF rule and even could determine

that the rule should, instead, be

amended to specifically apply to spent

petroleum catalyst recovery units. Thus,

EPA solicited comment on the

adequacy/efficiency of existing controls

and data quantifying the levels emitted

of hazardous air pollutants (HAPs)

regulated under RCRA and/or section

112 of the Clean Air Act Amendments.

The Agency indicated that it had made

a preliminary finding that these units

are already equipped with pollution

controls comparable to those required

under the BIF rule such that further

regulation may be unnecessary.

Application of the Existing Exclusion

for Spent Sulfuric Acid

As described in the proposal, EPA

previously excluded from the definition

of solid waste spent sulfuric acid used

to produce virgin sulfuric acid (40 CFR

261.4(a)(7)). The Agency reexamined

this exclusion as it pertains to sulfuric

acid used as a catalyst in refinery

alkylation processes and found no

reason to change the existing regulatory

structure.

2. Summary of Proposed Risk

Assessment Approach

The proposed rule preamble describes

in detail the various risk assessment

analyses EPA carried out to determine

the potential risk that might arise from

the disposal of the refining wastes under

consideration in this rule (see 60 FR at

57756–57762). In carrying out the

modeling for these assessments, EPA

used available data it collected for this

industry, supplemented by data

gathered from surveys of waste

management practices (e.g., EPA’s

National Survey of Solid Waste

(Municipal) Landfill Facilities, 1988, in

the docket). The Agency also used

information gathered in a questionnaire

prepared under RCRA 3007, hereafter

referred to as the ‘‘3007 Questionnaire,’’

and site visits designed to examine the

waste characteristics, waste

management practices, and potential

pathways for release and exposure.

While EPA used this empirical data as

much as possible in its risk assessment,

the Agency nevertheless found that data

gaps existed in the available

information. Therefore, EPA also used

other generic input parameters in the

fate and transport models used to

estimate the risk a waste might present

under management scenarios known or

likely to occur. The Agency used

available data to develop input

parameters for the concentrations and

toxicity of constituents in the waste, the

mobility and fate of such constituents in

different disposal scenarios, likely

exposure routes under these scenarios,

and the location of various persons

(‘‘receptors’’) that might be exposed.

These receptors might be persons who

consume contaminated groundwater,

breathe air containing contaminants, or

ingest contaminated soil or food.

EPA considered what waste

management scenarios to model, based

on existing and potential practice in the

refinery industry. Also important to the

risk analyses are the volumes of wastes

disposed and the potential for

constituents in the waste to be released.

Total volumes of waste were derived by

multiplying the amount of wastes

disposed in any given year times the

active life for the disposal unit (how

long a disposal unit accepts waste

before closure). The fraction of the

waste in the disposal unit (waste

fraction) was derived from the total

volume of a waste placed in the unit

and the unit’s capacity. While various

waste management practices were

considered, the Agency’s modeling

focused primarily on potential releases

from waste volumes sent to

nonhazardous (Subtitle D) landfills and

land treatment units (LTUs), both on

and off the refinery site (on-site and offsite units). For on-site, units EPA used

the data on unit size available from the

3007 Questionnaire. For off-site

landfills, EPA used generic data

available for Subtitle D unit size

available from surveys of industrial and

municipal waste management facilities.

To estimate the significance of any

potential releases of constituents from

the disposal units and the potential for

exposure to people or the environment,

EPA first considered the mode of

migration out of the landfill or LTU. The

exposure of most concern for landfills

arises from the release of constituents

from the waste to groundwater. Other

exposure routes were considered only in

preliminary analyses, and did not

present significant risks. EPA used the

Toxicity Characteristic Leaching

Procedure (TCLP) to estimate the

mobility of constituents in leachate that

may be released from a landfill to

groundwater. EPA also considered the

potential for oil in the wastes to

facilitate release and transport of

constituents from landfills by ‘‘oil-phase

flow.’’ Such facilitated release might

occur if free oil in wastes, potentially

containing hazardous constituents,

migrated from landfills to groundwater.

However the Agency’s analysis showed

this type of facilitated release was not

likely. For LTUs, the wastes are mixed

with soils on the surface of the unit.

Potential exposure routes of most

concern for land treatment arose from

the transport of contaminated soils to

receptors by both wind-borne air

releases, and the erosion/run-off caused

by precipitation. Groundwater risks

from LTUs were not found to be

significant.

To model the transport of constituents

to receptors, EPA typically used data

available from surveys to locate the

likely exposure point. Thus, to assess

potential groundwater exposures near

landfills, EPA used national surveys of

landfills, which included data regarding
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42117

the distance from landfill units to

nearest drinking water well. For LTUs,

EPA used surveys of the distance of

residences from such disposal units.

Where appropriate, EPA attempted to

consider information related to the

biodegradation some constituents may

undergo in the unit or after release into

the environment.

The Agency used comparisons

between concentrations in the

environment and health-based levels

(HBLs) to evaluate the potential health

impacts of toxic constituents in

environmental media, such as soil or

groundwater. For noncarcinogenic

constituents, the HBL is the

concentration in the media which

results in an exposure level equal to the

‘‘reference dose;’’ the reference dose is

EPA’s measure of an acceptable daily

intake for a specific chemical. For

carcinogenic constituents, the HBL is

the concentration in the media that

results in an exposure level

corresponding to a specified cancer risk

level. EPA applied carcinogenic potency

estimates (Carcinogenic Slope Factors)

to calculate specific risk levels. The risk

assessment results are given in terms of

individual risk, i.e., the carcinogenic

risk is described in terms of the

additional incidence of cancer that may

occur in an exposed population. A risk

of 1 × 10¥5 (which will be presented in

this document as 1E–5), for example,

corresponds to a probability of one

additional case of cancer for every

100,000 people exposed. The Agency

also evaluates carcinogenic constituents

by directly calculating the estimated

cancer risk level resulting from a given

concentration of the constituent in the

environmental media.

In the modeling for risk assessment,

EPA varied some of the more sensitive

parameters to examine the range or

potential risks presented by the wastes

studied. Key parameters included the

area of the waste disposal units, waste

volumes disposed, constituent

concentrations in the wastes, and the

distances to receptors. Varying several

of these key parameters at one time can

have a large cumulative impact on the

risk results. In view of the variation in

individual exposure risks that could

exist for the wastes, EPA performed a

number of different types of risk and

sensitivity analyses. First, the Agency

completed a ‘‘bounding analysis’’ in

which the key input parameters were set

to produce a worst-case scenario. This

analysis was intended to purposely

overestimate exposure to establish an

upper bound for risks. (See the EPA

guidance memo entitled, Guidance on

Risk Characterization for Risk Managers,

1992; docket number F–95–PRLP–

S0423, hereafter known as the Habicht

memo, 1992.) Thus, all key parameters

were set to their maximum or ‘‘highend’’ values (typically the 90th

percentile point on the distribution of

values available for each parameter). If

the risks resulting from the bounding

analysis were below the level of any

potential concern (i.e., carcinogenic

risks below 1E–6 and hazard quotients

(HQs) less than one), the wastes and/or

waste constituents were removed from

further consideration.

For wastes and constituents that did

not ‘‘bound out,’’ EPA ran a double

‘‘high-end’’ deterministic sensitivity

analysis, which produced point

estimates of risk based on use of single

values for input parameters. In this

method, key input parameters were

varied between the central tendency

value (50th percentile) and the high-end

(90th percentile) values. The point

estimate in which all variables were set

at central tendencies was assumed to be

the central tendency risk estimate. The

highest risk estimate for any

combination of double high-end

variables (with all other variables set at

central tendency) was assumed to be the

high-end estimate of risk. The high-end

risk estimate was presumed by the

Agency to be a plausible estimate of

individual risk for those persons at the

upper end of the risk distribution. The

intent of these descriptors is to convey

estimates of exposure in the upper end

of the distribution (i.e., above the 90th

percentile) and to avoid estimates that

are beyond the true distribution.

After completing these various

analyses, EPA compared individual

exposure levels to HBLs for the toxic

constituents to determine whether

particular wastes are candidates for

listing. In keeping with discussions of

the Agency’s listing policy (see Dyes

and Pigments Listing, 59 FR at 66075–

66078), EPA used a risk level of concern

of 1E–5, and/or HQs of one, to

determine which wastes are considered

initial candidates for listing. To make

listing determinations, EPA then used a

weight-of-evidence approach that

considers the risk estimates along with

other evidence related to the factors

described in 40 CFR 261.11(a)(3).

Based on EPA’s analysis for the

proposed rule, the exposure pathway of

concern for the landfill scenario was

ingestion of groundwater contaminated

by constituents leaching out of the unit.

For the land treatment scenario, the

potential release of wastes by air or runoff yielded exposure for nearby

residents and home gardeners via soil

ingestion and for other subpopulations

(fishers, farmers) through indirect

exposures, i.e., via ingestion of

contaminated fish and food. These

analyses led to the proposed listing

decisions as explained in the preamble

to the proposed rule.

C. Notice of Data Availability

Many issues were raised by

commenters on the proposed rule

causing EPA to rethink its analyses and

the risk assessments. These issues are

discussed in the April 8, 1997 NODA

(62 FR 16747) and the accompanying

support documents. EPA conducted

new risk assessments for both

groundwater and non-groundwater

pathways, in addition to analyses for the

headworks exemption, recycled

hydrocarbon-bearing materials, and

leaching of oily wastes. This new

information was presented for comment.

At the time, EPA believed that the

additional analyses tended to support

the proposed rule and did not propose

any new listing decisions. Important

additional analyses provided in the

NODA are briefly described below.

The NODA provided revised ‘‘highend’’ analyses for the landfill and LTU

scenarios. In the groundwater analysis,

EPA completed more detailed

sensitivity analyses and Monte Carlo

analysis to better define high-end risks,

and determine how close the high-end

risks, were to the 90th percentile.

The Agency has been using Monte

Carlo modeling methodology in various

rulemakings for many years. Monte

Carlo modeling is a statistical technique

that can be used to simulate the effects

of natural variability and informational

uncertainty which often accompany

many actual environmental conditions.

It is a process by which an outcome is

calculated repeatedly for many

situations, using in each iteration

randomly selected values from the

distributions of each variable input

parameter. When compared with

alternative approaches for assessing

parameter uncertainty or variability, the

Monte Carlo technique has the

advantages of general applicability and

no inherent restrictions on input

distributions or input-output

relationships. Monte Carlo application

results can also be used to calculate

uncertainty, and can be used to

quantitatively specify the degree of

conservativeness used. However,

potential limitations also exist when

applying Monte Carlo techniques in

modeling efforts. Variability (inherent

variation in a measure over time and

space) and uncertainty (lack of

knowledge) may be difficult to

distinguish within applications. Also,

correlations among the various data

parameters that have not been

accounted for in the modeling may
42118 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

distort conclusions. Finally, sufficient

data must generally be gathered to

ensure that acceptable statistical

representations and sensitivity analyses

within Monte Carlo applications can be

properly prepared.

The Monte Carlo simulations used in

this rulemaking assessed the full

distributions of critical input data (e.g.,

distance to well, waste volumes, landfill

area) to randomly generate receptor well

concentrations of key constituents for

certain landfill situations, and then

combined the results from many runs

(10,000) to produce a probability

distribution of risks. EPA was then able

to choose points along the probability

distribution of risk for comparison to

the high-end analysis. For example, a

risk that corresponds to the 95th

percentile for a specific waste

constituent in a landfill means that the

risk would be below this level in 95

percent of the runs. EPA also modified

all groundwater risk analyses to add

risks due to noningestion exposures

(e.g., via inhalation and dermal

absorption during showering) to the

ingestion risks that may arise from

residential use of groundwater.

Further groundwater analysis was

also performed in response to comments

on the proposed rule that noted EPA

had used waste input data (TCLP) that

exceeded the existing Toxicity

Characteristic (TC) threshold and that

disposal in nonhazardous landfills was

unlikely for such wastes. This

additional groundwater analysis limited

the TCLP input used in modeling, such

that none of the input levels exceeded

the TC threshold, to examine the impact

on risk results (the ‘‘TC-capped’’

analysis).

In the nongroundwater analysis

presented in the NODA, EPA

incorporated several modifications for

LTUs, including: limiting wastes

volumes modeled to nonhazardous

waste; limiting unit characteristics used

(e.g., unit area) to nonhazardous units;

correcting an error in the air dispersion

modeling; minor changes to the models

used to estimate release and transport of

contaminated soil to off-site receptors;

and incorporating further

biodegradation of key constituents after

they travel off-site.

The appropriateness of the TCLP for

petroleum wastes containing oil and the

potential for oil and other materials to

facilitate release and transport of wastes

in landfills were major areas of

comment. EPA provided additional

information in the NODA to respond to

this issue, including; analysis of the oil

content of the waste samples, the

prevalence of disposal of oily waste in

landfills, analysis using alternative

leaching procedures, and calculated

TCLP leaching efficiencies for organic

constituents in the wastes.

EPA received comments on its choice

of management practices modeled and

the way volumes were allocated. Some

commenters also suggested that volumes

of wastes beyond those under

consideration in this rule should have

been considered in various codisposal

scenarios for both landfills and LTUs. In

response, EPA presented risk analyses

in the NODA that assessed the potential

impact of codisposal of the listing

residuals with certain other refinery

wastes.

In the NODA, EPA presented

additional analyses to address

comments on the headworks exemption

for CSO storage tank sediment. While

some commenters did not favor the

exemption due to potential impacts on

downstream wastes, other commenters

argued the exemption should be

expanded to exclude wastewater from

spent hydrotreating and hydrorefining

catalysts, the other two wastes EPA

proposed for listing. The Agency

evaluated the potential impact of

including wastewater from these three

wastes in the headworks exemption,

and presented the results in the NODA

that showed excluding them would not

result in any significant risks in the

downstream wastes.

Comments on the proposal suggested

that the active life for a landfill used by

EPA was too short. This parameter is

important because it determines the

total waste volume in the modeled

landfill, which is one of the critical

input parameters for the model. To

respond to this comment, EPA

presented data in the NODA for on-site

landfills to show that the data in the

3007 Questionnaire supports the

Agency’s assumption of a 20-year active

life.

The NODA also presented other

information related to: the potential

impact of the oil-bearing residuals

exclusion on coke product, the potential

for concurrent exposure to releases from

landfills and LTUs, and the applicable

UTS under the Land Disposal

Restrictions program.

IV. Changes to the Proposed Rule

As a result of comments on the

proposed rule and NODA analyses,

certain modifications were made to the

listing determinations and definition of

solid waste exclusions. These changes

and the subsequent scope of today’s

final action are described below.

Detailed reasoning behind these changes

is provided in Section V.

A. Definition of Solid Waste Exclusions

1. Exclusion of Oil-Bearing Hazardous

Secondary Materials Inserted Into

Petroleum Refining, Including

Petroleum Coking

Today, the Agency is finalizing a

portion of the proposed exclusion for

oil-bearing hazardous secondary

materials recycled within the petroleum

industry. Specifically, oil-bearing

hazardous secondary materials

generated within the petroleum refining

sector (i.e., SIC code 2911, petroleum

refineries) are excluded under today’s

rule when they are to be inserted into

the petroleum refining process,

including into the petroleum coker,

provided they are not placed on the

land or speculatively accumulated

before being so recycled. As discussed

below, this exclusion applies to any oilbearing material generated at a

petroleum refinery, including oilbearing wastes currently regulated as

listed hazardous wastes (e.g., K048–

K051), and including refinery wastes

newly listed under today’s rulemaking

that are suitable for insertion into

normal petroleum refining operations.

EPA is not finalizing the proposed

exclusion for oil-bearing hazardous

secondary materials generated

elsewhere within the petroleum

industry, such as from petroleum

exploration and production sites, bulk

crude oil storage, and petroleum

industry-related transportation facilities.

However, the pre-existing recovered oil

exclusion promulgated July 28, 1994, is

still being retained under today’s rule

with respect to recovered oil generated

from within the petroleum industry.

EPA is also modifying an existing

petroleum-industry listing (F037) to

make it apply to discarded residues

generated from processing or recycling

petroleum-industry listed hazardous

wastes that are otherwise excluded

under today’s provision.

The Agency notes that this exclusion

will have little net effect on the

materials or units involved. Under the

current regulatory program (i.e., prior to

today’s amendments), oil-bearing

secondary materials may legitimately be

recycled into a petroleum coker. While

such materials may be considered solid

and hazardous wastes, the coking unit

would be a recycling unit exempt from

permitting requirements (40 CFR

261.6(c)(1)). The coke product is exempt

under 40 CFR 261.6(a)(3)(v), provided

the secondary materials are generated by

the same ‘‘person,’’ defined in 40 CFR

260.10 as ‘‘an individual, trust, firm,

joint stock company, Federal agency,

corporation (including a government

corporation), partnership, association,
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42119

State, municipality, commission,

political subdivision of a State, or any

interstate body,’’ and the petroleum

coke does not exhibit a characteristic of

hazardous waste. The oil recovered in

the coking operation (including both

conventional coking and the quenching

process) which is used to produce fuels

is excluded from the definition of solid

waste as recovered oil under 40 CFR

261.4(a)(12).

2. Recovered Oil From Associated

Petrochemical Facilities

In today’s final rule, EPA is finalizing

a somewhat narrower exclusion than

originally proposed. Specifically, EPA

proposed to exclude recovered oil from

‘‘associated organic chemical

manufacturing facilities’’ where such

facilities were defined as those within

the SIC code 2869 and either co-located

or under common ownership with the

petroleum refinery receiving the

petrochemical recovered oil. In today’s

rule, EPA is dropping ‘‘under common

ownership’’ from the definition of

‘‘associated organic chemical

manufacturing facility’’ for reasons

discussed later. In addition, EPA is

limiting the applicability of the final

exclusion to petrochemical recovered

oils that are hazardous only because

they exhibit the characteristic of

ignitability (as defined in 40 CFR

261.21) and/or toxicity for benzene (40

CFR 261.24, waste code D018). Finally,

in today’s rule, EPA is also excluding

petrochemical recovered oil generated at

facilities where the primary SIC code is

2869, but where three other

classifications of chemical

manufacturing units commonly occur at

these vertically-integrated facilities (SIC

codes 2821, 2822,2865).

3. Use of Spent Caustic as Feedstock

Today EPA is finalizing the exclusion

proposed for spent caustic solutions

from petroleum refining when used as

feedstocks to produce cresylic or

naphthenic acid. This new exclusion is

being added at 40 CFR 261.4(a)(19).

B. Listing Determinations

Table IV–1 presents a summary of

changes to the proposed listing

decisions. Detailed bases for today’s

final listing determinations are

discussed in Section V.C for each

specific waste.

TABLE IV–1.—COMPARISON OF PROPOSED AND FINAL LISTING DECISIONS

Waste Stream 1995 Proposal Final decision Basis for decision

Hydrotreating Catalyst ................. List ......................... List ......................... Groundwater risks due to benzene and arsenic from landfill disposal; pyrophoric and self-heating nature of waste.

Hydrorefining Catalyst ................. List ......................... List ......................... Groundwater risks due to benzene and arsenic from landfill disposal; pyrophoric and self-heating nature of waste.

CSO Storage Tank Sediment ..... List ......................... List ......................... Nongroundwater risks due to PAHs from land treatment disposal; some groundwater risks due to benzene from landfill

disposal; high PAH and oil content.

Crude Oil Tank Sediment ........... No-list ..................... List ......................... Groundwater risks due to benzene from landfill disposal; PAH

and oil content.

Unleaded Tank Sediment ........... No-list ..................... No-list ..................... Some groundwater risks due to benzene from landfill disposal,

but no significant PAH or oil content; relatively low volume.

HF Alkylation Sludge ................... No-list ..................... No-list ..................... Relatively low groundwater risks due to benzene from landfill

disposal; no significant PAH content; benzene found in only

one TCLP sample.

Off-specification Product & Fines No-list ..................... No-list ..................... Low groundwater risks due to PAHs from landfill disposal; PAHs

only found in one TCLP sample near detection limit.

Other Wastes 1 ............................ No-list ..................... No-list ..................... No significant risks from any pathway.

1 Includes seven wastes: Catalyst from Sulfuric Acid Alkylation, Sludge from Sulfuric Acid Alkylation, Spent Caustic from Liquid Treating, Catalyst and Fines from Catalytic Cracking, Sludge from Sulfur Complex and Hydrogen Sulfide Removal Facilities, Catalyst from Sulfur Complex and

Hydrogen Sulfide Removal Facilities, and Catalyst from Reforming.

In response to additional comments

submitted on the NODA, the Agency

further examined the record and

reconsidered the entire risk assessment

and decisions for all the wastes under

consideration. Commenters on the

NODA provided detailed comments on

the groundwater modeling approach

used by EPA. Some commenters

submitted their own groundwater

modeling, purporting to show higher

risks than EPA’s evaluation for a

number of wastes. While the

commenters used the same model as

EPA (EPACMTP), they adjusted key

input values to increase landfill area,

increase active life of landfills and

resulting volume disposed, move the

receptor well location to the middle of

the plume of contamination, increase

TCLP concentrations using simplifying

assumptions, and increase volumes due

to codisposal. To respond fully to

critical issues raised in comments on

the groundwater risk analysis, EPA

decided to make modifications to some

modeling assumptions and data inputs.

EPA examined the impact of other

suggestions by the commenters, but

found these to be of no importance or

did not agree that the changes were

warranted. The changes to the

modeling, and EPA’s reasons for not

accepting other suggestions, are

discussed in detail in Section V.B.

Specifically, in response to NODA

comments, EPA decided that some

revisions in the modeling assumptions

were appropriate. Thus, the Agency

performed additional risk analyses to

reflect an increase in the active life for

off-site landfills (which resulted in

increased volume input to the

modeling), and the use of off-site

municipal landfill area distributions,

rather than the areas for industrial

landfills used previously. With these

changes, the final revised high-end and

Monte Carlo risks increased somewhat

from those presented in the NODA for

off-site landfills and are summarized in

Table IV–2. Also, in conducting the

Monte Carlo analysis for the NODA, the

Agency made a key assumption

concerning well location which was

inconsistent with the assumption made

for the high-end analysis (see discussion

of receptor well location in Section

V.B.6). Therefore, EPA performed

further Monte Carlo analyses using well

location assumptions consistent with

the high-end analysis, and the results

show that this also increases risks, such

that the 95th percentile Monte Carlo

risks are more comparable to the highend risks. Finally, while reexamining

the groundwater risk analysis for offspecification products and fines, EPA

corrected errors in waste volumes and a
42120 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

health-based level used for prior

analyses.

(See Additional Groundwater Pathway

Risk Analyses, 1998, in the public

docket for this rule for details on the

revised analyses.)

The final risk results for off-site

landfills, with the changes noted above,

are summarized in Table IV–2 for

wastes of concern. Other wastes either

did not have significant risk in

bounding analyses, or were not modeled

for landfill disposal because the practice

was not found.

TABLE IV–2.—SUMMARY OF REVISED GROUNDWATER RISKS FOR PETROLEUM WASTES IN OFF-SITE LANDFILLS

Waste Constituent

Revised risks 1 TC-capped risks 2

High-end

risk 3

Monte

Carlo

Risk 4

(95th%)

High-end

risk

Monte

Carlo risk

(95th%)

Clarified Slurry Oil Tank Sediment ....................................................... benzene ........................ 4E–06 2E–06 NC NC

Hydrotreating Catalyst .......................................................................... benzene ........................ 1E–04 3E–05 3E–05 9E–06

arsenic .......................... 8E–05 2E–05 NC NC

Hydrorefining Catalyst .......................................................................... benzene ........................ 7E–05 2E–05 3E–05 8E–06

arsenic .......................... 6E–04 4E–04 6E–04 4E–04

Crude Oil Storage Tank Sediment ....................................................... benzene ........................ 4E–05 1E–05 3E–05 9E–06

Unleaded Gasoline Storage Tank Sediment ........................................ benzene ........................ 3E–05 6E–06 2E–05 4E–06

HF Alkylation Sludge ............................................................................ benzene ........................ 1E–05 2E–06 NC NC

Off-Specification Product and Fines .................................................... benzo(a)anthracene ...... 2E–06 5

5E–07 6

1E–06

8E–07

NC NC

Codisposal Scenario ............................................................................ benzene ........................ 8E–06 3E–06 NC NC

arsenic .......................... 4E–06 2E–06 NC NC

1 Revised risk includes new inputs for active landfill life (30 yr.) and municipal landfill areas.

2 Input leaching rates were capped at TC regulatory levels for disposal in Subtitle D landfills (0.5 mg/L for benzene and 5.0 mg/L for arsenic);

NC = no change because TCLP values were already below TC levels. 3 Risks using high-end values for two most sensitive parameters, and remaining parameters kept at median values.

4 Risks using Monte Carlo simulation runs at the 95th percentile level with well location restricted to plume.

5Estimated TCLP input assumed to be mean value.

6Estimated TCLP input assumed to be one high-end parameter.

The nongroundwater risk results for

land treatment are unchanged from

those reported in the NODA (see 62 FR

at 16753). However, in response to

comment EPA performed a Monte Carlo

uncertainty analysis for land treatment

risks that supports the results presented

in the NODA. See Section V.B of today’s

notice for further discussion of this

issue.

The revised groundwater risk

assessment for landfills, in conjunction

with the nongroundwater assessment for

land treatment disposal presented in the

NODA, continues to support the

proposed listing of K170, K171, and

K172. Therefore, EPA is promulgating

these listings in today’s final rule, with

minor modifications to clarify the

definition of the two spent catalysts (see

Section V.C.3).

K171—Spent hydrotreating catalyst from

petroleum refining operations, including

guard beds used to desulfurize feeds to

other catalytic units. (This listing does not

include inert support media.)

K172—Spent hydrorefining catalyst from

petroleum refining operations, including

guard beds used to desulfurize feeds to

other catalytic units. (This listing does not

include inert support media.)

In addition, EPA has determined that

the available information and the

revised groundwater risk assessment

provides sufficient basis to list as

hazardous crude oil storage tank

sediment, and to have the waste

designation of K169. The listing will

read:

K169—Crude oil storage tank sediment from

petroleum refining operations.

All final listing determinations

depend upon EPA’s consideration and

review of public comments submitted in

response to the proposed

determinations, issues raised in the

NODA, and any other relevant

information available to the Agency.

The final determinations are based on

the Agency’s evaluations as to whether

the wastes meet the criteria in 40 CFR

261.11(a) for listing wastes as

hazardous. EPA has assessed and

considered the factors contained in

these criteria primarily by incorporating

them as elements in the revised risk

assessment, which is based on the

methodology described in the preamble

to the proposed rule and subsequent

modifications described in this

preamble and in support documents in

the rulemaking record. EPA bases its

final listing determinations on the entire

rulemaking record, including applicable

sections of the preamble to the proposed

rule, additional analyses provided in the

NODA, the Agency’s responses to the

comments on significant issues raised in

the preamble to the proposal and the

NODA, and all other relevant

information available to the Agency.

C. Other Exemptions

1. Headworks Exemption

EPA presented analysis in the NODA

to support the headworks exemption for

both wastewater associated with CSO

tank cleaning and the expansion of the

exemption to include water discharges

from the clean-out and turn around of

hydrotreating and hydrorefining

catalytic units. After considering all

comments on these analyses, EPA has

decided to promulgate the expanded

headworks exemption. As noted in the

proposal, EPA intended to include

crude oil storage tank sediment in the

exemption, if this waste was listed.

Thus, EPA is also promulgating the

exemption for K169 as well. To fully

respond to all comments, EPA

completed an analysis of the impact of

the discharge of crude oil storage tank

sediment to the wastewater treatment

system, which demonstrates that the

discharge is unlikely to adversely

impact downstream wastes. This

decision is discussed in V.D, and

supporting analyses are presented in the

docket for this notice.

In amending the headworks

exemptions under 40 CFR

261.3(a)(2)(iv)(C), the Agency intends

the exemption to apply to wastewaters

from cleaning operations when these

wastewaters reach the headworks of the

wastewater treatment system. As noted
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42121

in the proposal, however, the exemption

is not intended to allow the discharge of

the entire waste stream (i.e., tank

sediments or spent catalysts), but rather

dilute waters generated during tank or

unit clean-outs and dewatering

operations.

2. Exemption for Catalyst Support

The Agency is finalizing the proposed

exemption (under 40 CFR 261.3(c)(2)(ii))

for these support media because the

support media are generally inert

materials and commonly managed

separately. EPA is clarifying the

exemption so that it is no longer limited

to ceramic material, based on comments

indicating that other inert materials,

such as stainless steel, are also used.

3. Third Party Recycling of Spent

Petroleum Catalysts

EPA does not believe at this time that

it is appropriate to issue the proposed

clarification to exempt, from permitting

requirements under Part 266.100(b),

third party units regenerating and

reclaiming hydrotreating and

hydrorefining spent catalysts. EPA is

deferring to a later day any final

decision on whether or not to clarify the

BIF rule with respect to these wastes. In

the meanwhile, EPA reiterates that

nothing in today’s rule (or indeed the

proposal in this docket) changes the

current RCRA status of facilities

managing these hazardous wastes. (See

Section V.E. for further discussion of

this decision.)

V. Response to Comments and

Rationale for Final Rule

The Agency is responding in this

preamble to the most significant

comments received in response to both

the notice of proposed rulemaking and

the NODA. Other comments received by

the Agency are addressed in the

Response to Comments Background

Documents that are available in the

docket associated with this rulemaking.

A. Proposed Modifications to the

Definition of Solid Waste

1. Exclusion of Oil-Bearing Hazardous

Secondary Materials Inserted Into

Petroleum Refining, Including

Petroleum Coking

Role of the Petroleum Coker in the

Petroleum Refining Process

To determine RCRA jurisdiction, the

Agency must differentiate between

materials that are part of normal

ongoing production activities and

materials that are part of waste

management, including recycling or

treatment. Distinguishing waste

management from normal production

can sometimes be difficult when it

involves hazardous secondary materials

generated by certain production

processes and used as feedstocks in

other production processes within the

same industry that produce a relatively

low-value product (especially hazardous

secondary materials that have

sometimes been discarded in the past).

(see 50 FR at 618–620, Jan. 4, 1985).

Regarding the petroleum refining

production process, classification of the

coking operation has been historically

troublesome in delineating production

from waste management because it is

not typical of other refining processes.

Generally, and in the most basic of

terms, petroleum refining processes

serve to separate and remove

hydrocarbon components out of a

feedstream, in effect constituting a

multi-stage process of separating

valuable product materials from the

contaminants (e.g., sulfur and metals)

inherent in the original raw material

(crude oil). In the coking process,

however, the contaminants inherent in

the crude oil feedstock are incorporated

into the fuel product, along with the

carbon that results from the thermal

breaking of complex hydrocarbon

chains into more valuable small- and

middle-chain oil fractions (see detailed

description of conventional coking

versus the quenching process in Section

III.A.1.).

EPA first evaluated whether the

conventional coking operation is a true

production process because the crude

oil distillation bottoms, i.e., resids, used

as feedstock contain many of the

unwanted contaminants in the original

crude oil which end up in the coke

product (a low-value fuel product,

relative to the other fuel products

produced by petroleum refining) and

because a majority of the coke product

is exported rather than being used

within the United States. As stated

earlier, this is not typical of a petroleum

refining process producing a fuel

product. Thus, an argument could be

made that the petroleum coker is simply

a means of disposing of unusable heavy

oils and other contaminants associated

with crude oil feedstocks (including

hazardous heavy metals), while

producing a relatively low-value fuel.

However, the American Petroleum

Institute (API) supplied the Agency with

detailed information regarding the

conventional coking operation,

presenting a description of the physical

processes involved in the coking

process and the economic value of the

overall coking operation to the refinery,

as well as the feedstocks used and

products produced. As discussed in the

November 20, 1995, proposal preamble

(60 FR at 57754), the Agency has

determined that the use of resids as

feedstock to the petroleum coker is a

legitimate production process whose

main purpose is to thermally convert

the heaviest crude oil fractions into

light-end hydrocarbons (typically about

70 percent of the feedstock is recovered

as lighter oil fractions) used as

feedstocks for refinery processes that

produce high-value fuel products. In

many cases, the conventional coking

operation is essential to the profitable

production of petroleum products from

heavier crude oil feedstocks, being a

cost-effective process for maximizing

the amount of hydrocarbon that can be

recovered from the crude oil feedstocks.

The coke product itself may best be

characterized as a co-product of the

coking operation, while the principal

products are the light ends that are

returned to the refining process. Thus,

the Agency is affirming that the

conventional coking operation is a

production process resids are normal

feedstocks to this process and petroleum

coke is a legitimate fuel product

(although EPA in fact notes that highgrade petroleum coke meeting relatively

exacting specifications is used for

producing anodes for use in electric

furnaces, such as for steel and

aluminum manufacturing).

However, the fact that the Agency

considers the conventional coking

operation to be a normal production

process does not mean that any material

introduced to the coking operation is, by

definition, part of a normal production

process. Indeed, when considering the

regulatory status of hazardous

secondary materials not typically used

as feedstocks being introduced into such

a process, the Agency must consider

whether such use of the secondary

materials is legitimate use in a

production process, or rather is sham

recycling where unwanted

contaminants are being removed of

under the aegis of an ostensible

manufacturing operation. Typically, this

is evaluated through a comparison to

the normal feedstocks, with particular

focus given to whether there are

hazardous constituents contained in a

hazardous secondary material that are

not found in the normal feedstock

materials for which it is substituting

(see 50 FR at 638, Jan. 4, 1985). EPA

received many comments relevant to the

exclusion for the hazardous secondary

materials inserted into the petroleum

coker, especially the quenching process,

both supporting and opposing to the

exclusion. Much information, both

anecdotal and analytical data, was

received concerning various aspects of
42122 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

4 Indeed, internal industry literature, as well as

public statements made by industry representatives,

relevant to the use of hazardous secondary

materials in the quenching operation would lead

one to believe that the principal purpose of this

activity is to dispose of hazardous waste sludges

(see the January 9, 1998 letter from Richard Fortuna

to Mike Shapiro); however, the Agency does not, as

a rule, take such statements as determinative and

evaluates the activity independent of how the

process may have been characterized in other

contexts. The Agency would do the same in

situations where all such industry statements

would indicate that a particular process is

legitimate production, i.e., evaluate the merits of

the activity independent of statements from

interested parties.

5See January 23, 1998 letter from Paul Bailey to

Michael Shapiro.

the overall coking operation. This

information included the constituent

composition of the hazardous oilbearing secondary materials at issue, the

normal coker feedstocks, various aspects

of the overall coking operation, the coke

product, and the marketing of petroleum

coke. The Agency made a very

considered evaluation of all of the

information provided in comment to the

proposal, much of which was

contradictory and difficult to confirm.

The discussion below presents the

Agency’s reasoning in making its

determination.

Use of Hazardous Secondary Materials

in the Petroleum Coker

The Agency evaluated information

received on the role of oil-bearing

hazardous secondary materials in the

coking operation. As discussed more

below, the oil-bearing hazardous

secondary materials typically put into

the coker unit are unable to be

processed via conventional coking

because of their high water content (the

water would volatilize and create unsafe

pressures during the conventional

coking process). Therefore, the Agency’s

evaluation centered around the role of

these secondary materials in the

quenching process, described in more

detail in Section III.A.1. of today’s

preamble. In evaluating this

information, the Agency’s focus was to

determine whether the use of oil-bearing

hazardous secondary materials in the

quenching process is consistent with the

role of oil-bearing feedstocks in the

conventional coking process, i.e., to

provide hydrocarbon for further refining

and to contribute carbon to the coke

product. (EPA’s reasoning is that it is

the recovery of hydrocarbon and

production of coke that is the intent of

the overall coking operation, and thus

the legitimate use of a hazardous

secondary material in the quenching

process should likewise contribute to

this intent.) This evaluation compared

not only the constituent make-up of the

feedstocks to both conventional coking

(resids) and to the quenching process

(hazardous secondary materials), but

also what physical/chemical processes

occur in both aspects of the coking

operation. The discussion that follows

presents the Agency’s evaluation.

In comparing the typical hazardous

secondary materials used in the

quenching process (i.e., listed hazardous

wastes, primarily wastewater treatment

sludges) to the residues normally used

as feedstocks to conventional coking,

the oil content in the hazardous

secondary materials is much lower

(ranging from around 8 percent to 40

percent in the hazardous secondary

materials to around 99 percent in the

crude oil distillate bottoms), while the

water content is much higher. The

hazardous constituents (primarily heavy

metals) in the secondary materials are

measurably higher. However, as stated

above, the hazardous secondary

materials are not used in conventional

coking, but rather are used in the

quenching process. Therefore, a

comparison of the hazardous secondary

materials to the resids feedstock has

limited value and is not dispositive for

determining the legitimacy of the

activity, because the hazardous

secondary materials are not substituting

for the feedstock, but are instead being

processed in a different manner than the

conventional coking feedstocks.

As described earlier, there are two

aspects of the coking operation for the

Agency to consider: (1) conventional

coking—which entails the application of

high temperatures to the heavy oilbearing feedstock in the coke drum in

order to break the complex hydrocarbon

chains into lighter chains that are

recovered for further refining, also

resulting in the production of coke

product, and (2) the quenching

process—which, for the purposes of the

Agency’s evaluation in today’s

rulemaking, entails the insertion of oilbearing hazardous secondary materials

along with, or just prior to, water used

to quench the coke product before

removal from the coke drum.

Because the hazardous secondary

materials are not processed along with

the normal feedstocks to the coker, but

rather are introduced into the coke

product during the quenching process,

the assessment of ‘‘legitimacy’’ becomes

somewhat more difficult since there is

no analogous raw material. (The Agency

notes that this is typically the situation

when determining the applicability of

RCRA regulations to secondary

materials used in connection with

innovative technologies or practices.)

The hazardous secondary materials are

typically mixed with water to form a

slurry that is injected into the coke at

the beginning of the quench cycle (in

some cases, the secondary materials are

not slurried and are inserted ahead of

the quench water). The hazardous

secondary materials are unable to be

used in conventional coking because of

their high water content; however, the

water content is not detrimental during

the quenching process. Thus, in

determining the legitimacy of this

activity, the task at hand is not a

straightforward comparison with

analogous nonwaste feedstocks, but

rather an evaluation of the processing

that occurs when these hazardous

secondary materials are used in the

quenching process, to determine

whether this activity may be

characterized as a ‘‘normal’’ production

activity or whether it is better

characterized as hazardous waste

recycling, or even simply the disposal of

hazardous wastes (i.e., sham recycling).

Indeed, some commenters opposed to

the use of hazardous secondary

materials in the petroleum coker raised

the concern that the use of listed

hazardous wastes in the quenching

process is simply a means of disposing

of RCRA hazardous wastes in a lowvalue product, much of which is

exported overseas, and that if these

materials truly had value to the coking

process, they would be used as

feedstock in the conventional coking

process. Since it is obvious that these

secondary materials would otherwise be

hazardous wastes that would be treated

and disposed of if not used in the

quenching process, it would seem to be

a simple matter, as some commenters

have suggested, to ascribe a simple

waste disposal motive to this activity

and nothing more.4 However, the

Agency is compelled to go further and

determine whether the oil-bearing

secondary materials actually contribute

to the product and/or process, or

otherwise determine whether there is a

production-related value to this activity.

The petroleum industry, on the other

hand, believes that such an evaluation

is unnecessary. Industry representatives

argue that oil-bearing secondary

materials used in the quenching process

for legitimate recovery of hydrocarbon

as either a light oil fraction or by

incorporation in petroleum coke can

never be a solid waste, i.e., that these

materials must be excluded from being

RCRA solid wastes as a matter of law.5

Their argument is based on the initial

case considering the scope of the

statutory term ‘‘solid waste,’’ namely the

first AMC I decision. In that decision,

the Court held that ‘‘materials that are

recycled and reused in an ongoing

manufacturing or industrial process’’
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42123

6The AMC I court gave this provision a restrictive

reading, stating (somewhat circularly) that is

applied only to material that had already become

a hazardous waste (824 F. 2d at 1188.) However,

given the holding of AMC II that wastewater

treatment residuals can be classified as solid wastes

and that wastewater treatment operations break any

chain of what must be regarded as a continuous

industrial process, the wastewater treatment

sludges destined for the quenching process could be

classified as being hazardous wastes.

7See the September 3, 1997, letter from Kyle

Isakower to William Brandes and the January 23,

1998, letter from Paul Bailey to Michael Shapiro.

8See January 23, 1998, letter from Paul Bailey to

Michael Shapiro.

9See the September 3, 1997, letter from Kyle

Isakower to Max Diaz and the January 9, 1998, letter

from Richard Fortuna to Michael Shapiro.

were not yet discarded and hence not

‘‘solid wastes.’’ (see 824 F.2d at 1186).

EPA disagrees that an exclusion is

compelled (even assuming legitimate

recycling is occurring). First, there is

direct case authority that secondary

materials which originate from

wastewater treatment systems can be

considered to be ‘‘discarded’’ (see AMC

II, 907 F.2d at 1186 (‘‘Nothing in AMC

I prevents the agency from treating as

‘discarded’ the wastes at issue in this

case, which are managed in land

disposal units that are part of

wastewater treatment systems, which

have therefore become ‘part of the waste

disposal problem,’ and which are not

part of ongoing industrial processes’’

(emphasis original)). Industry indicates

that, primarily, the oil-bearing

hazardous secondary materials utilized

in the quenching process are wastewater

treatment sludges (chiefly K048, F037,

and F038), which are thus directly

analogous to the sludges at issue in the

AMC II decision, and thus could be

considered to be discarded.

These sludges likewise could be

considered to be solid wastes pursuant

to RCRA section 3004(q)(2)(A) which

indicates that certain provisions

otherwise applicable to hazardous

waste-derived fuels do not apply to

petroleum coke produced from

‘‘petroleum refinery wastes containing

oil which are converted into petroleum

coke at the same facility at which such

wastes were generated.’’ The plain

language of the provision can be read to

cover the activity at issue here, and thus

indicate that wastewater treatment

sludges and other hazardous secondary

materials going to quench coking could

be classified as solid wastes. 6

More basically, EPA does not regard

the use of oil-bearing wastewater

treatment sludges in the quenching

process to be the type of operation

which must necessarily be classified as

part of an ongoing manufacturing

process. The parts of the petroleum

refining process outside the Agency’s

RCRA jurisdiction involve the

sequential distillation of crude oil into

various fractions such as gasoline, fuel

oil, asphalt, and conventional coking.

(see 824 F.2d at 1181). However, the

quenching process need not be viewed

as one more ongoing step in this

process. Not only is there the temporal

interdiction of the generation of

wastewater and subsequent

management of the wastewater and

sludges in the refinery’s wastewater

treatment system, but the quenching

process differs in material ways from

the standard refining operations. As

discussed above, the materials utilized

have less oil, higher percentages of

unusable materials, and the process

generates less recovered oil than any

other unit operation in the conventional

refining process. The Agency thus does

not accept the argument that exclusion

of hazardous secondary materials used

in the quenching process is legally

compelled.

This is not to say that the Agency

lacks the discretion to make such a

determination. The term ‘‘discarded’’ is

ambiguous, and within the Agency’s

authority to interpret consistent with

the general goals and policies of the

statute. (See AMC II, 907 F. 2d at 1186;

American Petroleum Inst v. EPA, 906 F.

2d 726, 741 (D.C. Cir. 1990)). Among

these goals, of course, is encouraging

environmentally sound recycling (see

RCRA section 1003(a)(6)). Moreover,

assessing what can permissibly be

classified as continuous industrial

processes, and which types of material

recovery operations are ‘‘not part of the

waste disposal problem’’ (AMC II, 907

F.2d at 1186), are the types of technical

and policy questions particularly

committed to EPA’s expert discretion. It

is that discretion which the Agency is

exercising in determining in this rule

that a conditional exclusion is

appropriate for certain hazardous oilbearing secondary materials used in the

coke quenching process.

In describing the use of oil-bearing

secondary materials in the quenching

process, industry claims that, similar to

the process of coking resids feedstock,

the oil contained in the secondary

materials is either volatilized and

condensed for further refining into highvalue fuels, or is incorporated into the

coke product. This activity may be

characterized as the efficient use of

existing heat energy in the hot coke to

recover the oil contained in the sludges,

oil which would otherwise not be

recovered (the temperature of the coke

is approximately 800–900 degrees F

before it is quenched). The oil that is not

volatilized gets incorporated into the

coke product, adding to the coke’s

energy value. The quenching process is

operated such that the slurry is

discontinued once the coke reaches the

temperature of approximately 600

degrees F because, at this temperature,

the oil is less likely to volatilize and is

primarily incorporated into the coke.

(The coke product then continues to be

quenched with water.) While the oil

adds energy value, too much oil causes

the coke product to actually lose

economic value. Not only does too

much oil make the coke difficult to

handle, it also increases the Volatile

Combustible Material (VCM) level, one

of the product specifications for

petroleum coke. If the VCM is too high,

the marketability of the coke decreases. 7

The Agency solicited further

information from industry to

demonstrate the recovery efficiency of

the oil contained in the hazardous

secondary materials used in the

quenching process. EPA believes that a

comparison of the recovery efficiency of

the quenching process to the recovery

efficiency of the conventional coking

process (of the resids) would provide

some indication of how ‘‘productionrelated’’ the use of the hazardous

secondary materials in the quenching

process is (i.e., the more similar the

quenching process is to the

conventional coking process in the

recovery of hydrocarbon values, the

more it may be considered analogous to,

or a component of, the coking process).

The data supplied indicate that the

recovery efficiency of oil contained in

the secondary materials during the

quenching process is comparable to the

recovery efficiency from the feedstock

side of the coking operation. 8 Thus,

although the oil content in the

hazardous secondary materials is

markedly less, at the very least, there is

demonstrated hydrocarbon recovery

from the secondary materials used in

the quenching process, which is

consistent with the overall production

intent of petroleum refining.

The Agency notes that one major

point of contention between those

commenters opposed to the exclusion

and those supporting the exclusion is

whether there is actual evidence that oil

(or hydrocarbon value) is recovered

during the quenching process. As stated

previously, the oil content of the oilbearing hazardous secondary materials

typically used in the quenching process

varies considerably (8 to 40 percent),

although the typical secondary materials

have an oil content around 10 percent. 9

In determining the oil recovery

efficiency of the quenching process (i.e.,

a quantification of how much of the oil

contained in the secondary materials is
42124 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

10See January 23, 1998, letter from Paul Bailey to

Michael Shapiro.

11See the January 9, 1998, letter from Richard

Fortuna to Michael Shapiro.

12See the February 2, 1998, letter from John

Medley to Max Diaz.

13See the January 9, 1998, letter from Richard

Fortuna to Mike Shapiro.

14See the January 9, 1998, letter from Richard

Fortuna to Mike Shapiro.

15See the January 9, 1998, letter from Richard

Fortuna to Mike Shapiro.

actually volatilized and recovered for

further refining versus how much oil is

simply incorporated into the coke

product), EPA encountered difficulty in

getting any actual data. The data the

Agency primarily relied on were

derived from surrogate tests (i.e., tests

designed to simulate the conditions the

secondary materials encounter during

the quenching process) performed on

the secondary materials typically used

in the quenching process. 10 This is

because coking operations (particularly

the capture and condensing of the lightend hydrocarbons) do not avail

themselves to the type of quantifiable

measurements that the Agency prefers.

Regarding the quenching process, this is

even more the case. However, surrogate

tests may actually be more

representative of the oil recovered from

secondary materials used in the

quenching process than actual

measurements taken during the

quenching process. This is because any

measurement of the amount of oil

recovered during the quenching process

would also likely include the light ends

that remain entrained within the coke

product from the conventional coking

operation (i.e., light-ends derived from

the resids feedstock) which are typically

recovered during the quenching process

in a manner analogous to steam

stripping. One of the critical factors in

estimating the oil recovery efficiency of

the quenching process is the specific

gravity of the oil contained in the

hazardous secondary materials. The

lighter the oil fractions, the more oil

will volatilize during the quenching

process. Here, too, there was

disagreement among commenters over

how the oil contained in the secondary

materials should be characterized. One

commenter stated that since crude oils

have grown steadily heavier (i.e.,

contain a larger percentage of higher

molecular weight, higher boiling point

hydrocarbons) over time, a trend that is

only expected to continue, the oil

contained in the secondary materials,

especially the wastewater treatment

sludges, would be disproportionately

heavy and thus would be less and less

likely to volatilize during the quenching

process. This was supported by data

(gathered from listed hazardous wastes

sent to RCRA-permitted facilities)

demonstrating the heavy-to-light ratio

for oil contained in the wastes. 11 In

response, the petroleum industry stated

that the oil contained in the secondary

materials (particularly wastewater

treatment sludges) comes from oil that

has been through some refining, and

thus the trend towards heavier crude

oils will not have a corresponding effect

on the oil contained in the secondary

materials. Also, industry claims that the

actual data used to support the assertion

that the oil contained in the secondary

materials is predominantly heavy is not

representative of the secondary

materials used in the quenching process

because, prior to sending such materials

to a permitted facility for proper

treatment and disposal, a refinery will

typically use other processes (e.g.,

centrifuging) to aggressively extract as

much oil (and water to reduce the

volume of material sent for treatment

and disposal) as possible from the

materials, more so than would be the

case if these materials are to be used in

the quenching process. The oil

recovered by these more aggressive

recovery processes would tend to be the

lighter oils, leaving a disproportionate

amount of heavy oil in the materials

analyzed. 12

Based on a considered evaluation of

these conflicting comments, and using

engineering and technical judgement in

lieu of data actually demonstrating the

recovery of hydrocarbon values from the

secondary materials used in the

quenching process, the Agency believes

that oil (i.e., hydrocarbon value) is

recovered during the quenching process

and that the efficiency of this recovery

is comparable to the recovery of lightends during the conventional coking

process. (The Agency also notes that in

the worst case scenario provided by one

commenter opposed to the exclusion,

which assumed 80 percent of the oil in

the secondary material was too heavy to

significantly volatilize at the

temperatures encountered during the

quenching process, there was recovery

of hydrocarbon, even from the heavy oil

fraction.13)

Effect of Using Hazardous Secondary

Materials in the Quenching Process on

the Coke Product

A further consideration, in spite of the

hydrocarbon recovery and contribution

of energy value to the coke product, is

whether the use of the hazardous

secondary materials in the quenching

process actually provides some

beneficial contribution to the coke, or

whether it may degrade the coke

product. Commenters opposed to

allowing the use of hazardous secondary

materials in the quenching process

raised two main concerns regarding the

effect on the coke product. First, these

commenters claim that the use of

hazardous secondary materials in the

quenching process contributes nothing

beneficial to the coke product. These

commenters dismiss the notion that the

oil contained in the secondary materials

used in the quenching process

contributes energy value by stating that

any energy value that may be gained is

more than negated by the additional ash

content that is also introduced to the

coke product (thus, there is no net

benefit to the product and instead a net

degradation of the product).14

Furthermore, as at least one commenter

noted, the ability for the coke produced

using the hazardous secondary materials

in the quenching process to continue to

meet product specifications could

simply be an indication that the

specifications for this low-value fuel

product provide a great deal of

flexibility, rather than demonstrating

that the product is not adversely

affected. Thus, the product

specifications themselves would allow

for a certain amount of non-contributing

hazardous secondary materials to be

added to the coke product.15

The second concern raised regarding

the effect of the secondary materials on

the coke product is that the coke

product demonstrates no significant

change in concentration of hazardous

constituents due to the simple dilution

that occurs when a relatively small

amount of hazardous secondary material

is mixed with a much larger volume of

coke product (approximately 100

barrels, or about 20 tons of hazardous

secondary materials are used in the

quenching of 700–800 tons of coke

product). Simply stated, the lead and

chromium in the secondary materials

are being diluted by combination with

the much larger volume of coke product

containing low levels of lead and

chromium. Since these metals are not

volatilized during the quenching

process, they must remain in the coke

product. Commenters point to the

insertion of lead and chromium (which

serve no purpose in the coke product)

as evidence that the use of hazardous

secondary materials in the quenching

process is simply disposal of hazardous

constituents. Such disposition of

unwanted and unneeded hazardous

constituents, often termed ‘‘toxics along

for the ride,’’ is a prime indicia that

sham recycling can be occurring

(depending largely on the extent of

contamination, as well as other case-
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42125

16See the September 3, 1997, letter from Kyle

Isakower to William Brandes and the January 23,

1998, letter from Paul Bailey to Michael Shapiro.

17See the September 3, 1997, letter from Kyle

Isakower to William Brandes.

specific facts) (see U.S. v. Marine Shale

Processors, 81 F.3d 1361, 1366 (5th Cir.

1996)).

In evaluating the first concern, i.e.,

whether the use of oil-bearing secondary

materials in the quenching process

provides a beneficial contribution to the

coke product or process, the Agency

notes that the main purpose of the

petroleum coking unit is to recover

hydrocarbons from the oil contained in

the feedstocks for further refining.

Similarly, the main purpose of using the

secondary materials in the quenching

process is the energy-efficient recovery

of hydrocarbon from the residual oil in

the oil-bearing secondary materials.

Concerning the issue of net contribution

to the coke product (i.e., added energy

value versus added ash content), the

petroleum industry maintains that the

additional ash content is insignificant

and points to the amount of coke

product produced per cycle (ranging

from about 400 to 800 tons) that would

be endangered if the ash content (as

well as the VCM level) contributed

during the quenching process was

sufficient to lower the value or

marketability of the coke product.16 In

answer to the concern that the product

specifications for petroleum coke are too

flexible to use as an indication that the

coke is unaffected by the hazardous

secondary materials, the Agency notes

that coke product produced using

hazardous secondary materials in the

quenching process is basically similar to

coke produced without using secondary

materials in the quenching process.

Further, EPA notes that the quenching

process can and does produce anodegrade coke, the most high-valued coke

with the most stringent product coke

specifications.17

In considering the second concern,

i.e., whether the fact that the coke

product produced using secondary

materials in the quenching process

continues to meet the product

specifications (and, in fact,

demonstrates little change in the levels

of contaminants compared with coke

produced without hazardous secondary

materials) is simply a result of dilution,

the Agency acknowledges that such

dilution does occur. However, there are

several other considerations. As stated

earlier, the primary product of the

petroleum coking process is the

hydrocarbon fraction recovered for use

as feedstock in the production of highvalue fuel products, with the coke

product being a co-product of the coking

process. The Agency is convinced that

such recovery occurs when oil-bearing

secondary materials are used in the

quenching process. Given that the

recovered hydrocarbon is the primary

product of using the secondary

materials in the quenching process, the

simple fact that the coke product (i.e.,

the co-product) continues to meet the

applicable product specifications and

shows no appreciable increase in risk

carries more weight in the Agency’s

evaluation. In other words,

demonstrating hydrocarbon recovery is

the key test in determining whether the

hazardous secondary materials actually

serve a useful role in the overall coking

operation, rather than demonstrating a

net contribution to the coke (as opposed

to no degradation of the coke).

Acknowledging that there is a potential

for some degradation of the coke

product, depending on the constituent

make-up of the particular secondary

materials used in the quenching

process, the Agency believes that the

product specifications, and the

economic consequences if those

specifications are not met, will serve to

limit the use of the quenching process

to secondary materials that will not

cause the coke to exceed its

specifications, and effectively limits the

allowable insertion of metals and excess

high boiling point hydrocarbons.

However, in cases where there is

sufficient degradation of the product (or

co-product) such that it no longer meets

product specifications or otherwise

becomes unmarketable, the Agency

would question the legitimacy of using

the secondary materials in the

quenching process. Similarly, if there

were sharply decreased efficiency of

hydrocarbon recovery stemming from

the use of the hazardous secondary

materials in the quenching process

(recovery rates of, for example, less than

50 percent of the oil contained in the

secondary materials, rather than the

minimum 70 percent efficiency EPA

believes occurs), the Agency would

question the legitimacy of the activity.

(The Agency knows of no such cases at

present.)

Taken all together, the fact that (1) the

recovery efficiency of hydrocarbons

from oil contained in the secondary

materials used in the quenching process

is comparable to the recovery efficiency

of the conventional coking process, (2)

the use of oil-bearing hazardous

secondary materials (including RCRA

listed hazardous wastes) in the

quenching process is consistent with the

overall goal of the petroleum refining

industry, namely to maximize the

recovery of hydrocarbon values from the

original crude oil feedstocks (and thus

is akin to ongoing processing), (3) the oil

cannot be recovered from these

secondary materials by any other

process customarily utilized in

petroleum refining, and (4) the coke

product continues to meet product

specifications and indicates no increase

in risk, the Agency concludes that the

use of oil-bearing hazardous secondary

materials generated by the refinery

industry can legitimately be used in the

coke quenching process, dependent

upon whether there is both hydrocarbon

recovery and no adverse effect on the

coke product.

Regulatory Status of the Quenching

Process

Having determined that certain oilbearing hazardous secondary materials

can be legitimately used in the

quenching process, the question then

becomes whether this activity

constitutes ongoing production and

hence is excludable, or, rather that it is

legitimate hazardous waste recycling—

potentially subject to regulation as a

form of hazardous waste treatment.

There are several factors that could lead

to either outcome. As stated earlier,

there is recovery of hydrocarbon values

from the oil-bearing secondary

materials, short- and middle-chain

fractions that are condensed and sent to

refining processes to produce high-value

fuel products (consistent with the

overall coking operation). In addition,

there is some beneficial contribution to

the coke product in the form of carbon

and higher energy values (even though

this may not be reflected by an actual

increase in market value), and the

Agency also notes that the coke product

continues to meet the market-driven

specifications for the product, even for

high-value anode grade coke. In

addition, as with other sidestreams

generated by one process and used as

feedstocks to other production

processes, this activity constitutes a link

in the multi-step chain of processing

steps designed to recover as much of the

hydrocarbon value from the original

crude oil feedstock as possible. Thus,

there are aspects of this activity that

lead one to conclude that the oil-bearing

hazardous secondary materials used in

the quenching process can be

considered, for regulatory purposes, as

part of an ongoing production process

and hence classified as an activity not

subject to RCRA jurisdiction.

There are, however, several factors

that were raised in comments to argue

that using the hazardous secondary

materials in the quenching process is a

form of waste management, e.g.,
42126 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

18See the January 9, 1998, letter from Richard

Fortuna to Mike Shapiro.

19See the January 23, 1998, letter from Paul

Bailey to Michael Shapiro.

20The Agency notes that today’s rulemaking is

not intended to affect the applicability of existing

regulatory exclusions in § 261.2(c)(2) and (3)

regarding the reclamation of off-specification or

spilled commercial chemical products listed in

§ 261.33, or that otherwise exhibit a hazardous

characteristic (50 FR 14219; April 11, 1985).

legitimate hazardous waste recycling.

The oil-bearing secondary materials are

not typical of normal feedstocks to any

other refining process. Typical feedstock

streams are very high in oil content (i.e.,

primarily oil), while these secondary

materials contain a range of oil

concentrations that is consistently much

lower than typical feedstocks (thus

resulting in a much smaller amount of

oil being recovered, albeit at an

efficiency comparable to conventional

coking, as discussed above).

There are numerous statements, both

written and verbal, found within the

industry’s internal descriptions of the

use of hazardous secondary materials in

the quenching process, that depict this

activity as an efficient means of

disposing of RCRA hazardous wastes.18

There is also anecdotal evidence of a

refinery with a coker charging another

refinery without a coker to take such oilbearing hazardous secondary materials

which are then used in the quenching

process, analogous to tipping fees or

charges that a hazardous waste recycling

facility would receive from a generator

in return for a waste management

activity. These issues are some of the

reasons EPA felt it was not compelled

by statute to exclude these wastes as

ongoing manufacturing, and that this is

a decision for EPA’s discretion.

In considering both viewpoints, the

Agency has decided that use of

hazardous secondary materials in the

quenching process warrants an

exclusion from the definition of solid

waste (always assuming that the

particular practice is legitimate

recycling). In the Agency’s view, the

primary purpose of this activity is the

recovery of the remaining hydrocarbon

values in the oil-bearing secondary

materials (with the addition of carbon

and energy value to the co-product

coke), utilizing the existing heat energy

contained in the coke product after the

conventional coking process. The

assertion, by commenters opposed to

this activity that it is questionable that

the component in the secondary

material that fulfills its primary purpose

(i.e., oil) could also be a limitation on

the use of the secondary material (i.e.,

that too much oil would degrade the

coke product itself) is not compelling. It

is not uncommon for industrial

processes to have specifications on a

feedstock material that require a

minimum of a certain component while

at the same time requiring that a

maximum level for the same component

not be exceeded because it would

degrade the quality of the product. EPA

also believes that the lead and

chromium in the secondary materials

should decline with time. This is due to

overall reductions in the use of these

metals throughout the refinery (e.g.,

leaded gasoline is no longer produced

on a wide scale and chromium-based

water treatment chemicals are no longer

used in industrial cooling towers, as a

result of Clean Air Act requirements; see

40 CFR Part 63, Subpart Q). Thus, with

the exception of lead and chromium

(which are expected to decrease due to

process changes), the hazardous metals

found in the hazardous secondary

materials can be traced back to the

metals found in the original crude oil

feedstock and so do not represent

contaminants introduced through means

other than the continued processing of

the initial raw material feedstocks.

EPA’s traditional concern regarding

unnecessary hazardous constituents

being processed and ending up in a

product is mitigated in this case because

the Agency views this activity more as

the continual processing of a raw

material that contains hazardous

constituents, with concentrations of

these constituents found in the

feedstock streams to various refining

processes varying dependent on the

point in the overall production process.

In the context of a multi-step production

process, there is much less of an

element of discard of the hazardous

constituents inherent in the original raw

material than there would be had these

secondary materials been generated by

another industry or had the hazardous

constituents not been inherent to the

original raw material.

EPA also has no evidence that the

quenching process could be viewed as

part of the waste management problem,

part of the jurisdictional tests

articulated in AMC I and II. As

discussed earlier, there is no significant

evidence of degradation of coke product

quality, and indeed, coke produced with

and without using secondary materials

in the quenching process are largely

indistinguishable from the standpoint of

concentrations of hazardous

constituents.19 Finally, again, EPA

believes that the recovery of

hydrocarbon from the oil-bearing

secondary materials in the quenching

process is consistent with the overall

petroleum refining process the coking

operation in particular, i.e., the recovery

of hydrocarbons for the production of

high-value fuel products. This goal, in

turn, is consistent with the RCRA

objective to encourage safe types of

recycling (see RCRA section 1003(a)(6)).

Therefore, the Agency is providing a

conditional exclusion for oil-bearing

hazardous secondary materials that are

inserted into the coker, based on the

assumption that, whether inserted along

with normal feedstock (i.e., resids) or

used in the quenching process,

hydrocarbons are recovered for further

refining and there is no degradation of

the coke product.

Conditions for the Exclusion

As stated at proposal (60 FR at 57754–

57755), the exclusion applicable to oilbearing hazardous secondary materials

destined for insertion into the

petroleum refinery, including the coker

(and the quenching process), is

conditioned on there being no land

placement and no speculative

accumulation, ensuring that these oilbearing hazardous secondary materials

do not become part of the waste

disposal problem. EPA reiterates its

belief, presented in the proposal, that

the management of these secondary

materials prior to insertion into the

refinery will not pose a risk to human

health and the environment, and that

the American National Standard

Institute (ANSI) standards for the

design, construction, operation,

maintenance, and inspection of

petroleum terminal and tank facilities

are sufficient to ensure that such

materials will be managed in an

environmentally protective manner. The

Agency also notes that the exclusion

being promulgated today is only for

those oil-bearing hazardous secondary

materials that are actually used in a

refining process, including the

quenching process of a petroleum coker.

Hazardous secondary materials that are

released and not immediately recovered

and used in a refining process would

not be excluded, and thus would be

subject to Subtitle C regulation as

hazardous wastes that have been

disposed.20

The Agency is also requiring that the

materials excluded under this provision

of today’s rule be returned directly to a

refinery for insertion. While this is not

an issue if materials are recycled onsite,

EPA has concerns (as did some

commenters) about situations where

these materials are generated at one

refinery for insertion into another, but

are not directly sent and instead are sent

to an intermediate non-refinery facility

for processing. EPA does not think it
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42127

unreasonable to assume that these

materials should either be located at the

generating refinery, at the receiving

refinery, or are otherwise in transit

between the two; this is consistent with

the underlying argument that this is

ongoing production within the

petroleum refining sector.

The Agency is maintaining the

condition that only those oil-bearing

secondary materials that result in a coke

product that does not exhibit a

characteristic of hazardous waste be

subject to the exclusion. This condition

mirrors the statutory provision stating

that petroleum coke produced from

petroleum industry hazardous wastes is

not subject to Subtitle C regulation

provided the coke does not exhibit a

characteristic of hazardous waste (see

RCRA section 3004(q)(2)(A)). This

condition (coupled with the industry’s

own product specifications) will serve

to ensure that the coke product does not

degrade such that the secondary

materials used in producing the coke

will become a part of the waste disposal

problem. As a result of this condition

and the fact that this exclusion is

limited to refinery wastes, today’s

exclusion in § 261.4(a)(12) supersedes

the existing exemption in

§ 261.6(a)(3)(v); therefore, the

regulations are being amended to

remove § 261.6(a)(3)(v).

The Agency considered, as suggested

in several comments, setting a minimum

oil content to define the scope of ‘‘oilbearing secondary materials’’ that are

excluded when used in the quenching

process, or to require a demonstration of

hydrocarbons actually being recovered

from the excluded secondary materials

that is comparable to oil recovery in the

conventional coking process. The

Agency rejected limiting the exclusion

based on a set minimum oil content or

a recovery efficiency requirement for

several reasons. As discussed above, the

quenching process represents the final,

and last possible process in which to

recover hydrocarbon from the original

crude oil feedstock. The refinery

processes and operating procedures are

designed to separate and process into

products as much hydrocarbon as

possible from the crude oil feedstock; in

other words, to prevent as much oil

from making its way into these

secondary materials as possible. The oil

that does make its way into these

secondary materials is generally

considered unavoidable and inevitable,

or, in some cases, too much oil in these

secondary materials is evidence of a

problem with some aspect of the overall

refining process (which helps to explain

the wide range of oil contents in these

materials). Thus, it would be counter to

the overall efficiency of the petroleum

refining process to require a minimum

oil content in the secondary materials.

Conversely, the Agency believes it is

fundamental to this exclusion that there

actually be oil recovered for further

refining when these oil-bearing

hazardous secondary materials are used

in the quenching process. To the extent

there is no recovery, or drastically

inefficient recovery, the operation could

be a type of sham recycling, as

discussed earlier.

Also, the Agency believes that, in this

case, a minimum oil content condition

would do little to ensure that only those

secondary materials from which oil can

actually be recovered would be

excluded; in other words, the Agency

does not believe that setting a minimum

oil content would ensure that secondary

materials are legitimately being used in

the quenching process. Since most of

the secondary materials in question

result from wastewater treatment, a

minimum oil content requirement

would only serve to encourage a

refinery to operate the refinery

wastewater treatment process less

efficiently to ensure that these

secondary materials contain the

minimum oil content and thus avail

themselves of an exclusion.

As for requiring a demonstration of oil

recovery efficiency comparable to the

conventional coking process, the

Agency concluded that the normal

operating practices and conditions (e.g.,

temperature) inherent to the quenching

process will result in a comparable oil

recovery efficiency. While there may be

fluctuations in the actual volume of oil

recovered (due to the fluctuations in the

oil content of the secondary materials as

well as the ratio of heavy-to-light oil in

the secondary materials), the quenching

process, when properly operated, is

such that there will be oil recovered

from oil-bearing hazardous secondary

materials due to the high temperatures

inherent in the process. Therefore,

requiring an actual demonstration of

recovery efficiency would be

unnecessarily burdensome unless there

is a question regarding a site-specific

coke quenching process or the

hazardous secondary materials being

used. Therefore, the exclusion for

refinery-generated, oil-bearing

hazardous secondary materials being

legitimately recycled into the petroleum

refining process, including in the cokequenching process, is conditioned only

on these materials being managed such

that there is no land placement and no

speculative accumulation, and that the

coke product produced not exhibit a

characteristic of hazardous waste.

Materials Subject to the Exclusion

At proposal, the Agency proposed to

exclude oil-bearing hazardous

secondary materials that are generated

within the broad petroleum industry

(covering SIC codes 1311, 1321, 1381,

1382, 1389, 2911, 4612, 4613, 4922,

4923, 4789, 5171, and 5172—which

comprise petroleum refining, marketing,

transportation, exploration, and

production) and inserted in the

petroleum refining process, including in

the coker. As discussed earlier in

today’s preamble, the exclusion being

promulgated today is limited to only

those oil-bearing hazardous secondary

materials that are generated within the

petroleum refining sector (SIC code

2911). To conform with this limitation,

EPA is retaining (with some

clarification) the existing exclusion for

recovered oil from the broader

petroleum industry. (EPA is also

excluding petrochemical recovered oil

from certain petrochemical facilities,

which is a related but different

exclusion discussed elsewhere in

today’s rule.) In the context of oilbearing hazardous secondary materials

being used in the quenching process,

limiting the exclusion to the petroleum

refining sector is entirely consistent

with the information evaluated in

making this determination (i.e., data

representing the materials currently

used in the quenching process, namely

F037, F038, and K048–K052). As

discussed above, the exclusion for oilbearing hazardous secondary materials

used in the quenching process was not

made on a strict jurisdictional basis. The

types of secondary materials, their

constituent components, and the fact

that the coke product remains basically

unchanged when such secondary

materials are used were all factors in

EPA’s determination. The fact that the

Agency only evaluated oil-bearing

secondary materials that were generated

by the refining sector in its

determination is sufficient reason to

limit the exclusion to refinery-generated

secondary materials.

However, a further reason relates to

the concept that oil-bearing secondary

materials that are generated by the

refining process and continue to be

processed in the coker (by use in the

quenching process) is more akin to an

ongoing production process than would

be the case for secondary materials

generated outside the refining sector of

the petroleum industry. The Agency

maintains that the quenching process is

an ancillary activity that is somewhat

removed from the overall production

process; however, the fact that the

secondary materials are generated and
42128 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

21Comment PRLP–0054, ARCO Products

Company.

22April 7, 1995, and July 31, 1995, letters to

Steven Silverman (EPA Office of General Counsel)

and September 13, 1995 letter to Becky Daiss, from

Michael W. Steinberg (Morgan, Lewis & Bockius).

used in another production process (i.e.,

the overall coking operation) within the

same industry, imparts a closer

association with the concept of an

ongoing production process (see AMC I)

than would be the case for secondary

materials generated by a different

industrial sector. The Agency has no

information on which to base a finding

that the use of oil-bearing hazardous

secondary materials originating in a

non-refinery sector of the petroleum

industry in the coke quenching process

would be anything other than the

management of wastes (e.g., hazardous

waste recycling) from that non-refinery

sector.

In one sense, the exclusion for

recovered oil (as opposed to ‘‘oil-bearing

secondary materials’’), which spans the

scope of the broad petroleum industry,

reflects the Agency’s assessment that

only those hazardous secondary

materials that are comparable to normal

feedstocks (i.e., oil) used in typical

production processes should be

excluded from RCRA without attention

to how they are processed. Oil-bearing

secondary materials (as opposed to

‘‘recovered oil’’) originating from a nonrefinery sector have the potential to be

more waste-like (i.e., they are not clearly

‘‘oil’’ and also may contain types or

quantities of toxic constituents that have

not been evaluated, especially if their

ultimate use is in the quenching

process) and thus do not warrant an

exclusion. Therefore, the Agency is

today promulgating an exclusion for (1)

secondary materials that are similar to

normal refining feedstocks, even if

generated by a non-refinery petroleum

industry sector (i.e., recovered oil) and

(2) secondary materials that are both

generated by and used in any refinery

production process, including the

coking operation (i.e., refinery-generated

oil-bearing hazardous secondary

materials).

The Agency notes, however, that nonrefinery generated oil-bearing secondary

materials that are used in the quenching

process (i.e., hazardous wastes) may

nevertheless be legitimately recycled by

use in the quenching process,

depending on there being oil recovered

during the quenching process and no

adverse impact on the coke product.

The oil recovered during the coking

operation (including both conventional

coking and the quenching process) is

excluded from the definition of solid

waste under 40 CFR 261.4(a)(12). The

coke product produced from such

hazardous wastes, however, would be

subject to hazardous waste fuel

regulations. This does not represent a

change from current requirements,

because the current regulatory

exemption for coke produced using

hazardous waste (superseded by today’s

exclusion for refinery waste being

recycled) does not apply to coke

produced using anything but refinerygenerated waste.

Status of Residuals from Processing or

Recycling Excluded Oil-Bearing

Secondary Materials

EPA received comments stating that

the proposed rule did not clarify the

status of residuals generated from the

processing and recycling of excluded

oil-bearing hazardous secondary

materials.21 Specifically, certain oilbearing hazardous secondary materials

generated at petroleum refineries are

listed hazardous wastes if they are

discarded instead of recycled as

described in today’s rule. However, the

Agency is aware that these materials

may be processed in various ways prior

to insertion into the petroleum refinery,

depending upon the nature of the oilbearing material and the intended point

of insertion into the refinery. Some of

these processing steps may result in

residuals that are not suitable for

insertion, again based upon the choices

available to the refinery. If these

residuals are to be discarded, they are

clearly solid wastes and would not

retain their original hazardous waste

listing because of the exclusion. The

hazardous waste characteristics may or

may not capture these materials, and

therefore they could be disposed of

outside the Subtitle C system. The

Agency then became concerned about

situations where, for example, a listed

waste was generated and only

minimally processed to recover oil for

insertion into the refining process,

leaving behind a largely unchanged

residual that was to be discarded but

was no longer defined as listed waste.

The Agency agreed that this was a

potential problem with the exclusion,

and a subsequent request for comment

letter was sent to interested parties on

October 1, 1997. EPA requested

comment on whether the interested

parties viewed this situation as a

potential loophole, and what, if

anything, might be done to remedy it.

Responses to EPA’s request were

somewhat mixed. Some commenters did

not believe the loophole was a realistic

construction of the effect of the

exclusion, while others agreed that it

was indeed problematic and needed to

be addressed. After reviewing the

information submitted by commenters,

the Agency has decided that it would be

an undesirable outcome if listed wastes

were only marginally processed,

generating residuals that were not

recycled and escaped regulation.

Therefore, the Agency has slightly

modified the existing hazardous waste

listing description in 40 CFR 261.31 for

the F037 waste, to include in the listing

description any residuals generated

from recycling or processing oil-bearing

secondary materials that (1) would have

otherwise met a listing description

when originally generated, and (2) are

disposed of or intended for disposal.

2. Recovered Oil From Associated

Petrochemical Facilities

It is logical that the Agency evaluate

the integrated nature of petroleum

refining and petrochemical

manufacturing to further identify oilbearing materials that can be

permissibly classified as part of

‘‘ongoing manufacturing’’ within the

petroleum industry, and that are not

part of the waste disposal problem. In

proposing the exclusion for oil-bearing

materials from petrochemical operations

which are returned to refining, the

Agency had two important

considerations. The first consideration

was to encourage the recovery of a

valuable resource and reduce regulatory

uncertainties in cases where oil from

petrochemical facilities is returned to

petroleum refineries, specifically in

situations where the refineries generally

provide the raw materials (refinery

products) to the organic chemical

manufacturing facilities. The second

was to consider whether or not these

hydrocarbon streams have accumulated

toxic constituents through the various

chemical manufacturing processes,

constituents that have no value to the

petroleum refinery, are different from

the constituents typically encountered

in a petroleum refinery, and may be

inadequately managed through this

activity. Given the large and complex

nature of the organic chemical

manufacturing industry, this was not a

straightforward undertaking.

Accordingly, the Agency proceeded

cautiously, engaging in discussions with

representatives from both the chemical

manufacturing and petroleum refining

industries.22 As discussed at proposal,

the Agency agreed with industry

arguments indicating that because

significant volumes of materials

composed almost exclusively of oil from

petrochemical facilities are being

directed to various petroleum refining

processes, careful controls were in place
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42129

23 December 29, 1997, and January 22, 1998,

letters to David Bussard (EPA Office of Solid Waste)

from Ronald Shipley (Chemical Manufacturers

Association).

as a result of concerns about operational

upsets and product quality. (See 60 FR

at 57756). For example, representatives

from the petroleum industry have stated

that they have significant concerns

about the presence of organic chlorides

in their process units due to damage

from corrosivity. In addition, comments

submitted by the chemical

manufacturing industry describe

‘‘feedstock quality management

programs,’’ whereby the quality of

petrochemical recovered oil is routinely

evaluated and its contribution to

refinery product performance

determines its acceptability and value.

One commenter, an organic chemical

manufacturer, stated that due to the

critical nature of refinery finished

product specifications, all sources of

hydrocarbons to a petroleum refinery

are assessed to ensure their suitability.

This ‘‘suitability’’ of petrochemical

recovered oil is assessed either through

process knowledge or periodic analyses

of certain characteristics, including

water and solids content, gum-forming

compounds, and metals. As the Agency

has noted elsewhere in today’s rule, the

petroleum refining process can be

described as a process of separating

valuable product materials from the

contaminants inherent in the original

feedstock, crude oil. Based on

comments submitted by the organic

chemical manufacturing facilities that

supply these hydrocarbon streams to

refineries, refinery operators cannot

simply assume that certain

contaminants will be separated from

hydrocarbon feedstocks (crude oil or

petrochemical recovered oil) during the

refining process without potentially

causing equipment fouling, corrosion, or

problems with product quality. Further,

due to the integration between some

refineries and organic chemical

manufacturers, there is a shared stake in

avoiding costly shutdowns, operational

upsets, or other situations that might

compromise the overall safety and

profitability of the combined facilities. It

is from this perspective that EPA began

reviewing information indicating that

recovered oil from organic chemical

manufacturing facilities was acceptable

to the refinery as a substitute for crude

oil.

The Agency acknowledged in the

proposed rule that this potential

exclusion was based on a ‘‘very limited

set of data’’ (see 60 FR at 57756). At

proposal, EPA was interested largely in

how petrochemical recovered oil

compared to refinery recovered oil, in

terms of the parameters that would

indicate suitability of the material for

refining (e.g., specific gravity;

distillation temperature range; flash

point; hydrocarbon type; and sulfur,

ash, and total chlorine/halogen content).

EPA also was interested in comparisons

to the used oil specification, in part

because EPA has used the used oil

specification in a previous rulemaking

as a surrogate for product fuel oil.

Although EPA recognizes (and two

commenters independently agreed) that

there are shortcomings in using the used

oil specification in the context of

analyzing petrochemical recovered oil

(largely because of the purposes for

which the used oil specification was

derived) the specifications for metals

and halogens are a partial surrogate for

crude oil content. The Agency also

considered comparing the composition

of the petrochemical recovered oil to

‘‘comparable fuel specifications’’

currently being developed as part of a

separate Agency effort to define

specifications which would indicate

when a secondary material would pose

no greater risk when burned than a

fossil fuel, and therefore might be

defined as products, not wastes (see

proposed rule at 61 FR at 17460, April

19, 1996). However, comparing the

petrochemical recovered oil halogen

data to the comparable fuel specification

did not seem appropriate because the

petrochemical recovered oil is not being

burned as a fuel, but is instead being

inserted into a complex series of fuel

manufacturing processes (i.e., petroleum

refining), where contaminants are

removed and hydrocarbons are

converted into various fuel products.

In response to EPA’s request in the

proposed rule, data was received during

the comment period on samples of

various hydrocarbon streams from

organic chemical manufacturing

facilities (SIC code 2869) and nonorganic chemical manufacturing units

(representing SIC codes 2821, 2822,

2865) located at these same facilities.

EPA also received some data

representing other non co-located,

intercompany chemical manufacturing

facilities. The organic chemical

manufacturing data (representing SIC

code 2869) indicate that in comparison

to refinery recovered oil, the

petrochemical stream was similar, and

in some aspects, ‘‘better’’ than the

refinery sample (i.e., the petrochemical

recovered oil was a ‘‘narrower cut’’

requiring less refining, thus preferable

to a refiner). When comparing the

submitted data representing SIC code

2869, as well as a sample of refinery

recovered oil, to the used oil

specification, both samples were well

within the specification (with the

exception of flashpoint, which is not a

concern here). Regarding total halogens,

the highest concentration reported in a

sample of petrochemical recovered oil

was 3,400 ppm (parts per million ) total

chlorine. Irrespective of where this

number fell with regard to the used oil

specification for total halogens (at 1000

ppm EPA presumes mixing of used oil

with hazardous waste has occurred;

4000 ppm is an upper limit for burning

used oil without being subject to certain

requirements; see 40 CFR 279.11), the

Agency was concerned about the

possible source(s) of the halogens in the

petrochemical recovered oil.

Information submitted along with this

data indicates that chlorine could be

introduced in small amounts to

petrochemical recovered oil due to the

use of chloride-based catalysts.

Subsequent comments clarified that the

use of seawater as a ‘‘seal’’ in the

petrochemical facility’s oil/water

separation system was the source of the

chloride in that particular sample. The

commenter indicated that although the

use of seawater as a seal or barrier in the

separation tank results in some salt

entering the recovered oil phase,

because this particular hydrocarbon

stream is sent to a co-located petroleum

refinery to be managed along with crude

oil, the chlorides are removed in the

same process that removes chlorides

typically found in crude oil (i.e., the

desalter unit).23

In summary, in the analytical data

submitted in response to the proposed

rule, certain patterns in the composition

of petrochemical recovered oil were

evident, including a similarity in

composition to refinery recovered oil

being used as feedstock by the refinery.

Limitation on Petrochemical Recovered

Oil

As mentioned earlier, part of the

evaluation of whether or not these

recovered oils from petrochemical

facilities are part of an ongoing

manufacturing process within the

petroleum industry, and whether the

operation can be viewed as part of the

waste disposal problem, includes

whether or not these materials contain

toxic constituents not normally present

in typical refinery feedstocks and

intermediates. One concern that the

Agency has is the possibility that certain

hazardous wastes, particularly wastes

containing halogens, may end up in the

petrochemical recovered oils either

through inadvertent or intentional

mixing (i.e., ‘‘adulteration’’).
42130 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

Specifically, there are many secondary

materials that the EPA has explicitly

listed as hazardous (e.g., K-wastes at 40

CFR Part 261, Subpart D, under

‘‘Organic Chemical Industry’’). Many of

these wastes are highly-halogenated

residuals, and EPA studied each of these

waste streams at the time they were

listed and determined that their

management is easily capable of posing

significant risks unless done properly

(viz. with exceeding care, such as is

specified in the Subtitle C regulatory

standards). EPA believes that these

listed wastes are clearly distinct from

the petrochemical recovered oils

discussed here, and based on the

information EPA has received on the

recovered oils sent to refineries, these

listed wastes are not recycled in this

manner. To ensure that this

‘‘adulteration’’ of the petrochemical

recovered oils (by mixing listed

hazardous wastes) would be prohibited

under today’s final rule, EPA is limiting

the petrochemical recovered oil

exclusion to those recovered oils that

are hazardous only because they exhibit

the characteristic of ignitability (as

defined in 40 CFR 261.21) and/or

toxicity for benzene (40 CFR 261.24,

waste code D018). EPA believes that

petroleum refineries are able to handle

hydrocarbons that are ignitable and

contain benzene, given the types of

materials that are routinely managed at

these facilities; also, based on the

information EPA has received on these

materials, these are likely the only

characteristics that would classify these

petrochemical recovered oils as

hazardous.

Co-Located and Common Ownership

EPA proposed that the exclusion for

petrochemical recovered oil apply only

where the organic chemical

manufacturing facility is ‘‘associated’’

with the petroleum refinery, either by

being physically co-located or under

common ownership. As mentioned

previously, this was partly due to the

limited data the Agency had, but also

because EPA believed that the degree of

integration between a petrochemical

facility and a petroleum refinery that

occurs in co-located and/or co-owned

situations helped ensure more

familiarity with each other’s

manufacturing processes, composition

of products and intermediates, and

administrative procedures. These

attributes go beyond the strict

commercial relationship that is more

typical of transactions between buyers

and sellers of various secondary

materials, by-products, and

intermediates. However, the Agency has

not been able to develop a definition of

‘‘common ownership’’ that would be

clear and workable for such purposes.

As part of EPA’s continuing efforts to

redefine solid waste, defining common

ownership (as a possible means of

describing certain intracompany

transfers) also has been explored and

has proven very difficult. This is largely

because of the many complex ways in

which ‘‘ownership’’ can be defined from

both a financial and a legal perspective.

EPA believes that to attempt to do so

here would not prove effective.

However, EPA does believe that the

concept of ‘‘co-located’’ is more or less

understandable and reflects physical

boundaries as well as a degree of

integration that would help ensure more

control by each facility over the transfer

of materials throughout the combined

facility. ‘‘Co-located’’ in today’s rule

means that the petroleum refinery and

the organic chemical manufacturing

facility are physically adjacent to one

another, or otherwise share a common

boundary. In situations where the

facilities consider themselves co-located

but they are not physically adjacent nor

do they share a common boundary, the

Agency is further clarifying co-located

to include facilities that have a high

degree of integration with one another,

as evidenced by things such as shared

wastewater treatment systems; shared

manufacturing units; transfer of

materials via dedicated piping;

environmental permits that cover both

facilities; facilities that share common

emergency response equipment,

procedures, and planning; etc. These

examples can be typical of physically

co-located facilities, and therefore can

be used to clarify cases where for one

reason or another an integrated

petrochemical and petroleum refinery

do not actually share a common

boundary. Also, to better define the

relationship and degree of integration

between a petroleum refinery and the

co-located petrochemical facility, the

Agency is including in the definition of

‘‘associated organic chemical

manufacturing facility’’ in § 261.4(a)(18)

the condition that the petroleum

refinery that is receiving recovered oil

from a co-located petrochemical facility

also provides the hydrocarbon

feedstocks to the same co-located

petrochemical facility.

Other SIC Codes

In the proposed rule, EPA stated that

it would consider broadening the

proposed exclusion to include

hydrocarbon streams from certain other

chemical manufacturing facilities,

including plastic materials and resins

(SIC code 2821), synthetic rubber (SIC

code 2822), and cyclic crude and

intermediate producers (SIC code 2865),

if sufficient analytical data were

received to support such a broadening.

Much of the data that the Agency

received on recovered oil from these

other SIC codes actually represented

recovered oil from process units that are

located at petrochemical facilities

whose primary classification is under

SIC code 2869. In other words, many of

the organic chemical manufacturing

facilities can be described as vertically

integrated, where process units

classified under several SIC codes

operate in an integrated fashion. For

example, an organic chemical

manufacturing unit under SIC code

2869 may produce intermediates that

are then fed to a unit classified under

SIC code 2821. Both units may produce

hydrocarbon side streams that represent

unreacted feedstock or other

hydrocarbon by-products (consisting

almost entirely of oil), which are

typically commingled and sent to a colocated petroleum refinery for refining

along with crude oil. (Of the three colocated petrochemical facilities for

which the Agency received data on

recovered oil, only one of them was

engaged in operations classified solely

under SIC code 2869; the other two

facilities had units or activities from the

other SIC codes as well). The Agency

reviewed analytical data on recovered

oils from specific process units

representing SIC codes 2821, 2822, and

2865, and found these to be comparable

to refinery recovered oil.

Because the recovered oil from

process units classified under the SIC

codes 2821, 2822, and 2865 is similar to

refinery recovered oil (where these units

are part of vertically-integrated organic

chemical manufacturing facilities whose

primary SIC code is 2869), the Agency

is including these materials in the scope

of today’s exclusion. These materials are

typically managed together and returned

to the co-located petroleum refinery

together. Commenters also pointed out

that limiting the exclusion of recovered

oil to the primary SIC code, at a

complex where several SIC codes are

represented (and where the

hydrocarbons are similar and recycled

back to the petroleum refinery together)

may have a significant impact on

facilities with multiple SIC codes.

Commenters also argued that

segregating recovered oil systems based

on differing SIC codes could be

prohibitively expensive and may result

in a reduction in hydrocarbons returned

to the refinery. The regulatory language

in today’s exclusion at § 261.4(a)(18) for

petrochemical recovered oil will limit

the exclusion to recovered oil from
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42131

associated petrochemical facilities

whose ‘‘primary’’ SIC code is 2869

(organic chemical manufacturing), but

may also include SIC codes 2821, 2822,

and 2865.

B. Modeling Approaches and Risk

Assessment

Commenters provided extensive

comments on various aspects of the

modeling approaches and risk

assessment used in the listing

determinations. Many comments on the

determinations were raised repeatedly

for various wastes. Therefore, EPA

discusses the most important risk and

modeling issues below, and more

specific comments important for

individual wastes are addressed in

Section V.C on Residual-Specific

Comments. For complete responses to

comments on these and other issues, see

the Response to Comment documents

for comments on the proposed rule and

the NODA in the docket to today’s rule.

1. Sampling and Analysis of Refinery

Wastes

Use of the TCLP for Oily Wastes

EPA characterized the wastes through

an extensive effort of waste analysis,

including analysis for constituents that

leach out of the waste using the TCLP.

In the TCLP, the waste is filtered to

separate any liquid phase present, and

the solids are then mixed with an

aqueous solution in order to estimate

the levels of the waste constituents that

dissolve and separate into the liquid

phase. The Agency’s use of the TCLP as

input to groundwater modeling for

landfill disposal was challenged by

several commenters as either

underestimating or overestimating the

leaching of constituents from the

petroleum wastes studied, due to the oil

and/or the multiple phases present in

the wastes. EPA has decided that the

TCLP is appropriately used in this rule

to characterize the amount of hazardous

constituents potentially released from

landfills through aqueous leaching. As

discussed below, EPA found no need to

change its risk assessment because of

any failure of the TCLP due to potential

problems that might arise from the

presence of oil in some wastes.

One commenter argued that the TCLP

is very conservative because it assumes

that the waste is disposed of in a

municipal solid waste landfill, and

disposal of potentially hazardous

industrial wastes in a municipal landfill

is not a likely mismanagement scenario

today. The commenter also argued that

the TCLP is a water phase model, not a

multi-phase model (multi-phase

meaning wastes with high oil content

leading to release of nonaqueous as well

as aqueous phases). The commenter

claims that use of the TCLP to estimate

risks from oil-bearing residuals (e.g.,

CSO and crude oil storage tank

sediment) would produce overestimates

of potential risks.

EPA does not agree that the TCLP

overestimates leaching levels for these

wastes. EPA did not assume in its

quantitative risk assessment that oily

liquids elute from the landfill to

groundwater, because EPA’s initial and

subsequent analyses showed that oil in

the wastes in question was unlikely to

migrate from a landfill containing these

wastes. Thus, EPA did not use the TCLP

to predict movement of oily liquids.

While the commenter is correct in

stating that the TCLP procedure was

designed, in part, to represent leaching

from a municipal landfill, the industry

reported significant volumes of

residuals being disposed in precisely

the type of landfill modeled by the

TCLP. Specifically, EPA examined the

data collected from the 3007

Questionnaire and found that, in fact,

petroleum refineries reported 146

wastes that were sent to municipal

landfills (see Additional Listing Support

Analysis, 1998, in the docket for this

rule).

Other commenters felt that the TCLP

may underestimate the leachability of

constituents from the refinery wastes

due to high oil content. These

commenters pointed to an EPA report

presented in past rulemakings (e.g., the

listing of F037/F038 refinery wastes,

November 2, 1990, 55 FR 46376), which

indicated that the TCLP may

underestimate leachate concentrations

because of difficulties in the TCLP

procedure associated with filtering oily

wastes, such that any constituents in the

oily fraction in the waste are not

properly evaluated. The commenters

believed that EPA should use alternative

procedures for oily waste, specifically

the Oily Waste Extraction Procedure

(OWEP) rather than the TCLP.

EPA disagrees with these comments.

First, the report cited by the

commenters discusses difficulties in

filtering multi-phasic oily wastes

(Evaluation and Modification of Method

1311 for Determining the Release

Potential of Difficult-to-Filter Wastes,

April 1990). Multi-phasic wastes are

wastes with readily separable oil, solid,

and possibly aqueous portions. EPA’s

lab results show that the wastes under

study in this rule did not exhibit the

filtration difficulties EPA has found

with other, more problematic, oily

wastes. The wastes studied were not

multiple phases, heterogeneous, or

difficult to filter. While EPA measured

levels of ‘‘total oil and grease’’ (TOG)

that appeared high for some wastes (e.g.,

up to 25 percent for crude oil storage

tank sediment), the Agency stresses that

the TOG method measures all

extractable organic material, some of

which are not likely to migrate out of

the waste, such as waxes, greases, and

other large molecular weight substances.

The TOG method does not measure, in

any sense, ‘‘free’’ oil (i.e., oil that might

migrate from the waste as a separate

phase). Furthermore, the EPA report

cited by the commenter concluded that

the TCLP method was adequate, even

for some ‘‘oily’’ wastes, provided the

wastes could be filtered. EPA did not

encounter the types of problems

described in previous listings during the

present rulemaking.

Second, the Agency does not believe

that the use of the OWEP method is

necessarily more appropriate for the

wastes under consideration. The OWEP

method was designed to measure the

aqueous mobility of the metals (not

organics) present in wastes, and uses a

strong solvent to remove the organic

phase prior to leaching with the

aqueous leachate used in the TCLP. This

may significantly alter the original

sample matrix and affect the leaching

results, and the Agency recognizes that

this aggressive method may not be fully

representative of possible leaching from

a landfill. Despite these concerns, EPA

performed additional analysis of

archived samples using the OWEP to

fully respond to the comment by

examining any differences in metals

mobility between the TCLP and the

OWEP. The results of this analysis were

presented in the NODA. Based on the

results of this analysis, EPA found that

metal leachate results were similar

between the two tests. Therefore, EPA

concluded that oil content (as measured

by TOG) does not appear to impact the

mobility of metals in the wastes under

study.

Commenters on the NODA OWEP

analysis argued that the results showed

some increase in the mobility of several

metals in the wastes, and argued

leachable levels of arsenic, chromium,

and lead are higher in some of the

OWEP samples. However, the same

commenters also questioned the validity

of the OWEP reanalysis because three

years had elapsed between the TCLP

and OWEP analyses and pointed out

that the reanalysis was not useful since

the detection levels were higher for the

TCLP analysis.

EPA disagrees that any measurable

differences, of which there were few, in

the OWEP/TCLP results are dramatic or

meaningful. Overall, the OWEP results

are consistent with the original TCLP
42132 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

data; only 14 out of 189 OWEP values

were greater than the original TCLP

concentrations. Moreover, 8 of the 14

higher OWEP values were associated

with residuals that contained less than

one percent oil and grease, thus

indicating oil and grease content is not

a significant factor. In fact, the

variability within each waste category is

greater than the variability between

OWEP and TCLP results. Thus, any

differences are more likely due to

sample composition variability rather

than the leaching technique.

Furthermore, if oil content were truly

interfering with the TCLP analysis, one

would expect the wastes with higher oil

content to show correspondingly greater

leaching with the OWEP, but there is no

such trend in the data (see NODA

Response to Comment Document, 1998,

Section I.C.1, for more detailed

discussion of the OWEP data). While

there are limitations in the OWEP data,

the lack of any significant differences in

the data sets that can be compared

indicates that the use of the TCLP did

not underestimate the leaching of the

metals of concern.

In response to the commenters’

concerns over the use of the TCLP for

measuring the mobility of organics in

these refinery wastes, EPA examined the

analytical data for the wastes under

study to see if oil content (as measured

by TOG) significantly affected the

leachability of a key organic constituent

(benzene) and presented the results in

the NODA. For the 27 samples for

which the leaching efficiency of

benzene could be calculated, the

average efficiency was 53 percent, i.e.,

53 percent of the total mass of benzene

contained in the residual was extracted

into the aqueous phase. This efficiency

is governed by the solubility of benzene

in water, as well as benzene’s affinity

for the specific sample matrix. In any

case, while the leaching efficiency

varied somewhat from sample to

sample, the leaching rate was fairly

consistent regardless of whether the

waste contained higher or lower total

oil; the average leaching efficiency for

the six of the 27 samples which had

TOG above 1 percent (samples of crude

oil tank and CSO tank sediment) was

also 53 percent.

Comments on the NODA suggested

using the average leaching efficiency (53

percent) for modeling the key

constituent benzene for all waste

samples analyzed by EPA, regardless of

the actual TCLP results for each waste.

EPA disagrees with the suggestion to

use the simple average TCLP leaching

efficiency for all wastes studied,

because this would ignore important

waste-specific information. This

approach would overestimate benzene

levels for some waste and underestimate

levels for others. Leaching results are

dependent on the specific matrix, and

EPA believes that the actual TCLP result

is a better indicator of the potential

mobility rather than an average for all

wastes studied. The most important

point to draw from EPA’s evaluation of

leaching efficiency for benzene is that

these results indicate the TCLP mobility

of benzene is not greatly affected by the

oil content in these particular wastes.

Comments on the data presented in

the NODA also argued that EPA should

evaluate TCLP leaching efficiency for

constituents other than benzene, in

particular for polycyclic aromatic

hydrocarbons (PAHs). The commenters

were concerned the oil content and free

oil present in some wastes (CSO and

crude oil storage tank sediment) would

facilitate leaching of PAHs.

EPA disagrees that these constituents,

including benzene, will be more mobile

due to free oil in the wastes under

study, because the existing data show

‘‘free’’ oil is not present. EPA evaluated

the leaching potential of benzene

because this compound was found in

various wastes and was a key

constituent in the risk analyses due to

its high toxicity and relative mobility.

However, to respond to the comment,

the Agency further evaluated the

leaching potential of four additional

constituents (xylenes, naphthalene,

methyl phenol, and phenanthrene).

These results indicate that there is no

significant discernable trend with

respect to lower leaching values

associated with higher oil and grease

content (see data presented in Tables 5

through 8 in the NODA Response to

Comment Document, 1998, in the

docket for today’s notice). The

constituents generally leached in similar

proportions for all residual types. It is

not possible to calculate extraction

efficiencies for most PAHs because

these constituents were generally not

detected in the TCLP extract due to their

very low solubility in water. In any case,

EPA notes that the two wastes with the

higher measured TOG and PAH levels

(CSO and crude oil storage tank

sediments) are being listed as hazardous

waste, thus largely addressing this

concern.

Co-Solvency Effects

Some commenters felt that the TCLP

is inappropriate because it measures

only the movement of contaminants that

are dissolved in the liquid TCLP phase

into the groundwater, and thus fails to

consider the ‘‘co-solvency’’ effects of oil

and other compounds in the landfill.

Such effects, they argue, would facilitate

release and transport of constituents

beyond that predicted by the TCLP,

because of organic phases separating

from wastes. The commenters offered no

way to account for this in the modeling,

but indicated this would increase risks.

While the commenters’ concerns are

theoretically possible, EPA has no

evidence that the co-solvency effect is

significant in this case. To respond to

the potential for co-solvency effects due

to disposal of oily waste in landfills,

EPA examined the only available data

that provides any detailed

characterization of potentially codisposed wastes-data from the 3007

Questionnaire for the refinery wastes

under study. Thus, EPA examined the

TOG data available from the 3007

Questionnaire for the refinery wastes

that were reported to go to landfills. As

presented in the NODA, this analysis

showed that few wastes with higher

TOG levels (i.e., >10 percent) were sent

to landfills; of the 168 wastes with TOG

data, only 14 had reported TOG levels

at 10 percent or above.

Comments on the NODA analysis

argued that the data set was limited

because most samples landfilled did not

have TOG data, especially those that

would have higher oil content (e.g.,

crude oil tank sediment). Further,

commenters noted that some of the

larger volumes sent to landfills had

significant TOG levels.

EPA disagrees. While the data set is

limited, the data available clearly

indicate that refinery wastes with

relatively high oil content are not

typically sent to landfills. In response to

the comment that larger volumes sent to

landfills had significant TOG levels,

EPA estimated volume-weighted

average TOG levels for the wastes with

TOG data that were sent to on-site and

off-site nonhazardous landfills, and

found that these values were relatively

low, i.e., less than 1 percent for on-site

landfills and about 3 percent for off-site

landfills. These weighted averages

represent the TOG if all of these wastes

were sent to the same hypothetical onsite or off-site landfill. EPA notes that

this analysis of wastes sent to landfills

did not consider the impact due to

listing the wastes with the highest oil

content (i.e., CSO and crude oil storage

tank sediments) as hazardous under

RCRA. After listing, neither waste can

go to such a landfill and would no

longer contribute to any purported cosolvency effects. Finally, as discussed

above in response to comments on the

TCLP method, even those wastes with

higher TOG levels did not contain

observable amounts of free oil, which

might cause co-solvency. Therefore,

EPA believes that co-solvency effects
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42133

due to oil content of the wastes under

study are not likely to be significant.

One commenter also argued that other

compounds in wastes other than those

under study may lead to co-solvency

effects in landfills and provided specific

refinery examples of codisposal of

individual waste streams in 1992 and

Toxic Release Inventory (TRI) data to

show potential co-solvency effects.

EPA disagrees with the commenter’s

approach to using the TRI database to

calculate co-solvency effects at

refineries. First, EPA notes that the TRI

reporting form specifies that ‘‘quantities

reported on the form should . . . not

reflect the total quantity of waste or

constituents of the waste that are not

subject to reporting requirements.’’ In

other words, the reported quantities are

the mass loadings of the chemical

components in land-disposed wastes

and do not reflect the total quantity of

the waste itself. Since these chemicals

were managed in on-site Subtitle D

landfills, they must have been

components of wastes that did not

exceed the TC criteria, i.e., in the part

per billion (ppb) range. The ppb

concentration range was confirmed by

dividing the TRI loadings by the total

waste quantity disposed in the on-site

units identified by the commenter in

1992 as reported in the 3007

Questionnaire. Therefore, since these

‘‘solvent-type’’ chemicals would be only

a very small component of the waste,

their co-solvency properties would be

insignificant.

Laboratory and Field Methods

Two commenters claimed that EPA’s

lab and field methods were deficient.

Specifically, they believed that EPA

violated basic sampling protocols by

allowing samples to air dry prior to

collection. The commenter specifically

pointed out examples of CSO sediment

with lower volatile organic levels than

in other samples and examples of

unleaded tank sediment with lower

benzene concentrations than in other

samples. Based on these flaws, both the

total and leachable levels of volatile

organics (e.g., benzene) were

underestimated by EPA, according to

the commenter. One commenter also

argued that, by compositing samples,

EPA may have lost substantial amounts

of volatile compounds and that the

background document does not reveal

whether careful procedures were

followed.

The commenter misunderstood EPA’s

sampling descriptions which described

the refineries’ practices of air drying of

storage tanks generating the cited

wastes. This is a standard operating

procedure designed to comply with

basic occupational safety practices, so

that refinery personnel can enter tanks

for cleaning and inspection. In no case

did EPA allow for additional air drying.

EPA believes that the samples are

representative of residuals generated

throughout the industry. In response to

the commenter’s comparison of detected

benzene levels among three gasoline

tank samples, the Agency’s entire

sampling data set demonstrates a wide

concentration range for several wastes.

EPA maintains that this variability is

normal, and the Agency is neither

surprised nor concerned with the range

of benzene levels detected in the waste

samples mentioned by the commenter.

Finally, concerning the low levels of

benzene in the CSO samples, EPA

disagrees with the commenter that

benzene levels vary significantly across

these samples. Data in the proposed rule

background documents show that

benzene was only detected in one of

four samples at a level near the

quantification limit. The levels in the

other three samples were below the

quantification limit. This means that the

benzene levels were very low (at or

below the quantification level), and thus

the data do not in any sense show that

there is significant variability.

Field compositing procedures, when

necessary, were performed for the nonvolatile analytes only. EPA did not

composite samples for volatile analyses,

because the act of mixing the samples

may lead to loss of volatiles by

evaporation. The sampling and analysis

protocols used were consistent with

EPA’s analytical guidance and were

documented in Sampling and Analysis

Plans. Careful procedures were followed

in sampling conducted for volatile

analyses and loss of volatiles was

minimized.

The commenters also felt that EPA

did not correctly sample CSO sediment

or HF alkylation sludge. The

commenters stated that the practice of

mixing CSO sediment with cement kiln

dust (CKD) prior to sampling

misrepresented the liquid content of the

CSO sediment and EPA should not have

dewatered HF alkylation sludges.

In response, EPA notes that it

collected samples of such wastes that

were available after tank cleanout, and

in this specific case, it had been mixed

with CKD. This was done by the facility

prior to landfilling of the waste. While

this treatment may have altered some

properties of this sample, the oil content

(16 percent TOG) was relatively low,

compared to the other three samples of

CSO sediment collected by EPA (see

Table 3.1.18 in the Listing Background

Document, 1995). Even if the Agency

discounted entirely the analytical

results for the one sample mixed with

CKD, it would not impact the risk

assessment significantly, because this

would only raise average levels of some

critical PAHs slightly (approximately

10–20 percent). In any case, EPA is

listing this waste, so inclusion of this

sample had no material impact on EPA’s

final decision.

HF alkylation sludge dewatering is

conducted routinely by refineries, and

EPA collected most samples following

this step. In this case EPA believes this

waste form reflects the way the waste is

disposed in landfills. EPA did take one

sample of HF alkylation sludge directly

from the neutralization tank and

dewatered it in the laboratory to better

simulate the characteristics of the waste

as it would actually be generated.

2. Waste Management Assumptions

EPA described how the Agency

selected waste management scenarios

for risk analysis in the proposed rule,

and requested comments on its choice

of plausible management scenarios.

Some commenters wrote to support the

common sense approach the Agency

used in basing listing determinations on

plausible management practices. These

commenters stated EPA’s decisions

were based on current management

practices and believed EPA obtained

accurate and relevant data on the

residuals and management practices

through site visits and the 3007

Questionnaire. However, two other

commenters suggested the Agency

should evaluate risks from other waste

management practices. These practices

included waste management in surface

impoundments, use as on-site cover for

landfill or LTUs, use as road bed

material, and storage in a pile.

EPA does not agree that these other

management practices merit further

modeling. As EPA stated in the

proposed rule, while some of these

practices were reported for several

different wastes, they typically involved

small volumes or very few generators,

and are not expected to present

significant risk. The information

collected by EPA shows that the vast

majority of the waste volume that was

disposed on the land went to landfills

and LTUs, and the Agency focused its

modeling efforts on these scenarios.

The commenter specifically cited

management of several wastes in surface

impoundments (spent caustic, HF

alkylation sludge, off-specification

product and fines). However, EPA does

not believe these are significant as

described in the sections on individual

wastes (Section V.C). In general, surface

impoundments at refineries are an

integral part of the wastewater treatment
42134 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

system, and EPA did not typically

evaluate this system in detail for the

reasons noted in the proposed rule.

Briefly, risks from such treatment are

unlikely to be of concern because: (1)

treatment is already regulated under the

National Pollutant Discharge

Elimination System (NPDES) and air

programs; (2) primary sludges generated

from wastewater treatment are already

regulated as hazardous waste (K048,

K051, F037, F038); (3) volumes of the

discharged residuals under evaluation

are relatively small in comparison to the

volumes typically treated; (4) the

wastewater treatment systems are

designed to treat refinery wastes

effectively. Furthermore, in some cases

units receiving the waste were not, in

fact, surface impoundments, but tanks

(e.g., HF alkylation sludges), or other

concrete-lined units used as part of

refinery processes (e.g., coke drilling

pads for off-specification product and

fines). See Section V.C for the specific

wastes in question for further

discussion, and Section V.D on the

headworks exemption for other analyses

related to wastewater treatment systems.

Two commenters argued that the use

of crude oil tank sediment and CSO tank

sediment as landfill cover or on-site

road material should be evaluated. One

commenter stated that EPA’s own

preliminary assessments for uncovered

landfills show that use of these wastes

as a landfill cover or for on-site road

material poses high cancer risks for

subsistence farmers and home gardeners

and high risks from mercury exposure

for subsistence fishers. Finally,

according to the commenter, it is

incorrect to assume that EPA’s modeling

of LTUs would account for risks posed

by road spreading or other uses

constituting disposal.

The Agency disagrees that these

scenarios were not adequately

considered, and the Agency does not

believe that they would present

significant risk. These practices were

exceedingly rare, e.g., the one refinery

which managed its crude oil tank

sediment as ‘‘cover for on-site landfill’’

in 1992 no longer uses that landfill. In

addition, the risks for crude oil tank

sediment cited by the commenter were

based on bounding levels, and resulted

from a preliminary screening analysis

designed to overestimate possible risks

for landfills. Such bounding estimates

use worst-case assumptions for all

sensitive parameters to screen out

exposures of little concern, and to

identify what pathways require further

analysis. Furthermore, the apparent

risks in the bounding analysis were

based on incorrect biotransfer factors

(used in beef, dairy, and plant indirect

paths), which EPA has since determined

to overestimate worst-case risks by at

least two orders of magnitude. Likewise,

the apparent problem from mercury was

also traced to an error in units for the

bioaccumulation factor used and when

corrected mercury does not present any

significant risk in these wastes. Thus,

EPA believes that the bounding analysis

was flawed and grossly overestimated

risks. Similarly for CSO sediment, EPA

also notes that only two refineries

reported using CSO sediment in road

bed material in 1992. EPA believes that

the modeled land treatment conditions

are conservative surrogates for road

spreading because: (1) The volumes and

areas assessed for land treatment greatly

exceed the reported road spread

volumes and areas, (2) road spreading

usually involves mixing with gravel,

asphalt, dirt, etc., thereby diluting

toxicants below that represented by the

wastes modeled for land treatment and

reducing risk; and (3) road spreading

creates a stable road base, which is

compacted and then covered by

additional fill, aggregate, or pavement,

making material less apt to wash away,

erode, leach, or enter non-groundwater

pathways than material managed by

land treatment. Finally, the issue is

moot because the two wastes

specifically cited by the commenters

(crude oil and CSO tank sediments) are

being listed, thereby preventing these

rare practices in any case.

One commenter stated that the

Agency did not properly evaluate the

storage of wastes such as offspecification products and fines (i.e.,

coke-derived fines) in piles. The

Agency’s response to this issue is given

in Section V.C for the specific waste in

question. EPA evaluated each waste

being studied to determine whether

waste was being generated frequently

enough to pose a potentially significant

risk, and if so, whether it was

appropriate to model interim storage

(e.g., tanks, containers, piles). In most

cases, the exposure risks of most

concern are associated with long-term

final disposal, and short-term storage

was not judged to pose significant

potential risk. Many residuals are

generated infrequently, e.g., sediments

from tanks are cleaned out about every

10 years. EPA did model interim storage

of certain wastes that were generated

more frequently when appropriate (i.e.,

spent caustic, sulfur complex sludge).

Two commenters stated that by

modeling management practices and

volumes based only on what occurred at

the time of EPA’s survey in 1992, EPA

substantially understated risk and does

not reflect the potential for waste

management volumes and practices that

may occur in the future. They argued

the modeled volumes and practices are

‘‘forever fixed’’ and merely reflect a

snapshot in time.

EPA does not agree that the volumes

and practices used in modeling

understate risks. Based on the economic

factors affecting the refining industry

and practices observed during the

Agency’s field investigation, 1992 was a

typical year for refinery operations. As

described in the annual report issued by

the Department of Energy (DOE/EIA

Petroleum Supply Annual 1992,

Volume 1; May 1993), in 1992, the

national economy was not in extremis,

capacity rates were high, and plant

closings and openings were within

normal ranges. Furthermore, the DOE

report for 1995 shows economic and

production trends for crude oil and

petroleum products. While prices for

petroleum products and crude oil varied

from 1985 to 1995, no unusual spikes or

dips occurred during this time, and

product production remained fairly

constant over this time period.

In addition, EPA reviewed API’s

Generation and Management of Residual

Materials, 1992–1993 Appendix C,

which provides trends of waste

generation from 1987–1993. In general,

1992 was representative when

comparing waste generation and

management for the API waste

categories and the residuals under

review. Only hydroprocessing catalysts

showed a slight increase in production

that year possibly due to the new lowsulfur diesel regulations. In developing

reasonable management scenarios for

subsequent risk assessment modeling,

EPA considered some potential shifts in

management practices. These

considerations are discussed in the

context of each specific waste (see

Section V.C). For the remaining

residuals, EPA considered the industry

to be stable, and thus assumed that 1992

provided a reasonable picture of the

petroleum refining industry’s practices.

EPA’s approach was not ‘‘forever fixed’’,

but used 1992 as a reasonable starting

place for assessing the industry’s waste

generation and management practices.

Finally, EPA notes that its survey of

refineries was a complete census of the

industry, and gathered information from

all active petroleum refineries in the

United States. It is reasonable for the

Agency to conclude that the large

amount of information gathered in its

1992 survey of petroleum refineries

related to waste generation,

management, and disposal practices is

representative of such practices in any

year. While individual refineries may

change practices in any given year, the

overall pattern of these practices,
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42135

including waste volumes and the

potential environmental risks posed, are

unlikely to change significantly for the

industry as a whole. Therefore, EPA has

no reason to believe that 1992 was not

a representative year.

The commenter also stated that waste

volumes modeled in the NODA risk

assessment were inappropriate because

the individual waste volumes modeled

for land treatment were typically much

smaller than modeled for landfilling,

even though there is no legal or

technical bar for the wastes to be

managed in either fashion during any

given year. The fact that refineries relied

upon land treatment less in 1992 is not

necessarily indicative of future

practices.

In response to the commenter’s

concern regarding the transferability of

wastes between land treatment and

landfilling, EPA notes that a refinery

may choose different disposal practices

based on a variety of considerations,

two of which are particularly important.

First, the refinery must consider the

waste’s characteristics. Wastes with

higher liquid content are more likely to

be land treated due to the moisture

requirements of the land treatment

process, while dewatered wastes are

more likely to be landfilled due to cost

and waste volume constraints (e.g.,

more waste costs more), and liquid

content. This is supported by the data

collected in the 3007 Questionnaire,

which show that wastes sent to land

treatment contain on average higher

TOG and water than wastes sent to

landfills. The average oil and water

content reported for landfilled wastes

were 5.9 percent and 7.5 percent

respectively, compared to average oil

and water levels of 14 percent and 17

percent for land treated wastes. The

second important consideration

regarding the transferability of wastes

between landfills and LTUs is

availability of the two disposal methods

for each refinery. Certainly, on-site

Subtitle D LTUs are rather limited and

may not be available to many refineries.

As described in information EPA

provided in the NODA, EPA’s database

showed only one facility with both onsite nonhazardous landfill and

nonhazardous LTUs (see Supplemental

Background Document-Listing Support

Analysis, April 1997 in the docket, p.

15) and only six nonhazardous LTUs for

all refineries (ibid., p. 30). Thus, to

project that large volumes of waste

would shift between landfills and LTUs

appears implausible. Finally, assuming

for the sake of argument that such shifts

did occur, it is possible that any change

in waste management practice for one

refinery would be offset by the opposite

change by another refinery, in effect

balancing out any changes from year to

year.

3. Codisposal of Wastes

Two commenters noted that the waste

volumes do not reflect either the actual

or potential for codisposal of wastes

(i.e., disposal of two or more wastes in

the same unit). Such codisposal of the

wastes is found in several instances in

EPA’s database for on-site and off-site

units receiving these wastes. The

commenters argued that codisposal

would increase risks for the individual

wastes evaluated by EPA, because the

greater volumes would release more

toxic constituents. The commenters

noted that EPA found waste volume to

be an important parameter, especially in

the groundwater model.

In response to these comments EPA

first notes that its modeling for the

proposed rule and NODA did, in fact,

combine volumes in cases where the

same landfill accepted multiple portions

of the same waste stream for disposal.

Thus, volumes of the same residual sent

to the same landfill were aggregated and

placed into the waste volume

distribution for use in modeling. In

response to this comment, however,

EPA expanded its analysis in the NODA

to include codisposal of all 14 residuals

examined for this listing determination

that were landfilled, as well as another

set of 15 refinery wastes that were under

study. This analysis excluded only (1)

wastes that were proposed for listing,

because they could no longer be placed

in a nonhazardous landfill (spent

hydrotreating and hydrorefining

catalysts), and (2) any wastes that were

not landfilled at all (e.g., spent caustic).

EPA combined the waste constituent

and TCLP data for individual wastes by

weighing the concentrations determined

for each waste according to the volume

of the wastes used. Thus, volume

weighted waste and TCLP

concentrations were used to construct a

hypothetical scenario of all these wastes

being in one generic on-site or off-site

landfill. The codisposal analysis

showed risks below 1E–5, which EPA

does not view as significant. Revising

this assessment to reflect the changes in

the off-site landfill scenario as described

elsewhere in this Section, the high-end

risks were 8E–6, and remain below 1E–

5 (see Table IV–2).

However, comments on the NODA

argued this analysis was flawed,

because EPA used only median volumes

for each waste, and did not undertake a

full sensitivity analysis for the high-end

risk analysis. In response, EPA notes

that the NODA also presented a Monte

Carlo analysis of the codisposal

scenario, which used the full volume

distribution for these wastes, not just

the median volumes, and even at the

99th percentile, the Monte Carlo risk

was below 1E–5. After revising the

input parameters and Monte Carlo

assumptions for off-site landfills as

described earlier in this Section, the

Monte Carlo risks remain low (3E–6 at

the 95th percentile; see Table IV–2).

Commenters also argued that EPA’s

codisposal approach did not consider

codisposal with other refinery wastes in

landfills that are not under examination

by EPA in the listing determination or

the study. One commenter submitted

analysis that attempted to account for

the on-site codisposal of the wastes

under study by increasing the combined

waste volume to include on-site landfill

volumes reported in the 3007

Questionnaire. The commenter also

assumed that each waste was sent to the

same landfill for 40 years. These

assumptions resulted in an increase of

about 5-fold in the total volumes

modeled. However, the commenter

noted merely increasing this volume

alone did not significantly increase risks

for the codisposal scenario. The

commenter went on to assume that the

codisposed wastes (i.e., the wastes that

were not part of EPA’s current listing

determination or study) would contain

sufficient benzene to leach at one-half

the TC (i.e., 0.25 mg/L). The

commenter’s analysis also made other

changes to EPA’s modeling

assumptions, including assuming all

wastes leach benzene with an efficiency

of 53 percent, and that the receptor well

is located on the centerline of the plume

of contamination (see discussion later in

this Section on groundwater issues).

With these further set of assumptions,

the commenter estimated high-end risks

up to 4E–5.

EPA does not find the commenter’s

codisposal analysis compelling for

several reasons. First, the assumption

that the codisposed wastes will all leach

at one-half the TC level is speculative

and without foundation. In fact, the

existing data available to EPA for the

refinery wastes under study show that

very few of these wastes contain such

high levels of benzene. EPA has no valid

reason to project that benzene levels in

other codisposed wastes would be

drastically different, as assumed by the

commenter. Also, EPA does not agree

with other modeling assumptions used

by the commenter, and the Agency has

arrived at a different conclusion in its

modified risk analysis. As noted later in

this Section, EPA believes the

commenter’s assumption about well

location and landfill active life are

incorrect. (EPA used a 30-year life and
42136 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

treated well location as one of the

variable parameters). EPA’s revised

high-end and Monte Carlo analyses did

not change significantly (see Table IV–

2), even when using the larger volume

inputs. This is consistent with the

commenter’s initial results, as noted

above. Furthermore, EPA notes that the

final listing decisions would tend to

lower any codisposal risk, because of

EPA’s final listing of two other wastes

as hazardous, crude oil, and CSO tank

sediment. Both contributed leachable

benzene to the codisposal analysis

performed by EPA (and the commenter),

thus with these wastes removed from

any possible codisposal with the

remaining wastes, any risks from

codisposal should be lower than

estimated with them included.

Finally, EPA questions how relevant

such a codisposal analysis would be,

even if it could be done to the

commenter’s satisfaction. EPA is not

attempting to list landfills that may

contain a variety of wastes, but rather

the Agency is trying to determine

whether an individual waste merits

listing, based on the incremental risk

posed by a specific waste. To properly

factor in all wastes that are in each

landfill would require extensive sitespecific information that would be

essentially impossible to gather, and

would require speculation about what

wastes would be sent to a disposal unit

and how long disposal of such wastes

would occur. This could create an

analysis difficult to interpret for use in

listing determinations. In any case, this

is not necessary to protect human health

and the environment, because EPA’s

analysis shows the risks from codisposal

are below levels of concern.

EPA also evaluated the impact of

codisposal on the risks from land

treatment of the wastes under study,

and provided this analysis in the

NODA. Constructing a hypothetical LTU

that contains all of the wastes so

managed is unnecessary, given the very

limited number of nonhazardous units

that are available for land treatment. Of

the 172 refineries in the 3007

Questionnaire, only 13 nonhazardous

units were reported to receive any of the

residuals of concern ( 6 on-site and up

to 7 off-site LTUs). The risks from land

treatment of individual wastes were

dependent on the PAH content in the

waste, thus the waste with high PAH

content, CSO sediment, yielded

significant risks when evaluated by

itself. As shown in the land treatment

risk analysis in the NODA, none of the

other wastes when evaluated

individually had risks approaching 1E–

6. EPA found only one on-site LTU and

three off-site LTUs that received more

than one waste under study in 1992

containing any PAHs of concern.

Because of the limited codisposal found

in LTUs, EPA examined the potential

risks from the actual disposal reported,

assuming that wastes proposed for

listing (most notably CSO tank

sediment) were removed. Because few

other wastes had appreciable PAH

content, the codisposal analysis yielded

negligible risk. Crude oil storage tank

sediment was included in the

codisposal analysis, however, EPA has

since decided to list this waste.

Therefore, removing this waste, which

contains moderate levels of PAHs, from

any codisposal analysis would further

reduce the likelihood that codisposal of

the unlisted wastes in LTUs will yield

significant risk.

4. Impact of Hazardous Characteristic

Regulations

Wastes Exceeding the TC

Some commenters stated that the risk

assessment in the proposed rule

overstates the risks from benzene and

arsenic (the key constituents of concern

for the wastes proposed for listing)

because EPA included benzene and

arsenic TCLP concentrations in excess

of the TC limit for these compounds.

The commenters suggested that EPA

should calculate groundwater risks from

Subtitle D landfill disposal of crude oil

tank sediments and spent hydrotreating/

hydrorefining catalysts by using only

the data that does not exceed the TC

limit. Commenters noted that EPA’s risk

assessment assumed that no RCRA

Subtitle C controls were in place for any

of the management scenarios; therefore,

including any waste samples that

exhibited the TC (i.e., for benzene) in

the risk assessment would lead to

unrealistically high risk.

To respond to the commenter’s

concerns, the Agency presented further

analysis in the NODA resulting from

groundwater modeling runs in which

the input TCLP data for wastes that

exceeded the TC threshold were

‘‘capped’’ at the TC level. Thus, EPA

used the assumption that wastes could

contain toxic constituents at or near the

TC threshold, and that such data should

be included in the risk assessment. EPA

notes that the groundwater risk analysis

in the proposed rule, as well as in

subsequent analyses, did not include

waste volumes reported in the 3007

Questionnaire to be hazardous and sent

to hazardous waste Subtitle C landfills

in the volume distributions used in

modeling risks from nonhazardous

Subtitle D landfills. EPA believes this is

reasonable because these volumes were

handled as hazardous and would not

affect risks from Subtitle D units. This

point is discussed further in the

following section in the context of

comments on volumes used in modeling

LTUs.

The final revised groundwater

analyses (see Table IV–2) showed some

reduction in risks, using the TC-capping

assumptions. However in all cases the

high-end risks for these TC-capped runs

exceeded the 1E–5 risk level for both

benzene and arsenic. The 95th

percentile Monte Carlo risks also

exceeded 1E–5 for one key constituent

(arsenic) for the spent hydrotreating and

hydrorefining catalysts analysis. The

TC-capping has essentially no effect on

groundwater risks from arsenic in these

catalysts, and the modeling results for

these specific wastes are discussed in

more detail below and in Section V.C.3.

Two commenters responded to the

Agency’s analysis on the capping of

waste concentrations at the TC levels by

arguing that EPA’s ‘‘cap’’ was too high,

and provided alternative methods that

would result in lower input values for

benzene and arsenic for the spent

hydrotreating and hydrorefining catalyst

wastes. EPA had capped the average

TCLP input data for the high-end

analysis at the TC level, while the

commenters suggested capping each

individual sample before averaging. The

commenters noted that EPA’s Monte

Carlo analysis used the original TCLP

data and substituted the TC threshold

for individual values that exceeded the

TC. Using the approach applied by EPA

in the Monte Carlo analysis, the

commenters calculated that the average

TCLP concentrations decreased to 60

percent of the TC level used in the highend analysis.

The Agency believes that its approach

is more appropriate for the conservative

high-end risk analysis, but notes that the

Monte Carlo analysis, effectively, does

what the commenter suggests. The

Agency performed the TC-capped

analysis to assess the level of risk that

might occur, assuming wastes that

exceed the TC threshold are managed as

hazardous wastes. Therefore, EPA

believes that capping the actual input to

the high-end model is appropriately

conservative. As discussed in detail in

the discussions for specific residuals

(see Section V.C), the Agency believes

that even the Monte Carlo TC-capping

analyses support listing these wastes.

For the catalysts, EPA notes that using

this alternative approach in the highend analysis is unlikely to affect the

listing decision because: (1) the

pyrophoricity of the wastes supports

listing these wastes, (2) the arsenic risks

would remain very high under either

TC-capping approach, and (3) the high-
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42137

end risks for benzene remain of concern.

To explain the second point, EPA notes

that the TC-capping has no effect on

hydrotreating catalyst because none of

the samples exceed the TC level for

arsenic. For hydrorefining catalysts,

which did have some values above the

TC level, even if the lower average

arsenic input levels assumed by the

commenters were used, the arsenic risks

would remain above 1E–4. (Note that

the risk results are not very sensitive to

the TCLP input level for arsenic under

the conditions modeled, because this

chemical moves very slowly in

groundwater, causing the maximum

receptor well concentration to be

relatively insensitive to the starting

leaching concentration.)

Another commenter objected to

capping waste samples at the TC level,

particularly for benzene, arguing that

this implies the toxicity characteristic

may be an appropriate alternative to

listing the wastes. The commenter

stated the TC-capped modeling and the

underlying implications are wrong

because (1) the TCLP is unreliable for

oily wastes, (2) a generator may apply

‘‘knowledge’’ in lieu of testing, (3)

generators may render inaccurate

determinations, and (4) the

characteristic does not consider the high

PAH content of some wastes.

EPA generally agrees that for the

wastes at issue, crude oil tank sediment

and spent hydrotreating/hydrorefining

catalysts, the TC does not provide

sufficient regulatory control for the

various reasons stated in the residual

specific discussions in Sections V.C. As

shown by the TC-capped modeling

analysis, the risk levels remain at levels

of concern, whether or not EPA assumes

wastes exceeding the TC levels would

be managed as hazardous. Furthermore,

as discussed later in this section on the

use of the TC as an alternative to listing,

EPA believes that listing these wastes is

supported by other factors.

EPA does not agree with the

commenter’s claim that the TCLP is

unreliable for the wastes evaluated in

today’s rule (see discussion at the

beginning of Section V.B.1). While EPA

agrees that inaccurate determinations by

generators may occur due to the

difficulties associated with sampling

some wastes (see discussion in Section

V.C.1), the Agency believes that the use

of a generator’s knowledge in lieu of

testing is appropriate in many cases.

Finally, the Agency agrees that, to the

extent potential risks from PAHs are not

controlled by the TC, wastes should be

listed. This may occur because PAHs are

not TC constituents, as noted in the

following section on use of the TC as an

alternative to listing. Therefore, if a

particular waste exceeds TC levels only

some of the time, any PAH risks would

not be adequately covered for those

instances where the waste does not

exceed the TC levels.

Eliminating Hazardous Waste Volumes

In allocating volume inputs for the

groundwater and nongroundwater

modeling, EPA omitted waste volumes

that were reported to be hazardous (i.e.,

exhibited a characteristic defined in 40

CFR 261.24). EPA had not done this in

the proposal for wastes sent to land

treatment, and for inadvertently

modeled hazardous waste volumes that

were, in fact, disposed of in permitted

hazardous waste LTUs. EPA corrected

this in the risk analysis for land

treatment presented in the NODA. One

commenter disagreed with EPA’s

approach of not counting waste volumes

managed as hazardous in 1992, and

noted this dramatically reduced the

high-end volumes of crude oil storage

tank sediment used as input to the

NODA risk assessment for land

treatment disposal. The commenter

stated that the ‘‘recalculations’’ for land

treatment volumes are based on the

unverified assumption that because

certain wastes were managed in 1992 as

hazardous, they will always be managed

as hazardous. The commenter argued

that by excluding these wastes, EPA is

implicitly relying on the existing TC in

lieu of listing the waste, and therefore

making the same policy errors as the

landfill TC-capping modeling

(discussed above).

EPA does not agree with this

comment. The wastes that were

excluded for the revised land treatment

modeling were, in fact, reported to be

hazardous in the 3007 Questionnaire.

While some wastes may exhibit a

characteristic sometimes, and not at

others, EPA has no reason to believe

that 1992 was not a typical year. Thus,

EPA could reasonably assume that

similar amounts would be hazardous

from year to year, and such variation

should not lead to significant changes in

the risk analysis. While excluding these

volumes does rely on the TC as the

commenter noted, this reliance seems

justified because these wastes did, in

fact, exhibit the TC and were reported

to be managed as hazardous.

Furthermore, EPA notes that the waste

of primary concern to the commenter,

crude oil tank sediment, is being listed

as hazardous in any case due to

groundwater risks from landfill

disposal. For the other wastes modeled

in LTUs, removal of volumes regulated

as hazardous did not alter the risk

results significantly, i.e., the median

and 90th percentile volumes were only

slightly different (see Table 2.1 in the

NODA nongroundwater risk assessment

background document, Supplemental

Background Document;

Nongroundwater Pathway Risk

Assessment, March, 1997).

Use of the TC as an Alternative to

Listing

Some commenters indicated that the

use of the TC adequately regulates

potential risks, and therefore, makes

listing of the refining process residuals

unnecessary. Others commented that

the TC does not adequately capture

wastes that should be regulated, and

supported the proposed listings.

In response, the Agency notes that its

listing decisions are based on a weightof-evidence approach, which evaluates

various factors, including the results of

the risk analysis. In general, EPA may

consider listing wastes that frequently

exhibit a characteristic if risks are not

adequately controlled by the

characteristic. The TC, for example, was

based on an evaluation of potential

threats constituents may present if

released to groundwater (see 55 FR

46369; November 2, 1990). Thus, for a

waste that is TC hazardous, EPA may

consider listing if other pathways

besides groundwater present a risk, if

other constituents in the waste are not

included in the list of TC constituents,

or if a waste with levels of TC

constituents below characteristic

thresholds still shows significant risk

for some situations.

In today’s rule, EPA is finalizing

listings for the two spent catalysts and

crude oil tank sediment, even though

these wastes are often characteristically

hazardous, because risks from

landfilling these wastes are not

adequately controlled by the TC (see

specific waste discussions).

Furthermore, EPA is listing another

waste, CSO tank sediment, that often

exhibits the TC characteristic for

benzene, because the TC does not

effectively control risks presented by

PAHs in LTUs via nongroundwater

pathways. The TC was developed to

provide protection against potential

risks from the contamination of

groundwater by leachate from land

disposal units, and was not designed for

nongroundwater pathways. In addition,

PAHs are not on the list of TC

constituents.

5. Other General Risk Issues

Consistency With Past Listings

One commenter stated that EPA’s

methodology for the current listing

determination is inconsistent with

previous Agency practice and policy,
42138 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

specifically with the finalized

carbamates listing and the previous

petroleum listing. The commenter noted

that, for the carbamates listing rule

(February 9, 1995; 60 FR 7825), EPA

computed landfill waste volumes

according to the quantity of wastes that

could be landfilled, not just the quantity

that happened to be landfilled in the

reporting year. The commenter provided

examples in the current listing proposal

where waste volumes for land treatment

exceeded the volumes for landfilling,

and argued that the volumes used in the

landfilling assessment were therefore

too small. The commenter also noted

that EPA considered the codisposal of

solvents and other oily wastes in

petroleum refining waste management

units as part of its 1990 listing

determination for refinery wastewater

treatment sludges, F037/F038

(November 2, 1990; 55 FR 46354).

As a general response, EPA notes that

the commenter did not take into

consideration the evolving nature of the

Agency’s risk assessment process and

policies. EPA’s risk methodologies have

progressed over the years, and the

modeling tools have been refined. The

earlier rule cited by the commenter, the

listing decision for treatment sludges

(F037/38), did not, in fact, rely on

modeling, but rather used a more

simplistic approach based on a

comparison of waste constituent

concentrations to health-based levels.

Given the modeling tools currently

available, EPA no longer believes such

an approach is appropriate, because it

does not take into account the potential

for waste constituents to be released

from the waste units, their fate and

transport in environmental media, and

the levels to which receptors may

ultimately be exposed. In today’s rule,

EPA has used various models to

estimate the release and transport of the

toxic chemicals of concern, and the

Agency believes such an approach is

more useful in projecting the potential

risk to exposed individuals.

While EPA did perform modeling as

part of its risk assessment in the

carbamates listing cited by the

commenter, this was essentially the first

time the Agency attempted to use such

modeling to support listing decisions.

Thus, EPA made various simplifying

assumptions. For example, EPA created

a hypothetical off-site landfill for

modeling by assuming that all of the

carbamate wastes under examination

would be placed in the same off-site

unit. Such a simplifying assumption

would be unrealistic in the current

rulemaking, given that the petroleum

refining industry consisted of 185

facilities in 1992, and that these

facilities were widely distributed

throughout the country (for comparison,

the carbamates industry comprised 23

facilities). To use the same approach as

was used in the carbamates rule, i.e., to

assume disposal of all wastes in one

landfill, does not appear reasonable in

the current rulemaking.

Therefore, EPA believes that the

approach used in today’s rule is a

reasonable progression of EPA policy.

For responses to the specific comments

related to the use of volumes reported

for land treatment and landfills, see the

discussion on Waste Management

Assumptions, which appears earlier in

this section. Elsewhere in this rule EPA

also responds to comments related to

codisposal (Section V.B.3) and cosolvency (Section V.B.1).

The commenters also argued that

previous listing determinations were

based on lower levels of contaminant

concentrations than those found in

wastes being considered in this notice,

and that the wastes under consideration

in this rulemaking should be listed. For

example, the commenter pointed out

that the average total concentration of

benzene and PAHs, such as

benzo(a)pyrene found in crude oil tank

sediment exceeds the level of benzene

in F037 and F038 that caused those

wastes to be listed in 1990.

EPA recognizes that crude oil tank

sediment and other residuals

characterized in this listing

determination may contain

concentrations of some constituents

comparable to previously listed wastes,

including the F037 and F038 refinery

residuals. However, direct comparison

of these concentrations to previous

listing benchmarks is not an adequate

basis for listing. Listing determinations

consider many factors beyond the

concentrations of constituents in a

waste, including the waste volume,

constituent mobility, management

practices, damage cases, other

regulatory controls, etc. (see 40 CFR

261.11(a)(3)). As noted above, the listing

of F037/F038 sludges did not use

modeling for support, but instead relied

on constituent concentrations, as well as

various other factors. The other factors

that EPA relied on in this listing

included the very large volumes of

F037/F038 generated (over 400,000

metric tons per year), the widespread

use of surface impoundments to manage

the wastes, and damage cases.

Therefore, merely comparing

constituent levels may not provide a

useful measure of what wastes should

be listed. Furthermore, as noted above,

EPA’s risk assessment process has

evolved, and the Agency has developed

a more sophisticated set of risk

assessment tools than were available for

listing determinations in 1990. As a

result, EPA believes that it is better able

to measure and predict risk now than

previously, and that the better

procedures and methodologies should

be used.

Individual Versus Population Risk

Several commenters stated that the

population risks estimated by EPA do

not justify a decision to regulate the

wastes proposed for listing

(hydrotreating and hydrorefining and

clarified slurry oil sediment), and that

consideration of the risks posed by these

landfills to the entire population

potentially exposed would lead to the

conclusion that these residuals do not

pose substantial hazards to human

health, and thus, should not be listed as

hazardous wastes. Commenters argued

that EPA’s failure to give serious

consideration to the low levels of

population risk is at odds with the

statute, the listing criteria, and

regulatory precedent within the federal

government. The commenters claimed

that, due to the low populations risks,

EPA cannot conclude that any of these

residuals ‘‘is capable of posing a

substantial present or potential hazard

to human health or the environment,’’

as required in 40 CFR 261.11, and

should not list any of these residuals.

In response, EPA notes that

‘‘population risk’’ is not explicitly used

in either the RCRA statute or the

hazardous waste listing regulations in

40 CFR 261.11. EPA does not believe it

is appropriate to allow contamination

from waste management units to cause

substantial risk to nearby residents

simply because there are few wells in

the immediate area. In addition, the

regulation cited by the commenter

clearly states that wastes are to be listed

if they are ‘‘capable of posing a

substantial present or potential hazard’’

(emphasis added). Thus, the Agency

must protect against potential, as well as

present risks that may arise. The

Agency’s decision to list these wastes is

based primarily on the concern over

risks to those individuals who are

significantly exposed, even if there are

relatively few of them.

Population risk is only one of many

factors to be considered in Agency

decisions, and there are numerous

precedents where the Agency has taken

action, for example at Superfund sites

and in previous listing determinations,

when there are relatively few people

potentially affected. See, for example,

the report entitled Land and Soil Health

Risks from CERCLA (Federal

Superfund), and WQARF (State

Superfund) Sites, Arizona Department
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42139

of Environmental Quality, 1995, in the

docket for today’s rule, which

concluded that population risks were

low because the number of people

exposed to groundwater contamination

is small. The Agency has stated that the

key objective of the CERCLA National

Contingency Plan (NCP) is to protect

individuals at contaminated sites (see

55 FR at 8710), and rejected using

population risk as the point of departure

for setting clean-up levels (see 55 FR at

8718). In addition, the CERCLA

regulations (see 40 CFR

300.430(e)(2)(i)(A)(2), and 55 FR at

8848) direct EPA to establish

preliminary remediation goals for

carcinogens based on ‘‘cancer risks to an

individual.’’

Population risks arising from

contaminated groundwater due to waste

management are expected to be low,

because often only a limited number of

domestic wells will be near these

facilities, and groundwater moves very

slowly. EPA’s Guidance for Risk

Characterization (USEPA Science Policy

Council, February, 1995) states that,

when small populations are exposed,

population risk estimates may be very

small, however, ‘‘in such situations,

individual risk estimates will usually be

a more meaningful parameter for

decision-makers.’’ Finally, it is

important to note that the Agency is also

concerned about the loss of the

groundwater resource for the future,

which could be of particular concern if

land use patterns were to change and

there were a future demand for the

resource. In this case, beneficial uses

would be precluded or, if the potential

users were unaware of the

contamination, risks could occur.

Additive Risks From Multiple Units

One commenter stated that risks

posed through different groundwater

and nongroundwater pathways should

be summed when the potential for

simultaneous exposure exists, but that

EPA instead assumed that groundwater

exposures were occurring after the

nongroundwater exposures. The

commenter noted that the time of travel

for benzene and perhaps other mobile

constituents in EPA’s groundwater risk

assessment is 17 years or less, clearly

within the period of time

nongroundwater exposures may occur.

EPA does not agree with the

commenter’s suggestion that

groundwater and nongroundwater risks

should be combined. This is because, as

discussed previously, EPA’s analysis

showed that groundwater risks are only

potentially associated with landfills,

and nongroundwater risks are only

potentially associated with LTUs.

Therefore, the only potential for the

combination of groundwater and

nongroundwater risks to be significant,

would be for a situation in which a

landfill was located in close proximity

to a LTU. EPA examined the

information provided in the 3007

Questionnaire for any sites where

landfills and LTUs are co-located, and

presented the results in the April 1997

NODA. This analysis showed only one

facility at which a nonhazardous LTU

and landfill were both located at the

same site, and even in this one case the

units are approximately 5,000 feet apart,

making significant simultaneous

exposure unlikely.

6. Specific Groundwater Modeling

Issues

Active Life of Landfills

Two commenters disputed EPA’s

assumption of 20 years for the active life

of landfills to estimate the total volume

of a specific waste placed in a landfill,

and argued that the report and data for

off-site landfills used by EPA to make

this assumption (National Survey of

Solid Waste (Municipal) Landfill

Facilities, EPA/530–SW88–034,

September 1988) actually demonstrate

an active life of at least 40 years. The

commenters believed that this is an

important difference, because this

would increase the total waste volume

used as input to the groundwater

models and result in increased risks.

In response, EPA reexamined the

report cited and concluded that the

assumed active life of 20 years may be

an underestimate. Using the data in the

report, however, the Agency calculated

that an average active life of 30 years is

more appropriate for us in the risk

assessment, rather than the 40-year life

suggested by the commenter. EPA

believes that the commenter simply

summed the reported average age of the

landfills (19 years) and the average

remaining life (21 years) to obtain 40

years. However, this calculation is not

appropriate, because it would

overestimate the active life for existing

units. This is because the average age in

the report included closed units, not

only existing units, and thus does not

reflect the average life for those units

still in operation. Likewise, the average

remaining life given in the report

included planned units, as well as

existing units, and this also would tend

to inappropriately increase the apparent

active life for existing units. Correcting

for this by eliminating closed and

planned units, EPA calculated a 30-year

active life, based on corrected values of

16.5 years for the average age of active

units, and 13.3 years for the average

remaining life of active units (see

Additional Listing Support Analysis,

1998, in the docket to today’s rule for

full calculations). EPA has used the

revised active life (and correspondingly

larger volumes) to calculate the new risk

numbers given in Table IV–1.

The same commenters also argued

that EPA’s use of a 20-year life for onsite landfills was wrong. In the NODA,

EPA provided an analysis of the data for

on-site landfills for refineries from the

3007 Questionnaire, showing a

calculated median of about 21 years for

on-site landfills. The commenter

continued in comments on the NODA to

dispute the 20-year calculation, and

cited an alternative method presented

by EPA in the NODA to calculate a 39-

year average (i.e., mean) active life,

which the commenter argued EPA

should use.

In the NODA analysis, the Agency

used the projected date for closure of

on-site landfills reported by refineries in

the 3007 Questionnaire to estimate

active lives. EPA also examined an

alternative method to calculate on-site

landfill life for use when facilities did

not report the projected date of closure.

Under this alternative method, EPA

used the remaining capacity reported for

the units, assumed disposal rates for all

wastes in the landfills would remain

constant, and thereby estimated when

the landfill may reach full capacity. EPA

believes the direct method chosen is

most appropriate because it uses the

actual landfill lives reported in the 3007

Questionnaire, rather than relying on

estimating remaining active life by

projecting past waste disposal rates into

the future. The alternative approach is

especially uncertain when the landfill is

relatively new, thereby requiring the

extrapolation of a small percentage of

used landfill capacity into the far future,

which means that small variations or

errors in the used capacity of a landfill

may lead to widely varying landfill life

projections. Thus, EPA did not revise its

modeling for on-site landfills to reflect

a longer landfill life. EPA also used the

median active life, rather than the mean

suggested by the commenter, because

the median value lessens the impact of

widely variable data and outliers. For

example, a few very large values in a

data set would have a major impact on

the mean, but the median would not be

overweighted by the few very large

values. EPA notes that the only data

available for off-site municipal landfills

were average values, not medians, so the

Agency had no choice but to use the

average estimate active life for the offsite landfills.

Furthermore, EPA notes that many of

the wastes of concern, such as the
42140 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

sediments from storage tanks, are

generated only intermittently, since

facilities clean out crude oil storage

tanks about every 5–10 years. While

refineries may have many such tanks of

different ages, EPA estimates that a

typical refinery may generate such a

clean out waste about every 1.5 3 years.

In effect, a typical facility may not

dispose of the tank sediments in on-site

units every year, but approximately

every 2 years. Therefore, even assuming

arguendo that the on-site active life

might be about 40 years, as the

commenter suggested, if tank sediment

is only generated every two years or so,

the total volume of a specific waste in

the unit may more closely resemble 20

years worth. EPA notes that, unlike onsite units, off-site landfills may accept

waste from other refineries, thus

disposal may well occur every year.

Therefore, the 30-year active life used

for off-site units is a more appropriate

measure of the number of years a

specific waste may be disposed.

Finally, EPA notes that because the

revised risks from off-site landfills were

somewhat greater than risks from on-site

landfills for the wastes of most concern

to the commenter that the Agency is not

listing (i.e., unleaded gasoline tank

sediment, and HF alkylation sludge), the

off-site risks are likely to be

determinative in any case.

Waste Unit Area

Two commenters believed EPA

should have used larger waste unit area

sizes in its groundwater risk assessment,

and that this would result in the listing

of more refinery wastes. These

commenters questioned EPA’s decision

to vary on-site landfill sizes for different

petroleum wastes when projecting

mismanagement scenarios. The

commenters argued that since any

petroleum waste can be disposed in any

on-site landfill, EPA should assume that

any waste will be disposed in units

representing the largest landfills. The

commenters believe that a larger waste

unit area would result in a higher

concentration at the receptor well, and

that EPA underestimated the risk

associated with several of the wastes the

Agency decided not to list.

In response, EPA notes it used waste

quantity and on-site landfill sizes in the

modeling analysis for individual waste

streams from the RCRA 3007

Questionnaire responses, which are

based on actual petroleum waste

management practices. EPA disagrees

that a refinery would necessarily use a

landfill to dispose of any number of

wastes, and the Agency believes that

there are indeed reasons why a facility

would not dispose all its generated

waste in an on-site landfill, including

permit limitations and liability

considerations. EPA verified such

limited or segregated management

practices during site visits. For example,

EPA reviewed site visit reports for four

facilities that operated on-site

nonhazardous landfills. Two facilities

manage Fluidized Catalytic Cracking

(FCC) catalyst and fines, but no other

listing or study wastes in their landfills.

The other two operate the on-site

landfills for disposal of only some of

their generated wastes. Other wastes are

disposed off-site or recycled. EPA

believes its approach of calculating

different unit areas for different wastes

was reasonable because they are

reflective of actual operating practices,

and another approach may result in

unrealistic or unreasonable assumptions

regarding waste management practices.

As noted in the above section on waste

management assumptions, a refinery

may choose different disposal practices

based on a variety of considerations,

including the waste’s characteristics and

access to landfill capacity. Furthermore,

it is not necessarily true that the larger

the landfill, the higher the resulting

receptor well concentration. The

modeled receptor well concentration is

a function of a number of parameters,

such as waste volume, leachate

concentration, the concentration of

constituent in the waste, and various

chemical transport properties. Thus, for

a given waste volume, a larger landfill

area will not necessarily produce higher

well concentrations.

The commenters also stated that the

standard off-site landfill areas used by

EPA were arbitrarily small (2,020 square

meters (m2) median; 162,000 m2 highend). The commenters noted that EPA

apparently derived these area sizes from

an industrial landfill survey taken of onsite industrial waste landfills, and

therefore the areas are inappropriate to

use for off-site units. The commenters

went on to state that the Agency should

use data available for municipal solid

waste landfills for the off-site modeling,

(i.e., the same database EPA relied on

for length of active life.) They noted that

the areas reported for active municipal

waste landfills in EPA’s 1988 survey

appear many times greater than the

volumes used by EPA.

EPA agrees first that the median area

used by EPA in this analysis was in

error, and believes that the data for offsite municipal landfill area cited by the

commenter are more appropriate for

modeling off-site landfills than the

industrial database used by the Agency.

This is primarily because, as the

commenter noted, the database

originally used by EPA reflected landfill

areas collected from what are likely

industrial on-site landfills, rather than

off-site landfills. EPA does not have, at

this time, any area data for off-site

industrial nonhazardous landfills, so the

Agency has decided to use the data

available for off-site municipal landfills.

The use of municipal landfill data is

entirely appropriate because the

refineries reported in the 3007

Questionnaire that close to one-half of

the wastes disposed off-site went to

municipal landfills. Therefore, EPA

revised the groundwater modeling for

off-site landfills to reflect the larger

areas associated with municipal

landfills, and the risk results in Table

IV–2 incorporate the revised landfill

areas.

Noningestion Exposures for

Groundwater

One commenter stated that EPA’s

groundwater risk assessment only

considered the impact of ingestion of

the water, but ignored potential risks

from inhalation and dermal absorption

of contaminants that might arise from

the use of water in the home (e.g.,

showers or bathing). Such an additive

affect would increase the overall risks

from groundwater exposures.

EPA agrees with the commenter that

the noningestion exposure route for

groundwater may be important for some

constituents. The Agency presented its

analysis of such noningestion risks in

the NODA. For the wastes under study,

this was only significant for benzene (no

other toxic constituent of concern was

volatile enough to affect the risk

evaluation). EPA’s analysis resulted in

effectively increasing risks from

benzene projected to reach a receptor

well by about 60 percent over the

ingestion risk (See Chapter 5,

Supplemental Background Document

for Groundwater, 1997.)

Biodegradation of Benzene

Five commenters argued that the

biodegradation of benzene should be

considered in estimating the potential

risks from Subtitle D landfilling of spent

hydrotreating catalyst, spent

hydrorefining catalyst, and crude oil

storage tank bottom sediment. Two

commenters used the groundwater

model used by EPA (EPACMTP) to

show that concentrations of benzene in

groundwater decrease when a

conservative biodegradation rate is

assumed. Several commenters

calculated benzene biodegradation rates

to show that both anaerobic and aerobic

biodegradation processes limit the

subsurface transport of benzene in

particular, and related aromatic

hydrocarbons in general (benzene,
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42141

toluene, ethylbenzene, and xylenes, also

known as BTEX). Commenters believed

that the studies are relevant because the

levels of BTEX compounds in the

wastes’ leachate are comparable to

levels measured in the studies.

Commenters argued, although the

studies do not follow the Toxic

Substances Control Act (TSCA) protocol

developed by EPA to document

biodegradation, the results should be

viewed as comparable by EPA because

they are presented in peer-reviewed

journals.

EPA conducted an evaluation of all

submitted data and the documented

anaerobic biodegradation studies of

benzene suggest that in-situ anaerobic

biodegradation of benzene rates are

strongly dependent on site-specific

conditions (e.g., availability of

chemicals to act as electron acceptors,

availability of nutrients, temperature).

The necessary conditions for anaerobic

benzene biodegradation are poorly

understood, and the absence of

biodegradation can be caused by the

presence of competing substrates, such

as toluene, xylenes and ethylbenzene, as

well as inadequate geochemical

conditions and lack of proper electron

acceptors (e.g., nitrate, sulfate, iron).

Therefore, because of the lack of

information to correlate site-specific

controlling factors to biodegradation,

the limited number of field data, and the

field and laboratory evidence that

benzene tends to be recalcitrant to

anaerobic biodegradation,

biodegradation of benzene was not

considered directly in the groundwater

analysis. However, EPA did complete

preliminary modeling for the proposed

rule that incorporated assumed rates

into the analysis to see what impact this

might have on receptor well

concentrations (see the Petroleum

Refining Listing Determination

Background Document for Ground

Water Pathway Analysis, 1995, in the

docket for details). When assuming

degradations rate of 0.00001 and 0.0001

per day, the well concentrations for all

wastes examined decreased by

approximately 2 percent and 44 percent,

respectively. In addition, there may be

a degradation ‘‘lag time,’’ which is the

time period between the introduction of

a constituent into the subsurface and the

start of actual biodegradation. This time

reflects the period subsurface microbial

populations may need to acclimatize to

the organic substrate before degradation

may occur. Thus, if the lag time were 10

years, the decrease in the well

concentration due to biodegradation

assuming the higher decay rate of

0.0001 day, would be lowered to only

22 percent. These results suggest that

using a conservative degradation rate

would not significantly alter the risk

results for benzene. For example, even

assuming biodegradation of benzene

lowered the high-end risks for this

constituent by about 50 percent, the

risks would remain above 1E–5 for the

hydrotreating/hydrorefining catalysts

and crude oil storage tank sediment.

EPA plans to study further the

modeling of anaerobic biodegradation in

the saturated zone of hazardous

constituents from hazardous wastes and

the physical conditions under which

anaerobic degradation occurs where the

Agency has developed sufficient data to

permit such an analysis.

Location of Receptor Well

The distance from the landfill to the

receptor well is an important parameter

in the groundwater model, because the

projected concentrations of constituents

at the well, and the corresponding risks,

increase as the well location is moved

closer. EPA received comments from six

commenters on the value used by the

Agency for the distance to the nearest

well from a landfill. One of the

commenters felt that EPA should have

used a smaller distance, while the

remaining commenters felt EPA’s value

was too small.

One commenter believed EPA should

have used the distance to the nearest

well for off-site landfills that the Agency

used in past listings, (i.e., 48 meters

used in the dye and pigment proposed

listing determination.) This value was

less than half the value used for the

petroleum listing determination. The

commenter suggested that EPA perform

the two parameter high-end analyses

using the 48-meter distance to the

receptor well.

In response, EPA notes that in its

Monte Carlo analysis the Agency used

the full distribution of available receptor

well distances, including wells at

smaller distances. The risk results for

wastes of concern were presented in the

NODA, and were subsequently revised

as described elsewhere to yield the final

results in Table IV–2 (see Section IV.B,

and the groundwater background

document in the docket, Additional

Groundwater Pathway Risk Analyses,

1998). Concerning the well distance

used in the dyes and pigments rule, EPA

notes that the Agency used essentially

the same underlying well distance data

in this rule as was used in the dyes and

pigments proposed rule. The apparent

high-end value used in this earlier rule

(46 meters, not 48 meters cited by the

commenter) represents the 95th

percentile distance, and 104 meters is

the 90th percentile. However, EPA

states in the dyes and pigments rule risk

documentation (see page 21, Health Risk

Assessment Background Document for

the Dyes and Pigments Manufacturing

Industry, November, 1994, in the docket

for that rule) that the high-end well

distance of 46 meters was chosen

because this was the 90th percentile

value. But as Table IV–2.7 in the dyes

and pigments risk document shows, the

90th percentile value actually was 104

meters, nearly the same as the 102

meters high-end value used in the

current petroleum rulemaking.

Therefore, the use of 46 meters in the

dyes and pigments rule as the 90th

percentile distance was an oversight.

Regardless, EPA believes that the 90th

percentile value is more appropriate to

use in the type of high-end sensitivity

analysis performed for this rulemaking,

and that the 95th percent value would

be unreasonably conservative. EPA

believes that setting two critical

parameters to the 90th percentile level

is a reasonable approach to generate

high-end risks that are above the 90th

percentile, but still realistically on the

distribution. Such an approach is

consistent with EPA guidance (see

Habicht, 1992). EPA’s Monte Carlo

analysis for the groundwater pathway

supports this approach, i.e., the revised

groundwater risks presented in Table

IV–2 show that the high-end risks are

above the 95th percentile risks

estimated from the Monte Carlo

analysis. Therefore, EPA believes its

approach is appropriately conservative.

The commenter also argued that the

distance to the nearest well used in the

groundwater assessment was

inconsistent with the distance to the

nearest receptor EPA used in the

nongroundwater risk assessment. The

commenter noted that the high-end

value of 102 meters used for

groundwater well distance is

inconsistent with the high-end value of

75 meters EPA used for the nearest

residence in the nongroundwater risk

assessment, and that this discrepancy

between the distance values is never

addressed or justified.

EPA disagrees that the distances must

be equivalent, because different

pathways are represented in each

assessment. Exposure from groundwater

pathways occurs through potentially

contaminated drinking water wells.

Exposure from nongroundwater

pathways occurs through multiple

exposure routes, such as run-off and air

releases from LTUs, and the point of

exposure is considered the location of

the residences nearest the LTU.

Therefore, EPA used different data sets

to estimate receptor distances for these

pathways to account for well locations
42142 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

for groundwater and residences for the

nongroundwater pathways. For

distances to residences in the

nongroundwater pathways, EPA used

information compiled for Treatment

Storage and Disposal Facilities (National

Survey of Hazardous Waste Generators

and Treatment, Storage, Disposal, and

Recycling Facilities in 1986: Hazardous

Waste Management in RCRA TSDR

Units, July 1991). These values were

used instead of the ones used for

groundwater because they reflect the

distances to receptors being modeled,

(i.e., residences at which people may be

exposed to air releases or contaminated

soils.) The distances to residences will

not necessarily correspond to drinking

water well distances.

Four commenters felt that EPA should

have used data from the 3007

Questionnaire to calculate the distance

to the nearest receptor well, which

would result in a larger distance. Three

of these commenters felt that EPA’s

decision to use values from the OSW

Subtitle D Waste Management Facility

Database was inconsistent with its

earlier determination to base other

information for its rulemaking on the

3007 Questionnaire. They believed that

the RCRA 3007 Questionnaire obtained

sufficient data from respondents, and

that data from this Questionnaire is

more appropriate, since unlike the OSW

data, the data are specific to refineries

and residuals considered for this listing.

Two commenters suggested that if EPA

felt there was insufficient response to

the 3007 Questionnaire, EPA should

have contacted non-respondents for

further information.

Because of the lack of completeness of

the reported well distances in the 3007

Questionnaire, the Agency decided to

use well distances from the Subtitle D

Survey Database. The 3007

Questionnaire response was incomplete

and inadequate. Of the 172 3007

Questionnaires returned, 27 facilities

reported the presence of nonhazardous

on-site landfills used for the disposal of

any waste in the survey in any year. Of

these 27, EPA found that only 15

reported the distance to the nearest

drinking water well with any reliable

documentation (e.g., well location maps,

groundwater flow gradients, company

survey of nearby wells). This limited

data set is not surprising given the

difficulty associated with seeking offsite information from the refineries that

is not related to on-site operations.

Furthermore, wells may be placed closer

to the on-site landfills in the future.

Therefore, EPA relied on distances

obtained from the Office of Solid Waste

(OSW) database as more representative

of potential well locations. EPA notes

that the 3007 Questionnaire only

provides well location information for

evaluating on-site landfills, and even if

used, would not have impacted the

modeling results for off-site landfills.

Because the risks from off-site landfills

were higher or comparable to risks

calculated for on-site landfills, any

change in the results for on-site landfills

is unlikely to alter any decisions to list

wastes.

Two commenters disapproved of

EPA’s methods for locating the receptor

well in the contaminant plume for

EPA’s high-end and Monte Carlo

analyses. The commenters argued that

EPA should have assumed that the well

is always located on the centerline of

the contamination plume, in accordance

with previous Agency listing

determinations, and not have varied

well locations across the width of the

plume. The commenters submitted

modeling results purporting to show

that locating the receptor well on the

centerline would increase risk such that

a listing is required for most petroleum

refinery wastes covered by the NODA.

EPA defined the well location for

modeling purposes by using the

distance perpendicular to the plume

centerline (Y coordinate) and the

distance from the landfill to the well (X

coordinate). The X distance to the well

was discussed in the preceding

comments. In the high-end analysis

completed in the proposed rule, EPA

fixed the Y coordinate of the receptor

well location half-way between the

plume centerline and the edge of the

plume. However, the Agency has

revised the two high-end parameter

evaluations using a full sensitivity

analysis for each waste, in which the Ylocation of the well was either placed on

the plume centerline (the high-end

value) or at plume half-width (the

median value). EPA also has performed

Monte Carlo analyses in which the

receptor well location was varied in

such a way that the location reflected

the nationwide distribution given in the

USEPA database of Subtitle D landfills.

The final revised Monte Carlo analyses

used the available distance to well data

(X coordinate) as noted earlier, and then

randomly placed the well anywhere

within the projected plume. Both of

these approaches are more appropriate

than what the commenter suggested,

because placing the well on the plume

centerline will tend to overestimate

risks in affected wells by not

considering other well locations.

Therefore, EPA does not agree with the

commenter, and believes that the

approaches used by the Agency in the

revised risk analysis fully considered

well placement. In any case, EPA notes

that the modeling submitted by the

commenter shows that simply holding

the well location on the centerline has

little impact on the results. For example,

the commenter’s analyses that assumed

the receptor well was always on the

centerline yielded very minimal

increases of zero to eleven percent for

the four wastes they modeled in off-site

landfills (see Appendix A in ‘‘Analyses

Using EPACMTP to Estimate

Groundwater Pathway Risks from

Disposal of Petroleum Refinery Wastes’’

King Groundwater Science, in comment

F–97–PRA–0005.A).

Finally, in conducting the Monte

Carlo analysis for the NODA, the

Agency made a key assumption

concerning well location, which was

inconsistent with the assumption made

for the deterministic analysis. In the

high-end analysis, the downgradient

wells of concern were assumed to be

those within the plume of

contamination from the landfill, as

noted above. For the Monte Carlo

analysis, all potential wells within a

180-degree arc downgradient from the

landfill were included, thus including

wells that would never be affected by

contamination from the landfill. Each

approach can provide valid assessments

of risk distributions, but the two

approaches describe risks for different

populations of receptor wells. Upon

further consideration of this issue, the

Agency determined it is most interested

in risks at well locations that could be

affected by the landfill. Including wells

that, because of their location, could not

be affected no matter how toxic or

mobile the waste constituents, provides

EPA with little information about the

waste on which EPA is making a

decision. Thus, EPA has relied on the

revised Monte Carlo analysis that

includes only those well locations that

were within the plume. The results of

this change, along with the other

revisions to waste volume and landfill

area estimates that were described

earlier, show that risks are higher than

previously reported for different

percentiles on the Monte Carlo

distribution. For example, the Monte

Carlo risk for landfills for crude oil tank

sediment with the receptor well

restricted to the plume was 1E–5, an

increase over the Monte Carlo result of

7E–6 when placing the well anywhere

downgradient, and more comparable to

the high-end results from the sensitivity

analysis, 4E–5. With this adjustment in

the Monte Carlo assumptions, the highend and Monte Carlo results appear

more consistent, and EPA believes that

such an adjustment is logical.

The differences between the two

different approaches in locating receptor
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42143

wells in the Monte Carlo analysis is

most obvious when comparing the

constituent concentrations at the well

calculated to be the 50th percentile

values, otherwise known as the ‘‘central

tendency.’’ By restricting the well

location to the plume, the 50th

percentile concentrations are over

several orders of magnitude greater than

those predicted when the well location

is allowed to be outside the plume. (See

Additional Groundwater Pathway

Analysis, 1998, section 5.3.1, in the

docket for this rule for more details.)

EPA would like to use this occasion

to make some observations about central

tendency estimates. There is a common

misperception that the central tendency

estimate might be an ‘‘unbiased’’ or

‘‘best’’ estimate of risk. That could be

extremely misleading, especially where

it is difficult to distinguish variation

and uncertainty. The 50th percentile

estimates in the EPA groundwater

Monte Carlo risk assessment used to

support listing determinations under

RCRA strive to be estimates of results

for which half of the potentially

exposed receptors face more risk and

half face less risk in some group.

However, that does not mean that such

an estimate is a ‘‘best estimate’’ of a

relevant result. As an example, consider

if EPA did Monte Carlo estimates of

groundwater risk at all wells in a 360

degree direction from a unit. In many

cases (notably those with a fairly

constant direction of groundwater flow

relevant to any upgradient wells), well

over half of the wells within any

distance of the unit will be unaffected

by releases from the unit and will have

no risk. This would occur no matter

what the toxicity or mobility of the

hazardous constituent, and even though

deterministic modeling might show

with high certainty that wells in the

direction of groundwater flow from the

unit would have high risk. Clearly a

central tendency estimate of ‘‘no risk’’ is

not a ‘‘best’’ estimate of whether or not

there will be groundwater risks, nor

even a predictor of ‘‘mean’’ risk or of the

‘‘expected value’’ risk. Instead, it gives

an indication that there is considerable

variation and that many or most wells

will not be affected. That indication

would not give EPA any confidence that

a hazardous constituent would not have

significant effect on the downgradient

wells, nor any particularly useful

information on the toxicity or mobility

of the waste.

Monte Carlo Versus Deterministic

Analysis

Two commenters felt that the

deterministic high-end risk assessment

used by EPA does not allow EPA to

determine what percentile of the risk

distribution is represented by the highend analysis. In response, EPA

performed a Monte Carlo groundwater

analysis to generate probability

distributions for risk presented by each

waste. These results were presented in

the NODA, and revised Monte Carlo

analyses, using the revised inputs for

landfill area and lifetime, are given in

Table IV–2.

Several commenters recommended

that the Monte Carlo analysis serve as

the basis for a listing decision, due to

the superior quality of the Monte Carlobased risk estimates in comparison to

the deterministic risk estimates (i.e.,

point estimates). They noted that in the

NODA, EPA states that the Monte Carlo

analysis ‘‘confirms’’ the risk findings (62

FR 16750–51); the commenters disagree

with this approach and state the Monte

Carlo results should be used as the

primary determinant of individual risk.

The commenters cite EPA guidance that

has recognized the superior quality of

Monte Carlo-based risk estimates

compared to high-end approaches.

In response, EPA notes that the

Agency’s ‘‘Policy for Use of Probabilistic

Analysis in Risk Assessment’’ states that

‘‘* * * such probabilistic analysis

techniques as Monte Carlo analysis,

given adequate supporting data and

credible assumptions, can be viable

statistical tools for analyzing variability

and uncertainty in risk assessments.’’

The policy also states that ‘‘[i]t is not the

intent of this policy to recommend that

probabilistic analysis be conducted for

all risk assessments supporting risk

management decisions.’’ In addition, as

one of the conditions for using Monte

Carlo analysis, the policy states that

‘‘[c]alculations of exposures and risks

using deterministic methods are to be

reported if possible.’’ Thus, the

commenter’s contention that

information from Monte Carlo analysis

is necessary to make a defensible listing

determination is over broad and is

inconsistent with Agency policy. The

Agency’s policy indicates that Monte

Carlo analysis can be a useful tool for

providing additional information on

variability and uncertainty in certain

situations (which is the way it was

applied for this listing determination).

Furthermore, it is important to note

that the Agency’s policies do not

indicate that there is any particular

point on a Monte Carlo distribution that

should be the point at which the Agency

regulates or does not regulate. The 1992

guidance (memorandum from the then

Deputy Administrator F. Henry Habicht

‘‘Guidance on Risk Characterization for

Risk Managers and Risk Assessors’’)

states that ‘‘[t]he ‘high end’ of the risk

distribution [generally the area of

concern for risk managers] is

conceptually above the 90th percentile

of the actual (either measured or

estimated) distribution. This conceptual

range is not meant to precisely define

the limits of this descriptor, but should

be used by the assessor as a target range

for characterizing ‘high-end risk’.’’

Therefore, a high-end estimate that falls

within the range (above the 90th

percentile but still realistically on the

distribution) is a reasonable basis for a

decision.

Exposure Duration

One commenter questioned why the

groundwater risk analysis used a

constant exposure duration of 9 years

for receptors, while the nongroundwater

risk analysis for LTUs included this

parameter in the sensitivity analysis and

used a high-end value of 30 years. The

commenter submitted modeling analysis

that purported to show that including

exposure duration as a high-end

parameter in the sensitivity analysis

would result in increased groundwater

risks, and specifically cited increased

risks for crude oil tank sediment and

unleaded gasoline tank sediment.

EPA does not agree that exposure

duration is a particularly sensitive

parameter in the analyses at issue. In the

sensitivity analysis using exposure

duration presented in the commenter’s

groundwater analysis, 30-year exposure

risks appear to be erroneously

calculated by simply multiplying the

calculated 9-year exposure groundwater

risk by a factor of 3.33, corresponding to

the ratio of 30 years/9 years. However,

EPA’s risks based on a 9-year exposure

duration were calculated from the peak

well concentrations averaged over a 9-

year period, using health-based numbers

derived for a 9-year exposure period.

The more accurate approach to model

30-year exposure would be to calculate

maximum 30-year average groundwater

concentrations from the modeling

results, and then calculate the risk based

on health-based numbers derived for a

30-year exposure period. Maximum 30-

year average well concentrations may be

smaller than 9-year average well

concentrations depending on the peak

concentration period. The commenter’s

apparent approach of simply scaling up

risks based on a 9-year exposure by a

factor of 3.33 will likely overestimate

the extrapolated risk for a 30-year

exposure. EPA examined the effect of

including exposure duration as an

independent parameter in a sensitivity

analysis for several wastes (HF

alkylation sludge, unleaded gasoline

tank sediment, and hydrorefining

catalyst). The results of the analysis
42144 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

showed that exposure duration was

never a sensitive parameter, and

including it in the sensitivity analysis

had no impact on the selection of the

two high-end parameters or the risk

results for any of the wastes examined

(see Section 3 of Additional

Groundwater Pathway Risk Analyses,

1998). Therefore, EPA does not believe

this factor greatly affects the risk

calculations conducted for this

rulemaking.

Potential for Release of Oil Phase From

Wastes

One commenter believed EPA

inappropriately discounted the potential

for migration of nonaqueous-phase

liquids (NAPLs) arising from free oil in

the wastes to the groundwater zone

beneath the waste units. (Note that

NAPLs that sink in water because they

are more dense are called DNAPLs,

while NAPLs that float because they are

lighter than water are called LNAPLs).

The commenter argued that EPA

underestimated risk by evaluating

management conditions unfavorable for

NAPL release from landfills. The

commenter also stated that EPA ignored

the impact of this oil phase, or NAPL,

on transport of waste constituents in the

groundwater zone to the receptor well.

EPA’s evaluation in the proposed rule

had concluded that the NAPL flow, if

any, from these residuals will not reach

the underlying aquifer and thus further

modeling was not necessary. The

commenter argues that EPA

underestimated the fraction of oily

liquid in the waste (suggesting a value

of 80 percent), falsely assumed that the

waste will be uniformly mixed with

benign material that would not

contribute to free oil, overestimated the

capacity of the soil beneath the landfill

(the unsaturated zone) to retain oil

released from the landfill, and failed to

consider the potential movement of the

oil sideways in the subsurface.

EPA does not agree with the

commenter’s assertions. First, EPA notes

that the its analysis assumed a 27

percent free oil content in the waste for

its initial calculations, based on data

from the 3007 Questionnaire. This is

more realistic than the value of 80

percent cited by the commenter,

because the 80 percent value resulted

from an error in reporting. The 80

percent value represents the waste prior

to deoiling, and does not reflect the oil

content of wastes in landfills (see

Supplemental Background DocumentListing Support Analysis, April 1997 in

the docket, App. A). The Agency used

EPA’s Composite Model for Oily Waste

(EPACMOW), which accounts for both

aqueous phase and non-aqueous phase

flow and transport, to estimate

constituent transport. High-end

parameters were chosen for sensitive

parameters (landfill area, waste

quantity, waste fraction, constituent

concentration, and infiltration rate).

Thus, even assuming the oil fraction is

free to migrate, the model predicted no

release of NAPL from the landfill,

because there is not sufficient oil to

saturate the material in the landfill

beyond the 10 percent soil or waste

saturation limit. Below this limit the oil

will not migrate as a NAPL. If the oil

does not escape the landfill, the NAPL

cannot saturate the soil beneath the

landfill, nor can NAPL-facilitated

transport in the subsurface occur.

EPA believes the commenter’s

concerns about NAPL or free-oil release

from landfills are unwarranted for a

more fundamental reason. As discussed

elsewhere (see Sampling and Analysis

of Refinery Wastes), the residuals of

concern are not oily in the manner

anticipated by the commenter. While

the sampled residuals may contain oil,

this observation is not equivalent with

concluding, as the commenter does, that

free oil is present in these residuals. The

method used to estimate oil content in

the samples, the Total Oil and Grease

(TOG) method, will overestimate ‘‘free’’

oil because it uses a strong organic

solvent to extract various organic

material, including waxes, greases, and

higher molecular weight oils that are not

mobile. During EPA’s observation and

handling of crude oil storage tank

sediment during sampling and

laboratory analysis, a discrete free oil

phase, was not observed. None of the

samples analyzed via the TCLP in this

investigation were found to have oily

phases. In addition, as noted elsewhere,

reported oil and grease content of

landfilled wastes support EPA’s

conclusion that wastes with high oil

content (whether free oil or not) are not

typically land disposed. This result is

consistent with EPA’s belief that oil

concentrations in a landfill will not

reach the levels the commenter

suggested, since refineries generally

have economic incentives to recover

free oil and minimize the amount of oil

that is disposed in wastes.

The commenter also submitted a

report to document the plausibility of

NAPL flow of contaminants from waste

management areas (‘‘Release of Dense

Nonaqueous-Phase Liquids to

Groundwater in Waste Disposal Areas:

Part 1,’’ March 1997). The commenter

stated that the report showed four waste

management facilities ‘‘associated’’ with

the petroleum sector may have released

nonaqueous phase liquids, or oil, into

the groundwater. The commenter

concluded that refinery wastes like

those at issue in this rulemaking were

codisposed with other wastes in the

units, and may have caused the NAPL

or oil release.

EPA disagrees that the report cited by

the commenter provides any

information relevant to either the wastes

under examination in this rule, or the

type of landfill disposal at issue. EPA

evaluated the report cited by the

commenter and does not believe the

information is particularly relevant to

the listing decisions under

consideration for several reasons. First,

of the 26 sites identified in the report as

having ‘‘definite’’ DNAPL

contamination, 24 were Superfund sites

listed on the National Priority List (NPL)

for remediation. This limited number of

NPL sites represented various industrial

sites, many having a long history of

many forms of waste mismanagement

beyond landfilling (e.g., land spreading,

land disposal of liquids, surface

impoundments). As such, these sites

can hardly be deemed to represent

typical off-site landfills. Furthermore,

the four facilities ‘‘associated’’ with the

petroleum sector all operated from the

late 1950s and most ceased operation by

the early 1970s (one operated until

1981). Not surprisingly, the types of

waste disposal that occurred at these

four facilities do not resemble the

typical disposal that occurs presently at

landfills. The report shows (see Table

A–3) that all of these facilities disposed

of liquid wastes and sludges in surface

impoundments; other liquid disposal

practices included dumping into

trenches and buried barrel mounds. In

fact, from the information in the report

it is not clear that any of the four sites

had any unit resembling a solid waste

landfill.

In addition, the four sites accepted a

variety of wastes, including chlorinated

solvents and other organic wastes (see

Table A–2 in the report). While two

sites were reported to receive wastes

from tanks (‘‘wastes from tank cleaning’’

and ‘‘tank bottom sludge’’), there is no

evidence presented in the report to

support the commenter’s assertion that

any wastes were similar to the wastes at

issue in this rulemaking. In fact, given

the apparent predominance of disposal

of liquids at these two sites, and the lack

of any mention of a landfill, it does not

appear likely that the wastes cited

resemble the wastes under evaluation in

today’s rule. As noted previously, the

listing residuals of concern here did not

exhibit free oil, and the available data

indicate that residuals sent to landfills

had low total oil content. Certainly the

samples of tank sediments obtained by

EPA were not liquids. Therefore, EPA
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42145

believes that this report does not

demonstrate anything significant,

beyond the general fact that some

landfills in the past have contained

wastes that may release NAPLs.

However, it provides no useful

information about the wastes under

study and their potential for NAPL

formation, in either on-site or off-site

disposal. EPA does not believe the

information is particularly relevant to

the listing decisions under

consideration.

Existing Groundwater Contamination

One commenter stated that the

subsurface under many refineries is

grossly contaminated, and may affect

the rulemaking in two important ways:

(1) existing subsurface contamination

can contribute significantly to

groundwater risks at the modeled

receptor well near refinery sites, thus

EPA should include the cumulative

risks in its assessments; and (2) the

existing refinery groundwater

contamination is often in the form of

LNAPL (such phases float on top of the

groundwater and typically contain

lower molecular weight constituents,

such as those found in gasoline) or other

conditions that can facilitate the

transport of organic contaminants at

refinery sites, including but not limited

to the PAHs in refinery wastes. The

commenter noted that the rate and

extent of LNAPL migration can depend

upon site-specific circumstances, and

often results in lower dilution and

attenuation, and could result in higher

concentrations at a receptor well. The

commenter stated that while there is no

nationwide survey of LNAPL

occurrence at refinery sites, there is

ample evidence that LNAPL

contamination is frequent and severe,

and EPA must take into account the

hydrogeologic conditions known to the

Agency that can affect the transport of

hazardous constituents. However, the

commenter did not offer any suggestions

as to how to consider such ‘‘facilitated

transport’’ in the groundwater

assessment.

EPA agrees that there are no doubt

petroleum refineries at which

significant LNAPL contamination from

product spills exist; however the

Agency does not believe this should

have a significant impact on its listing

decisions for several reasons. First,

EPA’s risk assessment is conservative in

that it assesses incremental risk

associated with targeted residuals using

a relatively low 10¥5 to 10¥6 risk

listing threshold, in part because of

possible exposure to unknown

pollutants. Furthermore, EPA cannot

conclude that LNAPLs would be present

at the precise sites where these wastes

are likely to be disposed and potentially

release constituents. As the commenter

also noted, the rate and extent of NAPL

migration can depend upon site-specific

circumstances. The proper

consideration of existing contamination

would call for the full analysis of many

other site-specific factors as well, some

of which may tend to reduce constituent

release from landfills, subsurface

transport, and human exposure. Such

factors would include the possible lack

of potable groundwater near the site,

and potential biodegradation at some

sites, perhaps accelerated due to the

prevalence of subsurface organisms that

may exist in areas with contamination.

Further, if LNAPL or other

contamination exists, there may well be

ongoing remediation, perhaps involving

groundwater interception or pumping

that would significantly alter or limit

groundwater flow. The Agency believes

that a site-specific assessment would be

more appropriately carried out by State

or Federal programs related to

remediation of sites, and that such an

approach would be quite difficult to

follow in pursuit of an industry-wide

listing determination.

EPA also notes that it is not likely that

aquifers so widely contaminated so as to

have floating hydrocarbons would be a

continuing source of drinking water.

Such contamination should be easily

detected and avoided, and would be

unlikely to lead to the multiple-year

transport and exposure scenario that is

the basis for EPA’s risk assessments.

Furthermore, the level of benzene in

likely sources of LNAPLs, gasoline (1.6

percent average, or 16,000 ppm), would

dwarf any potential risk that might arise

from the leachable levels of benzene in

wastes under consideration in this rule,

making any concept of cumulative risk

difficult to apply in any meaningful way

in a listing determination. (For

comparison, the highest level of

benzene in any TCLP sample of listing

residual was 39 ppm for hydrotreating

catalysts). As noted above, the

commenter’s approach also presumes a

number of additional worst-case

assumptions (regarding the presence of

critically placed NAPLs) that cannot be

considered in a vacuum, and would

require the consideration of many other

site-specific factors to fully evaluate.

The Agency notes that the practical

impact of considering LNAPLs and

facilitated transport, even if this could

be done, is not likely to be significant

for most wastes of concern. EPA has

decided to list the wastes with higher

oil content (CSO tank sediment and

crude oil tank sediment), as well as the

spent catalysts. Thus, the wastes for

which this comment is most relevant are

being listed, leaving unleaded gasoline

tank sediment and HF alkylation sludge

as the only other wastes that showed

any groundwater risk of concern to the

commenter. EPA notes that the effective

dilution and attenuation factors for

benzene resulting from the modeling

(DAF; calculated by dividing the TCLP

input at the point of release from the

landfill by the projected concentration

at the receptor well) for both of these

wastes were on the order of 2 to 4 (see

Additional Groundwater Pathway

Analysis, 1998). These low DAFs

approach the theoretical limit of one,

which mean that benzene released from

the landfill is estimated to reach the

receptor well at concentrations that

approach the levels in leachate released.

Therefore, it is highly unlikely that

EPA’s assessment significantly

understates groundwater risks for these

wastes, and any further considerations

in the modeling (such as ‘‘facilitated

transport’’ due to existing

contamination) are unlikely to

significantly alter the modeling results.

Unlike the modeling for benzene,

which is relatively mobile in

groundwater, the limited modeling for

PAHs detected in TCLP samples

indicates that contaminated subsurfaces

may have the potential to affect the

migration of PAHs in groundwater.

PAHs are relatively insoluble in water

and are not expected to migrate easily

via aqueous leaching and transport, and

the high-end analysis for the PAH

benz(a)anthracene showed DAFs of 15–

64 (see Additional Groundwater

Pathway Analysis, 1998). As the

commenter noted, the presence of

existing contamination such as NAPLs

in the subsurface may facilitate

migration. Some oily wastes contained

potentially significant levels of PAHs

(CSO sediment, crude oil storage tank

sediment), and while TCLP results

showed no detectable leaching, the

detection limits in these samples were

above health-based levels. It is difficult

to assess potential groundwater risks

from PAHs with complete certainty

because undetected but potentially

significant levels might possibly be in

the TCLP leachate. PAHs could

theoretically present some risk if they

leached at their aqueous solubility

levels, which in many cases are below

detection limits. For example, the water

solubility of benz(a)anthracene (0.013

mg/L) is 32 times the health-based level

(4E–4 mg/L at the 1E–6 risk level), and

this level is very close to the method

detection limit (about 0.010 mg/L).

While EPA cannot quantify any risks

from TCLP samples in which PAHs
42146 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

were not detected, the presence of these

carcinogenic PAHs in the waste present

some potential for additional risk,

especially if transport is facilitated by

existing contamination. Therefore,

while EPA is not using the presence of

carcinogenic PAHs as the sole or

overriding factor in listing any waste

(except for CSO sediment which clearly

exhibited high risks from

nongroundwater pathways due to

PAHs), the presence or absence of

carcinogenic PAHs was a contributing

factor EPA considered in decisions to

list or not list certain wastes (i.e., crude

oil storage tank sediment, unleaded

gasoline tank sediment, and HF

alkylation sludge. However, EPA would

not list solely on the undetermined

potential for groundwater risks from

PAHs given their relative insolubility,

and because facilitated transport by

LNAPLs is a complex hypothesis that

EPA did not find likely for these

particular wastes.

7. Specific Nongroundwater Modeling

Issues

Uncertainty Analyses in Indirect

Exposure Assessment

For both the proposed rule and the

NODA, estimates of non-groundwater

pathway risks were derived using a

deterministic risk assessment method,

which produces point estimates of risk

using single values for input parameters.

In this method, input parameters are

varied between the central tendency

value (50th percentile) and the high-end

(90th percentile) values. The point

estimate in which all variables are set at

central tendency is assumed to be the

central tendency risk estimate, and the

highest risk estimate for any

combination of double high-end

variables (with all other variables set at

central tendency) is assumed to be the

high-end estimate of risk. The high-end

risk estimate is presumed by the Agency

to be a plausible estimate of individual

risk for those persons at the upper end

of the risk distribution. The intent of

these descriptors is to convey estimates

of exposure in the upper end of the

distribution (i.e., above the 90th

percentile), while avoiding estimates

that are beyond the true distribution.

The high-end risk as estimated in the

proposed rule and NODA is the highest

risk estimate for any combination of

double high-end variables defined as

those two variables modeled that, when

set at 90th percentile values, pose the

highest risk of all possible combinations

of any two variables. Using this

methodology, the point estimate in

which all variables are set at central

tendency (50th percentile) is assumed to

be the central tendency risk estimate,

and the highest risk estimate for any

combination of double high-end

variables is assumed to be the high-end

estimate of risk (above the 90th

percentile; see Agency guidance in the

Habicht memo, 1992).

The Agency requested comments on

how best to factor uncertainty into

Agency listing determinations based on

the non-groundwater risk assessment.

These risk assessments are so-called

‘‘indirect’’ exposure assessments, and

are discussed in the proposed rule

preamble at 60 FR 57762. Indirect

exposure assessments are those in

which the receptors (in this case nearby

residents, home gardeners, subsistence

farmers and subsistence fishers) are

exposed to contaminants in the waste

after these contaminants have been

transported from the waste management

area and have entered another

environmental media (in this case soil

and various food products) at the

receptor site. This issue is important for

this rule because the potential exposure

pathways of concern arose from releases

of soils through erosion (run-off) or

wind-blown air emissions from LTUs

onto adjacent areas.

Of particular concern to the Agency in

the proposal was the issue of whether it

is accurate to assume that greater

uncertainty generally results in a more

conservative risk assessment. One

commenter noted that because the

uncertainty in indirect exposure

assessment can lead to a substantial

overestimation of risks, failure to

consider uncertainty can result in listing

decisions for refining process residuals

that do not actually pose a significant

risk. The commenter suggested that EPA

could account for uncertainty in

indirect exposure assessment through a

quantitative probabilistic uncertainty

analysis, or to list those wastes

associated with substantial uncertainty

only if the estimated risks are at the

high-end of the risk range.

Other commenters questioned the use

of individual assumptions or input

parameters in the nongroundwater risk

assessment for LTUs. Commenters

specifically noted that EPA should

include a quantitative analysis of the

following sources of uncertainty in the

risk estimates for residuals proposed for

listing: biotransfer factors, food

consumption rates, biodegradation, land

application rates, and physical transport

processes.

The Agency agrees that an uncertainty

analysis is desirable and conducted an

uncertainty and variability analysis in

support of the final nongroundwater

risk assessment. The Agency addressed

specific comments regarding use of

individual parameters (e.g.,

biodegradation rates) by including those

parameters in the uncertainty analysis.

A detailed description of the

uncertainty analysis is presented in the

document titled Uncertainty Analysis:

Nongroundwater Pathway Risk

Assessment; Petroleum Refining Waste

Listing Determination available in the

docket for today’s rule. This document

identifies the source of uncertainty or

variability noted by commenters in each

step of the analysis and describes the

method of quantifying or mitigating that

uncertainty/variability. When data

distributions were available, variable

parameters were included in a Monte

Carlo simulation to provide a

quantitative measure. If little or no data

were available, a qualitative discussion

of the source and effect of the

uncertainty is provided. Key variables

included in the uncertainty analysis

include: constituent concentrations,

biodegradation rates, distance to

receptor, soil erosion parameters,

bioaccumulation factors and

bioaccumulation rates, and ingestion

and consumption rates. The uncertainty

associated with the generalized site

assumptions of LTU area, waste

quantity, and geographic location used

in the deterministic analysis was

addressed through the use of sitespecific data where available.

The nongroundwater assessment

uncertainty analysis covers three waste

streams: CSO sediment, crude oil

storage tank sediment, and offspecification products and fines. These

were the only wastes with moderate to

high levels of carcinogenic PAHs, and

because PAHs were the constituents of

concern for LTU risks, the risks for other

wastes in this scenario were negligible

(see 62 FR at 16753). EPA proposed CSO

sediment for listing on the basis of the

nongroundwater deterministic (highend) analysis, which showed significant

risk from PAHs. Crude oil storage tank

sediment, which contains similar

constituents in lower concentrations,

showed risk levels from land treatment

below EPA’s range of concern. Offspecification products and fines also

have similar constituents present in

lower concentrations, but were not

originally modeled as managed in LTUs

for the proposal because the volumes

managed this way were relatively small.

However, off-specification product and

fines were modeled as part of the LTU

analysis conducted for the NODA to

respond to comments on potential risks

arising from codisposal. (See Section

V.C.6 for a full discussion of the

decision on off-specification products

and fines).
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42147

The probabilistic uncertainty analysis

was performed on a constituent specific

basis, thus comparisons between the

Monte Carlo and the high-end results

must be made for a specific constituent

to be meaningful. For example, for

clarified slurry oil sediment managed

on-site, the high-end risk analysis

estimated a risk of 5E–5 to the

subsistence farmer from

dibenz(a,h)anthracene via oral ingestion

pathways. The uncertainty analysis for

on-site management of clarified slurry

oil sediment indicated a 90th percentile

risk to the farmer from

dibenz(a,h)anthracene via oral ingestion

of 5E–5 for the site modeled (Anacortes,

WA). For CSO managed off-site, the

high-end ingestion pathway risk to the

farmer from dibenz(a,h)anthracene was

estimated to be 2E–6. Based on the

probabilistic analysis, the corresponding

90th percentile risk for this waste

stream was 3E–6 and 1E–5, respectively,

for the two off-site LTUs modeled

(Robstown, TX and White Castle, LA).

For both crude oil storage tank sediment

and off-specification products and fines,

the uncertainty analysis indicates that

risks are below 1E–5 at the 90th and

95th percentiles for all exposure

scenarios associated with on-and off-site

management of these waste streams in

LTUs, consistent with the high-end

deterministic results.

The uncertainty analysis confirms

that the high-end risk results presented

in the NODA are plausible estimates of

risk for individuals at the upper end of

the risk distribution. In the high-end

analysis presented in the NODA, the

total carcinogenic risk (i.e., the

combined risk from all of the hazardous

constituents) for this waste was 2E–4, a

level well above EPA’s benchmark level

of concern (1E–5). For the on-site CSO

scenario, the uncertainty analysis

indicates risks of 1E–5 from individual

constituents at the 90th percentile of the

risk distribution. Thus, the uncertainty

analysis indicates that on-site high-end

risks for CSO from individual hazardous

constituents clearly do not represent

risks that are outside of the true

distribution. Rather, the probabilistic

analysis indicates that high-end risks for

individual hazardous constituents in

some cases represent exposure below

the 90th percentile of the risk

distribution.

The total carcinogenic high-end risk

for CSO for off-site units was 2E–5. For

this waste management scenario, the

uncertainty analysis indicates risks of

1E–5 from a single constituent at well

below the 90th percentile. The off-site

probabilistic analysis also suggests that

the high-end risks may be somewhat

below the 90th percentile for this

scenario.

Based on the results of the uncertainty

analysis, therefore, the deterministic

analysis certainly does not appear to

overestimate risks from CSO. In any

case, the decision to list CSO sediment

is clearly supported by the uncertainty

analysis. The Monte Carlo risk results

below 1E–5 under all conditions for

crude oil storage tank sediment and offspecification product and fines also

confirms the decision not to list these

wastes based on nongroundwater risks

(note that EPA has decided to list crude

oil storage tank sediment based on

groundwater risks from landfill

disposal).

Run-on/Run-off Controls

EPA received numerous comments

regarding the use of run-on/run-off

controls for LTUs, which indicated that

there was some confusion about EPA’s

assumptions regarding these controls in

the risk assessment. The proposed

listing determinations (as well as

today’s final decision) assumed no

controls for the high-end analysis, and

50 percent effective controls for the

central tendency analyses. Commenters

challenged these assumptions as

outlined below.

Two commenters argue that there is

no legal or factual foundation for the

Agency’s assumption that any plausible

mismanagement involving land

treatment now or in the future will

occur at a facility with run-off controls,

much less with controls achieving 50

percent efficiency. Conversely, seven

commenters state that even where there

are no Subtitle C or mandatory state

Subtitle D regulatory requirements for

these controls, numerous other factors

are motivating their use, as evidenced

by the fact that most facilities use them.

EPA conservatively assumed that no

run-off controls were present in its highend analysis of risk to individuals

residing near land treatment facilities

because the presence and effectiveness

of such controls could not be verified.

The central tendency scenario, however,

assumed that controls were in place that

were 50 percent effective. After

consideration of all comments and the

available data, EPA did not change these

assumptions in subsequent risk

assessments for the NODA. The bases

for these assumptions were responses to

the 3007 Questionnaire and a survey of

State programs. In the 3007

Questionnaire, refineries were asked to

characterize whether run-on or run-off

controls were in place at LTUs used in

1992. Based on this information, all of

the 18 facilities with LTUs reported

some level of controls. As part of the

revised risks analysis for LTUs

presented in the NODA, EPA

determined all but 6 LTUs are permitted

Subtitle C units, and thus required to

have run-on/run-off controls (see 40

CFR 264.273). For the nonhazardous

units, it was not possible to quantify the

effectiveness of the controls due to the

very general nature of the questions and

responses.

EPA’s survey of State programs

showed that, while some states have

established minimum standards for

Subtitle D units, many states do not

have regulations on run-on/run-off

controls (see Communications with

State Authorities on Requirements for

Land treatment Units, EPA, 1995;

Docket # F–95-PRLP-S0019). The

effectiveness of run-off control is

dependant on many factors (e.g., level of

engineering design, operation and

maintenance practices, regulatory

oversight and minimum standards,

weather conditions), and the

effectiveness may vary because of the

lack of Federal nonhazardous LTU

standards. As a result, EPA assumed

only partial effectiveness, 50 percent

controls, for the central tendency

analysis, and no controls for the highend analysis. EPA does not have data

available that would allow for more

precise quantification of effectiveness.

The Listing Program’s mandate to

consider potential mismanagement

scenarios clearly does not rely on

assumption of the best controls, but

rather must more closely evaluate the

weakest plausible management

scenarios. In the case of LTUs, this

includes the potential for no or minimal

run-on or run-off controls in many

states, reflecting the lack of national

minimum standards. (EPA notes that, in

the revised NODA analysis, the Agency

did not use LTU areas for hazardous

waste units in its risk assessment,

because these units are assumed to have

effective controls in place. This

information would not be applicable to

estimating risks for nonhazardous

LTUs).

Furthermore, EPA notes that the risks

arising from soil run-off have limited

impact on the Agency’s final listing

decisions based on the outcome of the

risk for the nongroundwater pathways.

This is because EPA has discovered

that, due to an error in the air dispersion

modeling conducted for the proposal,

the risk attributable to the air pathway

has increased and is now the same order

of magnitude as the risk due to soil

erosion. (The error was in converting

units from μg/m2 to g/m2). The unit

conversion correction makes the risk

due to air deposition from windblown

soil from the LTU comparable to the risk
42148 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

attributed to soil erosion. For example,

for on-site LTU risk for CSO sediment,

the total carcinogenic risk due to soil

transport is 1E–4. The risk due to air

deposition is approximately 7E–5, and

the risk from soil run-off is about 3E–5

(see the NODA response to comment

document for a more detailed

discussion). Thus, soil erosion and runoff control assumptions are not as

critical for the listing determination,

because even in the absence of exposure

through run-off, the risks for this waste

are well above 1E–5 and merit listing.

The relative contributions to the media

concentrations of contaminants from air

and erosion were investigated in the

uncertainty analysis conducted in

support of this listing determination.

Soil Transport

EPA received numerous comments to

both the proposed rule and the NODA

questioning the methodology used to

estimate soil run-off and transport from

an LTU to surrounding fields and water

bodies. Commenters to the proposal

stated that transport of soil from the

land treatment area to the receptors was

not physically possible as modeled by

EPA’s use of the Universal Soil Loss

Equation (USLE).

The USLE is an empirical erosion

model originally designed to estimate

average soil erosion losses to

waterbodies from an agricultural field

having uniform slope, soil type,

vegetative cover, and erosion control

practices. In the proposed risk

assessment, the USLE was used to

estimate the mass of soil lost per year

per unit area from a LTU and deposited

onto an adjacent receptor site. EPA

estimated the percentage of the eroded

soil that reached the receptor site using

a fixed sediment delivery ratio. The

Agency estimated the amount of soil

eroded from the LTU and deposited on

each receptor site (agricultural field,

residential lot, home garden)

independently of soil eroded and

deposited into the nearby waterbody.

In response to comments on the

proposed rule, EPA substantially

revised its approach to estimating soil

concentrations. This approach is

presented in the NODA. Revisions were

made to more accurately model an

integrated soil erosion setting that

includes the field, a buffer zone and the

water body. The revised method for

estimating soil erosion incorporates

mass balance assumptions within the

field to stream setting, and places the

receptor field between the landfill and

the waterbody. The model estimates rate

of soil delivery to the nearest waterbody

and assumes that the soil eroded from

the source that does not reach the

stream is deposited evenly over the

subbasin, including the garden.

Commenters on the NODA regarding

EPA’s use of USLE to estimate soil

erosion centered on the assertion that

run-off after leaving the land treatment

area does not flow uniformly across the

landscape, but will instead flow in a

‘‘channel’’ moving downstream toward

the outlet of the basin or watershed. A

number of commenters also argued that

EPA’s assumption of receptor locations

relative to LTUs is unreasonable. They

noted that EPA assumed that residences

are directly downgradient of LTUs and

that there are no obstructions to flow,

when in fact the existence of a ditch,

fence, wooded area, road, building, or

swale between the landfarm and a

garden eliminates this pathway of

exposure. Commenters contended that

the run-off cannot reach the gardens,

farms and adult residents without

unrealistic assumptions regarding

location of receptors. These commenters

argued that EPA failed to adequately

respond in the NODA to proposed rule

comments that the run-off from an LTU

cannot physically reach the home

gardens as assumed and that therefore

the revisions presented in the NODA are

inadequate.

EPA’s revised method for estimating

soil erosion assumes that the sediment

delivery ratio is constant across the area

between the LTU and the waterbody

(i.e., it does not assume channeling),

and that receptor sites are assumed to be

downgradient from the source and

within the same defined subbasin as the

LTU. EPA believes that these

assumptions are reasonable in order to

estimate risk that might be expected to

occur at petroleum refining locations. In

the absence of specific data, EPA

believes that its assumptions are

reasonable and appropriately

conservative, because residential

locations may change over time. In

addition, EPA notes that to properly

consider channeling in soil erosion

would require extremely detailed site

descriptions of the topography and local

conditions, and sufficiently detailed site

descriptions are not available. In the

absence of such detailed data, EPA used

simplifying assumptions to estimate soil

erosion that may occur over a wide

range of possible scenarios.

Furthermore, while the commenters

disputed the modeling approach used

by the Agency, they did not provide any

alternative model that could be used

with the information available.

For listing determinations, EPA wants

to ensure that its risk estimates are

conservative, and do not underestimate

risks from releases from LTUs

containing these wastes. As noted

extensively elsewhere in this Section,

other commenters have raised reasons

why EPA’s modeling of LTUs may

underestimate risks (e.g., existing

contamination around refineries,

codisposal with other wastes). EPA

believes that its overall modeling

approach for LTUs is an appropriate

middle ground and reflects risks that

may arise from such units. The models

used by EPA to develop this rule are

exceedingly complex. It would not be

practicable, and likely impossible, to

develop models that would account for

all possible sources of site-specific

variability. Accordingly, EPA has used

reasonable, simplifying assumptions to

estimate risks.

As described above in the discussion

on run-on/run-off controls, EPA

inadvertently made an error in the

modeling for the proposed rule in unit

conversion, which created an

underestimation of risk due to air

deposition. This change was described

in the nongroundwater risk background

document for the NODA. Because the

unit conversion correction makes the

risk due to air deposition from

windblown soil the same order of

magnitude as the risk attributed to soil

erosion, USLE modeling assumptions do

not provide the sole basis for the listing

determination.

Specific comments regarding the

individual parameters and assumptions

used in EPA’s USLE calculations (e.g.,

steepness of slope, soil delivery rate,

meteorologic and soil data) are

addressed in detail in the response to

comment documents for the proposal

and the NODA. In addition, the

modeling conducted as part of the

uncertainty and variability analysis for

LTUs included site-specific

meteorologic data, soil data, USLE

parameter values, and the distance

between the LTU and the home

gardener receptor. This analysis has

shown that the listing decision is not

altered by the use of site-specific data

for some of the parameters questioned,

or by variation in the receptor location.

Bioavailability and Bioaccumulation

EPA received a number of comments

on the manner in which biological

processes such as bio-uptake,

biotransformation, and bioaccumulation

were considered in the nongroundwater risk assessment. One

commenter states that EPA should have,

but did not, consider the potential

health effects to subsistence farmers and

fishers due to bioaccumulation of PAHs.

The commenter contends that EPA

simply ignored this exposure route for

these receptors due to the ‘‘high

uncertainty’’ associated with fish and
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42149

plant-to-animal bioconcentration factors

for the PAHs of concern in this

rulemaking. The commenter believes

that EPA should consider the

information qualitatively, and/or

present a range of results based upon

possible bioconcentration factors. EPA

responds that the Agency appropriately

considered bioaccumulation of PAHs in

these receptors as discussed below. A

more detailed response to this issue is

found in the uncertainty and variability

analysis conducted in support of the

risk assessment for this rule.

The subsistence farmer scenarios were

evaluated initially for the proposed rule

using beef and milk biotransfer factors

for PAHs that were estimated based on

the octanol/water partition coefficient

(KOW). KOW is a measure of the affinity

a chemical has for a nonaqueous,

organic environment (octanol), versus

its tendency to stay in water, and is

commonly used to assess the absorption

rate of a given compound from the

environment into organisms. Beef and

dairy biotransfer factors are used to

estimate the transfer of constituents

from the diet of cattle into meat and

milk products consumed by humans.

KOW was initially used as a surrogate for

biotransfer because measured data on

the biotransfer of PAHs from plants to

cattle or other ruminants are currently

unavailable. However, in the NODA,

EPA decided not to use these estimates

in the risk assessment because the

Agency believes that use of KOW greatly

overestimates biotransfer for

constituents with large KOWs. This

includes the PAHs of concern in

petroleum waste streams.

Estimates of biotransfer based upon

KOW only consider transfer of the

constituent from the concentration in

the diet into the concentration in the

lipid storage in the animal. These

estimates do not consider metabolic

pathways for any constituents. In fact,

PAH compounds with large KOWs are

readily metabolized by the mixed

function oxidase metabolic pathway in

mammals to water-soluble substances,

which are then excreted. In other words,

these PAHs tend not to bioaccumulate

in animal or human tissue, but rather to

be metabolized and excreted.

To summarize, because it is not

possible to estimate PAH biotransfer

factors without at least one measured

value for any PAH compound, the

Agency did not quantitatively model

risks from bioaccumulation of PAHs for

the farmer and child of farmer scenarios.

Rather, based on knowledge of how

PAHs with large KOWs are metabolized

in mammals, the Agency has concluded

that risk attributable to the beef and

dairy pathway are likely to be less than

the risk attributable to other ingestion

pathways for these scenarios. A more

detailed discussion of the metabolic

pathways for these constituents is

provided in Section 4.5 of the

uncertainty and variability analysis.

Subsistence fisher scenarios were

evaluated using measured

bioaccumulation and bioconcentration

factors (BAFs and BCFs) where

available. BAFs generally reflect the

transfer of contaminant from the

environment to the fish from food

sources. BCFs represent the transfer

from the dissolved phase to the fish

tissue BCF. Because measured BAFs are

usually not available, BCFs are most

often used. For those constituents for

which neither measured BAFs nor BCFs

were available, EPA assumed that BAFs

did not exceed 1000 liters per kilogram

of fish body weight (L/kg). This

assumption is based on the data

presented in Derivation of Proposed

Human Health and Wildlife

Bioaccumulation Factors for the Great

Lakes Initiative (U.S. EPA, 1993).

While there are insufficient data to

define the distributions and correlations

needed for a reliable Monte Carlo

analysis of bioaccumulation of PAHs in

fish, EPA did conduct a quantitative

uncertainty analysis after the NODA for

BAFs using interval analysis. This is an

appropriate statistical method for

estimating missing values in a

distribution even when data are limited

as is the case for BAFs for PAH.

This analysis indicates that although

there is not enough information to

define the distribution and correlations

needed for a reliable Monte Carlo

analysis, the estimation of 1,000 l/kg is

appropriate and within the range of

uncertainty predicted for PAH

compounds. A more detailed discussion

of EPA’s assessment of bioaccumulation

of PAHs in fish is provided in Section

4.5 of the uncertainty analysis for the

nongroundwater pathway risk

assessment, as well as in the response

to comment document for this rule (see

Section M of the response to comment

document for the proposed rule).

One commenter questioned the air-toplant biotransfer factors (Bv) used by

EPA in the analysis conducted for the

proposed rule. The commenter stated

that EPA’s calculations of Bv contain

errors, and claimed that EPA did not

adequately explain or provide the basis

for its estimate of Bv values. In

comments on the NODA, the same

commenter argued EPA continued to

overestimate air-to-plant transfer.

EPA responds that the errors noted by

the commenter were corrected in the

reanalysis presented in the NODA. The

basis for EPA’s estimate of Bv values is

as follows. Measured values for air-toplant biotransfer factors are available for

many PAH constituents. Where

available, EPA used measured values.

The remaining Bvs are estimated from

the KOW (using the Bacci equation). As

previously noted, KOW tends to

overestimate the bioaccumulation of

constituents with very large KOWs such

as PAHs. EPA compensated for this

overestimate by reducing the calculated

Bv by a factor of 40. This approach was

first presented in the 1993 Addendum

to Methodology for Assessing Health

Risks Associated with Indirect Exposure

to Combustor Emissions (EPA document

number EPA/600/AP–93/003).

One commenter argues that the

assumption of 100 percent

bioavailability of deposited constituents

is overly conservative because many

constituents, particularly PAHs, bond

tightly to soils and are unlikely to be

available to an organism even if the soil

is ingested.

In response, EPA contends that the

100 percent bioavailability represents a

reasonably conservative estimate of risk

that will result in a rule protective of

health and the environment. The

bioavailability of PAHs from ingested

soil depends on several environmental

and physiologic factors. The process by

which ingested soil-bound PAHs are

made more or less bioavailable in the

digestive tract and the effect of soil

characteristics are not well understood;

study results are conflicting. A recent

study on the oral bioavailability of

PAHs from soil, reported that the oral

absorption of PAHs in rats, hamsters, or

humans from diet or oil is

approximately 92 percent. Another

recent abstract presented data for the

bioavailability of the PAH

benzo(a)pyrene (BaP) from soil in terms

of fraction of the BaP in soil that is

absorbed relative to the BaP ingested.

Based on that report, the fraction of BaP

absorbed varied from 0.07 to 0.75. (A

more detailed discussion of this issue is

provided in Section III.F of the response

to comment document for the proposal

in the docket). Due to the uncertainty

regarding the bioavailability of PAHs in

soil, the Agency believes it is

appropriate to assume PAHs to be 100

percent bioavailable in order to be fully

protective of human health.

Exposure Factors

Three commenters provided

comments on risk to home gardeners

from consumption of contaminated

produce. In comments to the proposed

rule, one commenter argued that EPA’s

estimate of risks from root vegetable

consumption are overestimated by two

orders of magnitude. EPA responds that,
42150 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

based on this comment, the ingestion

rates used for vegetables consumed by

home gardeners and subsistence farmers

were corrected and the corrected rates

were used in the revised risk assessment

presented in the NODA.

Another commenter states that the

percentage of the population assumed to

have gardens is overestimated because

EPA did not account for the fact

different rates of produce consumption

by the home gardener correspond to

different types of gardens. The

commenter contends specifically that

EPA’s assessment of risk to the home

gardener from CSO sediment is

significantly overestimated due to

overestimation of the amount of

produce consumed. The commenter

states that EPA should have used data

from the National Gardening

Association’s 1994–95 survey for

assumptions regarding percentage of the

population with vegetable and fruit

gardens and fruit and vegetable

ingestion rates.

In response, EPA notes that the

exposure factors (e.g., patterns of fruits

and vegetables consumption by home

gardeners) used in the analysis

presented in the NODA were obtained

from the 1997 Exposure Factors

Handbook, which provides EPA’s most

recent data on the various factors used

in assessing exposure. Furthermore,

EPA addressed the variability in

consumption rates within different

subpopulations as a component of the

uncertainty and variability analysis

performed after the NODA. As

previously noted, results from the

uncertainty and variability analysis

support the findings of the revised highend risk analysis presented in the

NODA.

Several commenters contend that EPA

overestimated soil ingestion. One

commenter asserts that EPA did not

account for the fact that individuals

ingest soil in proportion to the time

spent at each location (i.e., away from

home, indoors at home, outdoors at

home). EPA responds that variability in

soil ingestion rates has also been

addressed in the uncertainty and

variability analysis conducted in

support of the risk assessment for this

rule. The uncertainty analysis used data

on soil ingestion rates provided in the

1997 Exposure Factors Handbook.

Background Contamination

One commenter notes that EPA’s

modeling assumes no background or

other contaminant exposure to nearby

receptors, an unjustifiable assumption

given other waste management practices

occurring at these facilities, the preexisting contamination at many

refineries, and the routine and

accidental releases associated with

refinery operations.

As EPA noted elsewhere in today’s

notice when discussing existing

groundwater contamination, the Agency

does not believe this is appropriate to

consider for this listing for several

reasons. First, EPA does not have the

type of specific information on off-site

contamination that would be required,

nor did the commenter provide any.

Furthermore, without extensive sitespecific data, EPA cannot conclude that

existing soil contamination would occur

at the same off-site locations that might

be impacted by releases from LTUs

containing the wastes under study. The

proper consideration of existing

contamination would call for the full

analysis of many other site-specific

factors, some of which may reduce

constituent release, transport,

bioaccumulation, and exposure. Such

factors include specific LTU design, the

direction of any slope from the unit, the

existence of downgradient residential

receptors, and corrective action

requirements that may lead to clean up

of any release.

Fate, Transport, and Toxicity of PAHs

Commenters to the proposal pointed

out that EPA failed to consider the

biodegradation of PAHs in LTUs and at

off-site receptor locations, thus

overstating risks from PAHs in soils.

One commenter noted that failure to

consider biodegradation of the PAHs,

7,12-dimethylbenz(a)anthracene ((7–12-

DMBA) and 3-methylcholanthrene (3-

MC) in the risk analysis for CSO

sediment resulted in the overestimation

of risks, because these two compounds

have high cancer slope factors. While

biodegradation of PAHs within LTUs

was considered in the analysis for the

proposed listing, biodegradation that

may occur during transport of soil from

the LTU to the receptor location was not

considered in that assessment.

EPA agrees that biodegradation during

transport may be a significant removal

process for PAHs and should be

considered in analysis of PAH fate and

transport. Therefore, in response to this

comment, the nongroundwater risk

analysis conducted for the NODA was

expanded to include biodegradation of

PAHs (including 7,12-DMBA and 3-MC)

at the receptor location for the waste

streams of concern. Detailed results of

this analysis are provided in the revised

risk assessment technical background

document in the docket for the NODA.

The reanalysis presented in the NODA

did not significantly change the risk

estimates for these waste streams;

however, because some of the PAHs

have relatively long half-lives (e.g., 3-

methyl cholanthrene’s half-life is

reported to be from 1.67 to 3.84 years)

so they are unlikely to biodegrade

significantly prior to reaching the

receptor.

Contrary to the commenter’s

prediction, consideration of

biodegradation at the receptor did not

result in reduction of risk estimated for

CSO sediment. For example, based on

the analysis for the proposed rule, the

high-end cancer risk for the home

gardener scenario from CSO sediment

managed on-site was estimated to be

9E–5. Based on the NODA analysis,

high-end risks for this scenario were

estimated to be 1E–4.

For the analysis conducted for the

NODA, EPA used only the most

conservative value for biodegradation

rates in order to assure that

biodegradation is not overestimated

when conditions and locations are not

ideal for biodegradation. However,

biodegradation rates were varied as part

of EPA’s analysis of the uncertainty and

variability associated with nongroundwater risk assessment presented

in the NODA. As discussed above, the

results of the uncertainty/variability

analysis support the findings of the

revised high-end risk analysis presented

in the NODA.

C. Residual-Specific Comments

The most important risk and

modeling issues raised by commenters

that were general in nature, or were

raised repeatedly for various wastes, are

addressed in the preceding section.

Below EPA discusses specific comments

important for individual wastes and

presents the Agency’s rationale for the

final listing decisions.

1. Crude Oil Storage Tank Sediment

Summary

EPA is listing as hazardous crude oil

storage tank sediment from petroleum

refinery operations. This waste stream

meets the criteria set out at 40 CFR

261.11(a)(3) for listing a waste as

hazardous, because it may pose a

substantial or potential hazard to human

health or the environment. The Agency

has identified substantial risks to

consumers of groundwater associated

with releases from off-site Subtitle D

landfilling due to benzene, which EPA

has decided will not be adequately

regulated under the TC. The revised

groundwater risk assessment results are

summarized in Table IV–2.

Discussion

The Agency proposed not to list as

hazardous tank sediment from the
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42151

storage of crude oil at petroleum

refineries, either on-site or at tank farms

owned by or affiliated with the

refineries or refinery companies. In the

proposal, the Agency found risks at

levels of potential concern (3E–5, highend groundwater risk) associated with

disposal in off-site landfills; however

EPA believed that because the only

constituent of concern, benzene, is

already regulated under the TC, listing

might not have been warranted. See 60

FR 57763. The proposal also reported

low risks from carcinogenic PAHs

potentially released from land treatment

operations (60 FR 57762). The Agency

solicited comment on the decision not

to list this waste stream, particularly on

whether the TC captures wastes of

concern, whether the Agency

adequately characterized the risk for

this waste, and whether any other

factors should be considered.

The revised risk analysis presented in

the NODA for land treatment continues

to show insignificant risks (<1E–6) for

this residual, and EPA did not conduct

any further analysis on this management

scenario. The high-end groundwater

risks from the NODA analysis for

landfills were essentially unchanged.

Also in the NODA, EPA presented risk

results to assess the potential impact of

the TC regulation, (i.e., input levels to

the groundwater model were capped at

the TC regulatory levels) assuming that

wastes above this level would be

properly handled as hazardous. The TCcapping reduced the risks only slightly

(2E–5). In addition, EPA provided a

Monte Carlo analysis of the groundwater

risks that were somewhat lower than the

high-end risk at the 95th percentile (5E–

6), but comparable at the 99th percentile

(4E–5).

In response to comments on the

NODA, the Agency further revised the

input data for the groundwater pathway

analysis as noted elsewhere in this

notice. As shown in Table IV–2, this

final groundwater pathway analysis

showed slightly higher high-end risks

(4E–5) and Monte Carlo risks (1E–5 and

5E–5 at the 95th and 99th percentiles).

As in the NODA analysis, the risks

estimated with benzene input capped at

the TC level were only slightly lower for

the high-end analysis (3E–5) and Monte

Carlo results (9E–6 and 2E–5 at the 95th

and 99th percentiles).

Following careful consideration, the

Agency has decided not to rely on the

TC to control the risks for crude oil tank

sediment, because, as the TC-capped

results suggest (risk up to 3E–5), the TC

may not fully capture benzene risks for

this waste. Thus, even assuming

refineries properly handle wastes above

the TC level, wastes below this level

may present risk above 1E–5.

Furthermore, this sediment waste

appears to be stratified as it forms in the

tank, and upper layers are often

centrifuged to remove oil, but bottom

layers may not be (see Listing

Background Document, 1995, p. 32).

Even if a refinery analyzes the waste,

rather than simply using its

‘‘knowledge’’ as the generator waste

determination regulations allow,

collecting representative samples is

challenging. Therefore, due to the oily,

nonhomogeneous nature of this

particular waste, sampling and TCLP

analysis may be problematic.

Moreover, although nongroundwater

risks from land treatment are not

significant, the carcinogenic PAH

content of the waste is moderately high

(e.g., up to 26 ppm of BaP; see 60 FR

at 57762). As noted earlier in the

discussion on groundwater issues (see

Existing Groundwater Contamination in

Section V.B.6), while EPA could not

quantify any PAH risks from TCLP

samples of this waste, the presence of

carcinogenic PAHs in the waste pose

some potential for additional risk,

especially if transport is facilitated by

existing contamination. While EPA is

not using the presence of carcinogenic

PAHs as the overriding factor in listing

this waste, the presence of carcinogenic

PAHs is a contributing factor EPA

considered in listing crude oil storage

tank sediment.

Specific Comments

Some commenters supported EPA’s

proposed decision not to list crude oil

storage tank sediment, noting that the

Monte Carlo analysis strengthens this

decision and highlights the

conservatism in EPA’s risk assessment

for the high-end analysis. In response,

EPA notes that the high-end risk (4E–5),

in conjunction with the other factors

noted above, merits listing of this waste.

The revised Monte Carlo risk at the 95th

percentile also are of concern (1E–5),

albeit somewhat lower than the highend analysis. (See Section V.B.6 for

further discussion on the Monte Carlo

analysis). Therefore, after considering a

combination of factors, including

significant groundwater risk (i.e., risks

above 1E–5), and the levels of

carcinogenic PAHs found in these

wastes, EPA believes that a listing is

warranted.

Commenters opposing EPA’s

proposed decision not to list presented

extensive comments on the risk

analysis. These issues are already

discussed in the portion of today’s

notice devoted to the Modeling

Approach and Risk Assessment.

Numerous comments challenged EPA’s

groundwater risk assessment, and one

commenter provided alternative

groundwater modeling that incorporated

a variety of changes and purported to

show higher risks for this waste than

found by EPA. As noted in Section

V.B.6, the Agency modified its modeling

to reflect some changes, which resulted

in somewhat higher groundwater risks

for this waste, and EPA has now

decided to list the waste.

Comments supporting a listing also

argued that the Agency had not

evaluated the risks posed by

management practices such as landfill

daily cover, road spreading, and other

uses constituting disposal. EPA

disagrees as described in Section V.B.2;

these are practices that were rarely

practiced for this waste. In any event,

the disposal practice modeled provided

sufficient risk for EPA to list the waste.

The comments also noted that the

concentrations of key constituents in

crude oil tank sediment (e.g., benzene

and BaP) exceed those reported in other

wastes EPA listed in 1990 (55 FR at

46365; November 2, 1990). As EPA

noted in the earlier discussion on

consistency with past listings, a simple

comparison of constituent levels can be

misleading, because the Agency must

consider many factors in its listing

decision. Furthermore, EPA’s risk

assessment methodology has evolved

since 1990. However, as noted above,

EPA agrees that limitations in detection

limits for the PAHs in the TCLP make

it difficult for EPA to rule out potential

groundwater risks completely. In any

case, EPA notes that it has decided to

list crude oil tank sediment as

hazardous, primarily because of the

risks from benzene, thus these

comments are not critical to the final

decision.

One commenter stated that because of

its variability, crude oil tank sediment is

precisely the type of waste stream that

is best regulated only if it exhibits

hazardous characteristics. As noted

above, however, EPA is not relying on

the TC to control risks, because the

results of the risk assessment show that

this residual poses sufficient risk to

warrant listing as hazardous even with

the TC controls in place. Furthermore,

the variability in this waste appears to

exist even within wastes removed from

the same tank. EPA’s sampling visits

indicate that this waste may form in

layers in the tank, such that it is not

homogeneous when removed and

processed. During tank clean out, some

of the oily sediment initially removed

from the tank is often deoiled (e.g., via

centrifuging), but other more viscous

layers may not be (see Listing

Background Document, October 1995).
42152 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

Thus, even if a facility attempts to

perform the TCLP test in good faith,

sampling such a material is a difficult

challenge and could lead to inaccurate

results.

Finally, consistent with the proposal,

it is EPA’s intent that the listing for

crude oil storage tank sediment from

refinery operations be limited in scope

to wastes generated from tanks that are

either on the refinery site, or at tank

storage areas owned or under contract to

the refinery. Thus, the listing does not

apply to storage tanks upstream at

exploration and production sites, or

associated with pipelines or other crude

oil transportation conveyances. EPA’s

meaning with respect to the term

‘‘affiliated’’ was to extend the scope of

the listing to all tanks containing crude

oil that are owned by the refinery and

used in refinery operations. EPA has not

collected data necessary to characterize

non-refinery sediments. Furthermore,

many of these non-refinery materials are

governed by special statutory provisions

(i.e., the ‘‘Bevill’’ provisions), and are

currently exempt from regulation as

hazardous waste (See 60 FR at 57764.)

2. Clarified Slurry Oil Sediment

Summary

EPA is listing as hazardous CSO

storage tank sediment and/or in-line

filter/separation solids from the

filtration of CSO from petroleum

refinery operations. This waste stream

meets the criteria set out at 40 CFR

261.11(a)(3) for listing a waste as

hazardous, because it may pose a

substantial or potential hazard to human

health or the environment. The Agency

identified substantial risks to residents

and home gardeners near on-site and

off-site LTUs through direct ingestion of

contaminated soil released from these

units. The contaminants of concern,

PAHs, also tend to accumulate in food

sources such that this waste causes even

higher risks to nearby subsistence

farmers and fishers. EPA is not

promulgating any of the proposed

options for conditional listing, because

revised risk analysis for releases from

off-site landfills showed some risks of

concern to consumers of groundwater

(see Table IV–2).

Discussion

The Agency proposed to list sediment

from CSO storage tanks (including

solids from in-line filtration or

separation of CSO) as hazardous, due to

high-end cancer risks of up to 9E–5 and

8E–5 arising from receptors exposed to

contaminated soil released from on-site

and off-site LTUs respectively. High-end

risks associated with the landfill

disposal of this waste stream were

below the 1E–6 level, and EPA proposed

various options for a conditional listing

that would allow nonhazardous landfill

disposal, but prevent the practice of

land treatment. (See 60 FR at 57776).

In response to comments on the

proposal, EPA modified the landfill and

land treatment risk assessments and

published revised risks in a NODA (see

62 FR at 16748). The overall risk pattern

did not change significantly for land

treatment. Specifically, for the on-site

land treatment, the revised high-end

risks increased slightly (up to 2E–4),

and for off-site land treatment the

revised risks decreased slightly (risks up

to 3E–5)(see 62 FR at 16753). The

revised high-end groundwater risks due

to benzene from off-site landfill disposal

increased from <1E–6 to 3E–6, and the

Monte Carlo risks ranged from 1E–6 to

3E–6 for the 95th and 99th percentiles.

In response to comments on the

NODA, the Agency further revised the

input data for the groundwater pathway

analysis as noted elsewhere in this

notice. As shown in Table IV–2, this

final groundwater pathway analysis

showed slightly higher high-end risks

(4E–6) and Monte Carlo risks (2E–6 and

4E–6 at the 95th and 99th percentiles)

for off-site landfills. Based on the

substantial risks arising from PAHs in

land treatment of this waste, EPA has

determined to list this waste as

hazardous. At the time of proposal, EPA

believed disposal of this waste in

nonhazardous landfills did not appear

to pose significant risks, and so raised

the possibility of a conditional listing

that would allow this practice to

continue. The Agency has now decided

not to include a conditional listing for

this waste, primarily because landfilling

of CSO residuals appear also to pose

some groundwater risk as a result of the

revised risk analysis (4E–6). Therefore,

the Agency has decided not to proceed

with this new concept with this waste.

Furthermore, EPA is reluctant to

encourage the landfilling of wastes with

very high carcinogenic PAH content

(e.g., up to 230 ppm of BaP), which, as

noted above for crude oil storage

sediment, may present risks if mobilized

in groundwater under certain

conditions.

Specific Comments

Commenters responding to issues

related to risk assessment of CSO tank

sediment argued that results were

insufficient for a listing determination

because EPA found that 80 percent of

the CSO tank sediment does not pose a

risk to human health and the

environment, and the remaining 20

percent of CSO tank sediment, disposed

of in off-site LTUs, was determined to

pose risk in the discretionary range only

after imposing conservative

assumptions.

After revising its risk assessments and

considering all comments, EPA

disagrees with the commenter. Three

subcategories of CSO sediment can be

identified. The first consists of the

residuals land treated, which were

found to pose risk of concern via the

risk assessment as described in the

proposed rule and the NODA. This

volume accounts for 22 percent of the

volume generated in 1992. The second

consists of the residuals landfilled,

which were not thought to pose risk of

concern via the risk assessment as

described in the proposed rule, and

which account for 50 percent of the

volume generated in 1992. The third

consists of the balance of the residuals

subjected to management practices in

1992, which were not modeled because

either the practices were exempt (e.g.,

recycling), the residuals were already

hazardous, or the management practices

for very small volumes of the residuals

were rarely practiced and/or adequately

modeled by land treatment or

landfilling (e.g., on-site road material).

EPA reassessed the first two

subcategories of CSO sediment

(management in LTUs and landfills),

after modifying a number of parameters

and modeling considerations in

response to public comment. CSO

sediment, when land treated, continues

to exhibit risk levels (up to 2E–4)

supporting a listing determination, as

described in the discussion above.

Furthermore, the revised assessment

showed that landfilled sediments also

present some risks. Therefore, EPA has

decided not to proceed with a

conditional listing that would allow

disposal in Subtitle D landfills, but

rather is promulgating a full

unconditional listing for this waste.

As noted elsewhere in today’s notice

(Section V.B), EPA does not agree with

other comments that argued EPA should

have assessed risks from other

management practices, such as use of

CSO sediment as on-site road material.

In any case, EPA is listing this waste as

hazardous, thereby preventing such

practices in the future.

Some commenters argued that the

waste constituent characterization

related to analysis of the waste itself

(not the TCLP extract) is uncertain and

overestimates risks. Specifically, they

argued that some PAHs were detected in

only one sample at concentrations

below the quantification limit (i.e., ‘‘J’’

values), and that where this

concentration leads to an unacceptable

risk estimate, CSO sediments for the
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42153

entire industry could be listed based on

a single estimated concentration in one

sample.

EPA does not agree that any

uncertainty in the analysis resulted in

an overestimation of risk. First, EPA

notes that even constituents assigned a

‘‘J’’ value were reliably detected in the

waste, although the precise level has

increasing uncertainty as the

measurement approaches the detection

limit. More importantly, contrary to the

commenter’s assertion, the CSO listing

determination did not hinge on a single

estimated value, but rather considered

all of the constituents that showed risk.

Several highly toxic PAHs detected in

CSO tank sediment (BaP,

benz(a)anthracene,

dibenz(a,h)anthracene, 7,12-DBMA)

were measured at levels above the

quantification limits, and these

constituents in the waste presented

substantial risks (i.e., > 1E–5) without

any consideration of ‘‘J’’ values.

Commenters argued that EPA did not

follow its own guidance in applying

listing factors to CSO sediment, and that

a description as to how each of the

listing factors weighs for or against

listing should be provided.

In response, EPA first notes that all

the factors in 40 CFR 261.11(a)(3) are

considered in this listing decision. The

commenter has not specifically

identified any § 261.11(a)(3) factors that

were not considered. Furthermore, EPA

disagrees with the commenter and notes

that its revised risk assessment fully

supports the listing determination for

CSO sediment and is in accordance with

applicable guidance. The guidance the

commenter cites is contained in the

December 22, 1994 proposed rule for the

dye and pigment listings, in which EPA

discussed the use of risk levels in

making listing decisions (59 FR at

66075–66077). EPA’s decision to list

this waste is consistent with the

guidance, i.e., the risks associated with

this residual are well above the 1E–5

listing benchmark.

EPA received comments that the

Agency overstated the potential risks

from CSO sediment that is land treated,

and that there are no documented

damage cases involving migration of

PAH contaminated soils from land

treatment of CSO sediments.

In response, EPA points out that it

attempted to identify damage cases

wherever possible to support its listing

determinations (See Assessment of

Risks from the Management of

Petroleum Refining Wastes: Background

Document, October 1995, in the docket).

While EPA has identified damage cases

resulting from releases at petroleum

refineries, it was not possible to tie the

releases directly to CSO sediments (or

other wastes under review in this rule)

in LTUs due to (1) the management of

multiple residuals in LTUs, (2) the

infrequent generation of CSO sediments,

and (3) the lack of a marker contaminant

unique to CSO sediments that could be

linked to documented releases. The lack

of empirical evidence is not surprising,

but does not prove that releases are not

possible or even unlikely. For this

reason, EPA did not rely heavily on

damage cases that directly linked

releases to the specific residuals of

concern. Instead EPA’s weight of

evidence considerations emphasized its

data collection efforts (i.e., the 3007

Questionnaire and field study) that

provided EPA with the raw material to

evaluate a wide variety of measures of

risk (e.g., modeling of numerous

pathways, groundwater modeling,

hazardous waste characteristics). By

using information beyond proven

damage cases, EPA hopes to prevent

releases that lead to environmental

damage.

Several commenters requested that

EPA clarify the definition of the K170

listing for CSO waste. Their questions

relate to whether the listing: (1) applies

just to CSO separately stored/managed

or also to all mixtures of CSO and other

fuels, (2) includes fluidized catalytic

cracker (FCC) clean out/turnaround

sediments, (3) includes sediments from

‘‘affiliated’’ tank farms, and (4) includes

spills of CSO.

Concerning mixtures of CSO and

other fuels, EPA points out that any

sediments derived from CSO or CSO

mixtures are considered K170 because

of the contribution of the CSO sediment

to the ultimate residual. All tanks that

hold CSO have the potential to generate

CSO sediment, and this sediment may

mix with sediment generated by other

materials stored in the tanks. Thus, the

resulting sediment mixture would be

classified as hazardous waste K170

under the ‘‘mixture’’ rule (see 40 CFR

261.3(a)). The Agency anticipates that

refiners will use the 6-month period

between the final rule date and the

effective date to remove ‘‘marginal’’

storage tanks from service for sediment

clean out and subsequently use

dedicated tank service for CSO storage

to minimize the number of tanks

generating the listed hazardous waste.

Concerning clean out/turnaround

sludges, throughout the EPA’s industry

study, the Agency intended to

incorporate clean out/turnaround

sludges from in-line particulate removal

units within the scope of the CSO

sediment definition (see the 1995

Listing Background Document at page

43). One primary component of these

sediments and storage tank sediments is

FCC catalyst fines. Samples were

collected from three storage tanks and

one in-line filter. No samples of

turnaround sediments were available

during the Agency’s field investigation;

however, several refineries described

the removal of sediments from other inline separation units such as

hydroclones during turnarounds. EPA

believes that sediments removed from

the hydroclone during turnarounds

would be comparable to sludges

removed from in-line filters which serve

the same purpose, because both are

designed to perform the same function,

i.e., to remove solids from lines leading

to CSO tanks. No information was

submitted by the commenters to

demonstrate that clean out/turnaround

sediments from such in-line separation

devices differ from storage tank

sediments.

The Agency therefore continues to use

the broader definition of CSO

sediments, which includes sediments

collected in filters and other separation

devices in lines that move the CSO from

the FCC unit to storage tanks. EPA does

not, however, expect that all residuals

generated during FCC turnaround

would be classified as K170, but rather

only those associated with in-line

particulate removal equipment (e.g.,

hydroclones, in-line filters). This would

not include sediments and tars that may

accumulate within the distillation

columns.

EPA’s meaning with respect to the

term ‘‘affiliated’’ was to extend the

scope of the listing to all tanks

containing CSO that are owned by the

refinery that produced the CSO. (See 60

FR at 57766). This CSO has not yet been

sold or transferred to another entity or

corporation, and remains the property of

the refinery from which it originated.

All sediments settling from the CSO

prior to sale are subject to the hazardous

waste listing. Similarly, once the CSO

has been sold or transferred in

commerce, it is no longer under control

of the producing refinery. The listing

determinations in today’s rule are for

wastes generated from refinery

operations, thus EPA has not examined

for this rule whether other sediments

might be generated, and if generated,

under what conditions, after the CSO

has been sold or transferred.

Concerning spills of CSO product,

EPA does not intend to regulate as

hazardous the CSO itself, only the

sediments that are removed from this

hydrocarbon product such as those

generated in in-line separators and those

sediments that gravitate to the bottom of

storage tanks. CSO that is accidentally

spilled on the ground may in fact
42154 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

contain particulates that would have

settled out as tank sediment. However,

the Agency did not address such spills

in the proposed rule and, in response to

this comment, is clarifying that it does

not currently intend to regulate CSO

spills as K170. Spills of K170 waste, of

course, would be regulated.

One commenter noted that EPA

should consider an exemption from

designation as hazardous for CSO

sludges that are de-oiled, and claimed

that de-oiled solids may be managed

similarly to FCC catalyst and fines units

because they are very similar in

composition (i.e., the wastes would be

landfilled and should not present a

risk). The commenter argued that

providing a conditional exemption for

de-oiled sludges, perhaps with separate

Land Disposal Restrictions (LDR)

treatment standards, would be

environmentally sound, and would

tailor treatment to the nature of the

waste stream.

EPA did consider whether the data

available allow the Agency to

distinguish between CSO sediment (as

well as crude oil storage tank sediment)

before and after de-oiling, especially for

use in risk assessment. However, the

Agency concluded that distinguishing

between the two forms of CSO sediment

was inappropriate based on the data

available (see Listing Background

Document, 1995, pages 46 and 29).

Therefore, EPA disagrees with the

commenter’s suggestion to only list

‘‘non-deoiled’’ sediment because: (1)

Available data do not provide a

sufficient comparison differentiation of

risks between oily and de-oiled CSO

tank sludges, (2) the deoiling process

may not remove the PAHs of concern,

and (3) crafting a definition of de-oiled

sludges would be difficult and may

cause enforcement problems.

Furthermore, as shown by the high PAH

content in CSO sediment, the solids

appear to be more than just spent FCC

catalyst. EPA believes the exclusion for

recycled oil-bearing residuals that EPA

is promulgating in today’s rule is a more

effective approach to encouraging the

recycling of the material.

3. Catalyst From Hydrotreating and

Hydrorefining

Summary

EPA is listing as hazardous spent

hydrotreating and hydrorefining

catalysts from refining operations. This

waste stream meets the criteria set out

at 40 CFR 261.11(a)(3) for listing a waste

as hazardous, because it may pose a

substantial or potential hazard to human

health or the environment. The Agency

identified substantial risks to consumers

of groundwater associated with releases

from on-site and off-site Subtitle D

landfilling due to benzene and arsenic,

which EPA has decided will not be

adequately regulated under the TC. The

revised groundwater risk assessment

results are summarized in Table IV–2. In

addition, these materials also present a

hazard because of their pyrophoric and

self-heating properties.

Discussion

The Agency proposed to list spent

hydrotreating and hydrorefining

catalysts from refining operations due to

high-end cancer risks of up to 1E–5 and

6E–5 respectively arising from releases

of benzene and arsenic to groundwater

from landfill disposal. (See 60 FR at

57766–57768). In addition, as the

Agency discussed in the proposed

notice, these materials also present a

hazard because of their potential to

spontaneously ignite when removed

from the processing unit and exposed to

air.

The revised groundwater risks in the

NODA increased substantially for these

scenarios when compared to the

proposed rule. The high-end risks for

hydrotreating catalyst were up to 7E–5

for off-site landfills and up to 8E–5 for

on-site landfills. For hydrorefining

catalyst, the high-end risks were up to

7E–4 for off-site landfills and 4E–4 for

on-site landfills. The TC-capping

assessment in the NODA resulted in

some decrease in risks from benzene

compared to the proposal, while the

arsenic risks showed little or no

decrease. Thus the maximum high-end

risks were not materially affected. In

addition, EPA provided a Monte Carlo

analysis that yielded somewhat lower

groundwater risks; however, as noted in

an earlier section, EPA subsequently

revised the Monte Carlo analysis.

As a result of the revised risk analysis

completed in response to comments on

the NODA, the off-site landfill

groundwater risks increased further. As

shown in Table IV–2, the revised off-site

risks for hydrotreating catalyst are 1E–

4 for benzene and 8E–5 for arsenic; the

TC-capped results for this waste showed

lower risk for benzene (3E–5), but

arsenic was unchanged. Similarly, the

revised off-site risks for hydrorefining

catalyst are 7E–5 for benzene and 6E–4

for arsenic, and the TC-capped analyses

for these wastes lowered the benzene

risks (3E–5) but had no impact on

arsenic risk. The revised Monte Carlo

risks for hydrotreating catalyst (benzene

3E–5, arsenic 2E–5 at the 95th

percentile) and hydrorefining catalyst

(benzene 2E–5, arsenic 4E–4 at the 95th

percentile) were somewhat lower, but

still well above the listing benchmark of

1E–5. As in the NODA analysis, the

high-end and Monte Carlo risks for

arsenic were not lowered by the TCcapped analysis. The TC-capped

benzene risks for both catalysts were

somewhat lower in the high-end (both at

3E–5) and Monte Carlo analyses (9E–6

and 8E–6 for the hydrotreating and

hydrorefining risks respectively).

EPA believes that the overall results

are strongly supportive of listing both

spent catalysts. Even in the TC-capping

results, both catalysts present risks in

off-site landfills that exceed 1E–5.

Specifically, for both hydrotreating and

hydrorefining catalysts, the TC-capped

arsenic risks exceed 1E–5 for the Monte

Carlo and high-end evaluations, and the

benzene risks exceed this benchmark in

the high-end evaluation and approaches

this level in the Monte Carlo analyses.

As shown by the TC-capped modeling

analysis, the risk levels may remain at

levels of concern, even assuming wastes

above the TC level are not disposed of

in nonhazardous landfills.

In addition to the groundwater risks

posed by these materials, the pyrophoric

and self-heating nature of these catalysts

also support EPA’s conclusion that

these materials present a substantial

hazard. During several site visits to

catalyst reclaimers, EPA observed

smoking catalyst storage areas used to

stage the catalysts immediately prior to

insertion into the reclamation process.

One facility told EPA during the site

visit that fires occur every few months.

These areas were carefully monitored

and controlled, but clearly the materials

exhibited pyrophoric properties. In

addition, the refineries generating these

residuals described the significant risks

during reactor turnaround associated

with the potential pyrophoric nature of

these catalysts. Therefore, EPA believes

that it has solid basis for using the

potential self-igniting characteristic of

these catalysts to support its decision to

list these residuals.

EPA wishes to clarify the scope of

these listings, however. In the proposal,

the Agency indicated that the listings

would not include ceramic support

media that are separated from the spent

hydrotreating or hydrorefining catalyst

prior to catalyst disposal or recycling,

because these support media are inert,

separate from the catalyst, and

commonly reused or sent for cleaning

prior to reuse. (See 60 FR at 57780). EPA

continues to believe this is appropriate.

Some commenters requested that EPA

modify the regulatory language to refer

to ‘‘inert support media,’’ rather than

the proposed ‘‘ceramic support media,’’

because other types of inert materials

are used, such as stainless steel. EPA

agrees that the commenter’s language
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42155

better reflects the Agency’s intentions,

and is modifying the exemption

language in 40 CFR 262.3(c)(2)(ii)(E) and

the listing descriptions for K171 and

K171 to reflect this change.

In the proposed rule EPA also noted

that the terms ‘‘hydrotreating’’ and

‘‘hydrorefining’’ are somewhat loosely

used within the industry. Several

commenters requested a more concise

definition of the terms to clarify the

definitions of hydrotreating,

hydrorefining, and hydrocracking

processes. EPA provides further

discussion of the definitions of these

wastes in the following section on

residual-specific comments. EPA is

modifying the final regulatory language

slightly to clarify this issue, as noted in

Section IV.B.

Specific Comments

Definition of Hydrotreating and

Hydrorefining Catalysts

EPA examined three types of

hydroprocessing catalysts identified in

the EDF consent decree: hydrotreating

catalyst (listing candidate),

hydrorefining catalyst (listing

candidate), and hydrocracking catalyst

(study residual). Spent hydrotreating

and hydrorefining catalysts have been

proposed for listing and will be

promulgated as hazardous wastes in

today’s rule; no action has been

proposed to date for spent

hydrocracking catalyst. (However, the

listing of the spent hydrotreating and

hydrorefining catalysts does not release

the generator from determining whether

spent hydrocracking catalyst is a

hazardous waste due to the

characteristics under 40 CFR 262.11).

Public comment was submitted

regarding EPA’s hydroprocessing

catalyst definitions.

All three processes are part of a

continuum of catalytic hydroprocessing

units. Definitions for the three

categories of hydroprocessors are not

universally established or accepted. In

general, the three processes may be

viewed in the following order of

increasing degrees of severity of

operating conditions and conversion of

larger hydrocarbons to smaller

molecules (‘‘cracking’’), and/or feeds:

hydrotreating, hydrorefining, and

hydrocracking. The types of catalysts

used can be similar in all three

processes.

The proposed regulatory language did

not attempt to define these catalysts, or

differentiate them from hydrocracking

catalysts. The proposal referred to

definitions used in the Oil and Gas

Journal (60 FR at 57767, fn. 7), which

indicates that hydrotreating includes

processes where essentially no

reduction in the molecular size of the

feed occurs, that hydrorefining includes

processes where 10 percent of the feed

or less is reduced in molecular size, and

that hydrocracking includes processes

where 50 percent of the feed or more is

reduced in molecular size.

Commenters on the proposal noted

that the preamble definitions did not

provide a complete continuum,

resulting in an unclear area between

hydrorefining and hydrocracking.

Specifically, since hydrorefining

covered conversion rates up to 10

percent and hydrocracking covered

conversion rates greater than 50 percent,

as defined by the Oil and Gas Journal,

it was not apparent how EPA would

classify processes with conversion rates

between 10 and 50 percent. Several

solutions were suggested by the

commenters:

One refiner suggested that EPA establish a

definition of hydrocracking that assumes a

conversion rate of 15 percent or greater and

the use of downstream fractionation.

A catalyst reclaimer suggested extensive

regulatory language describing the specific

types of catalysts, catalysts support media,

and catalytic applications associated with the

different hydroprocessing categories.

Other refiners commented that EPA should

clarify that any process with conversion rates

greater than 10 percent should be classified

as hydrocracking.

Each of the options is problematic.

Reliance on specific conversion rates

may allow for slight changes in

operating and accounting practices to

result in reclassification of units that

would otherwise be considered

hydrorefiners. Similarly, use of

fractionation could be interpreted to

include stripper columns commonly

employed after hydrotreating and

hydrorefining. The catalyst reclaimer’s

suggested language was an exhaustive

attempt to distinguish the types of

processes EPA intends to be within the

scope of the listings; however, other

commenters argued it was inappropriate

to adopt the reclaimer’s suggestion

because EPA did not have sufficient

basis to expand the definition in this

way. At this time, the Agency is

reluctant to adopt this extensive list

within the regulatory language without

additional review and perhaps further

information collection.

Upon reviewing all of the relevant

materials available in the docket, the

Agency believes that the simplest way

to differentiate between hydrocracking

units and other hydroprocessing units is

to rely on the categorization used in the

DOE’s Petroleum Supply Annual.

Refineries are required to submit Form

EIA–820 annually to DOE’s Energy

Information Administration. This form

includes the mandatory submission of

data on operating capacity for catalytic

hydrocracking and catalytic

hydrotreating. Catalytic hydrocracking

is defined in the Petroleum Supply

Annual as:

A refining process that uses hydrogen and

catalysts with relatively low temperature and

high pressures for converting middle boiling

or residual material to high-octane gasoline,

reformer charge stock, jet fuel, and/or high

grade fuel oil. The process uses one or more

catalysts, depending upon product output,

and can handle high sulfur feedstocks

without prior desulfurization.

In addition, catalytic hydrotreating is

defined in the Petroleum Supply

Annual as:

A refining process for treating petroleum

fractions from atmospheric or vacuum

distillation units (e.g., naphthas, middle

distillates, reformer feeds, residual fuel oil,

and heavy gas oil) and other petroleum (e.g.,

cat cracked naphtha, coker naphtha, gas oil,

etc.) [i]n the presence of catalysts and

substantial quantities of hydrogen.

Hydrotreating includes desulfurization,

removal of substances (e.g., nitrogen

compounds) that deactivate catalysts,

conversion of olefins to paraffins to reduce

gum formation in gasoline, and other

processes to upgrade the quality of the

fractions.

For the purposes of the K171 and K172

listing descriptions, catalytic

hydrorefining is defined as a refining

process with more severe (higher

temperature and pressure) operating

conditions than the catalytic

hydrotreating process defined above for

treating the heavier molecular weight

petroleum fractions, residual fuel oil

and heavy gas oil.

Based on the Petroleum Supply

Annual definitions stated above, if a

refinery has been classifying its

hydroprocessor as a catalytic

hydrocracker for the purposes of the

DOE’s Form EIA-820, spent catalyst

from this unit would not be covered by

K171 or K172 (with the exception of

guard beds, as discussed further below).

Conversely, if a refinery has been

classifying its hydroprocessor as a

hydrotreater processing feeds other than

residual fuel oil or heavy gas oil, spent

catalyst from this unit would be

classified as K171; spent catalyst from a

similar unit processing residual fuel oil

or heavy gas oil would be classified as

K172. Refineries have been reporting

capacity information to DOE for many

years and today’s rulemaking should

serve as a reference for the classification

of these units.

In addition to the issue of defining

hydrocracking units that are not subject

to the K171/K172 listing, there is
42156 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

disagreement among commenters from

the petroleum industry and catalyst

reclaimers regarding the classification of

guard beds. These units, also known as

desulfurization pretreaters, are used to

extend the life of the downstream

catalytic bed (e.g., reformer,

hydrocracker, isomerization reactor) by

removing sulfur, oxygen, nitrogen, and/

or heavy metals. Reclaimers argued to

include such pretreatment of

hydrocracker feeds, sulfur guards,

reformer pretreatment, and

isomerization pretreatment as part of the

definition of hydrorefining or

hydrotreating. The petroleum refining

industry disagreed, stating that these

pretreatment processes use more severe

conditions (much higher pressure, high

ratio of hydrogen to hydrocarbon) to

achieve contaminant removal, and also

provide a significant reduction in

feedstock molecular size, often greater

than the 10 percent cutoff in the EPA/

Oil and Gas Journal hydrorefining

definition. Thus, industry contends

such catalysts more appropriately

belong in the hydrocracking category.

EPA agrees that these pretreatment

units, or ‘‘guard units,’’ should be

covered under the listing descriptions in

today’s rule.

In reviewing the 3007 Questionnaire

responses, EPA found that some

refineries reported the catalysts from

their guard beds under the category of

the downstream unit. For example,

nickel/molybdenum catalyst from a

reformer pretreatment unit was

sometimes reported as spent reforming

catalyst, however, true reforming

catalysts are based on precious metals

such as platinum and palladium. EPA

believes that these units were not

reported as hydrotreaters because they

often reside within the unit boundaries

of the downstream units, are closely

integrated with the downstream units,

and such reporting simplified the

refinery’s response to the extensive 3007

Questionnaire. However, because this

type of guard bed does not result in

catalytic reforming (and similarly

isomerization), these units were recoded as hydrotreaters in the Agency’s

database. EPA has modified the

regulatory language to clarify that the

spent catalyst from all such

pretreatment units should be classified

as K171 or K172.

Risk Assessment and Basis for Listing

Some commenters stated that EPA’s

groundwater analysis understated the

risks for these wastes. These comments

reflected many of the issues already

discussed in the portion of today’s

notice devoted to the Modeling

Approach and Risk Assessment, but the

Agency notes a few issues specific to

these wastes. Despite the commenters’

arguments, EPA remains convinced that

it is appropriate to use the TCLP to

characterize the leaching potential of

these residuals, as noted in Section

V.B.1. The Agency’s analysis of total oil

and grease content of the catalysts

showed very low oil and grease content

(less than 0.2 percent) for the six

samples for which EPA was able to

conduct total oil and grease analysis,

thus these are not the ‘‘oily’’ wastes that

the commenter believes represent a

problem for the TCLP. As the

commenters noted, EPA did not

consider codisposal for these wastes.

However EPA believes it would be

inappropriate to assess the impact of

codisposal of the catalyst residuals with

other refinery wastes because EPA is

listing these wastes, and thus they must

be disposed of in Subtitle C units in the

future.

Several commenters argued that

EPA’s analysis overestimated risks in

the Agency’s assessment of spent

catalysts from hydrotreating and

hydrorefining for various reasons. These

commenters argued that EPA data

shows that 81 percent of these catalysts

are already recycled or reclaimed, but

EPA assumed in its risk analysis that all

this material will go into landfills.

EPA disagrees with this comment.

The Agency chose landfill disposal as

the mismanagement scenario for the

groundwater risk analysis for these

wastes, because economic

considerations and other information in

the record show that the recycled

material could plausibly go to landfills.

To calculate waste volumes to use as

input to the modeling, EPA evaluated

the data in two ways: (1) EPA arrayed

the volumes disposed in on-site and offsite Subtitle D landfills in 1992 and

determined the 50th and 90th percentile

quantities (Tables 3.3.4 and 3.3.11 of the

1995 Listing Background Document),

and (2) EPA arrayed the volumes for all

volumes generated by any facility

regardless of the actual management

method (except for excluding wastes

sent to Subtitle C), and determined the

50th and 90th percentile quantities for

these wastes. EPA has used the second

set of statistics in its risk assessment.

Use of these data reflects the real

potential that shifts might occur in

management practices away from

recycling and toward less expensive

landfilling if the wastes are not listed

(see a discussion of this issue in the

Listing Background Document, 1995,

pp. 78–79). Support for this assumption

is found in industry comment that

refineries may send spent catalysts to

either recycling or landfill disposal,

depending on the associated costs.

During site visits to both refineries and

catalyst recyclers, EPA learned that

factors affecting spent catalyst

management include the price of metals,

and consequently the value of spent

catalyst, and corporate policies toward

recycling versus landfilling. For

example, one report from a visit to a

refinery (document # 95–PRLP–S0041)

states: ‘‘the spent catalyst is sent off-site

for metals reclamation or to a special

waste landfill, depending on market

conditions.’’ Another report from a site

visit to a reclaimer (95–PRLP–S0057)

states that the company’s fee structure is

driven by metals prices, and their costs

and/or credits are dependent on the

current metals market. The reclaimer

noted that more spent catalyst is

reclaimed when metal prices are high

than when prices are low. EPA therefore

believes that management patterns of

these particular residuals could change

in the future.

EPA only applied this assumption to

three wastes (K171, K172, and spent

catalyst from sulfur unit tail gas treating

units), because these are all similar

spent catalysts that are recycled at the

same facilities. EPA did not project

changes in waste management practices

for other residuals, because the Agency

has no specific information that such

changes are plausible or that special

trends in management practices exist.

As noted in Section V.B.2, for the

remaining residuals, EPA considered

that 1992 provided a reasonable picture

of the petroleum refining industry’s

practices.

Moreover, comparison of the two data

sets shows the commenters’ concern

that the approach used overestimates

risks is unfounded. The high-end (90th

percentile) annual volumes calculated

for both approaches are nearly identical

for hydrotreating catalyst, 70 metric tons

(MT) for the first approach versus 77

MT for the second. For hydrorefining

catalyst, use of volumes that are

recycled actually reduced the high-end

volume somewhat, from 2,250 to 500

MT. (Note that the decrease in the 90th

percentile in this case is because the

addition of the recycled volumes creates

a larger data set, and the 90th percentile

point in the set is lowered for that in the

smaller data set for volumes sent to

landfills). Thus, EPA’s approach does

not overestimate risks.

TC-Capped Modeling

One commenter argued that EPA

should not list hydrotreating catalyst

because, based on the TC-capped

modeling analyses EPA performed for

the NODA, the risks for spent
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42157

hydrotreating catalyst disposal in

landfills range from 2E–5 to 4E–6 from

exposure to benzene (See 62 FR at

16752), and that these risk levels are

within EPA’s discretionary range for not

listing. One commenter stated that EPA

appropriately reported the risks from

arsenic as not applicable because spent

catalysts containing arsenic at levels

sufficient to pose such risks are already

covered by the TC Rule and regulated

under RCRA. The commenter also

argued that the risks found in the Monte

Carlo analysis for hydrotreating catalyst

were only 4E–6 at the 95th percentile,

and, thus, support a no-list decision.

EPA disagrees with the commenters.

First, the commenters are mistaken in

suggesting that the arsenic risks are not

applicable for the TC-capped analysis.

On the contrary, the risks do not change

under this assumption because none of

the samples exceeded the TC level for

arsenic. As such, under the TC-capped

analysis the arsenic risks would remain

the same as the uncapped analysis. As

noted in the Discussion section above,

EPA continues to believe that the risks

from the high-end analysis fully support

listing this waste, and the somewhat

higher revised groundwater risks further

support EPA’s decision. Even for the

TC-capped results, the revised arsenic

high-end risks (8E–5) and Monte Carlo

results (2E–5 at the 95th percentile), as

well as the high-end risk for benzene

(3E–5) clearly exceed the listing

benchmark of 1E–5.

Commenters also argued that for

hydrorefining wastes, TC-capped

groundwater risks from benzene range

from 2E–5 to 6E–6 (See 62 FR at 16752),

and these risk levels are within EPA’s

discretionary range for listing (See 59

FR at 66073). While the comments

conceded that the TC-capped risk for

arsenic in this waste are in the range

EPA could consider for listing (4E–4 to

1E–4), the fact that the peak arsenic

concentrations may not reach the

receptor well until 3400 to 8400 years

after release, indicates that this is not

significant. The commenters also noted

that the risks from benzene and arsenic

cannot be added because the time for

peak concentrations at the well is much

shorter for benzene (13–50 years). The

commenters argued that EPA should

base its decision on the lower Monte

Carlo results (TC-capped risk of 6 ×

10¥6 at the 95th percentile for benzene).

EPA disagrees with the commenters.

As noted in the Discussion section

above, EPA continues to believe that the

risk analyses fully support listing this

waste, and the somewhat higher revised

groundwater risks further support EPA’s

decision. Even for the TC-capped

results, the revised Monte Carlo and

high-end risks for arsenic (4E–4 at the

95th percentile and 6E–4), and the highend risk for benzene (3E–5) clearly

exceed the listing benchmark of 1E–5.

Contrary to what the commenter

implied, EPA did not add the benzene

and arsenic risks, because of the large

differences in travel time. Further, EPA

did not discard the arsenic risk results

merely because the modeling suggested

the constituent may not reach the

receptor well in the near future. The

timeframe for travel may be uncertain,

but the results suggest arsenic will be a

serious problem when it reaches the

well.

EPA received comments stating that

spent catalyst residuals should not be

listed based on the characteristic of

ignitability, because the spent catalysts

do not demonstrate the property of selfheating, nor do they fail the ignitability

test.

As noted in the discussion above,

persistent smoldering fires that may

propagate to other codisposed materials

have been reported for these residuals.

Thus, listing of these wastes is further

supported by actual environmental and

health damages. Actual damages

constitute one of the factors to be

considered in listing wastes as

hazardous under 40 CFR

261.11(a)(3)(ix). As noted previously, it

is rare to have actual damage cases to be

attributable specifically to the wastes

being listed. The fact that EPA has

knowledge of actual damage cases for

these wastes gives special support to

their listing determination.

Furthermore, under the mismanagement

criterion of 40 CFR 261.11(a)(3)(vii), it is

appropriate to consider the physical

properties of these wastes that may

result in hazards if there is improper

management through co-management

with combustibles. Therefore, EPA

considers the self-heating physical

property of these spent catalysts to be

very important in its decision to list

these wastes.

With regard to commenter opinion

that a listing is not warranted to protect

against fires resulting from spent

catalyst being landfilled, EPA observed

and was told by catalyst reclamation

and refinery facility operators that these

wastes exhibit pyrophoric properties

and do result in fires. Even where

catalysts are coated with heavy oils to

reduce pyrophoric properties, this effect

is not permanent as the oil coating

degrades, particularly if the material is

disturbed at a later date and exposed to

the air, as could easily happen at

landfills. EPA, therefore, has a solid

basis for using the potential self-igniting

characteristic of these catalysts to

support its decision to list these

residuals

Impact of Listing on Recycling

EPA received a request for

confirmation that solids generated from

scrubbers used to control emissions

during the reclamation and processing

of spent hydrotreating and

hydrorefining catalysts will not be

designated hazardous under the

‘‘derived from’’ definition as a result of

these proposed rules. The Agency

points out that the commenter is

incorrect. In general, wastes generated

from the treatment of listed hazardous

wastes are considered hazardous wastes,

under 40 CFR 261.3(c)(2). This includes

residuals generated by the recycling

activities described by the catalyst

reclaimers who submitted comments on

this rule. Wastes generated in the

manner described by the commenter

(e.g., ‘‘derived from’’ air pollution

control wastes) would continue to carry

the hazardous waste code and be subject

to land disposal restrictions.

EPA received several comments

regarding the impact of this listing on

recycling and management practices.

Commenters noted that spent catalyst

can be generated such that it meets the

LDR UTS for organics, and that the

metals of concern can be treated using

metal fixation. This would be relatively

inexpensive compared to the increased

cost of recycling that will result from

this listing, and might discourage

recycling.

EPA does not agree with the

commenters’ scenario for several

reasons. First, the treatment standards

for the spent catalysts require that any

treatment reduce levels of organics to

low levels. For example, nonwastewater

levels of benzene, toluene, and xylene

must be 10 mg/kg or lower, and levels

of naphthalene and phenanthrene are

set at 5.6 mg/kg. Because the K171 and

K172 wastes each frequently contain

reactive sulfides and as a result may

exhibit self-heating pyrophoric

properties, the Agency also listed

reactive sulfides as one of the hazardous

constituents of concern in these wastes

and specifically proposed to apply

deactivation to these wastes. Thus, EPA

does not believe it is likely that

generators can meet all applicable LDR

standards without appropriate

treatment, such as treatment at a

recycling facility. EPA concedes that

listing may increase costs for recycling,

however, EPA is not convinced that

costs for other forms of treatment and

disposal would be appreciably less. In

any case, EPA’s decision to list these

materials is based on the risks they

pose, and how this listing may
42158 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

ultimately affect competing treatment

technologies is not a central issue in the

Agency’s decision.

Other commenters pointed out that

current recycling of these catalysts has

been due, in part, to the economics of

reclamation compared to disposal. A

listing would, however,

disproportionately increase costs of and

liability concerns about recycling. Some

commenters noted that by listing these

wastes, transportation costs will become

a significant factor as materials will

need to be transported as hazardous,

regardless of their characteristics;

increased transportation costs would

strongly favor local disposal at a

Subtitle C facility, and generators would

be less likely to ship wastes farther

distances to recycling facilities. Another

commenter suggested that a listing will

decrease recycling, and increase the

demand for virgin metals. Thus, the

overall environmental benefits from the

listing determination are likely to be

negative, because there will be more

disposed of catalyst, and more

production of virgin metals.

EPA cannot know precisely what the

ultimate costs will be for refineries to

recycle or dispose of spent catalysts.

The Agency believes the liability

concerns described will continue to

play a role in both landfilling and

recycling decisions upon promulgation

of this listing. The affected industry

must first explore means to eliminate or

minimize the newly listed waste, and

then to optimize recycling, treatment,

and management of remaining wastes.

The basis of EPA’s listing decision,

however, centers on the results of its

risk assessment, which demonstrates

that these materials pose a potential risk

to human health and the environment,

and warrant Subtitle C control. The

Agency also points out that, because of

the listing, the recycling/disposal cost

differential may arguably be reduced or

reversed, because Best Demonstrated

Available Technology (BDAT) and

Subtitle C disposal costs will greatly

increase the costs of disposal over the

current practice of Subtitle D landfills.

Thus, recycling is likely to continue to

be an effective management option for

these residuals.

Furthermore, based on EPA’s

discussions with the recycling industry

(see discussion of metal reclaiming for

hydrotreating catalyst in Listing

Background Document, 1995, pages 76–

79), many of the reclaimers currently

have RCRA storage permits to allow

them to manage characteristically

hazardous catalyst, so it is not clear that

the costs for recycling should increase

significantly due to listing. Even if

recycling costs may increase as a result

of this rule, EPA continues to believe

that it is completely appropriate to bar

these materials from Subtitle D disposal

because of the risk levels identified

through the Agency’s risk assessment

procedures. EPA has no evidence, nor

did commenters provide any, to support

the supposition that the listing would

increase demand for virgin metals.

Many commenters requested that the

Agency consider an exemption for the

regeneration/reclamation/recycling of

spent catalyst. The catalysts would be

listed only if they are disposed of in a

landfill (or, alternatively, not recycled).

Other commenters proposed a

conditional listing for catalyst residuals

going to land disposal. The suggested

conditions include that the residual is

sent to metals reclaiming, catalyst

regenerators, or other recycling or reuse

(provided it is not a ‘‘use constituting

disposal’’), records are kept on recycling

and reuse, and that self-heating

residuals are shipped in Department of

Transportation (DOT) bins. The

commenters argue that such a listing

would encourage recycling rather than

landfilling.

EPA believes that the catalyst wastes

present several risks beyond those

necessarily associated with landfill

disposal, including pyrophoric

properties and significant levels of

benzene and arsenic (all of which may

pose risks via pathways other than

groundwater exposure, including risks

from improper storage or other

handling, and risks from uncontrolled

air emissions from thermal treatment).

Thus, this waste is not a good candidate

for a conditional listing. Given the

hazardous nature of this waste, EPA

believes it is entirely appropriate for it

to be transported and stored as

hazardous waste before recycling. (See

40 CFR 261.6 for regulations applicable

to hazardous wastes that are recycled).

EPA points out that examples of

problems at sites recycling these wastes

have been noted in the record (see

enforcement case described in the

docket, document #PRA–S0037).

4. Catalyst From Sulfuric Acid

Alkylation

Summary

The Agency is not listing as

hazardous catalyst from sulfuric acid

alkylation, as proposed. EPA hereby

incorporates, as a final decision, the

proposed preamble discussion for this

waste stream at 60 FR 57768–57769.

The residual is managed almost entirely

(> 99 percent) under an existing

exemption from the definition of solid

waste (40 CFR 261.4(a)(7)). Also, this

residual consistently exhibits the

characteristic of corrosivity and is

subject to regulatory control if not

returned to the production of virgin

sulfuric acid. No significant comments

against this decision not to list were

received during the public comment

period. Therefore, EPA has no basis to

change the decision not to list.

5. Spent Caustic From Liquid Treating

Summary

EPA is issuing a final decision not to

list spent caustic from liquid treating as

a hazardous waste. About 70 percent of

the spent caustic is managed in ways

that are exempt from RCRA regulation,

because it is reused as an ingredient in

producing other products. The Agency

has identified certain management

practices used for spent caustics for

which the Agency is clarifying the

application of the definition of solid

waste, and in one case proposes a

modification to the definition.

Almost all of the remainder is sent to

regulated wastewater treatment systems

in such small volumes relative to other

discharges, that the diluted constituents

of concern from the spent caustics are

not expected to present any significant

risk. Furthermore, any solids from the

caustic that separate out prior to

downstream biological treatment are

already regulated as hazardous wastes.

After analyzing other potential

exposure pathways, EPA concluded that

with regard to any remaining risks, with

the exception of air exposure pathways

from open tank storage, there were no

potential risk pathways that need to be

modeled. EPA found that risks from air

releases from the open tank storage

scenario presented insignificant risk.

Moreover, this residual will

frequently exhibit the characteristic of

corrosivity (i.e., pH will be above 12.5)

and toxicity due to cresol leachability

(and sometimes ignitability) and is

subject to all applicable regulatory

controls when any of the hazardous

waste characteristics are present.

Discussion

The Agency proposed not to list this

waste as hazardous and has found no

reason to change this decision after

consideration of public comments and

all other information available in the

rulemaking record. EPA’s 3007

Questionnaire showed that 51 percent of

the waste stream is reused as an

ingredient or substitute for virgin

caustic and, is thus eligible for

exclusion from the definition of solid

waste under 40 CFR 261.2(e). The

exclusion provides that secondary

materials that are used or reused

directly (i.e., without reclamation) are
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42159

not subject to regulation under RCRA

and are therefore not subject to any

listing determination. In addition, the

proposal noted that characteristically

hazardous spent materials that are

reclaimed prior to reuse would still be

hazardous wastes subject to pertinent

management requirements. Therefore, as

noted in the proposal and confirmed in

this final decision, there is no reason to

cover this portion of the waste stream in

the listing.

In addition, 17 percent of the spent

liquid treating caustics are used as

valuable commercial feedstocks in the

manufacture of cresylic or naphthenic

acids. Accordingly, EPA in today’s final

rule, for reasons stated in the preamble

to the proposed rule at 60 FR 57769–

57770, is amending 40 CFR 261.4(a)(19)

to clarify that spent caustics used in this

manner are not solid wastes and,

therefore, should not be subject to

listing.

For the 29 percent of the wastes sent

to wastewater treatment systems, EPA’s

analysis in the proposed rule found that

risks from this practice are unlikely. As

noted in the proposed rule, risks from

such treatment are unlikely to be of

concern because: (1) Treatment is

already regulated under Federal water

(NPDES) and air (benzene National

Emissions Standards for Hazardous Air

Pollutants (NESHAP), Maximum Air

Control Technology (MACT) standards)

programs; (2) sludges generated from

wastewater treatment are already

regulated as hazardous waste (i.e., K048,

K051, F037, F038); (3) volumes of the

discharged residuals under evaluation

are relatively small in comparison to the

volumes typically treated in wastewater

systems; and (4) the wastewater

treatment systems are designed to treat

refinery wastes effectively (see

discussion below).

The Agency concluded that there

were no potential risk pathways that

needed to be modeled except air

exposure pathways from open tank

storage. For open tank storage, the

Agency’s bounding risk assessment

estimates resulted in no significant risks

(see 60 FR at 57770). In addition, this

waste consistently exhibits the

characteristic of corrosivity (and often

toxicity due to cresols), and, therefore,

could not be otherwise discarded

without being subject to regulation as a

hazardous waste.

Specific Comments

In comments on the proposed rule,

one commenter argued EPA only

evaluated potential risks associated with

tank storage, that EPA must evaluate the

groundwater impacts from surface

impoundment management, since that

method of management is both an actual

and plausible mismanagement scenario.

The commenter stated that several

refineries reported managing spent

caustic in surface impoundments in

1992, and that the high-end volume of

596 MT managed in surface

impoundments exceeds volumes EPA

modeled for other waste practices. The

commenter also noted that controls on

surface impoundment risks by Phase III

and Phase IV LDR rules cited by EPA in

the proposal as being able to effectively

regulate these wastes were not finalized.

In response, EPA wishes to clarify a

few points. First, in every case

described in the 1992 database, these

surface impoundments were part of the

refineries’ wastewater treatment

systems. EPA has no data indicating that

undiluted caustics were managed in

surface impoundments. Therefore, to

model this scenario appears

unreasonable. Second, EPA did, in fact,

conduct a screening analysis of the

impact spent caustic would have on the

wastewater treatment plant, as

described in the docket to the proposed

rule, but found that the dilution with

other process wastewaters was so great

that no impact was observed (see page

152 of the Listing Background

Document, 1995). In further considering

this scenario, EPA estimates that the

90th percentile quantity of spent caustic

discharged to wastewater treatment in

1992 (approximately 4,000 MT) would

be diluted by a factor of about 3000.

Thus, EPA does not believe that

additional risk assessment is necessary.

In addition, the constituents of concern

(relatively low levels of certain volatile

organics and metals, see the 1995

Listing Background Document for

details) in these residuals are generally

indistinguishable from those found in

other residuals (many already listed as

hazardous waste) typically discharged

to wastewater treatment, making it

virtually impossible to attribute any

subsequent concentrations in sludges or

environmental releases to the

contribution from spent caustics. The

combination of dilution and the

expected toxicant removal and

destruction that the wastewater

treatment plants are designed to

accomplish should effectively treat the

spent caustic.

In addition, the Agency continues to

believe that significant regulatory

control of any spent caustic-derived

treatment sludges already exists.

Sludges and other residuals from the

initial oil/water/solids separator are

already regulated as K048 and K051.

Sludges from oil/water/solids removal

surface impoundments are also

regulated as hazardous in the petroleum

refining industry, through the F037/

F038 listings. Clearly, risks associated

with biological treatment sludges and

wastewaters downstream from these

units are reduced as a result of the prior

removal and treatment, including

biodegradation. Further regulatory

controls also exist for these sludges and

wastewaters via the TC. In addition, the

benzene NESHAP (58 FR 3072, January

7, 1993) and the planned air standards

for volatile organics emissions (MACT

standards proposed in 61 FR 17358,

April 19, 1996) provide regulatory

mechanisms for control of air emissions,

and wastewater discharges are covered

by the NPDES program.

EPA does agree that it is no longer

appropriate to rely on the regulatory

controls originally anticipated via the

Phase III and IV land disposal

restrictions. The Land Disposal Program

Flexibility Act of 1996 caused the

Agency to withdraw the LDR Phase III

treatment standards (see 61 FR 15660,

April 8, 1996), and not to finalize the

proposed LDR Phase IV provisions (see

62 FR 25997, May 12, 1997). However,

as required under the Act, EPA is

currently conducting a 5-year study of

surface impoundment usage, and if the

study indicates that risks from

impoundments are significant, EPA will

then consider the need for further

regulatory controls.

One commenter noted that EPA’s

sampling indicates that spent caustic

from liquid treating ‘‘consistently

exhibits’’ a characteristic (the

corrosivity characteristic, and TC for

cresols and benzene), thus it should be

listed as hazardous under EPA’s listing

criterion in 40 CFR 261.11(a)(1). The

commenter argued that current

regulatory control depends upon

whether the particular waste exhibits a

characteristic (a determination the

generator can reach based solely upon

his or her ‘‘knowledge’’ of the waste).

EPA agrees that this residual

frequently and typically exhibits one or

more of the characteristics. However,

because the majority of caustic

management practices are either exempt

from regulatory control or are

adequately regulated under other

regulations (e.g., the characteristics), the

Agency believes that listing as

hazardous waste is not necessary. In

response to the commenter’s concern

regarding knowledge that this residual

exhibits a characteristic, EPA notes that

this material is commonly

acknowledged as corrosive due to its

highly caustic nature (hence its name),

and managed in a manner to minimize

corrosion problems during storage.

Thus, the Agency believes that

generators of spent caustic are well
42160 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

24See the discussion on oil-bearing hazardous

secondary materials inserted into the petroleum

refining process, including the coke, in today’s

preamble for modifications to the definition of solid

waste concerning these materials.

aware of the potential for this residual

to exhibit hazardous waste

characteristics, and manage their spent

caustic accordingly. Given the existing

regulatory controls and management

practices for this waste, EPA continues

to believe that listing is not warranted.

Several commenters believed that the

use of caustics in the manufacture of

cresylic acid and naphthenic acid has

always been excluded from the

definition of solid waste under 40 CFR

261.2(e)(1)(I) and that a promulgation of

the proposed specific exclusion might

indicate that up until now, these

caustics have not been excluded. Thus,

the commenters requested clarification.

In response, EPA notes that the

Agency and several states have been

involved in a longstanding discussion

with industry regarding the regulatory

status of these materials. The

promulgation of this rule presents EPA’s

final findings, and is intended to put an

end to discussions regarding possible

ambiguities in the current rules. The

purpose is to settle this matter once and

for all, and we are doing so by providing

a clear regulatory exclusion.

6. Off-Specification Product and Fines

From Thermal Processes Summary

EPA is not listing as hazardous offspecification product and fines from

thermal processes. No risks of concern

were identified for those materials that

actually are discarded. Most of the

materials generated from these thermal

processes are coke product and are

stored in piles with other coke product

before they are resold. These piles are

not, therefore, subject to RCRA

jurisdiction or they are exempt from

RCRA regulations.

Discussion

The Agency proposed not to list these

materials, which are generated from

various refinery coking operations. Of

the 194,300 MT of these materials

generated, approximately 87 percent is

collected and combined with product

inventory to be sold. However, more

than 7,250 tons (3.7 percent) are

landfilled in on-site or off-site Subtitle

D landfills. These discarded materials

were the wastes on which the Agency

conducted its risk assessment.

EPA determined that other

management practices, including fines

sent to wastewater treatment, would not

serve as a basis for listing and adopts

the reasoning in the proposal for this

determination as part of its final

decision. (See 60 FR at 57770–57771). In

summary, fines sent to wastewater

treatment are insoluble and will be

incorporated in primary treatment

sludges that are already listed as K-and

F-wastes; LTUs received very small

waste volumes; and other management

practices do not actually isolate the

materials from the coking process and,

thus, are not wastes.

Commenters questioned why EPA did

not assess risks from coke fines placed

on piles of coke product, arguing that

the waste does not become a product

simply because it is placed on the pile

and combined with another material. In

the NODA, EPA provided further

clarification on the jurisdictional basis

for not evaluating the majority of offspecification product and fines that are

managed as coke product. The Agency

explained that only particle size

distinguishes coke fines from other coke

product. The majority of coke is

removed from the coker by hydraulic

drilling and coke fines are merely the

smaller pieces of coke generated during

this process.

In addition, EPA explained there is a

jurisdictional distinction between coke

fines produced from non-hazardous

materials and coke fines produced from

hazardous wastes (waste-derived

fines).24 Fines generated from nonhazardous materials are simply coke

product, as would be expected because

they are produced from the same coking

drum. In the case of waste-derived fines,

so long as the fines are legitimate coke

product, they are exempt from RCRA

regulation unless the material exhibits a

characteristic as provided in 40 CFR

261.6(a)(3)(v). (See also RCRA section

3004(q)(2)(A)). EPA had no information

that waste-derived coke fails any

hazardous waste characteristic. The

Agency invited comment or data to the

contrary but received none.

In any event, EPA determined that the

use of hazardous waste in the

production of coke would result in

little, if any, change to the qualities and

the properties of the coke and fines

produced. These coke fines would have

essentially the same composition as

fines generated from non-hazardous

feed materials. The waste-derived fines

are combined with other coke in a

product pile for storage prior to sales

and are coke product. The NODA also

provided additional analyses on the

similarity of coke fines to existing coke

product, and the potential impact of

recycling hazardous waste to the coker.

EPA has no reason to change this

jurisdictional determination or the

determination that management

scenarios other than Subtitle D

landfilling could not serve as a basis for

listing. Therefore, the Agency adopts

these determinations as part of the basis

for issuing the final decision not to list

this waste stream as hazardous.

With respect to the Subtitle D

landfilling scenarios EPA evaluated for

the off-specification product and coke

fines that were discarded, EPA notes

that groundwater risk estimate of 1E–5,

as well as the revised high-end risks in

the NODA of 5E–6 to 2E–5 were within

the Agency’s initial risk level of

concern.

However, EPA noted significant

problems with the groundwater risk

assessments. First, this risk was based

entirely on the detection of one PAH,

benzo(a)anthracene, in only one out of

six leaching samples at a level 8-fold

below the analytical quantification

limit. Thus, EPA had low confidence in

this value and the subsequent modeling

based on this number. Second, the water

solubility of this chemical is also very

low, indicating that its aqueous

concentration is likely to be very low.

Third, this chemical is tightly adsorbed

to organic material in soils and

sediment, indicating that the constituent

is relatively immobile in groundwater.

The NODA analysis, therefore, led

EPA to determine that it is highly

unlikely that this waste would present

a significant risk in a groundwater

scenario. EPA finds no reason to change

that determination either based on

NODA comments or any other

information in the rulemaking record. In

addition, further assessments in the

NODA showed no significant risks from

the relatively small volumes that were

disposed in LTUs.

EPA’s decision not to list is further

supported by additional analysis after

comments received on the NODA. In its

reexamination of the groundwater

analysis EPA found that it had

mistakenly used the wrong carcinogenic

risk factor for benzo(a)anthracene. As

shown in Table IV–2, when the revised

groundwater analysis was performed

with the longer active life and

municipal landfill areas, using the

correct health-based number caused the

risks to drop 20-fold, such that even the

maximum high-end risk was 2E–6. See

Additional Groundwater Pathway

Analyses, 1998, contained in the public

docket for this rule for details. Given the

even lower groundwater risk calculated,

still using the suspect

benzo(a)anthracene measurement, EPA

finds even further reason to believe that

the listing of off-specification product

and fines is not warranted.

Specific Comments

One commenter claimed EPA data

indicates that several respondents store
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42161

off-specification products and fines in

surface impoundments as an ‘‘interim’’

management method, and therefore the

Agency should model this management.

In response, EPA finds only one

respondent, not several, that reported

managing off-specification product and

fines in a ‘‘surface impoundment’’ in

1992. This ‘‘surface impoundment’’ acts

as a drilling water clarifier. All delayed

coking units recycle their drilling water,

and to do so, any entrained fines in the

drilling water must be recovered.

Typically, the concrete coke storage pad

is sloped so that drilling water drains to

one end and proceeds through a series

of baffles that separate out the coke

fines. This is the type of ‘‘surface

impoundment’’ the refinery identified.

Thus it is not a typical surface

impoundment, but rather an integral

part of the decoking process. These are

lined (concrete) drilling water collection

and recycle systems, confined within

the coke battery, and are unlikely to

pose significant risk.

Comments related to the aspects of

the groundwater modeling are discussed

earlier in this notice (see Section V.B.6);

however, EPA makes several points for

this specific wastes. Regarding the

commenters’ criticism of EPA’s use of

TCLP results as input values to the

landfill groundwater modeling for this

material because it is ‘‘oily,’’ the Agency

points out that off-specification product

and fines are generally not oily. The

Agency conducted total oil and grease

analyses on four samples and the

average level of oil and grease

(measured as Total Oil and Grease, i.e.,

not truly ‘‘free’’ oil) was two percent

(three samples were below one percent).

Furthermore, the data from the 3007

Questionnaire show that the typical

material has relatively low oil content

(90th percentile value was five percent).

Therefore, EPA believes that the use of

the TCLP was valid.

With regard to commenter concern

over free-phase flow of contaminants

from off-specification product and fines

due to oil content, it is particularly

important to note that none of the six

off-specification product and fines from

thermal processes samples exhibited

multi-phase behavior, and that the

measured oil content was low, as noted

above.

The commenter went on to state that

a risk assessment EPA conducted for

this waste as part of the 1995 proposal

showed that risks associated with air

releases from uncovered landfills made

up of coke fines exceeded 1E–3 for

home gardeners, subsistence farmers,

and subsistence fishers, and a high risk

to subsistence fishers from mercury

exposure was also predicted. The

commenter also noted that the NODA

risk modeling for disposal in LTUs was

not a meaningful surrogate for

evaluating the risks posed by pile

storage, because the annual volumes

modeled were small (high-end volumes

of 21–34 MT).

The commenter is attempting to use a

bounding analysis EPA undertook for

nongroundwater risks for coke fines

disposed in landfills as an indication

that air releases from piles containing

this material would present similar

risks. In response, EPA first notes that

bounding estimates are used as an

initial screening estimate that

overestimates the exposure or dose for

the purpose of screening out exposures

of little concern. The purpose of the

bounding analysis is simply to

determine what pathways and scenarios

require further evaluation and does not

represent an assessment of risks. The

bounding analysis included worst-case

assumptions (no cover or dust

suppression, highest constituent levels,

largest waste volumes and landfill area,

worst climate, etc). Furthermore, the

levels near 1E–3 arose from indirect

pathways (ingestion of beef, dairy, fish,

and plant products); the direct pathway

of soil ingestion, even in the bounding

analysis, was on the order of 1E–6. Most

importantly, the biotransfer factors used

in the bounding analysis for beef, dairy,

and plant indirect paths have been

determined to overestimate risks by at

least two orders of magnitude; likewise

the apparent problem from mercury also

was traced to an error in units for the

bioaccumulation factor used. Thus, EPA

believes that the bounding analysis was

flawed and grossly overestimated risks.

EPA notes that the subsequent highend analyses for nongroundwater risks

from landfill disposal of off-spec

product and fines did not show

significant risk. While the high-end

analysis included the assumption of

daily cover for the landfill, and thus

may not be the best surrogate for air

releases from piles, the scenario did

consider windblown dust from on-site

roads and particulate release caused by

traffic (i.e., dump trucks), loading,

unloading, etc. The high-end analysis

showed risks no higher than 2x10¥6 for

any receptor (see U.S. EPA, Assessment

of Risks from the Management of

Petroleum Refining Wastes Background

Document (F–95–PRLP–S0006), page

10–3). Therefore, some of the possible

release mechanisms that could occur in

a waste pile scenario (e.g., unloading/

loading, traffic) were addressed in the

risk assessment supporting the proposal

and the pathway was not significant.

EPA also points out that some

important characteristics of the coke

pile and details of management

practices used by refineries would tend

to mitigate potential risks. The piles are

not comprised simply of coke fines, but

are mixtures of much larger pieces of

coke product that are drilled from coker

units; the larger chunks of coke would

make up the bulk of the pile.

Furthermore, coke is drilled out of the

coker approximately once a day with

hydraulic drills; thus, new wet coke/

fines from drilling are added to the coke

pile, making air releases of dry

particulates less likely. EPA also has

found that coke piles are managed using

various practices to control release of

dust, including: (a) Contained product

storage areas (b) dust-suppression water

spray systems (c) covered conveyor

systems and, (d) direct loading from

coke-drums into railcars (see NODA

response to comment document for a

summary of these practices). In

addition, EPA expects that particulate

releases from these areas would be

controlled by Federal, State, or local air

regulations and permit programs.

Finally, the commenter also argued

that, pursuant to the Consent Decree in

EDF v. Browner, EPA is required to

issue a listing determination for offspecification products and fines, and

that because piles present a substantial

risk to human health and the

environment based upon the

assessments conducted to date, the

required listing determination must

include a decision as to whether offspec products and fines warrants listing

pursuant to 40 CFR 261.33 as a

commercial chemical product. The

commenter suggested that, if EPA argues

that the piles of coke fines are product,

then the material that blows off the piles

and cannot be recovered is discarded

commercial chemical product and

should become a listed U-waste under

40 CFR 261.33(f).

EPA disagrees with the commenter.

The Agency has, in fact, made a listing

decision for the off-specification

product and fines that are known to be

discarded by refineries, i.e., the volumes

of wastes that are disposed. EPA

believes it has fulfilled the requirements

of the consent decree for production

wastes from petroleum refining. While

the Agency is not constrained to making

decisions required under the consent

decree, EPA is not making a listing

decision on product use in this

rulemaking. Furthermore, at this time

the Agency has no valid assessment that

indicates these wastes present a

‘‘substantial risk’’ when added to coke

piles.
42162 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

7. Catalyst and Fines From Catalytic

Cracking

Summary

As proposed, EPA is not listing as

hazardous Fluidized Catalytic Cracking

(FCC) catalyst and fines. Two

subcategories of this waste were

evaluated due to their physical

difference in particle size: spent

equilibrium catalyst and catalyst fines.

The usual constituents of concern found

in other petroleum residuals (i.e.,

carcinogenic PAHs and benzene) were

not detected in spent FCC catalysts.

More than 70 percent of the equilibrium

catalyst and 20 percent of the catalyst

fines are reused (in other FCC units) or

recycled (primarily by cement plants).

For the reasons stated in the proposal,

the Agency chose to model the monofill

and surface impoundment scenarios

(see 60 FR at 57771) for FCC catalyst

and FCC fines. Bounding estimates (run

under worst-case assumptions using

multiple high-end assumptions for

critical parameters) for the

nongroundwater exposures from volatile

and particulate emissions from

monofills showed no significant risk for

either FCC equilibrium catalyst or FCC

fines. The Agency also found no

significant risk, for either subcategory,

from the high-end analysis for the

groundwater pathway from the monofill

or surface impoundment scenarios.

Furthermore, the revised risk analyses

in the NODA in response to comments

showed no significant risks for this

waste. The few comments EPA received

on this waste agreed with EPA’s

decision not to list. Therefore, the

Agency continues to believe that a nolist decision is warranted and adopts

that final decision incorporating the

reasoning in the preamble to the

proposal.

8. HF Alkylation Sludge

Summary

The Agency is not listing as

hazardous sludge from hydrofluoric

acid (HF) alkylation processes. As noted

in the proposal and confirmed by

analysis of comments and all other

relevant information in the record, only

marginal risk was identified for the

groundwater ingestion pathway in offsite landfilling due to benzene. Also, no

significant risks were found from land

treatment of this material.

Discussion

In the proposal, EPA found a high-end

groundwater risk for landfills of 3E–6

due to benzene (see 60 FR at 57772).

The Agency also noted that benzene was

found in only one out of five TCLP

samples, indicating that the risk

attributed to this chemical would

generally be lower. EPA did not model

other waste management practices

because they were already regulated

under RCRA (e.g., combustion in a

industrial furnace), extremely rare

(discharge to a surface impoundment

that has been closed), recycling

practices (on-site recovery), and/or

would present no significant risk

(discharge of small volumes to

wastewater treatment systems).

In the NODA, the Agency revised the

groundwater risk analysis for landfill

disposal and found slightly higher highend risks for groundwater for off-site

and on-site landfills (both 6E–6) due to

benzene. EPA also presented a

groundwater Monte Carlo analysis in

the NODA that showed risks of 2E–7 for

on-site, and 2E–6 for off-site landfills.

Revised nongroundwater risks from

disposal in LTUs remained insignificant

(less than 1E–7; see 62 FR at 16753).

Further groundwater pathway

analysis performed in response to

comments on the NODA showed a slight

increase in the high-end risk to 1E–5 for

off-site landfills. The revised Monte

Carlo analysis yielded no change in the

risk (2E–6). (See Table IV–2, and

Additional Groundwater Pathway

Analyses, 1998, contained in the public

docket for this rule).

EPA decided not to list this waste

based on the relatively low groundwater

high-end risks of 1E–5 due solely to

benzene, and the fact that benzene is not

frequently found in the TCLP analysis

(one of five samples). Furthermore, this

waste typically does not have high oil

or PAH content; none of the

carcinogenic PAHs were detected in the

samples collected by EPA. Therefore,

the Agency is issuing a final decision

not to list this waste stream.

Specific Comments

The Agency received comments

arguing that sludges from HF alkylation

are frequently generated and managed

in surface impoundments and were not

evaluated by EPA because it is a ‘‘rare’’

management practice. The commenter

stated that there are an ample number

of surface impoundments at refineries

that could be used in this manner, there

is no legal or other barrier to surface

impoundment management of HF

alkylation sludge, and that this practice

should be considered a plausible

management scenario. The commenter

noted that the waste is sometimes

generated in ‘‘pits,’’ and this means

management in an impoundment is a

reasonable assumption.

EPA disagrees with the comment that

HF sludge is commonly generated or

managed in surface impoundments.

From site visits, EPA found that HF

alkylation sludge is commonly

generated in concrete lined pits or tanks

within the HF process unit boundary;

these are not unlined surface

impoundments. The one case of actual

management of this waste in a surface

impoundment in 1992 was reported to

be discontinued that year (see Listing

Background Document, October, 1995).

Therefore, EPA does not believe

management in surface impoundments

is plausible.

One commenter criticized EPA’s

modeling of risks from LTUs, and these

are addressed elsewhere in today’s

notice (see Section V.B.7). However,

EPA would like to note that

nongroundwater risks are unlikely to be

significant for this waste because HF

alkylation sludge has none of the

carcinogenic PAHs that were of concern

for other wastes. For example, while

CSO sediment samples had an average

of 132 ppm of the PAH benzo(a)pyrene,

none was detected in any sample of HF

alkylation sludge.

One commenter argued that EPA

should list this waste based on the

groundwater risks estimated by EPA, as

well as the risk calculated by the

commenter using alternative

groundwater modeling (2E–5). EPA

disagrees with the commenter, and

continues to believe the risks do not

justify listing this waste. As noted in the

discussion above, EPA’s revised highend risk was 1E–5, and the revised

Monte Carlo risk only 2E–6. EPA has

decided not to list this waste after

considering other factors. Most

importantly, the risk was due to the

presence of one constituent, benzene,

that was detected in only one of the five

TCLP samples. Thus, the constituent

was not found frequently or typically in

this waste. Furthermore, EPA found

none of the carcinogenic PAHs in

samples of this waste that were so

pronounced in other wastes of concern

(e.g., CSO sediment).

9. Sludge From Sulfur Complex and

Hydrogen Sulfide Removal Facilities

Summary

As proposed, the Agency is not listing

as hazardous sludge from sulfur

complex and hydrogen sulfide removal

facilities. No significant risks were

found for any exposure pathway from

disposal in on-site or off-site landfills,

or in on-site and off-site LTUs, nor from

potential air releases from storage in

dumpsters (well below 1E–6 in all

cases). In addition, the Agency noted

that the sludges that may be generated

from treatment of this waste in the
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42163

primary wastewater treatment system

are already listed. Furthermore, the

revised high-end risk analyses in the

NODA in response to comments also

showed no significant risks for this

waste (well below 1E–6 in all cases).

The few comments EPA received on this

waste agreed with EPA’s decision not to

list. Therefore, the Agency continues to

believe that a no-list decision is

warranted and adopts the final decision

incorporating the reasoning in the

preamble to the proposal.

10. Catalyst From Sulfur Complex and

Hydrogen Sulfide Removal Facilities

Summary

The Agency is not listing as

hazardous any of the spent catalysts

generated from H2S removal and sulfur

complex operations. The Agency

divided this residual into two

subcategories: Spent Claus unit catalyst,

and spent SCOT-like tail gas catalyst.

For the first subcategory, no significant

risks were found from bounding

estimates (run under worst-case

assumptions using multiple high-end

assumptions for critical parameters) for

the groundwater exposure pathway as

well as for the direct and indirect

pathways of volatile emissions and

particulate emissions. For the second

subcategory, the Agency also did not

find significant risks associated with the

disposal of this waste in on-site and offsite landfills. Furthermore, the revised

risk analyses in the NODA in response

to comments continued to show no

significant risks for this waste stream.

Therefore, the Agency continues to

believe that a no-list decision is

warranted and adopts the final decision

incorporating the reasoning in the

preamble to the proposal.

11. Unleaded Gasoline Storage Tank

Sediment

Summary

EPA is not listing as hazardous

sediment from the storage of unleaded

gasoline in tanks. The Agency assessed

the potential risks associated with four

selected management practices, on-site

and off-site Subtitle D landfilling, and

on-site and off-site land treatment. Only

marginal risk was identified for the

groundwater ingestion exposure

pathway. Although revisions to the risk

assessment showed higher risks above

the level of concern, EPA has still

decided not to list this waste because:

(1) The waste is primarily rust and scale

and has none of the carcinogenic PAHs

or high oil content of potential concern

in other wastes, (2) the TC is expected

to control some risks, (3) the volume of

waste is relatively small, and (4) the

reduction of benzene levels in

reformulated gasoline should reduce

levels in wastes in the future.

Discussion

EPA proposed not to list unleaded

gasoline tank sediment as hazardous

due to the absence of any significant

risks, except for the marginal risks

found for the groundwater ingestion

pathway for off-site landfill disposal

(high-end risk, 2E–6). The Agency also

noted that this waste was infrequently

generated, volumes of this waste

disposed were relatively modest, and

that the only constituent of concern,

benzene, would be controlled by the TC.

The revised modeling completed by

EPA in response to comments on the

proposal and the NODA included a full

sensitivity analysis to determine the

most critical high-end parameters, and

resulted in off-site landfill groundwater

risks increasing to 3E–5 (see Table IV–

2). The high-end risk was lowered

slightly to 2E–5 in the TC-capped

results. However, the revised Monte

Carlo risk, 6E–6, is below EPA’s level of

concern (1E–5), and the TC-capped

Monte Carlo risks drop to 4E–6,

suggesting the TC may control most

risks of concern for this waste. After

considering these risk results, and the

other factors discussed below, EPA

finds that the listing of this waste is not

warranted.

First, while the levels of benzene in

the waste and TCLP samples are of

potential concern, the TC for benzene

should provide some measure of control

of wastes with high benzene levels.

Nearly 40 percent (52) of the 141

unleaded gasoline tank sediment wastes

streams generated in 1992 were reported

in the 3007 Questionnaire to be coded

as hazardous waste (due primarily to the

TC for benzene and occasionally for

ignitability). While EPA’s risk analysis

using TCLP input data capped at the TC

level still showed some risk (2E–5),

many of the wastes that are not TChazardous will likely have benzene

levels below the TC level. Thus, given

the existing regulatory control afforded

by the TC, the incremental benefit to

listing this waste appears limited.

Furthermore, this waste does not have

the features that EPA found compelling

in deciding to list other wastes

examined in this rule. Specifically, this

waste lacks the pyrophoricity and

arsenic concerns exhibited by the spent

catalysts, and it has low oil content and

PAH levels compared to the crude oil

and CSO tank sediments. The oil

content of this waste is typically low as

evidenced by the median TOG levels

reported in the 3007 Questionnaire (6

percent), and samples taken by EPA (<1

percent). This contrasts with much

higher TOG levels in Crude Oil Storage

Tank Sediment (34 percent average from

the 3007 Questionnaire, and 21 percent

average from the six samples EPA

analyzed) and CSO Tank Sediment (30

percent average from the 3007

Questionnaire, and 37 percent average

from EPA’s samples). EPA’s analyses of

samples of unleaded gasoline storage

tank sediments also showed none of the

carcinogenic PAHs that were of concern

in sediment from CSO and crude oil

tanks. For example, average

benzo(a)pyrene levels found in

sediment from CSO and crude oil

storage were 132 ppm and 12

respectively, but none was found in

sediment from unleaded gasoline

storage. In addition, one of the major

constituents measured in the unleaded

gasoline tank sediment was iron (e.g.,

the average iron level for the three

samples was 41, thus this waste appears

to be largely rust and scale, rather than

the higher organic content of the other

tank sediments. Therefore, EPA is more

confident that the other constituents of

gasoline tank sediment will not present

any potential problem.

Also, as noted in the proposed rule,

the total volume of the waste reported

for 1992 is relatively small (3,583 MT),

and the volumes sent to landfills are

even smaller (633 MT, 22 MT average

per waste stream). These volumes are

significantly smaller than the volumes

of crude oil storage tank sediment

generated (22,017 MT) and sent to

landfills (2,338 MT, 123 MT average).

Finally, EPA has promulgated

regulations under the Clean Air Act

(CAA) that will result in the reduction

of benzene levels in gasoline (see the

Reformulated Gasoline Rule, February

16, 1994; 59 FR 7716). This rule sets a

1.0 percent (by volume) benzene limit

on reformulated gasoline for nonattainment areas of the United States. In

conventional gasoline, benzene is

incorporated into gasoline to increase

the octane rating, and the average

amount of benzene in conventional

gasoline is 1.6 percent, ranging up to 5.0

percent. Therefore, as the levels of

benzene in gasoline are reduced,

sediment from storage of gasoline

should also show a corresponding

reduction in the levels of benzene. This

will reduce the potential groundwater

risks resulting from benzene in

unleaded gasoline storage tank

sediment.

Specific Comments

One commenter noted that EPA did

not model the use of unleaded gasoline

tank sediment waste as landfill cover or

road spreading. In response, the Agency
42164 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

points out that no refineries reported

use of unleaded gasoline tank sediment

as landfill cover or in road spreading.

The Agency has no data supporting

these management scenarios and

therefore does not see the need to model

this pathway.

While the Agency already discussed

the general issues related to the

appropriateness of the TCLP for the

wastes examined in this rulemaking due

to oil content, EPA notes that for this

specific waste the total oil and grease

levels in the available samples collected

by EPA were well below 1 percent.

Thus, the commenter’s concern about

problems with the TCLP and oily waste

are clearly unfounded for this waste.

One commenter criticized EPA’s

modeling of risks from LTUs, and these

are addressed elsewhere in today’s

notice (see Section V.B.7). However,

EPA would like to note that

nongroundwater risks are unlikely to be

significant for this waste under any

scenario because unleaded gasoline tank

sediment has none of the carcinogenic

PAHs that were of concern for other

wastes, such as CSO.

One commenter argued that EPA

should list this waste based on the

groundwater risks calculated by the

commenter using alternative

groundwater modeling (8.8E–5). EPA

disagrees with many of the commenter’s

suggested modifications to the modeling

(see Section V.B.6) and continues to

believe that the risks do not justify

listing this waste. As noted in the

discussion above, EPA’s revised highend risk was 3E–5, and the revised

Monte Carlo risk was 6E–6 (see Table

IV–2), and after considering the other

factors noted, EPA has decided not to

list this waste. Furthermore, the revised

Monte Carlo risks for this waste were

6E–6, below EPA’s 1E–5 level of

concern. In addition, the Monte Carlo

TC-capped risk of 2E–6 suggests that the

TC will be effective in controlling much

of the risk for this waste.

12. Catalyst From Reforming

Summary

The Agency is not listing as

hazardous spent catalyst from reforming

operations, as proposed. The proposal

noted that 94 percent of the wastes

generated in 1992 were recycled at

reclamation facilities for the precious

platinum content. The remaining 6

percent consist primarily of other

materials generated during catalyst

replacement, e.g., ceramic support

media that are inert. The Agency

conducted risk analysis of the potential

air exposure pathway from the

combustion of the reforming catalyst

prior to reclamation, and no significant

risk was found from this pathway. In

addition, the Agency believes generator

site environmental release other than

potential de minimis spills would be

unlikely because the valuable spent

reforming catalysts are controlled and

tracked between the refining and

reclamation facilities to prevent loss.

The one comment EPA received on the

Agency’s assessment agreed with the

decision not to list. Therefore, the

Agency continues to believe that a nolist decision is warranted and adopts the

final decision incorporating the

reasoning in the preamble to the

proposal.

13. Sludge From Sulfuric Acid

Alkylation

The Agency is not listing as

hazardous sludge from sulfuric acid

alkylation. In the proposal, the Agency

noted that this waste was infrequently

generated, and the volumes generated in

1992 were very small (608 MT). Based

on the bounding estimates (run under

worst-case assumptions using multiple

high-end assumptions for critical

parameters) conducted for land

treatment and landfilling practices, no

significant risk was found. Furthermore,

the revised land treatment risk analyses

in the NODA in response to comments

showed no significant risks for this

waste stream. Therefore, the Agency

continues to believe that a no-list

decision is warranted and adopts the

final decision incorporating the

reasoning in the preamble to the

proposal.

D. Headworks Exemption

As noted in Section III.A in the

proposed rule, EPA proposed to extend

the existing exemption for wastewaters

from cleaning of petroleum tanks to

include those generated for CSO tank

sediment, and if listed, crude oil storage

tank sediment. In the NODA, EPA

proposed to extend the exemption to

include wastewaters generated from the

clean out of processing units holding

spent hydrotreating and hydrorefining

catalysts.

1. Application to Listed Catalysts

Many commenters requested

clarification that the headworks

exemption would include wastewaters

from spent hydrotreating and

hydrorefining catalysts. This would

allow refiners to continue the practice of

using water to cool and wash out these

spent catalysts from the process units

prior to further management. One

commenter stated that sufficient

controls are in place within refineries to

manage minor residuals that are drained

to the refinery sewer systems. These

residuals will be removed in the system

and become listed hazardous wastes.

Without these exemptions, refiners

would be forced to either use more

costly or more dangerous methods in

managing catalyst or be forced to collect

and ship these wash waters off-site.

As described in the NODA, EPA

considered the commenters’ request and

conducted an assessment to determine

the appropriateness of expanding the

headworks exemption. The results of

this analysis show that little risk is

likely to be incurred by this practice.

The use of water during the catalyst

changeout process provides a number of

benefits, including lowering emissions

of volatile organics (if the wash water is

treated to remove volatiles prior to

discharge to the sewer system), lowering

the risks associated with the catalysts’

potential self-heating nature, and

minimizing risk to workers entering the

confined space of the catalytic reactors

during changeouts. Therefore, EPA, has

concluded that it is appropriate to

include this low risk, beneficial practice

under the headworks exemption.

Many commenters approved of

expanding the proposed headworks

exemption to cover water associated

with catalyst management. These

commenters saw the exemption as

consistent with EPA’s listing criteria in

40 CFR 261.11(a)(3), and agreed with

EPA that the exposure pathways from

wastewater management associated with

CSO sediment and hydroprocessing

catalysts in the refinery wastewater

treatment system are sufficiently

regulated under the Clean Water Act

(CWA), the CAA NESHAP, and the

existing RCRA hazardous waste listing

for refinery wastewater treatment

sludges (K048, K051, F037, and F038).

EPA agrees that existing NESHAP and

effluent guideline controls on these

materials, as well as the existing sludge

listings (F037, F038, K048, K051), and

the inherent differences between the

wastes modeled and the aqueous

residuals generated during tank and unit

washings, support EPA’s decision to

finalize the headworks exemption.

2. Clarification of Scope

EPA received a request for

clarification about whether the

proposed exemption is limited to dilute

wastewaters resulting from the cleanout

of tanks or other units containing these

wastes, or whether the proposed

exemption applies to the listed waste

(sediment) itself. One commenter stated

that the exemption would be abused

and would encourage wholesale

discharge of the sediments to the

wastewater treatment system. EPA
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42165

reiterates that the headworks exclusion

is not meant to serve as an incentive to

discharge tank sediments (or spent

catalyst) to the wastewater treatment

plant. This was not the Agency’s intent,

and EPA requested comment in the

NODA on how to ensure that the

headworks exemption is not a loophole

to dump catalyst or CSO sediment in the

sewer.

One commenter argued that the

exemption would not be a loophole for

two important reasons. First there

would be a significant economic penalty

for this action, because solid material

dumped in the sewer will emerge again

as hazardous waste sludges upstream of

biological treatment (F037, F038, K051

and K048). The commenter stated that

any wastewater sludge that these solids

generate would likely be many times the

original weight of the solids in the water

(up to 10-fold due to the oil waterbacteria emulsion that forms around

these solids). The commenter claimed

that the increased costs associated with

increased volumes of difficult to manage

emulsions would be a severe economic

penalty for allowing excess solids into

a sewer. Secondly, the commenter noted

that sewers are critical to a refinery’s

operation, such that any discharge of

solids into a sewer runs the risk of

interrupting refinery operations (with

heavy costs), or at least overloading the

system with solids, endangering

compliance with water discharge

permits. Therefore, the commenter

concluded there is no need for EPA to

further define allowable wastewater

solids content, and this would only

create unneeded analytical, record

keeping, and related compliance

burdens.

The Agency agrees with this

commenter that there are financial

disincentives to discharging excess

solids to the refinery wastewater

treatment system. Furthermore, the

Agency observes that many refineries

conduct deoiling of tank contents and

sediments prior to disposal and tank

inspection. This practice reduces

sediment quantities by an average of 40

percent, with a substantial savings of

raw materials (i.e., oil recycled back to

the refining operations) and disposal

costs. Upon promulgation of today’s

listings and the exclusion for oil-bearing

residuals, EPA believes even greater

amounts are likely to be subjected to oil

recovery and waste minimization. Any

water in the tank clean out material will

likely be separated as a part of the

deoiling process, and would be

discharged to the wastewater treatment

plant. Thus, with respect to some

commenters’ concerns regarding

impacts on the wastewater treatment

system, these recycling activities will

likely increase and further reduce the

load on the treatment system.

A commenter asked EPA to clarify the

scope of the exemption in the final rule,

since water is used in any number of

different ways in the proper handling of

CSO sediment and spent

hydroprocessing catalysts. They stated

that EPA should clarify in the final rule

that the exemption extends to all

wastewaters derived from the

management of the residuals, as long as

the wastewaters are managed in a

system subject to the Clean Water Act.

EPA is aware of the following uses of

water associated with the generation of

K169 to K172. In reference to crude oil

storage and CSO tank sediments (K169

and K170), wastewater is generated (1)

by dewatering (e.g., centrifuging)

sediment removed from the tank, and

(2) by conducting a ‘‘rinse’’ as

mentioned by the commenter. In

reference to K171 and K172, wastewater

is generated from drilling out the

catalyst, steam stripping or washing,

and pad drainage.

EPA believes that the headworks

exemption is appropriate for waters

generated from all of these practices,

because these aqueous residuals would

be dilute and contain low levels of the

original listed wastes. Therefore, the

Agency is finalizing the exemption for

all the wastes that are being listed: CSO

sediment, crude oil sediment, spent

hydrotreating catalysts, and spent

hydrorefining catalysts. As noted in the

proposal, however, the exemption is not

intended to allow the discharge of the

entire waste stream (i.e., tank sediments

or spent catalysts), but rather dilute

waters generated during tank or unit

clean outs and dewatering.

Another commenter requested

clarification that the headworks

exemption extends to zero discharge

facilities that have CWA equivalent

wastewater treatment units. The Agency

wishes to clarify that the exemption

would extend to facilities subject to

regulation under section 402 or section

307(b) of the CWA and would include

facilities that have eliminated the

discharge of wastewater. However, this

clarification is already included in the

regulations in 261.3(a)(iv) and specifies

that wastewaters at facilities that have

eliminated discharges are included.

Facilities that elect to use the

headworks exemption should

understand the potential compliance

implications for Subpart FF, the

benzene waste operations NESHAP, (40

CFR 61.340). Subpart FF conditions the

need for air pollution controls and

waste treatment on the total annual

benzene quantity (TAB) from a facility’s

waste. Facilities must include any waste

stream ‘‘that has a flow-weighted annual

average water content greater than 10

percent or that is mixed with water or

other wastes at any time and the

mixture has an annual average water

content greater than 10 percent.’’ Since

1995, refineries with a TAB of 10 MT

per year or greater must treat all

benzene wastes and control emissions

from drains, sewers, tanks, oil-water

separators, impoundments, and

containers. Thus, if facilities elect to use

the headworks exemption, any wastes

put in sewers that did not previously

count toward the TAB will have to be

included in TAB calculations. If

refineries have TAB that exceeds 10

MT/yr, they would be out of compliance

with Subpart FF.

3. Comments Opposing the Exemption

One commenter urged the rejection of

EPA’s proposal to exempt from

regulation previously listed refinery

wastes (K050), CSO residuals, and crude

oil storage tank sediment, because it

encourages waste constituent

volatilization and dilution, rather than

pollution prevention and responsible

waste management. The commenter

noted that EPA’s sole justification for

the proposal was the Agency’s belief

that the hazardous constituents in these

wastes would wind up in RCRA

regulated wastewater treatment sludges.

The commenter asserted that EPA failed

to address why hazardous constituents

in the discharges would not be released

into the air, or remain in the wastewater

and bypass the primary sludge only to

settle in the unregulated treatment

sludges further down the treatment

train.

As noted earlier in today’s notice (see

discussion on Waste Management

Assumptions in Section V.B.2), EPA

does not believe that discharges to

wastewater treatment systems are likely

to present significant risks. EPA also

notes it did not find air releases of

volatiles, such as benzene, to be a

significant risk for any of these wastes

for any disposal practice evaluated.

Thus, EPA does not believe that any air

releases from a much more dilute waste

generated during tank or unit clean outs

are likely to present significant risk. The

Agency notes that the benzene NESHAP

(58 FR 3072; January 7, 1993) provides

significant control of emissions from the

wastewater conveyance system at larger

refineries, and that the reported amount

of sediments managed in this manner is

small relative to the total volume of

waste being given this exemption.

Refineries also avoid overloads to their

biological treatment trains in order to

maintain their effectiveness.
42166 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

EPA also notes that the discharge of

aqueous wastes generated during tank

cleaning are generated only

infrequently. EPA’s data from the 3007

Questionnaire, shows that, on average, a

single CSO tank is cleaned every 9 years

and, on average, a refinery has four

tanks containing CSO (for those that

generate the residual). Therefore, a

typical refinery generates CSO tank

cleaning wastewaters less than once per

year. Discharges of tank cleaning waters

are infrequent and are expected to

generate relatively small volumes of

water in comparison with the typical

wastewater flow through a refinery

treatment system (see analysis noted

below).

Tank cleanings are used to facilitate

tank inspections, which are critical to

ensuring tank integrity and to avoiding

catastrophic tank failure. Without this

exemption, tank washing would become

much more difficult because of the need

to find alternative Subtitle C disposal

methods for these wastewaters. Also,

the tank washings are dramatically

different in nature from the sediments

characterized for the listing

determination. While these washes are

primarily water, the sediments are

primarily solid, subject to land disposal

methods such as the landfilling and

land treatment evaluated in EPA’s risk

assessment.

To respond fully to this commenter,

EPA presented a further analysis in the

NODA to illustrate the magnitude of

treatment and dilution that would occur

at the headworks of a refinery for both

CSO tank sediment and spent

hydrotreating/hydrorefining catalysts.

(See Sections 8 and 9 in Supplemental

Background Document-Listing Support

Document, March 1997). EPA notes that

it completed a similar analysis for crude

oil storage tank sediment to respond to

the commenter’s concerns expressed

about this waste also (see Additional

Listing Support Analysis, 1998 in the

docket). EPA concluded from these

analyses that any impact on the

downstream wastewater treatment

sludge or wastewaters would be

negligible.

Comments on the NODA analysis for

the headworks exemption argued that

EPA based the assessment for CSO

sediment on disposal of the waste itself

in the wastewater treatment system, and

that the exemption should be limited to

dilute wastewaters. The commenter

suggested that EPA set limits on

maximum concentrations for

contaminants in discharges, and limit

the exemption to rinsate from the

cleaning of tanks or other units. The

commenter stated that these limitations

should also apply to the existing

exemption for heat exchanger bundle

cleaning sludge, currently listed as

hazardous waste K050, because the

existing exemption suffers from the

same flaws as the proposal. The

commenter also indicated that if EPA

does not limit the exemption to rinsate,

the CSO assessment is flawed because it

was based on the waste volume of the

one facility reporting waste discharge

into a wastewater treatment system in

1992. The commenter recognized that

the facility no longer intends to employ

the practice, but argued the potential

exists for any generator of the waste to

do so.

In response, EPA notes that the

purpose of the NODA exercise was to

develop a ‘‘what if’’ scenario,

representing the extreme case of CSO

washwater loading to wastewater

treatment. EPA concluded that because

its ‘‘what if’’ scenario showed negligible

risk, then no specific restrictions on

washwater composition would be

required. Furthermore, as discussed

above in this section, EPA believes that

there are significant disincentives for

refineries to discharge high solids

content waste to their wastewater

treatment system. Finally, EPA notes

that the existing exemption for heat

exchanger bundle cleaning sludge

(K050) was not explicitly reopened for

comment, therefore the Agency is not

considering any modification of this

exemption in today’s rule.

Certainly, on-site wastewater

treatment systems are available for this

purpose throughout the refinery

industry. EPA based its evaluations on

the actual waste quantities used in

particular management scenarios. EPA

has no reason to believe, for example,

that a quantity of waste destined for

land treatment would be managed in a

wastewater treatment system. EPA

points out that a significant fraction of

the wastes being listed must already be

handled as hazardous, because they

exhibit the TC or other characteristics.

Yet despite this apparent incentive to

avoid costly Subtitle C management, the

disposal of tank sediment directly into

the wastewater treatment system was

extremely rare (i.e., only once each for

CSO and crude oil storage tank

sediments).

The commenter also questioned

whether the Agency accurately

estimated the impact posed by the

exemption, because EPA ignored the

possibility that contaminants from other

wastes and wastewaters would be

codisposed with the potentially exempt

waste in the wastewater treatment

system. In response, EPA notes that its

analysis was an attempt to gauge the

significance of a worst-case discharge

into the treatment system to determine

if any significant incremental risks

would result from the practice. EPA

found no such incremental risks and

therefore concluded that the exemption

was appropriate. In fact, EPA found that

risks due to the exempted wastes would

be extremely small.

The commenter expressed concern

that the exemption would likely be

encouraging the generation of larger

quantities of hazardous wastewater

treatment sludge, which would be

incompatible with the waste

minimization policy and objectives

articulated by Congress in Section 1003

of RCRA.

In response, EPA believes that

refineries have no incentive to discharge

solids to wastewater treatment, because

the solids would end up as F037 or

other hazardous waste. As discussed

above, other comments noted that the

quantity of such primary sludge would

be much greater than the quantity of

solids initially dumped into the system.

E. Third Party Recycling of Spent

Petroleum Catalysts

In the November 20, 1995 proposal,

the Agency suggested that it might be

appropriate to exempt these thermal

petroleum catalyst recovery units from

RCRA Subtitle C regulation. The Agency

solicited important additional

information needed to adequately assess

the basis for promulgating this potential

exemption (see 60 FR at 57780). This

information included the extent to

which petroleum catalyst recovery units

are currently equipped with emission

control devices, the adequacy/efficiency

of existing controls, and the amounts

and concentrations of emissions of

HAPs regulated under section 112 of the

CAA as well as under Subtitle C of

RCRA. (Id.)

The Agency’s preliminary findings in

1995, based on very limited data,

indicate that these units may already be

equipped with pollution controls

comparable to those required under

RCRA regulations for boilers and

industrial furnaces (BIFs) that burn

hazardous waste. However, EPA pointed

out in 1995 the importance and need for

additional air emissions data, in

particular, information on the types and

levels of HAPs being emitted from these

offsite hazardous waste reclamation and

regeneration units. (Id.)

No information on these key factors

was forthcoming on these units. Only

one facility submitted a copy of its state

air permit. The nature of, and data

associated with, this facility’s state

permit are much too limited to provide

an adequate record for the Agency to

make a determination on whether to
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42167

exempt from RCRA controls this entire

class of reclamation and regeneration

units. The information in the permit is

manifestly insufficient for such a

determination. Even if it were more

complete, EPA could likely not

extrapolate the information from this

single facility to all thermal units with

an adequate degree of confidence. For

instance, the permit contains limits only

on emission rates of CAA criteria air

pollutants carbon monoxide (CO),

sulfuric oxides (SOX), nitrogen oxides

(NOX), particulate matter (Method 10)

(PM10), and volatile organic constituents

(total-VOCs) on an average annual basis.

Daily/hourly mass discharge rates or

concentrations for these pollutants were

lacking, as was any information on

HAPs of concern under Section 112 of

the CAA (and, because of their

hazardousness, under RCRA as well), or

the means by which such HAPs might

be controlled. Also, this permit report

lacks information on the destruction

and removal efficiency (DREs) that the

combustion unit can achieve for

potential principal organic constituents

(POCs) fed to the regeneration process

(see 40 CFR 266.104(2)). Finally, the

permit report lacks information on the

kind of controls for metal emissions as

well as the types and levels of metals

being emitted.

EPA has no additional data on similar

units and on the key factors to be

considered in determining whether to

finalize the proposed exemption. At this

point, therefore, the administrative

record for this rule is simply not

sufficient to support a final decision one

way or the other.

Given the current state of the

administrative record and the other

circumstances discussed above, EPA is

deferring to a later day any final

decision on whether or not to exempt

these units from RCRA Subtitle C air

emission standards. The timing of this

decision depends, in large part, on the

gathering and submittal of additional

data on the key factors identified above,

especially the types and levels of HAP

emissions from these units and the

adequacy of air pollution controls for

these emissions.

EPA encourages owners and operators

of these facilities to supplement the

record with design, operation, and

emissions information so that further

progress toward a final determination

on the potential exemption can be

made. In the interim, EPA reiterates that

nothing in today’s rule (or indeed the

proposed rule) changes the current

RCRA status of facilities managing these

hazardous wastes.

VI. Land Disposal Restrictions

A. Treatment Standards for Newly

Identified Wastes

The land disposal prohibition

statutory provisions essentially require

pretreatment of hazardous wastes so

that threats to human health and the

environment posed by land disposal of

the waste are minimized (RCRA sections

3004(g)(4) and (m)). Land disposal

prohibitions for hazardous wastes are to

be promulgated pursuant to a phased

schedule, the determination for newly

listed wastes-those listed after adoption

of the 1984 amendments-to be made

within six months of promulgation of

the listing (RCRA section 3004(g)(4));

see generally, 55 FR 22523, June 1,

1990.) A determination to prohibit

hazardous wastes from land disposal is

essentially automatic, since only land

disposal that satisfies the exacting

statutory no-migration standard may be

disposed without first satisfying the

section 3004 (m) treatment standards.

(Id). A method of land disposal may not

be determined to be protective of human

health and the environment until the

waste has complied with 3004(m)

pretreatment regulations, unless upon

application of an interested person, it

has been demonstrated to the

Administrator, to a reasonable degree of

certainty, that there will be no migration

of hazardous constituents from the

disposal unit or injection zone for as

long as the wastes remain hazardous

(RCRA section 3004(d)). No one

contends that disposal of the petroleum

wastes listed in this rulemaking satisfies

the no-migration standard.

EPA has traditionally developed

treatment standards for prohibited

hazardous wastes based upon the

performance of BDAT. The Agency

further refined this approach to use the

same set of technology-based numerical

treatment standards whenever factually

justified. These are the so-called UTS

set out in § 268.48, which provide

numerical treatment standards for all

hazardous constituents (i.e.,

constituents listed in Appendix VIII of

Part 261).

As part of the proposed rule, EPA

proposed to apply the UTS applicable to

the hazardous constituents in the newly

listed petroleum refining industry

wastes (see 60 FR 57783, November 20,

1995). EPA further requested data to

adjust the numerical treatment

standards applicable to the subject

wastes to be consistent with the

revisions to the UTS being considered

in the Agency’s Phase IV Land Disposal

Restrictions rulemaking (see 62 FR

16751, April 8,1997). EPA has in fact

recently slightly amended the treatment

standards for the hazardous constituents

antimony (see 63 FR 28562, May 26,

1998) and nickel (see 63 FR 28569, May

26, 1998). EPA also has amended the

treatment standard for vanadium, which

is not an underlying hazardous

constituent (40 CFR 268.2(i)), but is

being regulated in these wastes for the

reasons given below. The constituents of

concern as proposed and the treatment

standards as revised are being

promulgated for the newly identified

K169, K170, K171, and K172 wastes. In

accordance with section 3004(g)(4), EPA

is also prohibiting the underground

injection of these wastes (unless the

wastes meet the treatment standard

before injection without being diluted

impermissibly, or unless the wastes are

injected into a no-migration unit). Since

underground injection is a type of land

disposal (see section 3004(k)), this

action is automatic, and implements the

mandatory directive to prohibit land

disposal of newly listed hazardous

wastes found in section 3004(g)(4).

B. Response to Comments

Additional comments, along with

EPA’s responses, are provided in the

Response to Comments Background

Documents for the proposed rule and

the NODA located in the docket for this

rule. Key comments are discussed

below.

1. Constituents of Concern

EPA received comment asking that, if

listed, the LDR constituents of concern

should be limited to benzene and

arsenic. The commenter determined that

these are the only two compounds

which have significant risk associated

with their management. The commenter

maintains that the inclusion of the PAH

compounds and other metals is not

warranted and will require additional

cost to characterize the material prior to

management, and that their inclusion

may prevent beneficial recycling

practices due to unnecessary LDR

requirements on reclaimer residuals.

The Agency disagrees. EPA is

required by statute to set ‘‘...levels or

methods of treatment, if any, which

substantially diminish the toxicity of

the waste or substantially reduce the

likelihood of migration of hazardous

constituents from the waste so that

short-term and long-term threats to

human health and the environment are

minimized’’ (RCRA section 3004(m), 42

U.S.C. 6924(m)). While the commenter

is correct in that for K171 and K172

only benzene and arsenic were given as

the basis of listing, treatment standards

were also proposed for additional

metals and PAHs. PAH compounds are

highly carcinogenic, even at low
42168 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

concentrations, and are present at

significant concentrations in some

petroleum residuals at levels exceeding

the treatment standards. Although these

constituents were not modeled to show

significant risks through the pathways

considered, the presence of these

carcinogens in the wastes remains a

potential threat to human health and the

environment when the wastes are land

disposed. Certainly, there is no basis for

finding that threats posed by these

constituents have been minimized

without treatment (see Chemical Waste

Management v. EPA, 976 F.2d at 16.)

The Agency also notes that treatment

standards for PAHs and nickel are

currently required for other similar

listed petroleum wastes (F037, F038,

and K048-K052) and that damage cases

associated with these wastes have noted

environmental effects due to both

metals and PAHs (see Background

Document to Support Listing of Primary

Oil/Water Separation Sludges, August

20, 1990, pages 6–8 ). Thus, the Agency

is convinced that treatment of these

constituents is necessary to minimize

threats posed by the wastes’ land

disposal, and further convinced that the

treatment standards are not established

below levels at which such threats are

minimized. The Agency is therefore

promulgating treatment standards for all

the constituents that were proposed to

be regulated.

2. Sulfides

The commenter recommended that if

a new treatment standard for K171 and

K172 is adopted, it must include a

concentration level for sulfides. The

commenter believes a level of 500 ppm

reactive sulfide should be specified as

an exit level for land disposal

restrictions, because the level has been

used in Agency guidance to identify

wastes that exhibit a hazardous waste

characteristic for reactive sulfides as per

OSWER policy memorandum No.

9443.1985(04). The commenter believes

that without a numerical treatment

level, the regulated community may be

held to a double standard of having to

meet the treatment standards for both a

Listed Waste and a Characteristic Waste.

EPA responds by clarifying that those

K171 and K172 wastes that exhibit the

hazardous waste characteristic of

reactive sulfide are currently prohibited

from land disposal unless first being

treated to remove the characteristic by

deactivation. Underlying hazardous

constituents also must be treated (see

existing § 268.35 (prohibition on land

disposal of reactive hazardous wastes)

and § 268.40 (e) (underlying hazardous

constituents in reactive wastes must

also be treated). Furthermore, even after

the listing takes effect, listed wastes may

also exhibit one or more characteristics

of a hazardous waste. Listed wastes

which also exhibit characteristics of a

hazardous waste must comply with all

applicable treatment standards for

characteristic wastes (unless the

treatment standard for the listed waste

contains a standard for the constituent

that causes the waste to exhibit a

characteristic; see § 268.9(b)). Finally,

treatment must reflect the ‘‘minimize

threat’’ level for land disposal (3004

(d)(1) and (g)(4) (land disposal is

prohibited ‘‘unless the Administrator

determines the prohibition on one or

more methods of land disposal of such

waste is not required in order to protect

human health and the environment...’’),

and so may require treatment of

constituents not technically hazardous

constituents, but which make a waste

more dangerous to land dispose (see 56

FR at 41168 (Aug. 19, 1991) and other

sources there cited). Thus, although

sulfides are not hazardous constituents

(since they are not listed in Appendix

VIII of Part 261), they nevertheless are

present in these wastes at

concentrations sufficient to provide

harmful properties, including selfheating pyrophoric properties and

potential reactivity which must be

minimized for safe disposal (See 60 FR

57783–57785).

As a point of clarification, the newly

listed K171 and K172 wastes, which

also are reactive, would have to comply

with the UTS numerical levels for the

specified hazardous constituents and

deactivation for reactive sulfide prior to

land disposal, but would not have to

demonstrate compliance with all the

underlying hazardous constituents (see

§ 268.9 (b)). This is because the

treatment standard itself already

indicates what other constituents are

present in these wastes requiring

treatment so as to minimize threats

posed by the wastes’ land disposal. The

Agency will continue to determine if a

separate UTS number is required to

access the deactivation of sulfide from

reactive wastes and, if so, will propose

a number in the future.

3. Underlying Hazardous Constituents

A commenter stated that EPA should

not subject listed hazardous wastes to

LDR regulations regarding Underlying

Hazardous Constituents (UHCs). The

Agency wishes to clarify that listed

wastes are not subject to UHCs per se.

UHCs are regulated in characteristic

wastes (40 CFR 268.1). Listed wastes are

regulated for the constituents which

caused the waste to be listed and any

other hazardous constituents specified

in the specific treatment standard that

are found to be present at levels where

they could possibly cause harm to

human health and the environment

when the wastes are land disposed (see

also discussion in the preceding

paragraph). The basis for the distinction

is that EPA has already studied the

listed wastes to determine the

hazardous constituents that are typically

present, but is unable to do so for

characteristic wastes, since, as a class,

they are much more diverse. The

Agency is promulgating treatment

standards for each of the proposed

hazardous constituents.

4. High Temperature Metals Recovery

EPA received comments suggesting

the designation of High Temperature

Metals Recovery (HTMR) as an

exclusive method of treatment. The

Agency has finalized numerical

standards for the newly listed wastes.

Treaters may use any method they

choose to achieve those standards, so

long as the treatment is not considered

impermissible dilution. The Agency

believes this degree of flexibility is

highly desirable to provide as many

treatment options as possible, so long as

the treatment satisfies the standards.

In the case of the vanadium

containing K171 and K172 wastes,

metals recovery may be required to

reduce the constituent to levels that can

be subsequently treated to comply with

the LDR treatment standard. Vanadium

treatment is discussed more fully in the

following section.

5. Vanadium

Vanadium is not an underlying

hazardous constituent of hazardous

wastes that requires treatment in all

characteristically hazardous wastes. (see

268.48 note 5). However, vanadium in

the form of ammonium vanadate or

vanadium pentoxide, are underlying

hazardous constituents (since they are

included in Appendix VIII of Part 261).

In the course of the combustion of coke

residues on the spent catalysts,

vanadium compounds adsorbed on the

catalysts are converted to vanadium

pentoxide and the wastes are typically

subjected to metals recovery for the

vanadium pentoxide. Because the

presence of vanadium pentoxide would

impart acute toxicity to the wastes and

can be readily measured as the

vanadium metal, the Agency proposed

treatment standards for vanadium as a

constituent of concern in K171 and

K172 as a surrogate measure to limit the

presence of vanadium pentoxide in the

wastes and to insure that the toxicity of

the waste was diminished prior to

disposal (see also 60 FR 57784,

November 20, 1995). Without reduction
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42169

of their vanadium content, the K171 and

K172 wastes would contain significant

levels of vanadium in the form of toxic

vanadium pentoxide.

Commenters claimed that the

proposed treatment standard for

vanadium is not feasible and

appropriate, based on EPA’s testing. In

response, EPA evaluated additional data

from the stabilization of wastes

containing vanadium at levels below

which metals recovery is feasible and,

based on this data, calculated a standard

of 1.6 mg/L TCLP for nonwastewaters.

The Agency proposed that this higher

standard replace the 0.23 mg/L TCLP

standard originally proposed and

believes that this standard is readily

achievable (see 62 FR 26047, May 12,

1997). A facility unable to comply with

the treatment standard may apply for a

treatability variance under 40 CFR

268.42 (assuming the waste has been

treated using the properly-operated

technology on whose performance the

treatment standard is based and is still

unable to meet the treatment standard).

One commenter claims that the

Agency incorrectly assumed that spent

catalysts and their residuals are

physically and chemically similar to

K048–K052 and K061 wastes. The

commenter noted that the chemical

composition of K048–K052 and K061

wastes is quite different than that of the

K171 and K172 spent catalysts. The

commenter identified other physical

differences between spent catalysts and

K048–K052 and K061 wastes, and

argued such differences apparently

prevent the stabilization of vanadium in

spent catalysts.

The commenter is correct that the

residuals are chemically and physically

quite different at their respective points

of generation, the principal difference is

the higher concentration of vanadium in

K171/K172. However, both K061 and

K171/K172 contain similar constituents

of concern which are largely metal

oxides once K171/K172 is deactivated.

Data assembled by the commenters

show that K048–K052 contain 1–350

ppm vanadium and that K061

concentrations range from 0–830 ppm,

while vanadium in K171 ranges from

10–3300 ppm and, in K172, vanadium

ranges from 25–31000 ppm. The

commenter also states that K172 has

been observed as high as 150,000 ppm

vanadium and notes that after

deactivation to remove the D003

characteristic, the vanadium present is

highly leachable. However, the

commenter presents data reflecting

attempts to stabilize the deactivated

waste with cement and lime, rather than

proceeding through the reclamation of a

vanadium pentoxide product normally

produced by metal reclaimers. The

Agency maintains that following such

reclamation, the treated waste would be

very comparable to K046–K052 and

K061 in vanadium content since little

vanadium would remain. Data from

reclaimers indicate that these processes

recover over 90 percent of the vanadium

present. Without such reclamation, it

would be unlikely that high vanadium

wastes, like K171/K172, could be

stabilized to the UTS level. The level of

vanadium remaining after reclamation

would still require stabilization to

reduce the mobility of the toxic forms of

vanadium. The Agency believes the

vanadium UTS level can be achieved,

therefore, through proper treatment

which includes a reclamation step. Data

on stabilization alone for high vanadium

wastes do not reflect proper and

effective treatment, and the Agency

therefore is not compelled to modify the

level based on this data.

One commenter asserted that the

treatment standard for vanadium could

not be rationally based on International

Mill Service (IMS) K061 data and, to the

extent that the standard could be based

on INMETCO’s K061 waste, the

standard cannot be automatically

transferred to spent catalysts because

the resulting standards would not be

achievable. The Agency responds that

the prior treatment standard for

vanadium was based on data obtained

from IMS’s HTMR facility. As revised in

the recent Phase Four LDR Rule, the

vanadium standard is derived from

stabilization data. The performance

levels promulgated were achievable by

the other facilities from whom the

Agency had also collected data (see 59

FR 47980, September 19, 1994). The

Agency believes that the residuals

following vanadium metal recovery of

the K171 and K172 wastes can achieve

the treatment standards measured on

the basis of vanadium and provide

protection against the significant

presence of acutely toxic vanadium

pentoxide in the land disposed waste.

The commenter provided no data

demonstrating that the treatment

standards could not be met when metals

recovery is performed.

6. Revisions to Proposed Standards

The Agency requested data to adjust

the numerical treatment standards

applicable to the petroleum wastes

subject of this rulemaking to be

consistent with the treatment standards

proposed in the Phase IV Land Disposal

Restrictions (see 62 FR 26041, 26047–

26048; May 12, 1997). Commenters

supported the proposed revisions to the

treatment standards. In each case, the

proposed standards reflect the higher of

the stabilization-based or HTMR-based

calculations, in order to provide

flexibility to use various wellperforming treatment technologies

which substantially reduce toxicity or

mobility of hazardous constituents. The

commenter believes the revised

treatment standards that EPA has

proposed for antimony, nickel, and

vanadium are supported by the

underlying data and are achievable by

both major treatment technologies.

The Agency concurs with the

commenters and also believes the BDAT

methodology has been properly applied

to the available data to calculate the

revised treatment standards and that the

levels are achievable by both major

treatment technologies. Based on data

submitted in the Phase IV rulemaking

for nonwastewaters, the treatment level

for antimony is finalized at 1.15 mg/L

TCLP, the treatment level for nickel is

finalized at 11.0 mg/L TCLP, and the

treatment standard for the vanadium,

which is applicable only to K061, K171,

and K172 as a constituent of concern in

these wastes, is finalized at 1.6 mg/L

TCLP. The Agency is therefore

promulgating these standards consistent

with the levels finalized in the Phase

Four Rulemaking. All other standards

are promulgated as proposed.

C. Capacity Determination for Newly

Identified Wastes

1. Introduction

This section summarizes the results of

the capacity analysis for the wastes

covered by today’s rule. For a detailed

discussion of capacity analysis-related

data sources, methodology, and detailed

response to comments for each group of

wastes covered in this rule, see the

following document: ‘‘Background

Document for Capacity Analysis for

Land Disposal Restrictions: Newly

Identified Petroleum Refining Process

Wastes (Final Rule)’’ (i.e., the Capacity

Background Document).

EPA’s decisions on whether to grant

a national capacity variance are based

on the availability of alternative

treatment or recovery technologies.

Consequently, the methodology focuses

on deriving estimates of the quantities

of waste that will require either

commercial treatment or the

construction of new on-site treatment or

recovery as a result of the LDRs. The

resulting estimates of required

commercial capacity are then compared

to estimates of available commercial

capacity. If adequate commercial

capacity exists, the waste is restricted

from further land disposal before

meeting the LDR treatment standards. If

adequate capacity does not exist, RCRA
42170 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

section 3004(h)(2) authorizes EPA to

grant a national capacity variance for

the waste for up to two years or until

adequate alternative treatment capacity

becomes available, whichever is sooner.

2. Capacity Analysis Results Summary

For this capacity analysis, EPA

examined data on waste characteristics

and management practices that have

been gathered for the petroleum refining

industry study in the 1992 RCRA

Section 3007 survey. The Agency

analyzed the capacity-related

information from the survey responses,

reviewed the public comments received

in response to the proposed rule,

contacted several commenters to obtain

more specific information, and

identified the following annualized

quantities of newly identified hazardous

wastes requiring commercial treatment:

4,400 tons of K169; 3,200 tons of K170;

3,400 tons of K171; and 7,400 tons of

K172. The available data sources

indicate that there are no quantities of

K169–K172 wastewaters that will

require alternative commercial

treatment.

EPA is finalizing the rule to apply

UTS to these wastes. The treatment

standards for nonwastewaters

containing organic constituents are

based on combustion. The Agency

determined that the available

combustion capacity to treat these

wastes far exceeds the waste quantities

requiring alternative treatment when the

listing determinations for these wastes

become effective. Also, the Agency

recognizes that the treatment residuals

from these wastes may require

additional treatment capacity (e.g.,

stabilization) to achieve the UTS for

metal constituents. The Agency

estimated that there several million MT

per year of available commercial

stabilization capacity. EPA also

identified several metal recovery

technologies that are commercially

available, and some of these

technologies are being used currently by

the petroleum refining industry to

recycle K171 and K172, although

permitting and regulatory concerns

expressed by some catalyst recyclers

may need additional time to upgrade or

expand their storage units. Since EPA is

finalizing numerical standards for these

wastes, all the technologies capable of

achieving the final LDR treatment

standards are not prohibited. Sufficient

alternative treatment or recovery

capacity exists to treat these wastes to

meet the LDR standards. Therefore, EPA

is not granting a national capacity

variance under LDR for these wastes.

The LDR standards for these wastes will

become effective when the listings

become effective.

For soil and debris contaminated with

the newly listed wastes, EPA proposed

to not grant a national capacity variance.

EPA received no comments regarding

this issue. EPA believes that the

majority of contaminated soil and debris

will be managed on-site and therefore

would not require substantial off-site

commercial treatment capacity.

Therefore, EPA is not granting a

national capacity variance to hazardous

soil and debris contaminated with the

newly listed wastes covered under this

rule. Based on the questionnaire, there

were no data showing the mixed

radioactive wastes with the newly listed

wastes. There were also no comments

concerning the radioactive wastes

mixed with the newly identified wastes.

EPA is not granting a national capacity

variance for mixed radioactive wastes or

soil and debris contaminated with these

mixed radioactive wastes.

EPA received comments concerning

the availability of treatment and

recovery capacity. One commenter

requested a six-month delay in the

effective date of the final rule, and two

commenters requested that EPA grant a

one- to two-year capacity variance to

obtain permit modifications and

construct any necessary plant upgrades.

Commenters requested additional time

to comply with various Subtitle C

requirements, particularly relating to

permitting and upgrading of areas used

for storing K171 and K172 prior to the

catalyst recycling process. Commenters

requesting a two-year capacity variance

for recycling facilities expressed

concern about the potential economic

impact on the facilities the Agency is

relying on to provide the required

treatment capacity. The commenters

noted that, if promulgated as proposed,

the Agency’s listing would also mandate

the application of the ‘‘mixture’’ and

‘‘derived from’’ rule for all management

activities after the point of generation,

placing additional regulatory burden

(LDR treatment standards, upgrading of

storage areas, potential Subpart CC

compliance, and obtaining permits/

variances) on environmentally sound

management practices.

Based on the results of the Agency’s

capacity analysis, adequate

commercially available treatment or

recovery capacity does currently exist

for K171 and K172 wastes. Furthermore,

granting a national capacity variance

only exempts the waste from treatment

standards prior to land disposal during

the variance period, but does not

exempt the waste from other Subtitle C

requirements, such as the requirement

to have a permit for storage of hazardous

waste for greater than 90 days (at

generator’s sites). EPA believes that six

months is sufficient to allow facilities to

determine whether their wastes are

affected by this rule and identify and

locate alternative treatment or recovery

capacity if necessary. Therefore, LDR

treatment standards will become

effective when the listing

determinations become effective for the

wastes covered under this rule (see

RCRA section 3004(h)(1)(land disposal

prohibitions must take effect

immediately when there is sufficient

protective treatment capacity for the

waste available).

VII. Compliance and Implementation

A. State Authority

1. Applicability of Rules in Authorized

States

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce the RCRA

hazardous waste program within the

State. (See 40 CFR Part 271 for the

standards and requirements for

authorization.) Following authorization,

EPA retains enforcement authority

under Sections 3007, 3008, 3013, and

7003 of RCRA, although authorized

States have primary enforcement

responsibility.

Before the Hazardous and Solid Waste

Amendments of 1984 (HSWA) amended

RCRA, a State with final authorization

administered its hazardous waste

program entirely in lieu of the Federal

program in that State. The Federal

requirements no longer applied in the

authorized State, and EPA could not

issue permits for any facilities located in

the State with permitting authorization.

When new, more stringent Federal

requirements were promulgated or

enacted, the State was obligated to enact

equivalent authority within specified

time-frames. New Federal requirements

did not take effect in an authorized State

until the State adopted the requirements

as State law.

By contrast, under section 3006(g) of

RCRA, 42 U.S.C. 6926(g), new

requirements and prohibitions imposed

by the HSWA (including the hazardous

waste listings finalized in this notice)

take effect in authorized States at the

same time that they take effect in nonauthorized States. While States must

still adopt HSWA-related provisions as

State law to retain final authorization,

EPA is directed to implement those

requirements and prohibitions in

authorized States, including the

issuance of permits, until the State is

granted authorization to do so.

Authorized States are required to

modify their programs only when EPA
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42171

25Today’s rule affects only the regulatory

definition of solid waste. It does not interpret the

term ‘‘solid waste’’ for purposes of the nonregulatory authorities in RCRA sections 3007, 3013,

7002, and 7003. thus, for purposes of those

authorities, the Agency would have the benefit of

the full jurisdictional reach of the statutory

definition of solid waste. See Connecticut Coastal

Fishermen’s Association v. Remington Arms Co.,

989 F2d 1305, 1314–15 (2d. Cir. 1993) (comparing

the narrower regulatory definition of solid waste for

determining the scope of Subtitle C regulation with

the broader statutory definition); Comite. Pro

Rescate de la Salud v. Puerto Rico Aqueduct and

Sewer Authority, 888 F.2d 180, 187 (1st Cir. 1990)

(noting that under RCRA EPA could implement two

different definitions of solid waste: a broader

definition for imminent and substantial

endangerment authority and a more narrow

definition for regulatory purposes).

promulgates Federal standards that are

more stringent or broader in scope than

existing Federal standards. Section 3009

of RCRA allows States to impose

standards more stringent than those in

the Federal program. See also 40 CFR

271.1(i). For those Federal program

changes, both HSWA and non-HSWA,

that are less stringent or reduce the

scope of the Federal program, States are

not required to modify their programs.

Less stringent regulations, both HSWA

and non-HSWA, do not go into effect in

authorized States until those States

adopt them and are authorized to

implement them.

2. Effect on State Authorizations

Today’s rule is promulgated pursuant

in part to HSWA authority and in part

pursuant to non-HSWA authority. The

listing of the new K wastes is

promulgated pursuant to RCRA section

3001(e)(2), a HSWA provision.

Therefore, the Agency is adding this

rule to Table 1 in 40 CFR 271.1(j), which

identifies the Federal program

requirements that are promulgated

pursuant to HSWA and take effect in all

States, regardless of their authorization

status. The land disposal restrictions

and the UTS for these wastes are

promulgated pursuant to RCRA Section

3004(g) and (m), also HSWA provisions.

Table 2 in 40 CFR 271.1(j) is modified

to indicate that these requirements are

self-implementing. States may apply for

either interim or final authorization for

the HSWA provisions in 40 CFR

271.1(j), as discussed below.

Until the States receive authorization

for these more stringent HSWA

provisions, EPA will implement them.

EPA will also implement the

exemptions that are directly related to

the new listings, such as the headwork

exemption and the catalyst support

media exemption. These exemptions are

relevant only when regulating the newly

listed wastes.

Today’s rule also includes several

non-HSWA provisions that reduce the

scope of the Federal program. These are

the exclusions from the definition of

solid waste of certain oil-bearing

hazardous secondary materials from

petroleum refining and certain

recovered oils from associated

petrochemical facilities. Although the

States do not have to adopt these

provisions, EPA strongly encourages

them to do so, because the exclusions

encourage material recovery within

those industries.

Today’s revision to the listing

description for F037 wastes at § 261.31

neither broadens nor narrows the scope

of the current program. This revision

was made to ensure that residuals

derived from recycling listed wastes,

that are otherwise excluded under

today’s revised § 261.4(a)(12), would

remain listed. Because today’s revision

to the F037 waste code only applies in

situations where the exclusion at

§ 261.4(a)(12) applies, these provisions

(the exclusion and the associated

revised listing) should be adopted

together, and taken together are

considered to reduce the scope of the

existing Federal requirements.

Today’s rule also amends the existing

regulations to clarify that certain spent

caustic solutions used as feedstock are

not solid waste. This clarifying

amendment (40 CFR 261.4(a)(19)) does

not change the scope of the RCRA

program because it does not actually

change the current definition of solid

waste. States do not need further

authorization to interpret their

regulations in accordance with this

clarification.

Lastly, regarding the non-HSWA

amendments to the definition of solid

waste (i.e., exclusions), a number of

States qualified for final authorization

prior to being required to adopt the

redefinition of solid waste rulemaking

of January 4, 1985 (50 FR 614). Since the

January 4, 1985, rule is more stringent

than the rule under which such States

were authorized, such States were

required to revise their programs in

accordance with § 271.21. Today’s

changes will not preclude EPA’s ability

to authorize States which have

subsequently adopted the January 4,

1985, rule since it would reduce the

scope of the Federal requirements.

However, certain aspects of the State’s

regulation will be broader in scope than

the Federal program and therefore not

part of the authorized State program.

This means that while they are

enforceable under State law, they are

not subject to Federal regulatory

enforcement.25

A State submitting a program

modification for the portions of this rule

promulgated pursuant to HSWA

authority may apply to receive either

interim authorization under RCRA

section 3006(g) or final authorization

under 3006(b), if the State requirements

are, respectively, substantially

equivalent or equivalent to EPA’s

requirements. States can only receive

final authorization for program

modifications implementing non-HSWA

requirements. The procedures and

schedule for final authorization of State

program modifications are described in

40 CFR 271.21. It should be noted that

all HSWA interim authorizations are

currently scheduled to expire on

January 1, 2003 (see 57 FR 60129,

February 18, 1992).

Section 271.21(e)(2) of EPA’s State

authorization regulations (40 CFR part

271) requires that States with final

authorization modify their programs to

reflect Federal program changes and

submit the modifications to EPA for

approval. The deadline by which the

States must modify their programs to

adopt this regulation is determined by

the date of promulgation of a final rule

in accordance with section 271.21(e)(2).

Table 1 at 40 CFR 271.1 is amended

accordingly. Once EPA approves the

modification, the State requirements

become RCRA Subtitle C requirements.

States with authorized RCRA

programs already may have regulations

similar to those in this rule. These State

regulations have not been assessed

against the Federal regulations being

finalized to determine whether they

meet the tests for authorization. Thus, a

State would not be authorized to

implement these regulations as RCRA

requirements until State program

modifications are submitted to EPA and

approved, pursuant to 40 CFR 271.21.

Of course, States with existing

regulations that are more stringent than

or broader in scope than current Federal

regulations may continue to administer

and enforce their regulations as a matter

of State law. In implementing the

HSWA requirements, EPA will work

with the States under agreements to

avoid duplication of effort.

B. Effective Date

The effective date of today’s rule is

February 8, 1999, except as specified in

the Effective Dates section. As discussed

above, since today’s rule is issued

pursuant to HSWA authority, EPA will

regulate the management of the newly

identified hazardous wastes until States

are authorized to regulate these wastes.

Thus, EPA will apply Federal

regulations to these wastes and to their

management in both authorized and

unauthorized States.
42172 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

C. Section 3010 Notification

Pursuant to RCRA section 3010, the

Administrator may require all persons

who handle hazardous wastes to notify

EPA of their hazardous waste

management activities within 90 days

after the wastes are identified or listed

as hazardous. This requirement may be

applied even to those generators,

transporters, and treatment, storage, and

disposal facilities (TSDFs) that have

previously notified EPA with respect to

the management of other hazardous

wastes. The Agency has decided to

waive this notification requirement for

persons who handle wastes that are

covered by today’s listings and have

already (1) notified EPA that they

manage other hazardous wastes, and (2)

received an EPA identification number.

The Agency has waived the notification

requirement in this case because it

believes that most, if not all, persons

who manage these wastes have already

notified EPA and received an EPA

identification number. However, any

person who generates, transports, treats,

stores, or disposes of these wastes and

has not previously received an EPA

identification number must obtain an

identification number pursuant to 40

CFR 262.12 to generate, transport, treat,

store, or dispose of these hazardous

wastes by November 4, 1998.

D. Generators and Transporters

Persons that generate newly identified

hazardous wastes may be required to

obtain an EPA identification number if

they do not already have one (as

discussed in section VI.C, above). In

order to be able to generate or transport

these wastes after the effective date of

this rule, generators of the wastes listed

today will be subject to the generator

requirements set forth in 40 CFR part

262. These requirements include

standards for hazardous waste

determination (40 CFR 262.11),

compliance with the manifest (40 CFR

262.20 to 262.23), pretransport

procedures (40 CFR 262.30 to 262.34),

generator accumulation (40 CFR

262.34), record keeping and reporting

(40 CFR 262.40 to 262.44), and import/

export procedures (40 CFR 262.50 to

262.60). It should be noted that the

generator accumulation provisions of 40

CFR 262.34 allow generators to

accumulate hazardous wastes without

obtaining interim status or a permit only

in units that are container storage units

or tank systems; the regulations also

place a limit on the maximum amount

of time that wastes can be accumulated

in these units. If these wastes are

managed in surface impoundments or

other units that are not tank systems or

containers, these units are subject to the

permitting requirements of 40 CFR parts

264 and 265, and the generator is

required to obtain interim status and

seek a permit (or modify interim status

or a permit, as appropriate). Also,

persons who transport newly identified

hazardous wastes will be required to

obtain an EPA identification number as

described above and will be subject to

the transporter requirements set forth in

40 CFR part 263.

E. Facilities Subject to Permitting

1. Facilities Newly Subject to RCRA

Permit Requirements

Facilities that treat, store, or dispose

of wastes that are subject to RCRA

regulation for the first time by this rule

(that is, facilities that have not

previously received a permit pursuant

to section 3005 of RCRA and are not

currently operating pursuant to interim

status), might be eligible for interim

status (see section 3005(e)(1)(A)(ii) of

RCRA). In order to obtain interim status

based on treatment, storage, or disposal

of such newly identified wastes, eligible

facilities are required to comply with 40

CFR 270.70(a) and 270.10(e) by

providing notice under section 3010 and

submitting a Part A permit application

no later than February 8, 1999. Such

facilities are subject to regulation under

40 CFR part 265 until a permit is issued.

In addition, under section 3005(e)(3)

and 40 CFR 270.73(d), not later than

February 8, 1999, land disposal facilities

newly qualifying for interim status

under section 3005(e)(1)(A)(ii) also must

submit a Part B permit application and

certify that the facility is in compliance

with all applicable groundwater

monitoring and financial responsibility

requirements. If the facility fails to

submit these certifications and a permit

application, interim status will

terminate on that date.

2. Existing Interim Status Facilities

Pursuant to 40 CFR 270.72(a)(1), all

existing hazardous waste management

facilities (as defined in 40 CFR 270.2)

that treat, store, or dispose of the newly

identified hazardous wastes and are

currently operating pursuant to interim

status under section 3005(e) of RCRA,

must file an amended Part A permit

application with EPA no later than the

effective date of today’s rule, (i.e.,

February 8, 1999). By doing this, the

facility may continue managing the

newly listed wastes. If the facility fails

to file an amended Part A application by

that date, the facility will not receive

interim status for management of the

newly listed hazardous wastes and may

not manage those wastes until the

facility receives either a permit or a

change in interim status allowing such

activity (40 CFR 270.10(g)).

3. Permitted Facilities

Facilities that already have RCRA

permits must request permit

modifications if they want to continue

managing newly listed wastes (see 40

CFR 270.42(g)). This provision States

that a permittee may continue managing

the newly listed wastes by following

certain requirements, including

submitting a Class 1 permit

modification request by the date on

which the waste or unit becomes subject

to the new regulatory requirements (i.e.,

the effective date of today’s rule),

complying with the applicable

standards of 40 CFR parts 265 and 266

and submitting a Class 2 or 3 permit

modification request within 180 days of

the effective date.

Generally, a Class 2 modification is

appropriate if the newly listed wastes

will be managed in existing permitted

units or in newly regulated tank or

container units and will not require

additional or different management

practices than those authorized in the

permit. A Class 2 modification requires

the facility owner to provide public

notice of the modification request, a 60-

day public comment period, and an

informal meeting between the owner

and the public within the 60-day period.

The Class 2 process includes a ‘‘default

provision,’’ which provides that if the

Agency does not reach a decision within

120 days, the modification is

automatically authorized for 180 days. If

the Agency does not reach a decision by

the end of that period, the modification

is permanently authorized (see 40 CFR

270.42(b)).

A Class 3 modification is generally

appropriate if management of the newly

listed wastes requires additional or

different management practices than

those authorized in the permit or if

newly regulated land-based units are

involved. The initial public notification

and public meeting requirements are the

same as for Class 2 modifications.

However, after the end of the 60-day

public comment period, the Agency will

grant or deny the permit modification

request according to the more extensive

procedures of 40 CFR part 124. There is

no default provision for Class 3

modifications (see 40 CFR 270.42(c)).

Under 40 CFR 270.42(g)(1)(v), for

newly regulated land disposal units,

permitted facilities must certify that the

facility is in compliance with all

applicable 40 CFR part 265 groundwater

monitoring and financial responsibility

requirements no later than February 8,

1999. If the facility fails to submit these
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42173

certifications, authority to manage the

newly listed wastes under 40 CFR

270.42(g) will terminate on that date.

4. Units

Units in which newly identified

hazardous wastes are generated or

managed will be subject to all

applicable requirements of 40 CFR part

264 for permitted facilities or 40 CFR

part 265 for interim status facilities,

unless the unit is excluded from such

permitting by other provisions, such as

the wastewater treatment tank

exclusions (40 CFR 264.1(g)(6) and

265.1(c)(10)) and the product storage

tank exclusion (40 CFR 261.4(c)).

Examples of units to which these

exclusions could never apply include

landfills, LTUs, waste piles,

incinerators, and any other

miscellaneous units in which these

wastes may be generated or managed.

5. Closure

All units in which newly identified

hazardous wastes are treated, stored, or

disposed after the effective date of this

regulation that are not excluded from

the requirements of 40 CFR parts 264

and 265 are subject to both the general

closure and post-closure requirements

of Subpart G of 40 CFR parts 264 and

265 and the unit-specific closure

requirements set forth in the applicable

unit technical standards Subpart of 40

CFR parts 264 or 265 (e.g., Subpart N for

landfill units). In addition, EPA

promulgated a final rule that allows,

under limited circumstances, regulated

landfills, surface impoundments, or

LTUs to cease managing hazardous

waste but to delay Subtitle C closure to

allow the unit to continue to manage

non-hazardous waste for a period of

time prior to closure of the unit (see 54

FR 33376, August 14, 1989). Units for

which closure is delayed continue to be

subject to all applicable 40 CFR parts

264 and 265 requirements. Dates and

procedures for submittal of necessary

demonstrations, permit applications,

and revised applications are detailed in

40 CFR 264.113(c) through (e) and

265.113(c) through (e).

F. Landfill Leachate

Just weeks before the date for

signature of this rule, one waste

management company raised to the

Agency an issue not addressed in their

(or any other commenters’’) public

comments. The issue is that the

company claims to operate landfills in

which some or all of the wastes being

listed today have already been disposed.

These landfills generate substantial

volumes of leachate, which is collected

and managed—mostly by shipment via

truck for treatment at Publicly Owned

Treatment Works (POTWs). On the date

the listings take effect, the wastes

become hazardous, and a consequence

is that this leachate would likewise be

a hazardous waste by virtue of the

derived-from rule. See generally 53 FR

at 31147 (August 17, 1988); see also

Chemical Waste Management v. EPA,

869 F. 2d 1526, 1536–37 (D.C. Cir. 1989)

(sustaining this interpretation).

Although the landfills in which the

wastes have been previously disposed

do not thereby become subject to

Subtitle C regulation, id., leachate

which is collected and actively managed

would be regulated under Subtitle C. Id.

EPA’s Office of Water recently

proposed national effluent limitations

guidelines and pretreatment standards

for wastewater discharges (e.g., leachate)

from certain types of landfills. 63 FR

6426 (February 6, 1998). In support of

this proposal, EPA conducted a study of

the volume and chemical composition

of wastewaters generated by both

Subtitle C and Subtitle D landfills. EPA

did not propose pretreatment standards

for Subtitle D landfill wastewaters sent

to POTWs because the Agency’s

information indicated that such

standards were not required due to

several factors, including (1) raw

leachate data was below published

biological inhibition levels, and (2) lack

of pass-through of toxics (including lack

of showing of adverse impact on POTW

sludge quality). 63 FR at 6444. EPA

initially found, among other things, that

‘‘the majority of pollutants typically

found in raw [non-hazardous landfill]

leachate were at levels comparable to

wastewater typically found at the

headworks of a POTW.’’ Id.

Leachate from non-hazardous waste

landfills that have historically managed

the newly-listed wastes would be

leachate from a Subtitle D facility, and

so could ultimately be determined not

to require pretreatment under this

pending proposal. However, if Subtitle

C regulation were to apply to leachate

generated from such landfills, leachate

now trucked to POTWs would, as a

practical matter, no longer be managed

by POTWs, since POTWs would not

wish to become RCRA Subtitle C

facilities. Given the pending proposal

that directly addresses the treatment of

landfill leachate under the Clean Water

Act, EPA believes it worthwhile to

study whether RCRA regulation of such

leachates may be duplicative within the

meaning of RCRA section 1006(b)(1)

(which requires EPA to integrate

regulations under RCRA with other

statutes implemented by EPA in a

manner that avoids duplication to the

maximum extent possible, consistent

with the goals and policies of RCRA and

the other statutes).

Since this leachate issue was not

brought to the Agency’s attention in a

timely manner, EPA is taking no action

on this issue in this rulemaking. The

final rule thus simply finalizes four of

the proposed listings (K169, K170,

K171, and K172), therefore the

possibility exists that some leachate

may be classified by one or more of

these waste codes (after the effective

date of today’s rule) for the reasons

outlined above. However, the Agency is

seeking public comment on the issue by

means of a Notice of Data Availability

(NODA), published elsewhere in today’s

Federal Register. EPA plans to take

some type of action addressing this

issue, after considering any public

comments to this projected NODA,

before today’s listings take effect. One of

the options the Agency might consider

(after consideration of comments and

information in response to the NODA)

would be temporarily deferring the

application of the listings to the

leachate.

VIII. CERCLA Designation and

Reportable Quantities

All hazardous wastes listed under

RCRA and codified in 40 CFR 261.31

through 261.33, as well as any solid

waste that is not excluded from

regulation as a hazardous waste under

40 CFR 261.4(b) and that exhibits one or

more of the characteristics of a RCRA

hazardous waste (as defined in

§§ 261.21 through 261.24), are

hazardous substances under CERCLA,

as amended (see CERCLA section

101(14)(C)). CERCLA hazardous

substances are listed in Table 302.4 at

40 CFR 302.4 along with their reportable

quantities (RQs). If a hazardous

substance is released in an amount that

equals or exceeds its RQ, the release

must be reported immediately to the

National Response Center (NRC)

pursuant to CERCLA section 103.

A. Reporting Requirements

Under CERCLA section 103(a), the

person in charge of a vessel or facility

from which a hazardous substance has

been released in a quantity that is equal

to or exceeds its RQ must immediately

notify the NRC as soon as that person

has knowledge of the release. The tollfree telephone number of the NRC is 1–

800–424–8802; in the Washington, DC,

metropolitan area, the number is (202)

267–2675. In addition to this reporting

requirement under CERCLA, section 304

of EPCRA requires owners or operators

of certain facilities to report releases of

extremely hazardous substances and

CERCLA hazardous substances to State
42174 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

and local authorities. EPCRA section

304 notification must be given

immediately after the release of an RQ

or more to the community emergency

coordinator of the local emergency

planning committee for any area likely

to be affected by the release and to the

State emergency response commission

of any State likely to be affected by the

release.

Under section 102(b) of CERCLA, all

hazardous substances (as defined by

CERCLA section 101(14)) have a

statutory RQ of one pound, unless and

until the RQ is adjusted by regulation.

In today’s final rule, EPA is adding

waste streams K169, K170, K171, and

K172 to the CERCLA list of hazardous

substances and adjusting the one-pound

statutory RQs for these wastes.

B. Standard and Alternative RQ

Adjustment Methodology

EPA’s methodology for adjusting the

RQs of individual hazardous substances

begins with an evaluation of the

intrinsic physical, chemical, and

toxicological properties of each

hazardous substance. The intrinsic

properties examined-called ‘‘primary

criteria’’-are aquatic toxicity,

mammalian toxicity (oral, dermal, and

inhalation), ignitability, reactivity,

chronic toxicity, and potential

carcinogenicity.

Generally, for each intrinsic property,

EPA ranks the hazardous substance on

a five-tier scale, associating a specific

range of values on each scale with an

RQ value of 1, 10, 100, 1,000, or 5,000

pounds. Based on the various primary

criteria, the hazardous substance may

receive several tentative RQ values. The

lowest of the tentative RQs becomes the

‘‘primary criteria RQ’’ for that

substance.

After the primary criteria RQ is

assigned, the substance is evaluated

further for its susceptibility to certain

degradative processes, which are used

as secondary RQ adjustment criteria.

These natural degradative processes are

biodegradation, hydrolysis, and

photolysis (BHP). If a hazardous

substance, when released into the

environment, degrades relatively

rapidly to a less hazardous form by one

or more of the BHP processes, its

primary criteria RQ is generally raised

one level. Conversely, if a hazardous

substance degrades to a more hazardous

product after its release, the original

substance is assigned an RQ equal to the

RQ for the more hazardous substance,

which may be one or more levels lower

than the RQ for the original substance.

The standard methodology used to

adjust the RQs for RCRA hazardous

waste streams differs from the

methodology applied to individual

hazardous substances. The procedure

for assigning RQs to RCRA waste

streams is based on an analysis of the

hazardous constituents of the waste

streams. The constituents of each RCRA

hazardous waste stream are identified in

40 CFR part 261, Appendix VII. EPA

determines an RQ for each constituent

within the waste stream and establishes

the lowest RQ value of these

constituents as the adjusted RQ for the

waste stream. In a November 20, 1995,

proposed rule (60 FR 57747), EPA

proposed one-pound RQs for waste

streams K169, K170, K171, and K172

based on this standard methodology.

In the same rule, however, the Agency

also proposed an alternative method for

adjusting the RQs of these four

petroleum refining wastes. The

proposed alternative method involved

developing ‘‘concentration-weighted’’

RQs for the four wastes. Using this

alternative method, EPA first

determined the maximum observed

concentrations of each hazardous

constituent in the wastes. EPA then

used these concentrations to calculate

the amount of each petroleum refining

waste necessary to contain the RQ of

each constituent of concern.

Based on these calculated amounts,

EPA assigned a ‘‘concentrationweighted’’ RQ value of 1, 10, 100, 1,000,

or 5,000 pounds to each waste stream

constituent. If the calculated amount for

a particular constituent was greater than

the maximum RQ level of 5,000 pounds,

the ‘‘concentration-weighted’’

constituent RQ would be 5,000 pounds.

If the calculated amount fell between

two RQ levels, then the ‘‘concentrationweighted’’ constituent RQ would be the

lower of the two levels. Finally, under

this alternative method, the lowest of

the concentration-weighted constituent

RQs would become the RQ for the waste

stream.

C. Basis for RQ Adjustments in Final

Rule

In today’s final rule, EPA has decided

to use the standard RQ adjustment

methodology to assign RQs to petroleum

refining wastes K169, K170, K171, and

K172. The Agency believes that

introduction of a second methodology

(i.e., the alternative method described

above), in addition to the standard

method already in use, may be difficult

to implement and may unnecessarily

confuse the public and the regulated

community.

EPA considered three specific

implications of adopting the alternative

RQ adjustment methodology in making

its determination to retain the standard

method. First, promulgation of RQs

based on the alternative methodology

for the four petroleum refining wastes

would have introduced a potentially

confusing situation in which RQs for

currently listed hazardous waste

streams would be based on two different

methodologies. Second, since EPA’s

initial RQ adjustment rulemakings were

first published in 1983, EPA has

consistently applied the standard

methodology to adjust the RQs for all

previously listed RCRA wastestream.

Members of the public and the regulated

community understand and are

complying with this methodology and

related reporting requirements. Third,

the reduced reporting burden expected

from the application of the alternative

method (i.e., reporting based on

constituent concentrations) to the four

petroleum refining wastes can be

achieved by applying the mixture rule

(as described in Section VIII.D,

‘‘Responses to Comments,’’ of this

preamble), without creating a second,

different RQ adjustment methodology.

Based on these considerations, the

Agency has decided to use the standard

methodology, rather than the alternative

method, to adjust the RQs for the

petroleum refining wastes in today’s

final rule. Using the standard method,

EPA today is assigning one-pound

adjusted RQs (as proposed) for waste

streams K170, K171, and K172 based on

the constituent(s) within each of these

newly listed waste streams with the

lowest RQ. The Agency, however, is

modifying its interpretation of the

mixture rule (as described in detail in

Section VIII.D below) to allow facilities

to use the maximum observed

concentrations of the constituents

within the petroleum refining wastes in

determining when to report releases of

these wastes.

In addition, EPA mentioned in the

preamble to the November 20, 1995,

proposed rule that the Agency was

considering listing waste stream K169

(crude oil storage tank sediment).

Subsequent to the proposal, EPA has

decided to list K169 as a RCRA

hazardous waste and a CERCLA

hazardous substance, and to adjust its

RQ.

In the November 20, 1995 rule, EPA

was considering a one-pound RQ for

K169 based on the one-pound RQs of

three substances (benzo(a)pyrene,

dibenzo(a,h)anthracene, and

benzo(b)fluoranthene) originally

identified by the Agency as constituents

of this waste stream. After further

evaluation of the constituent data,

however, the Agency has decided in

today’s final rule to identify only one

hazardous constituent (i.e., benzene) for

waste stream K169 in Appendix VII to
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42175

40 CFR part 261 (see Section V.B.2 for

a discussion of the basis for listing

K169). Thus, using the standard RQ

adjustment method, EPA is

promulgating a 10-pound RQ for K169

in today’s final rule based on the 10-

pound RQ of the waste’s single

hazardous constituent, benzene.

D. Response to Comments

As noted above, the Agency has

decided to use the standard

methodology to adjust the RQs for K169,

K170, K171, and K172. The commenters

on the proposed rule, however, favored

the alternative RQ adjustment

methodology. These commenters

suggested that reporting should be based

on actual concentration levels observed

in each of the petroleum refining wastes

and that these levels are more likely to

warrant notification of government

authorities.

In addition, one of the commenters

asked EPA to clarify that a waste

generator could retain the option of

applying the mixture rule to releases of

these petroleum refining wastes.

Specifically, this would allow the

generator to report at a higher level if

the generator knew that the

concentrations of the constituents in the

waste were lower than the maximum

observed concentrations identified by

EPA.

EPA acknowledges the commenters’

support for less burdensome reporting

requirements and agrees with the

commenters’ assertion that reporting for

the four petroleum refining wastes

should be based on actual concentration

levels observed in each of these wastes.

The Agency, however, believes that

reductions in the reporting burden for

these four wastes can be achieved

through the use of the mixture rule,

without creating a second, distinct RQ

adjustment methodology. In response to

the commenters’ concerns, the Agency

is modifying its interpretation of the

mixture rule, as described below, to

allow facilities to use the maximum

observed concentrations of the

constituents within K169, K170, K171,

and K172 in determining when to report

releases of these wastes.

For K169, K170, K171, and K172,

where the person in charge does not

know the actual concentrations of the

hazardous constituents, that person will

have the option of reporting on the basis

of the maximum observed

concentrations that have been identified

by EPA (see Table VIII–1 below). The

change in EPA’s interpretation of the

mixture rule that will allow use of these

maximum concentrations is codified in

40 CFR 302.6(b)(1) as a new

subparagraph (iii) in today’s rule. Thus,

although the person in charge lacks

actual knowledge of constituent

concentrations, constructive knowledge

of the EPA-identified maximum

concentrations is assumed. This

assumption is reasonable and

conservative because the sampling data

presented in the Technical Listing

Document accurately identify the

maximum observed concentrations of

the hazardous constituents in each of

the petroleum refining wastes. Table

VIII–1 below identifies the hazardous

constituents for waste streams K169,

K170, K171, and K172, their maximum

observed concentrations in ppm, their

constituents’ RQs as listed in Table

302.4 of 40 CFR part 302, and the

number of pounds of the waste needed

to contain an RQ of each constituent.

TABLE VIII–1.—POUNDS REQUIRED TO CONTAIN RQ FOR EACH CONSTITUENT

Waste Constituent Max ppm RQ (lb)

Pounds required to contain RQ

K169 Benzene ................................................................................................................... 220 10 45,455

K170 Benzene ................................................................................................................... 1.2 10 8,333,333

Benzo (a) pyrene ...................................................................................................... 230 1 4,348

Dibenz (a,h)anthracene ............................................................................................ 49 1 20,408

Benzo (a)anthracene ................................................................................................ 390 10 25,641

Benzo fluoranthene .................................................................................................. 110 1 9,090

Benzo (k) fluoranthene ............................................................................................. 110 5000 45,454,545

3-Methylcholanthrene ............................................................................................... 27 10 370,370

7,12-Dimethylbenz (a) anthracene ........................................................................... 1,200 1 833

K171 Benzene ................................................................................................................... 500 10 20,000

Arsenic ...................................................................................................................... 1,600 1 625

K172 Benzene ................................................................................................................... 100 10 100,000

Arsenic ...................................................................................................................... 730 1 1,370

For example, if waste stream K171 is

released from a facility and the person

in charge does not know the actual

concentrations of the benzene and

arsenic constituents, the person may

assume that the concentrations of

benzene and arsenic are 500 and 1,600

ppm. respectively. Thus, applying the

mixture rule, 625 pounds of the K171

waste would need to be released

(assuming the maximum concentrations

indicated in the table) to reach the RQ

for arsenic in this waste.

Where the person in charge knows the

concentration levels of all the hazardous

constituents in a particular petroleum

refining waste, the traditional mixture

rule can be applied. Under this scenario,

reporting would be required only when

an RQ or more of any hazardous

constituent is released. As applied to

the petroleum refining wastes in this

rule, EPA’s overall reporting approach

reduces the burden of notification

requirements for the regulated

community and adequately protects

public health and welfare and the

environment. In addition, EPA believes

that the approach described above is

consistent with the view expressed by

the commenters that reporting for the

four wastes should be based on actual

concentration levels.

In the proposed rule preamble, EPA

identified ‘‘self-heating solids’’ as a

hazardous constituent of waste streams

K171 and K172. Two of the commenters

disagreed with the Agency’s use of this

term and indicated that most K171 and

K172 wastes do not demonstrate the

RCRA characteristic of ignitability.

According to these commenters, the few

wastes that do exhibit this characteristic

will already be subject to the 100-pound

RQ that applies to ignitable

characteristic wastes. Finally, the

commenters stated that EPA’s use of the

term ‘‘self-heating solid’’ as a

constituent of K171 and K172 wastes

would unfairly lower the RQ for those

wastes that do not possess the RCRA

characteristic of ignitability. EPA agrees

with the commenters and has removed

the term ‘‘self-heating solids’’ from the
42176 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

26The range of cost estimates is explained in

Document 5 of the ‘‘Background Documents for the

Cost and Economic Impact Analysis of Listing Four

Petroleum Refining Wastes as Hazardous Under

RCRA Subtitle C,’’ January 10, 1998.

27Waste quantity estimates for the point of

generation and final management are presented in

Table 3.3 of Document 1 of the ‘‘Background

Documents for the Cost and Economic Impact

Analysis of Listing Four Petroleum Refining Wastes

as Hazardous Under RCRA Subtitle C,’’ January 10,

1998.

list of constituents of K171 and K172 in

Table VIII–1 of today’s final rule.

IX. Executive Order 12866

Under Executive Order 12866,

‘‘Regulatory Planning and Review’’ (58

FR 51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) have an annual effect on the economy

of $100 million or more or adversely affects

in a material way the economy, a sector of

the economy, productivity, competition, jobs,

the environment, public health or safety, or

State, local, or tribal governments or

communities

(2) create a serious inconsistency or

otherwise interferes with an action taken or

planned by another agency

(3) materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof

(4) raise novel legal or policy issues arising

out of legal mandates, the President’s

priorities, or the principles set forth in this

Executive order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’ because of policy issues arising

out of legal mandates. As such, this

action was submitted to OMB for

review. Changes made in response to

OMB suggestions or recommendations

are documented in the public record.

X. Economic Analysis

Summary

This section of the preamble develops

the costs and the industry economic

impact for the petroleum refining waste

listings including land disposal

restriction (LDR) impacts. Based on this

economic analysis, the Agency

estimates that the listing of the four

refinery wastes discussed above,

including LDR impacts, the oil-bearing

hazardous secondary material exclusion

(oil-bearing exclusion) and the

wastewaters from the headworks

exemptions for crude oil storage tank

sediment (K169) and CSO sediment

(K170), will result in nationwide

annualized compliance costs between

$20 and $40 million, with an expected

value of about $30 million ($1997) 26

(see Table X–2 below). Although Table

X–2 shows a range from approximately

$12 million to $60 million (columns 5

and 6), the likely range will be narrower

due to the available refinery choices and

expected waste volumes. The wide

variance is nonetheless due to a high

degree of uncertainty in costing and,

particularly, in volumes to be processed.

Of special note is the relationship of

previously listed petroleum refinery

wastes to this rulemaking. The ability to

recycle wastes through coker

processing, as described herein, will

enable refineries to process previously

listed wastes in a like manner. These

wastes include FO37, FO38, KO48,

KO49 and KO51. A conservative

estimate of the volume of these wastes

that may be processed, yielding oil that

may be converted to product, results in

feedstock having a value of some $14

million to $28 million ($1997); see

background document entitled ‘‘Other

Benefits From Recovery of Oil in Coker

Processing Units’’, dated August 24,

1995. Clearly, the impact of this ‘‘other’’

benefit as a potential offset to the costs

of the rule described herein can be

substantial. If the volumes available

from previously listed wastes are higher

than estimated, the value of oil

generated may substantially offset the

costs of this rulemaking. It is important

to note that EPA has insufficient data to

judge the extent to which the industry

may already be generating this added

feedstock.

Industry pricing and operating

impacts, developed using partial

equilibrium analysis, are expected to be

minimal. This is due both to the size of

the industry and the latitude afforded

industry in this rulemaking. The full

economic analysis is available in the

regulatory docket titled ‘‘Background

Documents for the Cost and Economic

Impact Analysis of Listing Four

Petroleum Wastes as Hazardous Under

RCRA Subtitle C,’’ January 10, 1998.

In the cited background document,

supplemental cost impact analyses

accounting for the cost savings of the

oil-bearing exclusion and the headworks

exemption are included, as well as

impacts resulting from the new Small

Business Regulatory Enforcement

Fairness Act of 1996 (SBREFA) and the

potential for unfunded mandates.

Finally, as noted above, cost savings

from the recovery of oil in coker

processing units are evaluated for five

previously listed petroleum refining

industry wastes but , also as noted, are

not included as offsets to the costs

estimated for this rulemaking.

A. Compliance Costs for Listings

Including LDR Impacts and the

Exclusion for Oil-Bearing Hazardous

Secondary Materials

This Section describes (1) the

universe of petroleum refineries and

volumes of petroleum refining wastes in

the four waste groups listed, including

LDR impacts, (2) an overview of the

industry impact methodology, later

described in detail, and detail of the

methodology for determining

incremental compliance cost, (3) the

potential remedial action costs, and (4)

a summary of incremental compliance

cost results.

1. Universe of Petroleum Refineries and

Waste Volumes

In order to estimate costs, it was first

necessary to estimate total annual

generation of petroleum refining wastes.

The domestic petroleum refining

industry affected by this ruling is

composed of 162 refineries owned/

operated by 80 companies. The quantity

of waste at the point of generation (i.e.,

entering the waste management system)

could range from 91,600 to 177,900

metric tons per year, with an expected

value of approximately 134,800 metric

tons per year.27

2. Methodology for Estimating Industry

Economic Impact and Incremental

Compliance Cost

Industry Impact, Overview

Partial equilibrium analysis, as was

noted, was used to evaluate possible

changes in market demand, estimate the

post-control shift in market supply,

predict the change in market

equilibrium (price and quantity), and

estimate plant closures. Petroleum

refineries produce several hundred

products. The economic impact analysis

evaluates the impact of the listings

based on ten petroleum products (i.e.,

ethane/ethylene, butane/butylene,

normal butane/butylene, isobutane/

isobutylene, finished motor gasoline, jet

fuel, distillate and residual fuel oil,

asphalt, and petroleum coke), which

represented 91 percent of domestically

refined petroleum products in 1992.

Because compliance costs for the

hazardous waste listings cannot be

allocated to any specific products,

output in the partial equilibrium model

is defined as a composite, bundled

product equal to the sum of price
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42177

28Costs are discounted at a rate of 7 percent over

a 20-year period.

29These cost estimates are presented in

Document 1 of the ‘‘Background Documents for the

Cost and Economic Impact Analysis of Listing Four

Petroleum Refining Wastes as Hazardous Under

RCRA Subtitle C,’’ January 10, 1998.

30These cost estimates are presented in

Document 5 of the ‘‘Background Documents for the

Cost and Economic Impact Analysis of Listing Four

Petroleum Refining Wastes as Hazardous Under

RCRA Subtitle C,’’ January 10, 1998.

31Baseline unit cost estimates are presented in

Tables 3.8 and 3.10 of Document 1 in the

‘‘Background Documents for the Cost and Economic

Impact Analysis of Listing Four Petroleum Refining

Wastes as Hazardous Under RCRA Subtitle C,’’

January 10, 1998.

multiplied by the weighted production

volumes of all ten products.

Due to the wide range of potential

costs, as shown in the table at the end

of this section, a bounding analysis was

conducted to evaluate the maximum

potential industry economic impact of

this listing determination. Highest cost

options bounded the industry economic

impact analysis. The upper bound LDR

Scenario assumes a pretreatment

management method of solidification

prior to Subtitle C landfill for metalbased wastes, combustion in a Subtitle

C incinerator/BIF for organic-based

wastes, and a listing exemption granted

for organic-based wastes that are

recycled to a coker. The lower bound

LDR Scenario uses the same

assumptions except on-site incineration

costs are assumed for those refineries

generating sufficient quantities to

warrant construction of an incinerator.

EPA’s judgement that industry impact is

minimal is based on upper-bound costs

to the industry.

Incremental Compliance Cost

EPA’s approach to the compliance

cost analysis for this rule was to

compare the cost of current management

practices, as reported in the RCRA

section 3007 Questionnaire of

petroleum refineries, with the projected

cost of management to comply with the

RCRA Subtitle C hazardous waste

program. This difference in cost, when

annualized 28, represents the

incremental annual compliance cost

attributable to the rule.

Three scenarios are evaluated in this

Cost and Economic Impact Analysis.

The first scenario, Listing Scenario,

assesses the costs incurred by the

petroleum refining industry to comply

with Subtitle C regulation excluding

LDR regulations. The Listing Scenario

assumes an end disposal management of

Subtitle C landfilling or continued

combustion of wastes, where indicated

as the baseline management practice, in

a Subtitle C incinerator/BIF.

The second scenario, LDR Scenario,

expands on the Listing Scenario by

adding in cost impacts attributable to

LDR regulations. Two options are

assessed for the LDR Scenario. In

Option 1, the upper-bound estimate, oilbased crude oil storage tank sediment

(K169) and CSO sediment (K170) are

combusted in off-site Subtitle C

incinerators and spent hydrotreating

and hydrorefining catalysts (K171,

K172, respectively) are combusted in

off-site incinerators followed by

vitrification and Subtitle C landfill of

the ash. In Option 2, the lower-bound

estimate, oil-based crude oil storage

tank sediment (K169) and CSO sediment

(K170) are assumed to be managed in

on-site Subtitle C incinerators for those

refineries generating sufficient

quantities and currently in the RCRA

permitting program (thereby avoiding

potential corrective action costs). Spent

hydrotreating and hydrorefining

catalysts (K171, K172) are assumed to be

regenerated/reclaimed in RCRA-exempt

off-site metal recovery units.29

Compliance with LDR requirements is

presumed to be mandatory.

The third scenario, Oil-Bearing

Exclusion Scenario, modifies the Listing

and LDR Scenarios by assuming the

refinery will process crude oil storage

tank sediment (K169) and CSO sediment

(K170) in coking units where it is more

cost-effective than Subtitle C

management. Two options are assessed

for the Oil-Bearing Exclusion Scenario.

In Option 1, the upper-bound estimate,

crude oil storage tank sediment (K169)

and CSO sediment (K170) are processed

in on-site and intracompany (i.e., ‘‘same

company’’) coking units when it is more

economical than management in off-site

Subtitle C incinerators. In Option 2, the

lower-bound estimate, crude oil storage

tank sediment (K169) and CSO sediment

(K170) are processed in intercompany

(i.e., ‘‘not same company’’) coking units

when it is technically feasible and/or

more economical than management in

off-site incinerators. ‘‘Not same

company’’ costs are lower because more

companies will avail themselves of this

option if permitted to do so. Spent

hydrotreating and hydrorefining

catalysts (K171, K172, respectively) are

combusted in off-site incinerators

followed by vitrification and Subtitle C

landfill of the ash.30

Baseline or Current Management

Scenario

Relying on 3007 Questionnaire

responses and engineering site visits,

EPA was able to determine the current

(i.e., 1992) management practices for the

handling and disposal of petroleum

refining wastes. Current management

practices varied among facilities and

waste streams, and included such

practices as on-/off-site Subtitle C/D

landfill, off-site Subtitle C incinerator/

BIF, on-site surface impoundment,

recycling, recovery, regeneration, and

reclamation. These ‘‘current’’

management practices at each facility

represent the baseline scenario of the

analysis.

As part of the 3007 Questionnaire,

EPA asked each facility to identify

current costs for the management of

petroleum refining wastes. For this

analysis, EPA relied on and has not

changed the industry’s own wastespecific estimates concerning the cost of

current management. Industry average

unit costs were developed for each

baseline management practice from the

3007 Questionnaire data. EPA estimated

costs for baseline management practices

when limited or no cost data were

provided in the 3007 Questionnaire.

These calculated industry average and

estimated unit costs were used when a

facility did not provide its own unit cost

estimates. EPA realizes that future

events such as waste minimization

efforts or increased demand for refinery

products may change waste generation

volumes and, thus, future waste

management costs.31 It is important to

note that EPA also estimated missing

quantities to associate costs with these

quantities.

Post-Regulatory Management Scenarios

In predicting how industry would

comply with the listing of petroleum

refinery wastes as RCRA hazardous

wastes, EPA developed the three postregulatory management scenarios,

previously noted, that represent

reasonable management reactions on the

part of industry. Details of the

compliance assumptions are presented

by baseline management practice in

Table X–1. EPA developed these postregulatory management categories based

on knowledge of current waste

management and the physical and

chemical properties of the wastes. These

scenarios are further described as

follows:

The ‘‘Listing’’ Scenario assumes an end

disposal management method of Subtitle C

landfill or continued combustion of wastes,

where indicated as the baseline management

practice, in a Subtitle C incinerator/BIF. The

use of the word ‘‘Listing’’ is intended to

emphasize that this scenario embodies only

Subtitle C costs.

The LDR Scenario presents two options. In

the first option, the metal-based spent

catalyst wastes are combusted in a Subtitle C

incineration followed by vitrification, and

Subtitle C landfill of the ash and the oilbased sediment wastes are combusted in off-
42178 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

32Compliance unit cost estimates are presented in

Table 3.9 and 3.10 of Document 1 in the

‘‘Background Documents for the Cost and Economic

Impact Analysis of Listing Four Petroleum Refining

Wastes as Hazardous Under RCRA Subtitle C,’’

January 10, 1998.

site Subtitle C incinerator/BIF units. This

option reflects the highest cost situation of all

those examined. Other technologies may be

applicable (e.g., solvent extraction instead of

incineration or solidification instead of

vitrification for metal-based wastes) to meet

LDR standards, but these are lower cost

options and will not provide an upper-bound

to the cost and economic analysis. In the

second option, the spent hydrotreating and

hydrorefining catalysts (K171, K172,

respectively) are reclaimed/recovered to take

advantage of the recycling exemption under

RCRA Subtitle C regulation. However,

recordkeeping, storage, and transportation

activities are regulated under RCRA Subtitle

C, while no LDR treatment costs are

included. The oil-based wastes are

combusted in either an on- or off-site Subtitle

C incinerator/BIF depending on the

economic feasibility of constructing on-site

incinerator units. If a facility does not

currently have a RCRA Part B permit, EPA

assumed the facility would choose not to

construct an on-site incinerator in order to

avoid incurring potential costs under the

RCRA corrective action program.

The Oil-Bearing Exclusion Scenario also

presents two options. Because of the

uncertainty regarding plant-specific coker

capacity availability, access limitations, cost

limitations, feedstock quality limitations, and

State regulatory restrictions, the two options

given in Table X–2 were evaluated to bound

the possible results of the LDR scenarios with

an oil-bearing exclusion. Refiners will seek

new cost optimization solutions since coking

is now economical when compared to

Subtitle C management instead of Subtitle D

management. The first cost option considers

that, when economical, facilities will

transport crude oil storage tank sediment

(K169) and CSO sediment (K170) to the

nearest refinery within the same company

(i.e., intracompany) that currently operates a

coker. As a lower-bound cost option, it is

assumed that technology allowing insertion

of de-oiled crude oil storage tank sediment

(K169) and CSO sediment (K170) into coker

feedstocks will be developed and

intercompany transfers will occur, without

the transferring company paying the

receiving company for the right to avoid

Subtitle C costs. However, it is not likely that

there will be no market pricing given

potential profits (compared to Subtitle C

management costs) and potential benefits

received by both the generator and recycler;

thus the lower bound.

Incremental compliance costs are

determined for each management and

transportation practice by subtracting

the baseline management cost from the

compliance management cost. For

example, the incremental unit

compliance cost for wastes currently

managed in off-site municipal Subtitle D

landfills that now will be managed in

Subtitle C landfills is $202/MT ($260/

MT—$58/MT). This incremental unit

cost is then multiplied by the quantity

of waste generated by the facility to

estimate the total incremental

compliance cost. 32 Note that from Table

X–2 it is possible to select various mixes

of compliance options. For this

rulemaking, EPA believes that the 2

right hand columns bound the

compliance costs. However, Option 1

(LDR Scenario) was used in developing

the worst case industry impact analysis.

TABLE X–1.—BASELINE VS. COMPLIANCE PRACTICES

Baseline management practice Wastes managed Compliance assumptions

Storage Methods:

Tank ........................................ K169—crude oil storage tank sediment K170—CSO sediment

K171—spent hydrotreating catalyst K172—spent hydroreffining

catalyst.

Upgrade to Subtitle C accumulation tank system.a

Container (e.g., drum) ............. K169, K170, K171, and K172 ........ Upgrade to Subtitle C accumulation container storage area.(a)

Pile .......................................... K169, K170, and K172 .................. Construct new Subtitle C accumulation tank storage system.(b)

Roll-on/Roll-off Bin .................. K169, K170, K171, and K172 ........ Upgrade to Subtitle C accumulation container storage area.(a)

Other ....................................... K169, K170, K171, and K172 ........ Assume most common storage type reported by the industry for that

waste type.

Treatment methods:

On-site Industrial Furnace ...... K170 ............................................... In compliance. Add RCRA Part 264 and 270 administrative costs to

permit unit.

Other On-site Thermal Treatment.K169 ............................................... On-site industrial furnace.

Off-site Incineration ................. K169 and K171 .............................. In compliance. Construct a new on-site Subtitle C incinerator if more

economical than off-site management.

Washing with Distillate ............ K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system. (a)

Washing with Water ................ K169 ............................................... Upgrade to Subtitle C accumulation tank system.(a)

Other Cleaning/Extraction ....... K171 and K172 .............................. Upgrade to Subtitle C accumulation tank system.(a)

Sludge Thickening .................. K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system.(a)

Sludge De-watering ................ K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system.(a)

Settling .................................... K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system.(a)

Filtration .................................. K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system.(a)

Pressure Filtration/Centrifuging K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system for existing units.(a)

Construct a new on-site Subtitle C pressure filtration/centrifuge unit

for a waste minimization opportunity for oily sludges.(b)

Chemical Emulsion Break ....... K169 ............................................... Upgrade to Subtitle C accumulation tank system.(a)

Thermal Emulsion Break ........ K169 and K170 .............................. Upgrade to Subtitle C accumulation tank system.(a)

Other Phase Separation ......... K169, K171, and K172 .................. Upgrade to Subtitle C accumulation tank system.(a)
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42179

TABLE X–1.—BASELINE VS. COMPLIANCE PRACTICES—Continued

Baseline management practice Wastes managed Compliance assumptions

On-site Land treatment ........... K169, K170, and K171 .................. Listing Scenario: Abandon on-site land treatment unit and dispose

waste in off-site Subtitle C landfill.

LDR Scenario: K169/K170—On-/Off-site incineration;

K171—Option 1: Off-site incineration and ash vitrification; Option 2:

Transfer precious or non-precious metal catalysts for reclamation or

regeneration.

Off-site Land treatment ........... K169 and K170 .............................. Listing Scenario: Off-site Subtitle C landfill.

LDR Scenario: On-/Off-site incineration.

Discharge to On-site WWT

Facility.

K169 and K170 .............................. In compliance due to the headwaters exemption for wastewaters discharged to NPDES or POTW.

Drying on a Pad ...................... K169 and K170 .............................. Construct new Subtitle C accumulation tank system. (b)

On-site Oxidation of

Pyrophoric Material.

K171 and K172 .............................. Upgrade to Subtitle C accumulation tank system. (a)

On-site Stabilization ................ K169, K170, K171, and K172 ........ Upgrade to Subtitle C accumulation tank system. (a)

Off-site Stabilization ................ K171 ............................................... Listing Scenario: In compliance.

LDR Scenario: Ash vitrification following off-site incineration.

Other Treatment ...................... K169 ............................................... Upgrade to Subtitle C accumulation tank system. (a)

Transfer Methods:

Transfer of Precious or Nonprecious Metal Catalysts for

Reclamation/Regeneration.

K171 and K172 .............................. Reclamation/regeneration facility will increase Subtitle C storage capacity and upgrade to Subtitle C transportation and management.

Transfer to Non-Petroleum

Refinery for Direct Use as a

Fuel or to Make a Fuel.

K169 and K170 .............................. Off-site Subtitle C BIF.

Transfer for Use as an Ingredient in Products that are

Placed on the Land.

K169 ............................................... Off-site Subtitle C BIF.

Transfer to Other Off-site Entity.K169 and K171 .............................. Assume most common reported transfer method reported by industry

for each waste type.

Disposal methods:

NPDES .................................... K169 ............................................... In compliance.

Off-site Municipal Subtitle D

Landfill.

K169, K170, and K171 .................. Listing Scenario: Off-site Subtitle C landfill.

LDR Scenario: On-/Off-site incineration.

Off-site Industrial Subtitle D

Landfill.

K169, K170, K171, and K172 ........ Listing Scenario: Off-site Subtitle C Landfill.

LDR Scenario: On-/Off-site incineration.

Off-site Subtitle C Landfill ....... K169, K170, K171, and K172 ........ Listing Scenario: In compliance.

LDR Scenario: K169/K170—On-/Off-site incineration;

K171/K172—Option 1: Off-site incineration followed by ash vitrification; Option 2: Transfer precious or nonprecious metal catalysts for

reclamation or regeneration.

On-site Subtitle D Landfill ....... K170, K171, and K172 .................. Listing Scenario: Off-site Subtitle C landfill.

LDR Scenario: K170—On-/Off-site incineration;

K171/K172—Option 1: Off-site incineration followed by ash vitrification; Option 2: Transfer precious or nonprecious metal catalysts for

reclamation or regeneration.

On-site Subtitle C Landfill ....... K169, K171, and K172 .................. Listing Scenario: In compliance.

LDR Scenario: K169—On-/Off-site incineration;

K171/K172—Option 1: Off-site incineration followed by ash vitrification; Option 2: Transfer precious or nonprecious metal catalysts for

reclamation or regeneration.

On-site Surface Impoundment K169 ............................................... Dredge impoundment sludge and dispose in off-site Subtitle D Landfill

prior to final listing and then recommission impoundment for nonhazardous waste use; Upgrade existing on-site filtration system to a

Subtitle C accumulation system for sludge management.(a)

Listing Scenario: Off-site Subtitle C landfill.

LDR Scenario: On-/Off-site incineration.

(a)

Management costs (i.e., operation and maintenance costs) for baseline and compliance are the same for this management method. Secondary containment is included where appropriate. (b) Management costs (i.e., O&M costs) for baseline and compliance are the same for this management method. Secondary containment is included where appropriate. The compliance cost will involve closure of the drying pad and construction of a drying tank system with secondary

containment.

3. Potential Remedial Action Costs

Within the Refining Industry

In addition to the refinery waste

management costs themselves, the

petroleum refining hazardous waste

listing could affect the management of

soils, leachates, groundwater, and

remedial materials. The Agency’s

‘‘contained in’’ policy defines certain

remediation wastes ‘‘containing’’ a

listed hazardous waste as a RCRA

hazardous waste (see Chemical Waste

Management v. EPA, 869 F.2d 1526,

D.C.C, 1989). Industry sites where

newly identified hazardous wastes have

been managed prior to the effective date

of the new listings may still have

contaminant concentrations which

exceed ‘‘contained in’’ levels. Any firm

actively managing such material could

become a generator of RCRA hazardous
42180 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

waste. Releases from all solid waste

management units at these TSDFs,

including those that in the future would

be found to contain a waste meeting the

petroleum listing descriptions, are

covered by facility-wide corrective

action under 40 CFR 264.101.

Associated costs, e.g., RCRA Facility

Assessment, were addressed in the draft

proposed corrective action rule.

4. Summary of Compliance Cost Results

Table X–2 presents a summary of

estimated incremental annualized

compliance costs for each waste due to

(1) listing, (2) listing including potential

LDR pre-treatment regulations, and (3)

listing including LDR impacts and oilbearing exclusion cost benefits.

Under the oil-bearing exclusion

scenarios, the expected value represents

recycling of 65 percent of the oil-based

crude oil storage tank sediment (K169)

and CSO sediment (K170) in either onsite coking units or intracompany

transfers when it is economically

feasible, off-site incineration of the

remaining 35 percent of the oil-based

crude oil storage tank sediment (K169)

and CSO sediment (K170) quantity, and

off-site incineration and vitrification of

the spent hydrotreating and

hydrorefining catalysts. It is estimated

that 65 percent of the oil-based crude oil

storage tank sediment (K169) and CSO

sediment (K170) quantity is recycled

into coking units.

All of the above cost estimates, under

each scenario, assume implementation

of waste minimization for filtering

‘‘oily’’ crude oil storage tank sediment

(K169) and CSO sediment (K170) and

recycling the oil filtrate back into

process units. Revenues from the

recycled oil are roughly estimated at

about $1 million per year but are not

included as an offset to costs in this

table.

TABLE X–2.—SUMMARY OF COST OF COMPLIANCE

(1997 $millions per Year) 1,2

Waste stream Listing Scenario

LDR Scenario

Option 1—Off-site Incineration of

K169,K170 and Offsite Incineration and

Vitrification of K171,

K172

LDR Scenario

Option 2—On-/Offsite Incineration of

K169, K170 and Regeneration or Reclamation of K171,

K172 3

Oil-Bearing Exclusion

Scenario Including

LDR Impact

Option 1—De-oil

K169, K170, ‘‘Not

Same Company’’ Recycling to Coker, Offsite Incineration of

Remaining Sludge,

and Regeneration or

Reclamation of K171,

K172 4

Oil-Bearing Exclusion

Scenario Including

LDR Impact

Option 2—De-oil

D169, K170, ‘‘Same

Company’’ Recycling

to Coker, Off-site Incineration of Remaining Sludge, and Regeneration or Reclamation of K171,

K172 4

Average Cost [LowHigh]Average Cost [LowHigh]Average Cost [LowHigh]Average Cost [LowHigh]Average Cost [LowHigh]

Crude Oil Storage

Tank Sediment.

2.5 [1.1–4.4] .............. 24.1 [10.4–43.3] ........ 18.6 [9.0–31.6] .......... 8.7 [4.1–14.9] ............ 13.0 [5.9–22.6].

Clarified Slurry Oil

Sediment.

3.1 [1.6–5.4] .............. 25.1 [12.5–42.0] ........ 18.8 [10.5–29.6] ........ 8.1 [3.9–13.8] ............ 13.5 [6.8–22.4].

Spent Hydrotreat- ing

Catalyst.

1.5 [0.9–3.2] .............. 5.6 [3.9–8.5] .............. 2.6 [1.3–5.0] .............. 2.6 [1.3–5.0] .............. 2.6 [1.3–5.0].

Spent Hydrorefining

Catalyst.

1.7 [0.8–4.2] .............. 13.0 [9.3–18.4] .......... 4.4 [2.1–8.8] .............. 4.4 [2.1–8.8] .............. 4.4 [2.1–8.8].

RCRA Administrative

Costs.

0.6 [0.4–0.7] .............. 0.6 [0.4–0.8] .............. 0.9 [0.7–1.1] .............. 0.6 [0.4–0.8] .............. 0.6 [0.4–0.8].

Total .................. 9.4 [4.8–17.9] ............ 68.4 [36.5–113.0] ...... 45.3 [23.6–76.1] ........ 24.4 [11.8–43.3] ........ 34.1 [16.5–59.6].

1 Cost uncertainty (Low-High) is estimated using a +/¥50% adjustment of any estimated quantities and a +/¥25% adjustment of any estimated costs. Management practices and transportation unit costs were provided in the 1992 RCRA 3007 Questionnaire responses. If unit costs

were not reported, an industry-based average unit cost was used. If data were not available to derive an industry-based average, EPA estimated

a unit cost for the management practice based on previous listing determinations, land disposal restrictions analyses, and engineering cost documents. Compliance management practice, transportation, and RCRA administrative unit costs, prices, and cost equations were obtained from industry-based averages derived from the 1992 RCRA 3007 Questionnaire, previous listing determinations and land disposal restrictions analyses,

and engineering cost documents. 2 In the analysis, 1992 costs were inflated to 1997 dollars using an inflation factor of 1.11657. The inflation factor is based on Engineering

News-Record construction (25% weighted) and common labor (75% weighted) cost indexes. The inflation factor is weighted towards labor factors

because compliance costs are more operational in function. Costs are annualized assuming a discounted rate of 7% over a 20-year period. 3On-site incinerators are assumed only for those facilities that manage a large enough quantity of waste so that an on-site incinerator is more

economical for the facility and which are currently in the RCRA program. All other facilities are assumed to continue managing wastes off-site. 4All crude oil storage tank sediment (K169) and CSO sediment (K170) wastes are assumed to be de-oiled in the cost estimate. The recovered

oil is recycled back into process units. For those refineries that reported oil recovery fractions, that data were used. For refineries that did not

provide data, using an industry average for crude oil storage tank sediment (K169) and CSO sediment (K170), 60 percent of the quantity entering the filtration unit is assumed to be recovered as oil and the remaining 40 percent goes on for further management. Of the remaining de-oiled

sediment quantity (i.e., 40 percent fraction), 65 percent is assumed to be recycled into coking units. The remaining 35 percent is subject to Subtitle C management. If crude oil storage tank sediment (K169) and CSO sediment (K170) are recycled into coking units, they are assumed to be

subject to the oil-bearing exclusion. Therefore, all storage, treatment, and transportation of these wastes are not subject to RCRA Subtitle C regulation. Option 1 reflects management of crude oil storage tank sediment (K169) and CSO sediment (K170) in coking units owned by any company (i.e., ‘‘not same company’’). Option 2 reflects management of crude oil storage tank sediment (K169) and CSO sediment (K170) in coking

units as an option only within those companies that own them (i.e., ‘‘same company’’).

B. Details of Industry Economic Impact

As noted, a partial equilibrium model

was used to estimate primary and

secondary impacts from implementation

of the listings. Primary economic

impacts include changes in market

equilibrium price and output levels,

changes in the value of shipments or

revenues to domestic producers, and

plant closures. Secondary impacts

include changes in employment, use of

energy inputs, balance of trade, and

regional refinery distribution. Impacts

associated with the two Oil-Bearing

Exclusion compliance scenarios will fall
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42181

33The ten petroleum products include ethane/

ethylene, butane/butylene, normal butane/butylene,

isobutane/isobutylene, finished motor gasoline, jet

fuel, distillate and residual fuel oil, asphalt, and

petroleum coke.

34Similar percentage increases would apply to

current prices.

between the range of primary and

secondary economic impacts predicted

for the Listing and LDR compliance

scenarios as shown in Table X–2 (the

low and high cost scenarios).

Predicted price increases and

reductions in domestic output are less

than 1 percent for the ten products

evaluated under both the Listing and

LDR compliance scenarios.33 The

projected 1992 price increase for the ten

products combined ranges from 0.03 to

0.76 percent under the low- and highcost scenarios, respectively.34 Under the

low- and high-cost scenarios, 1992

production is expected to decrease,

ranging from 1.3 to 30.9 million barrels

per year, representing a 0.02 to 0.59

percent decrease in annual production,

respectively. The value of shipments or

revenues for domestic producers are

expected to increase for the ten products

combined, ranging from $9.0 to $213

million (1992 dollars) annually for the

low- and high-cost scenarios,

respectively. This revenue increase

results given that the percent increase in

price exceeds the percent decrease in

quantity for goods with inelastic

demand. The model estimates that up to

two refineries may close as a result of

the predicted decrease in production

under both regulatory scenarios. Those

refineries with the highest per unit

control costs are assumed to be marginal

in the post-control market. No

significant regional impacts are

anticipated from implementation of the

listings since only up to two facilities

are anticipated to close and impacts

overall are estimated to be minimal.

Primary economic impacts are not

anticipated to be significantly different

in the later years of this decade and

even beyond (even though 1992 data

were used herein) in that the industry

is mature and not one that changes often

or dramatically absent an external

shock.

Under the low- and high-cost

scenarios, the number of workers

employed in 1992 by firms in SIC 2911

are estimated to decrease ranging from

12 to 282 workers annually,

representing a 0.03 and 0.59 percent

decrease in total employment,

respectively. The small magnitude of

predicted job loss directly results from

the relatively small decrease in

production anticipated and the

relatively low labor intensity in the

industry. An estimated decrease in

energy use ranging from $1.02 to $24.32

million ($1992) per year is expected for

the industry, under the low- and highcost scenarios, respectively. As

production decreases, the amount of

energy input utilized by the refining

industry also declines. The change in

energy use does not consider the

increased energy use associated with

operating and maintaining the

regulatory control equipment due to the

lack of available data. Finally,

imposition of the listings will further

increase the negative balance of trade.

Under the low- and high-cost scenarios,

net exports are anticipated to decline

ranging from 0.2 to 4.7 million barrels

per year, representing a 0.1 and 2.8

percent decline, respectively. The dollar

value of the total decline in net exports

ranges from $6.35 to $152.6 million

($1992) per year. Given the magnitude

of the estimated compliance costs,

refineries are expected to incur minimal

economic impacts. Secondary economic

impacts are not anticipated to be

significantly different in 1997.

Economic impacts may be slightly

underestimated as a result of the

following model input changes:

The economic analysis was based on a

lower CSO sediment quantity estimate of

9,000 MT/yr managed in final management

practices. This quantity was revised to 13,100

MT/yr. As a result, impacts for facilities

generating this sediment are underestimated

for all scenarios.

The regulatory options (i.e., waste

management options) used to evaluate

economic impacts differ slightly from those

that were used to calculate the cost of

compliance for the lower- and upper-bound

LDR Scenarios, such that waste management

costs were understated by $3 and $31 million

($1992), respectively. As a result, economic

impacts may be understated for the lowerand upper-bound LDR Scenarios. However,

the Oil-Bearing Exclusion Scenario, with

estimated costs from $31 to $67 million

($1992) and an expected value of $45

million, fall within the range of costs used in

the economic impact analysis for the LDR

Scenarios. Therefore, the lower-and upperbound LDR Scenarios bound the anticipated

cost of the rule (i.e., the Oil-Bearing

Exclusion Scenario).

Economic impacts may be

overestimated as a result of the

following model assumptions:

The model assumes that all refineries

compete in a national market. In reality,

some refineries are protected from market

fluctuations by regional or local trade barriers

and may therefore be less likely to feel

impact.

The total cost of compliance is assigned

exclusively to ten petroleum products, rather

than the entire product slate for each

refinery.

Some refineries may find it profitable to

expand production in the post-control

market. This would occur when a firm found

its post-control incremental unit cost to be

smaller than the post-control market price.

Expansion by these firms would result in a

smaller decrease in output and increase in

price than otherwise would occur.

The economic analysis was initially based

on the listing of five waste streams including

unleaded gasoline sediment, which has since

been removed from the list of wastes

included in this listing determination. As a

result, economic impacts for the 98 facilities

generating unleaded gasoline sediment will

be overestimated.

With the combined effects of analyzing five

waste streams and using a lower CSO

sediment quantity and a less costly upperbound LDR Scenario management option, the

total cost of compliance for the Listing

Scenario is understated by $2 million and the

lower-bound and upper-bound LDR

Scenarios are understated by $5 million and

$31 million ($1992), respectively. As a result,

economic impacts may be understated for the

Listing and LDR Scenarios. However, as

noted, economic impacts estimated for the

Listing and LDR scenarios bound the

anticipated economic impacts associated

with the Oil-Bearing Exclusion Scenario.

Under any realistic set of assumptions

associated with this listing, industry

economic impact is likely to be very

slight. The results of the economic

impact analysis are summarized in

Table X–3.

TABLE X–3.—SUMMARY OF ECONOMIC IMPACTS 1, 2

Economic impacts

Listing scenario lowerboundLDR scenario lowerboundLDR scenario upperbound

Primary Economic Impacts

Average Price Increase:

Over All Products .............................................................................................................................. 0.03% 0.08% 0.76%
42182 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

35According to ‘‘EPA Guidelines for

Implementing the Regulatory Flexibility Act’’

(February, 1997) and the Small Business Size

Regulations (13 CFR 121), any refinery that

produces petroleum products (SIC 2911) of less

than or equal to 75,000 barrels of crude per day and

has no more than 1,500 employees, constitutes a

‘‘small entity.’’ The Agency believes that none of

the entities which would incur incremental

compliance costs as a result of this rulemaking

produce more than 75,000 barrels and have less

than 1,500 employees.

TABLE X–3.—SUMMARY OF ECONOMIC IMPACTS 1, 2—Continued

Economic impacts

Listing scenario lowerboundLDR scenario lowerboundLDR scenario upperbound

Annual Production Decrease:

Amount (MMbbl) ................................................................................................................................ (1.3) (3.27) (30.93)

Percentage Change .......................................................................................................................... (0.03%) (0.06%) (0.59%)

Annual Value of Shipments

Amount (MM$92) .............................................................................................................................. $9.0 $22.59 $213.34

Percentage Change .......................................................................................................................... 0.01% 00.02% 0.16%

Number of Plant Closures ........................................................................................................................ 0–2 0–2 0–2

Secondary Economic Impacts

Annual Job Loss:.

Number .............................................................................................................................................. (12) (30) (282)

Percentage Change .......................................................................................................................... (0.03%) (0.06%) (0.59%)

Annual Decrease In Energy Use:

Amount (MM$92) .............................................................................................................................. ($1.02) ($2.57) ($24.32)

Percentage Change .......................................................................................................................... (0.03%) (0.06%) (0.59%)

Annual Net Foreign Trade Loss:

Amount (MMbbl) ................................................................................................................................ (0.20) (0.49) (4.70)

Percentage Change .......................................................................................................................... (0.12%) (0.3%) (2.8%)

Dollar Value ($/MMbbl) ..................................................................................................................... ($6.35) ($15.96) ($152.60)

1Assumes listing of five waste streams: crude oil storage tank sediment, clarified slurry oil sediment, unleaded tank sediment, spent

hydrotreating catalyst, and spent hydrorefining catalyst. Unleaded tank sediment was not listed. Impact will be reduced with four. 2The analysis was conducted using 1992 cost and price data. Costs and prices were not inflated to 1997 dollars and the economic impact

analysis was not revised because the economic impacts are not anticipated to change significantly. Anticipated costs with the granting of a oilbearing exclusion fall within the range used in the economic impact analysis.

XI. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980 as amended by SBREFA

requires Federal agencies to consider

‘‘small entities’’ throughout the

regulatory process. EPA policy suggests

that an initial screening analysis be

performed to determine whether small

entities will be affected by the

regulation. If affected small entities are

identified, regulatory alternatives

should be considered which mitigate

the potential impacts. Small entities as

described in the Act are only those

‘‘businesses, organizations and

governmental jurisdictions subject to

regulation.’’ In addition, the Agency

must prepare an IRFA, unless the head

of the Agency certifies that the rule will

not have a significant impact on a

substantial number of small entities.

The Small Business Administration

(SBA) size standards criteria apply to

firm size, whereas the economic impact

analysis for this rulemaking was

conducted at the facility level (i.e.,

refinery level). Few companies employ

more than 1,500 employees, and data on

the number of employees at company

level were much less readily available

than were capacity data. For singleplant firms, the SBA criteria were

applied directly. For firms (i.e.,

companies) owning more than one

refinery, crude capacity was aggregated

for all plants (i.e., refineries) to

determine the overall size of the

company.35 Despite the high percentage

of small entities in the population of

refinery companies affected by the

listing determination, anticipated

impacts as a result of implementation of

the listings were minimal, with a

maximum of two plant closures

predicted under the most conservative

assumptions used in each of the

scenarios evaluated.

Of the 66 affected companies, 32

entities fit the definition of a small

entity as defined by the RFA. Table XI–

1 presents the estimated annualized

incremental compliance costs borne by

the 32 small businesses in the

petroleum refining industry. The annual

incremental cost of the rule for the 32

facilities ranged from $4,566 to $11.8

million (1992 dollars). For each of the

32 facilities impacted, these annual

costs constitute less than 0.96 percent of

total annual sales. EPA believes that

these costs do not represent a significant

impact. Hence, pursuant to section

605(b) of the RFA, 5 U.S.C. 605(b), the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities.

XII. Submission to Congress and the

General Accounting Office

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 the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This action is not

a ‘‘major rule’’ as defined by 5 U.S.C.

§ 804(2). This rule will be effective six

months from the date of publication.
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42183

TABLE XI–1.—RESULTS OF THE REGULATORY FLEXIBILITY ANALYSIS (a)

Summary of economic impacts on small entities

Listing scenarios LDR scenario lower

bound

LDR scenario upperbound

Range of Annualized Compliance Costs ................................................. $4,566–$305,379 $4,556–$7,561,781 $4,556–$11,765,904

Range of Annual Company Refinery Sales ............................................. $19,377,340–$1,218,936,710

Range of Annualized Compliance Costs as a Percentage of Company

Refinery Sales ...................................................................................... 0.001%–0.236% 0.001%–0.620% 0.001%–0.965%

(a)The analysis was conducted using 1992 cost and price data. Costs and prices were not inflated to 1997 dollars and the analysis was not revised because the anticipated impacts would still be insignificant.

XIII. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘UMRA’’) signed into law on March 22,

1995, The EPA must prepare a statement

to accompany any rule where the

estimated costs to State, local, or tribal

governments, or to the private sector,

will be $100 million or more in any one

year. Section 203 requires the epa to

establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

Under section 205, agencies also must

develop a process to permit elected

State, local, and tribal government

officials to provide ‘‘meaningful and

timely input’’ into the development of

regulatory proposals ‘‘containing

significant intergovernmental

mandates.’’ In addition, agencies must

consider a ‘‘reasonable number of

regulatory alternatives’’ and select the

least costly, most cost-effective, or least

burdensome alternative that achieves

the objectives of the rule, unless the

provisions of the alternative are

inconsistent with the law or an

explanation is provided by the head of

the affected agency.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local, or

tribal governments in the aggregate or to

the private sector. The rule would not

impose any Federal intergovernmental

mandate because it imposes no

enforceable duty upon State, tribal, or

local governments. States, tribes, and

local governments would have no

compliance costs under this rule, which

applies only to facilities managing the

listed petroleum production wastes. It is

expected that States will adopt similar

rules and submit those rules for

inclusion in their authorized RCRA

programs, but they have no legally

enforceable duty to do so. For the same

reasons, EPA also has determined that

this rule contains no regulatory

requirements that might significantly or

uniquely affect small governments.

In addition, as discussed above, the

private sector is not expected to incur

costs exceeding $100 million in any one

year. The upper-bound of the range of

potential average annual costs is

estimated to be $60 million ($1997) with

the granting of an oil-bearing exclusion,

considerably below the $100 million

annual threshold. The Agency believes

that this average annual cost represents

the typical cost for any given year and

that this rulemaking will not result in a

spike in annual cost that might rise

above $100 million in any given year

above for the following reasons. First,

compliance with these new

requirements does not involve

significant capital costs which could

generate such a spike. Treatment and

disposal capacity for these wastes

already exist and the typical costs

incurred come from treatment and

disposal on a routine basis. Second,

waste generation rates for these wastes

are expected to be relatively constant

over time. No signficant surge in

generation of the wastes listed in this

rule involving a concomitant increase in

costs are anticipated.

XIV. Paperwork Reduction Act

This rule does not contain any new

information collection requirements

subject to OMB review under the

Paperwork Reduction Act of 1995, 44

U.S.C. 3501 et seq. Facilities will have

to comply with the existing Subtitle C

recordkeeping and reporting

requirements for the newly listed waste

streams.

To the extent that this rule imposes

any information collection requirements

under existing RCRA regulations

promulgated in previous rulemakings,

those requirements have been approved

by the Office of Management and

Budget (OMB) under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

and have been assigned OMB control

numbers 2050–0009 (ICR no. 1573, Part

B Permit Application, Permit

Modifications, and Special Permits);

2050–0120 (ICR 1571, General Facility

Hazardous Waste Standards); 2050–

0028 (ICR 261, Notification of

Hazardous Waste Activity); 2050–0034

(ICR 262, RCRA Hazardous Waste

Permit Application and Modification,

Part A); 2050–0039 (ICR 801,

Requirements for Generators,

Transporters, and Waste Management

Facilities under the Hazardous Waste

Manifest System); 2050–0035 (ICR 820,

Hazardous Waste Generator Standards);

and 2050–0024 (ICR 976, 1997

Hazardous Waste Report.

Release reporting required as a result

of listing wastes as hazardous

substances under CERCLA and

adjusting the RQs has been approved

under the provisions of the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

and has been assigned OMB control

number 2050–0046 (ICR 1049,

Notification of Episodic Release of Oil

and Hazardous Substances).

XV. National Technology Transfer and

Advancement Act

Under Section 12(d) of the National

Technology Transfer and Advancement

Act, the Agency 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.) that are

developed or adopted by voluntary

consensus standard bodies. Where

available and potentially applicable

voluntary consensus standards are not

used by EPA, the Act requires the

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.

XVI. Executive Order 13045—

Protection of Children From

Environmental Health Risks and Safety

Risks

The Executive Order 13045 is entitled

‘‘Protection of Children from
42184 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

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 final rule is not subject to E.O.

13045 because this is not an

economically significant regulatory

action as defined by E.O. 12866.

List of Subjects

40 CFR Part 148

Administrative practice and

procedure, Hazardous waste, Reporting

and recordkeeping requirements, Water

supply.

40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

40 CFR Part 266

Environmental protection, Boilers and

industrial furnaces, Energy, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

40 CFR Part 268

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements.

40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous materials transportation,

Hazardous waste, Indians-lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

40 CFR Part 302

Environmental protection, Air

pollution control, Chemicals, Hazardous

substances, Hazardous waste,

Intergovernmental relations, Natural

resources, Reporting and recordkeeping

requirements, Superfund, Water

pollution control, Water supply.

Dated: June 29, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I, of the Code

of Federal Regulations is amended as

follows:

PART 148—HAZARDOUS WASTE

INJECTION RESTRICTIONS

1. The authority citation for part 148

continues to read as follows:

Authority: Secs. 3004, Resource

Conservation and Recovery Act, 42 U.S.C.

6901 et seq.

2. Section 148.18 is amended by

adding paragraph (i) to read as follows:

§ 148.18 Waste specific prohibitions—

newly listed and identified Wastes.

* * * * *

(i) Effective February 8, 1999, the

wastes specified in 40 CFR 261.32 as

EPA Hazardous Waste Numbers K169,

K170, K171, and K172 are prohibited

from underground injection.

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

3. 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.

4. Section 261.3 is amended by

revising paragraphs (a)(2)(iv)(C) and

(c)(2)(ii)(B); and by adding paragraph

(c)(2)(ii)(E) to read as follows.

§ 261.3 Definition of hazardous waste.

(a) * * *

(2) * * *

(iv) * * *

(C) One of the following wastes listed

in § 261.32, provided that the wastes are

discharged to the refinery oil recovery

sewer before primary oil/water/solids

separation—heat exchanger bundle

cleaning sludge from the petroleum

refining industry (EPA Hazardous Waste

No. K050), crude oil storage tank

sediment from petroleum refining

operations (EPA Hazardous Waste No.

K169), clarified slurry oil tank sediment

and/or in-line filter/separation solids

from petroleum refining operations

(EPA Hazardous Waste No. K170), spent

hydrotreating catalyst (EPA Hazardous

Waste No. K171), and spent

hydrorefining catalyst (EPA Hazardous

Waste No. K172); or

* * * * *

(c) * * *

(2) * * *

(ii) * * *

(B) Waste from burning any of the

materials exempted from regulation by

§ 261.6(a)(3)(iii) and (iv).

* * * * *

(E) Catalyst inert support media

separated from one of the following

wastes listed in § 261.32—Spent

hydrotreating catalyst (EPA Hazardous

Waste No. K171), and Spent

hydrorefining catalyst (EPA Hazardous

Waste No. K172).

* * * * *

5. In § 261.4, new paragraphs (a)(18)

and (a)(19) are added, and paragraph

(a)(12) is revised to read as follows:

* * * * *

§ 261.4 Exclusions.

(a) * * *

(12) (i) Oil-bearing hazardous

secondary materials (i.e., sludges,

byproducts, or spent materials) that are

generated at a petroleum refinery (SIC

code 2911) and are inserted into the

petroleum refining process (SIC code

2911—including, but not limited to,

distillation, catalytic cracking,

fractionation, or thermal cracking units

(i.e., cokers)) unless the material is

placed on the land, or speculatively

accumulated before being so recycled.

Materials inserted into thermal cracking

units are excluded under this paragraph,

provided that the coke product also

does not exhibit a characteristic of

hazardous waste. Oil-bearing hazardous

secondary materials may be inserted

into the same petroleum refinery where

they are generated, or sent directly to

another petroleum refinery, and still be

excluded under this provision. Except

as provided in paragraph (a)(12)(ii) of

this section, oil-bearing hazardous

secondary materials generated

elsewhere in the petroleum industry

(i.e., from sources other than petroleum

refineries) are not excluded under this

section. Residuals generated from

processing or recycling materials

excluded under this paragraph (a)(12)(i),

where such materials as generated

would have otherwise met a listing

under subpart D of this part, are

designated as F037 listed wastes when

disposed of or intended for disposal.

(ii) Recovered oil that is recycled in

the same manner and with the same

conditions as described in paragraph

(a)(12)(i) of this section. Recovered oil is

oil that has been reclaimed from

secondary materials (including

wastewater) generated from normal

petroleum industry practices, including

refining, exploration and production,

bulk storage, and transportation

incident thereto (SIC codes 1311, 1321,

1381, 1382, 1389, 2911, 4612, 4613,

4922, 4923, 4789, 5171, and 5172.)

Recovered oil does not include oilbearing hazardous wastes listed in

subpart D of this part; however, oil

recovered from such wastes may be

considered recovered oil. Recovered oil

does not include used oil as defined in

40 CFR 279.1.

* * * * *
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42185

(18) Petrochemical recovered oil from

an associated organic chemical

manufacturing facility, where the oil is

to be inserted into the petroleum

refining process (SIC code 2911) along

with normal petroleum refinery process

streams, provided:

(i) The oil is hazardous only because

it exhibits the characteristic of

ignitability (as defined in § 261.21) and/

or toxicity for benzene (§ 261.24, waste

code D018); and

(ii) The oil generated by the organic

chemical manufacturing facility is not

placed on the land, or speculatively

accumulated before being recycled into

the petroleum refining process. An

‘‘associated organic chemical

manufacturing facility’’ is a facility

where the primary SIC code is 2869, but

where operations may also include SIC

codes 2821, 2822, and 2865; and is

physically co-located with a petroleum

refinery; and where the petroleum

refinery to which the oil being recycled

is returned also provides hydrocarbon

feedstocks to the organic chemical

manufacturing facility. ‘‘Petrochemical

recovered oil’’ is oil that has been

reclaimed from secondary materials

(i.e., sludges, byproducts, or spent

materials, including wastewater) from

normal organic chemical manufacturing

operations, as well as oil recovered from

organic chemical manufacturing

processes.

(19) Spent caustic solutions from

petroleum refining liquid treating

processes used as a feedstock to produce

cresylic or naphthenic acid unless the

material is placed on the land, or

accumulated speculatively as defined in

§ 261.1(c).

* * * * *

§ 261.6 [Amended]

6. In § 261.6, paragraph (a)(3)(iv)(C) is

amended by removing ‘‘; and’’ at the

end of the paragraph and adding a

period in its place; and paragraph

(a)(3)(v) is removed.

7. In § 261.31(a), the table is amended

by revising the entry for F037, to read

as follows:

§ 261.31 Hazardous wastes from nonspecific sources.

(a) * * *

Industry and

EPA hazardous waste No.Hazardous waste Hazard

code

* * * * * * *

F037 .............. Petroleum refinery primary oil/water/solids separation sludge-Any sludge generated from the gravitational separation

of oil/water/solids during the storage or treatment of process wastewaters and oily cooling wastewaters from petroleum refineries. Such sludges include, but are not limited to, those generated in oil/water/solids separators;

tanks and impoundments; ditches and other conveyances; sumps; and stormwater units receiving dry weather

flow, sludge generated in stormwater units that do not receive dry weather flow, sludges generated from non-contact once-through cooling waters segregated for treatment from other process or oily cooling waters, sludges generated in aggressive biological treatment units as defined in § 261.31(b)(2) (including sludges generated in one or

more additional units after wastewaters have been treated in aggressive biological treatment units) and K051

wastes are not included in this listing. This listing does include residuals generated from processing or recycling

oil-bearing hazardous secondary materials excluded under § 261.4(a)(12)(i), if those residuals are to be disposed

of.

(T)

* * * * * * *

* * * * * * *

8. In § 261.32, the table is amended by adding in alphanumeric order (by the first column) the following waste

streams to the subgroup ‘‘Petroleum refining’’ to read as follows:

§ 261.32 Hazardous wastes from specific sources.

* * * * * * *

Industry and

EPA hazardous waste No.Hazardous waste Hazard

code

* * * * * * *

Petroleum refining:

* * * * * * *

K169 .......... Crude oil storage tank sediment from petroleum refining operations .............................................................................. (T)

K170 .......... Clarified slurry oil tank sediment and/or in-line filter/separation solids from petroleum refining operations ................... (T)

K171 .......... Spent Hydrotreating catalyst from petroleum refining operations, including guard beds used to desulfurize feeds to

other catalytic reactors (this listing does not include inert support media).

(I,T)

K172 .......... Spent Hydrorefining catalyst from petroleum refining operations, including guard beds used to desulfurize feeds to

other catalytic reactors (this listing does not include inert support media).

(I,T)

* * * * * * *

9. Appendix VII to Part 261 is amended by adding the following waste streams in alphanumeric order (by the

first column) to read as follows.
42186 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

APPENDIX VII TO PART 261—BASIS FOR LISTING HAZARDOUS WASTE

EPA hazardous waste No. Hazardous constituents for which listed

* * * * * * *

K169 ............. Benzene.

K170 ............. Benzo(a)pyrene, dibenz(a,h)anthracene, benzo (a) anthracene, benzo (b)fluoranthene, benzo(k)fluoranthene, 3-

methylcholanthrene, 7, 12-dimethylbenz(a)anthracene.

K171 ............. Benzene, arsenic.

K172 ............. Benzene, arsenic.

PART 266—STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF

HAZARDOUS WASTE MANAGEMENT FACILITIES

The authority citation for part 266 is revised to read as follows:

Authority: 42 U.S.C. 1006, 2002(a), 3004, and 3014, 6905, 6906, 6912, 6922, 6924, 6925, and 6937.

11. Section 266.100(b)(3) is revised to read as follows:

§ 266.100 Applicability.

* * * * *

(b)* * *

(3) Hazardous wastes that are exempt from regulation under §§ 261.4 and 261.6(a)(3) (iii) and (iv) of this chapter,

and hazardous wastes that are subject to the special requirements for conditionally exempt small quantity generators

under § 261.5 of this chapter; and

* * * * *

PART 268—LAND DISPOSAL RESTRICTIONS

12. The authority citation for part 268 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart C—Prohibitions on Land Disposal

13. Section 268.35 is added to subpart C to read as follows:

§ 268.35 Waste specific prohibitions-petroleum refining wastes.

(a) Effective February 8, 1999, the wastes specified in 40 CFR part 261 as EPA Hazardous Wastes Numbers K169,

K170, K171, and K172, soils and debris contaminated with these wastes, radioactive wastes mixed with these hazardous

wastes, and soils and debris contaminated with these radioactive mixed wastes, are prohibited from land disposal.

(b) The requirements of paragraph (a)

of this section do not apply if:

(1) The wastes meet the applicable

treatment standards specified in Subpart

D of this part;

(2) Persons have been granted an

exemption from a prohibition pursuant

to a petition under § 268.6, with respect

to those wastes and units covered by the

petition;

(3) The wastes meet the applicable

treatment standards established

pursuant to a petition granted under

§ 268.44;

(4) Hazardous debris that have met

treatment standards in § 268.40 or in the

alternative treatment standards in

§ 268.45; or

(5) Persons have been granted an

extension to the effective date of a

prohibition pursuant to § 268.5, with

respect to these wastes covered by the

extension.

(c) To determine whether a hazardous

waste identified in this section exceeds

the applicable treatment standards

specified in § 268.40, the initial

generator must test a sample of the

waste extract or the entire waste,

depending on whether the treatment

standards are expressed as

concentrations in the waste extract or

the waste, or the generator may use

knowledge of the waste. If the waste

contains constituents in excess of the

applicable Universal Treatment

Standard levels of § 268.48, the waste is

prohibited from land disposal, and all

requirements of this part are applicable,

except as otherwise specified.

Subpart D—Treatment Standards

14. In § 268.40, the Table of Treatment

Standards is amended by adding in

alphanumeric order new entries for

K169, K170, K171, and K172 to read as

follows. The appropriate footnotes to

the Table of Treatment Standards are

republished without change.

§ 268.40 Applicability of treatment

standards.

* * * * *
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42187

TREATMENT STANDARDS FOR HAZARDOUS WASTES

[Note: NA means not applicable]

Waste

code

Waste description and treatment/

regulatory subcategory 1

Regulated hazardous constituent Wastewaters Nonwastewaters

Common Name CAS2 No.

Concentration in

mg/L3; or technology code 4

Concentration in

mg/kg 5 unless

noted as ‘‘mg/L

TCLP’’; or technology code 4

.

* * * * * * *

K169 ........ Crude oil tank sediment from petroleum refining operations.Benz(a)anthracene ....................... 56–55–3 0.059 ..................... 3.4

Benzene ........................................ 71–43–2 0.14 ....................... 10

Benzo(g,h,i)perylene ..................... 191–24–2 0.0055 ................... 1.8

Chrysene ....................................... 218–01–9 0.059 ..................... 3.4

Ethyl benzene ............................... 100–41–4 0.057 ..................... 10

Fluorene ........................................ 86–73–7 0.059 ..................... 3.4

Naphthalene .................................. 91–20–3 0.059 ..................... 5.6

Phenanthrene ............................... 81–05–8 0.059 ..................... 5.6

Pyrene ........................................... 129–00–0 0.067 ..................... 8.2

Toluene (Methyl Benzene) ........... 108–88–3 0.080 ..................... 10

Xylene(s) (Total) ........................... 1330–20–7 0.32 ....................... 30

K170 ........ Clarified slurry oil sediment from

petroleum refining operations.

Benz(a)anthracene ....................... 56–55–3 0.059 ..................... 3.4

Benzene ........................................ 71–43–2 0.14 ....................... 10

Benzo(g,h,i)perylene ..................... 191–24–2 0.0055 ................... 1.8

Chrysene ....................................... 218–01–9 0.059 ..................... 3.4

Dibenz(a,h)anthracene ................. 53–70–3 0.055 8.2.

Ethyl benzene ............................... 100–41–4 0.057 ..................... 10

Fluorene ........................................ 86–73–7 0.059 ..................... 3.4

Indeno(1,2,3,-cd)pyrene ................ 193–39–5 0.0055 ................... 3.4

Naphthalene .................................. 91–20–3 0.059 ..................... 5.6

Phenanthrene ............................... 81–05–8 0.059 ..................... 5.6

Pyrene ........................................... 129–00–0 0.067 ..................... 8.2

Toluene (Methyl Benzene) ........... 108–88–3 0.080 ..................... 10

Xylene(s) (Total) ........................... 1330–20–7 0.32 ....................... 30

K171 ........ Spent hydrotreating catalyst from

petroleum refining operations,

including guard beds used to

desulfurize feeds to other catalytic reactors (this listing does

not include inert support

media.).

Benz(a)anthracene ....................... 56–55–3 0.059 ..................... 3.4

Benzene ........................................ 71–43–2 0.14 ....................... 10

Chrysene ....................................... 218–01–9 0.059 ..................... 3.4

Ethyl benzene ............................... 100–41–4 0.057 ..................... 10

Naphthalene .................................. 91–20–3 0.059 ..................... 5.6

Phenanthrene ............................... 81–05–8 0.059 ..................... 5.6

Pyrene 129–00–0 ......................... 0.067 8.2.

Toluene (Methyl Benzene) ........... 108–88–3 0.080 ..................... 10

Xylene(s) (Total) ........................... 1330–20–7 0.32 ....................... 30

Arsenic .......................................... 7740–38–2 1.4 ......................... 5 mg/L TCLP

Nickel ............................................ 7440–02–0 3.98 ....................... 11.0 mg/L TCLP

Vanadium ...................................... 7440–62–2 4.3 ......................... 1.6 mg/L TCLP

Reactive sulfides ........................... NA DEACT ................. DEACT

K172 ........ Spent hydrorefining catalyst from

petroleum refining operations,

including guard beds used to

desulfurize feeds to other catalytic reactors (this listing does

not include inert support

media.).

Benzene ........................................ 71–43–2 0.14 ....................... 10

Ethyl benzene ............................... 100–41–4 0.057 ..................... 10

Toluene (Methyl Benzene) ........... 108–88–3 0.080 ..................... 10

Xylene(s) (Total) ........................... 1330–20–7 0.32 ....................... 30

Antimony ....................................... 7740–36–0 1.9 ......................... 1.15 mg/L TCLP

Arsenic .......................................... 7740–38–2 1.4 ......................... 5 mg/L TCLP

Nickel ............................................ 7440–02–0 3.98 ....................... 11.0 mg/L TCLP

Vanadium ...................................... 7440–62–2 4.3 ......................... 1.6 mg/L TCLP

Reactive Sulfides .......................... NA DEACT ................. DEACT

.
42188 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations

TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued

[Note: NA means not applicable]

Waste

code

Waste description and treatment/

regulatory subcategory 1

Regulated hazardous constituent Wastewaters Nonwastewaters

Common Name CAS2 No.

Concentration in

mg/L3; or technology code 4

Concentration in

mg/kg 5 unless

noted as ‘‘mg/L

TCLP’’; or technology code 4

* * * * * * *

1The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Regulatory

Subcategories are provided, as needed, to distinguish between applicability of different standards. 2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical

with its salts and/or esters, the CAS number is given for the parent compound only. 3 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.

4All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42

Table 1—Technology Codes and Descriptions of Technology-Based Standards. 5Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration

were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, Subpart

O or part 265 Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A

facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters

are based on analysis of grab samples.

* * * * * * *

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

15. The authority citation for part 271

continues to read as follows:

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

6926.

Subpart A—Requirements for Final

Authorization

16. Section 271.1(j) is amended by

adding the following entries to Table 1

in chronological order by date of

publication in the Federal Register, and

by adding the following entries to Table

2 in chronological order by effective

date in the Federal Register, to read as

follows:

§ 271.1 Purpose and scope.

* * * * *

(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

* * * * * * *

August 6, 1998 ............................. Petroleum Refining Process Wastes ...................... [Insert FR page numbers] ............ February 8, 1999.

* * * * * * *

TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register

reference

* * * * * * *

February 8, 1999 .......................... Prohibition on land disposal of newly listed and

identified wastes; and prohibition on land disposal of radioactive waste mixed with the newly

listed or identified wastes, including soil and debris.

3004(g)(4) (C) and 3004 (m) ....... August 6, 1998. 63

FR [Insert page

numbers]

* * * * * * *

* * * * * * *

PART 302—DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

17. The authority citation for part 302 continues to read as follows:

Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 1361.

18. In § 302.4, table 302.4 is amended by adding footnote f and the following new entries in alphanumerical order

at the end of the table to read as follows:

§ 302.4 Designation of hazardous substances.

* * * * * * *
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 /Rules and Regulations 42189

TABLE 302.4—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES

[NOTE: All Comments/Notes Are Located at the End of This Table]

Hazardous substance CASRN Regulatory synonyms

Statutory

Code† RCRA

waste No.

Final RQ

RQ Category Pounds

(Kg)

* * * * * * *

K169f ...................................... ............................... ............................... 1* 4 K169 A 10(4.54)

Crude oil storage tank sediment from petroleum refining operations.

K170f ...................................... ............................... ............................... 1* 4 K170 X 1 (0.454)

Clarified slurry oil tank sediment and/or in-line filter/

separation solids from petroleum refining operations.

K171f ...................................... ............................... ............................... 1* 4 K171 X 1 (0.454)

Spent hydrotreating catalyst

from petroleum refining operations. (This listing does

not include inert support

media.)

K172f ...................................... ............................... ............................... 1* 4 K172 X 1 (0.454)

Spent hydrorefining catalyst

from petroleum refining operations. (This listing does

not include inert support

media.)

† Indicates the statutory sources as defined by 1, 2, 3, and 4 below.

* * * * * * * 1*—Indicates that the 1-pound RQ is a CERCLA statutory RQ.

* * * * * * * fSee 40 CFR 302.6(b)(1) for application of the mixture rule to this hazardous waste.

19. Section 302.6 is amended by

revising paragraphs (b)(1)(i) and

(b)(1)(ii) and by adding paragraph

(b)(1)(iii) to read as follows:

§ 302.6 Notification requirements.

* * * * *

(b) * * *

(1) * * *

(i) If the quantity of all of the

hazardous constituent(s) of the mixture

or solution is known, notification is

required where an RQ or more of any

hazardous constituent is released;

(ii) If the quantity of one or more of

the hazardous constituent(s) of the

mixture or solution is unknown,

notification is required where the total

amount of the mixture or solution

released equals or exceeds the RQ for

the hazardous constituent with the

lowest RQ; or

(iii) For waste streams K169, K170,

K171, and K172, knowledge of the

quantity of all of the hazardous

constituent(s) may be assumed, based

on the following maximum observed

constituent concentrations identified by

EPA:

Waste Constituent Max ppm

K169 ........ Benzene ............................................................................................................................................................................. 220.0

K170 ........ Benzene ............................................................................................................................................................................. 1.2

Benzo (a) pyrene ............................................................................................................................................................... 230.0

Dibenz (a,h) anthracene .................................................................................................................................................... 49.0

Benzo (a) anthracene ........................................................................................................................................................ 390.0

Benzo (b) fluoranthene ...................................................................................................................................................... 110.0

Benzo (k) fluoranthene ...................................................................................................................................................... 110.0

3-Methylcholanthrene ......................................................................................................................................................... 27.0

7,12-Dimethylbenz (a) anthracene .................................................................................................................................... 1,200.0

K171 ........ Benzene ............................................................................................................................................................................. 500.0

Arsenic ............................................................................................................................................................................... 1,600.0

K172 ........ Benzene ............................................................................................................................................................................. 100.0

Arsenic ............................................................................................................................................................................... 730.0

* * * * *

[FR Doc. 98–19929 Filed 8–5–98; 8:45 am]

BILLING CODE 6560–50–P