[Federal Register Volume 61, Number 98 (Monday, May 20, 1996)]
[Proposed Rules]
[Pages 25175-25183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12607]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5507-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant a

[[Page 25176]]

petition to Giant Refining Company (Giant) to exclude (or ``delist''), 
on a one-time basis, certain solid wastes generated at its facility 
from the lists of hazardous wastes contained in 40 CFR 261.31 and 
261.32 (hereinafter all sectional references are to 40 CFR unless 
otherwise indicated). This action responds to a delisting petition 
originally submitted by the Bloomfield Refining Company, Inc. 
(Bloomfield), in Bloomfield, New Mexico. Bloomfield was purchased by 
Giant on October 4, 1995. Giant has advised the Agency that it wishes 
to proceed with the petition for delisting submitted by Bloomfield. 
This petition was submitted under 40 CFR 260.20, which allows any 
person to petition the Administrator to modify or revoke any provision 
of 40 CFR parts 260 through 266, 268 and 273, and under 40 CFR 260.22, 
which specifically provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists. This proposed decision is based on an 
evaluation of waste-specific information provided by the petitioner. If 
this proposed decision is finalized, the petitioned waste will be 
conditionally excluded from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).
    The EPA is also proposing the use of a fate and transport model 
(the EPA Composite Model for Landfills (EPACML)) to evaluate the 
potential impact of the petitioned waste on human health and the 
environment, based on the waste-specific information provided by the 
petitioner. This model has been used in evaluating the petition to 
predict the concentration of hazardous constituents that may be 
released from the petitioned waste, once it is disposed.

DATES: The EPA is requesting public comments on this proposed decision 
and on the applicability of the fate and transport model used to 
evaluate the petition. Comments will be accepted until July 5, 1996. 
Comments postmarked after the close of the comment period will be 
stamped ``late.''
    Any person may request a hearing on this proposed decision by 
filing a request with Jane N. Saginaw, Regional Administrator, whose 
address appears below, by June 4, 1996. The request must contain the 
information prescribed in 40 CFR 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be 
sent to William Gallagher, Delisting Program, Multimedia Planning and 
Permitting Division (6PD-O), Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Dallas, Texas 75202. A third copy should be sent to 
the New Mexico Environment Department, Hazardous and Radioactive 
Materials Bureau, 1190 St. Francis Drive, Sante Fe, New Mexico 87502. 
Identify your comments at the top with this regulatory docket number: 
``F-96-NMDEL-GIANT.''
    Requests for a hearing should be addressed to the Regional 
Administrator, Region 6, Environmental Protection Agency, 1445 Ross 
Avenue, Dallas, Texas 75202.
    The RCRA regulatory docket for this proposed rule is located at the 
Region 6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202 and is available for viewing in the EPA library on the 12th 
floor from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
Federal holidays. Call (214) 665-6444 for appointments. The docket may 
also be viewed at the New Mexico Environment Department, 1190 St. 
Francis Drive, Sante Fe, New Mexico 87502. The public may copy material 
from any regulatory docket at no cost for the first 100 pages, and at 
$0.15 per page for additional copies.

FOR FURTHER INFORMATION, CONTACT: For technical information concerning 
this notice, contact Michelle Peace, Delisting Program (6PD-O), Region 
6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202, (214) 665-7430.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    On January 16, 1981, as part of its final and interim final 
regulations implementing Section 3001 of RCRA, the EPA published an 
amended list of hazardous wastes from non-specific and specific 
sources. This list has been amended several times, and is published in 
Sec. 261.31 and Sec. 261.32. These wastes are listed as hazardous 
because they typically and frequently exhibit one or more of the 
characteristics of hazardous wastes identified in Subpart C of Part 261 
(i.e., ignitability, corrosivity, reactivity, and toxicity) or meet the 
criteria for listing contained in Sec. 261.11 (a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, Sec. 260.20 and Sec. 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility should not be 
regulated as a hazardous waste.
    To have their wastes excluded, petitioners must show that wastes 
generated at their facilities do not meet any of the criteria for which 
the wastes were listed. See Sec. 260.22(a) and the background documents 
for the listed wastes. In addition, the Hazardous and Solid Waste 
Amendments (HSWA) of 1984 require the Agency to consider any factors 
(including additional constituents) other than those for which the 
waste was listed, if there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. Accordingly, 
a petitioner also must demonstrate that the waste does not exhibit any 
of the hazardous waste characteristics (i.e., ignitability, reactivity, 
corrosivity, and toxicity), and must present sufficient information for 
the Agency to determine whether the waste contains any other toxicants 
at hazardous levels. See Sec. 260.22(a), 42 U.S.C. Sec. 6921(f), and 
the background documents for the listed wastes. Although wastes which 
are ``delisted'' (i.e., excluded) have been evaluated to determine 
whether or not they exhibit any of the characteristics of hazardous 
waste, generators remain obligated under RCRA to determine whether or 
not their waste remains non-hazardous based on the hazardous waste 
characteristics.
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See Secs. 261.3 (a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived 
from'' rules and remanded them to the Agency on procedural grounds. See 
Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, 
EPA reinstated the mixture and derived-from rules, and solicited 
comments on other ways to regulate waste mixtures and residues (57 
Federal Register (FR) 7628). On December 21, 1995, the EPA proposed 
rules related to waste mixtures and residues at 60 FR 66344 and invited 
public comment.

B. Approach Used To Evaluate This Petition

    Giant's petition requests a delisting for a listed hazardous waste. 
In making the initial delisting determination, the EPA evaluated the 
petitioned waste against the listing criteria and factors

[[Page 25177]]

cited in Sec. 261.11 (a)(2) and (a)(3). Based on this review, the EPA 
agreed with the petitioner that the waste is non-hazardous with respect 
to the original listing criteria. (If the EPA had found, based on this 
review, that the waste remained hazardous based on the factors for 
which the waste was originally listed, the EPA would have proposed to 
deny the petition.) The EPA then evaluated the waste with respect to 
other factors or criteria to assess whether there is a reasonable basis 
to believe that such additional factors could cause the waste to be 
hazardous. The EPA considered whether the waste is acutely toxic, and 
considered the toxicity of the constituents, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability.
    For this delisting determination, the EPA used such information to 
identify plausible exposure routes (i.e., ground water, surface water, 
air) for hazardous constituents present in the petitioned waste. The 
EPA determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Giant's petitioned waste, 
and that the major exposure route of concern would be ingestion of 
contaminated ground water. Therefore, the EPA is proposing to use a 
particular fate and transport model to predict the maximum allowable 
concentrations of hazardous constituents that may be released from the 
petitioned waste after disposal and to determine the potential impact 
of the disposal of Giant's petitioned waste on human health and the 
environment. Specifically, the EPA used the maximum estimated waste 
volume and the maximum reported extract concentrations as inputs to 
estimate the constituent concentrations in the ground water at a 
hypothetical receptor well downgradient from the disposal site. The 
calculated receptor well concentrations (referred to as compliance-
point concentrations) were then compared directly to the current 
health-based levels at an assumed risk value of 10<SUP>-6 used in 
delisting decision-making for the hazardous constituents of concern.
    The EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned waste in 
a landfill, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of a reasonable 
worst-case scenario results in conservative values for the compliance-
point concentrations and ensures that the waste, once removed from 
hazardous waste regulation, will not pose a threat to human health or 
the environment. Because a delisted waste is no longer subject to 
hazardous waste control, the EPA is generally unable to predict and 
does not presently control how a waste will be managed after delisting. 
Therefore, the EPA does not currently consider extensive site-specific 
factors when applying the fate and transport model.
    The EPA also considers the applicability of groundwater monitoring 
data during the evaluation of delisting petitions. The EPA normally 
requests groundwater monitoring data for wastes managed on-site to 
determine whether hazardous constituents have migrated to the 
underlying groundwater. Groundwater monitoring data provides 
significant additional information important to fully characterize the 
potential impact (if any) of the disposal of a petitioned waste on 
human health and the environment. In this case, the EPA determined that 
the groundwater monitoring data was not applicable to the evaluation of 
the petitioned waste. Although Giant's petitioned waste is managed in 
an on-site waste pile, the EPA Region 6 has not required Giant to 
install groundwater monitoring wells specifically to monitor the waste 
pile. Giant does have a monitoring system in place at its facility, 
including wells in the vicinity of the waste pile. However, the 
location of these wells were not selected with the specific intent of 
monitoring the waste pile. For these reasons, the EPA does not believe 
that data collected from Giant's groundwater monitoring system will 
provide a clear measure of whether the waste pile has adversely 
impacted groundwater quality at the Giant site. However, the potential 
impact of these wastes on the groundwater will be predicted through the 
application of the EPACML, fate and transport model.
    Finally, the Hazardous and Solid Waste Amendments of 1984 
specifically require the EPA to provide notice and an opportunity for 
comment before granting or denying a final exclusion. Thus, a final 
decision will not be made until all timely public comments (including 
those at public hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

Giant Refining Company, Bloomfield, New Mexico

A. Petition for Exclusion

    Giant, located in Bloomfield, New Mexico, is involved in the 
processing and refining of petroleum. Giant petitioned the EPA for an 
exclusion of a discrete volume of contaminated soil presently stored in 
an on-site waste pile, generated from the cleaning of two wastewater 
treatment impoundments (referred to as the South and North Oily Water 
Ponds) in 1982. The soil is classified as EPA Hazardous Waste No. 
K051--``API separator sludge from the petroleum refining industry.'' 
The listed constituents of concern for EPA Hazardous Waste No. K051 are 
hexavalent chromium and lead (see Part 261, Appendix VII).
    Giant petitioned the EPA to exclude this discrete volume of 
excavated soil because it does not believe that the waste meets the 
criteria for which it was listed. Giant also believes that the waste 
does not contain any other constituents that would render it hazardous. 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the Hazardous 
and Solid Waste Amendments (HSWA) of 1984. See Section 222 of HSWA, 42 
U.S.C. Sec. 6921(f), and 40 CFR Sec. 260.22(d) (2)-(4). Today's 
proposal to grant this petition for delisting is the result of the 
EPA's evaluation of Giant's petition.

B. Background

    On April 15, 1991, Bloomfield, now Giant, petitioned the EPA to 
exclude, from the lists of hazardous wastes contained in 40 CFR 
Sec. 261.31 and Sec. 261.32, a discrete volume of contaminated soil 
excavated from its wastewater treatment impoundments. Giant 
subsequently provided additional information to complete its petition. 
Specifically, in its petition, Giant requested that the EPA grant an 
one-time exclusion for 2,000 cubic yards of excavated soil presently 
stored in an on-site waste pile.
    In support of its petition, Giant submitted: (1) descriptions of 
its wastewater treatment processes and the excavation activities 
associated with the petitioned waste; (2) results from total 
constituent analyses for the eight Toxicity Characteristic (TC) metals 
listed in Sec. 261.24 (i.e., the TC metals) antimony, beryllium, 
cyanide, nickel, vanadium, and zinc from representative samples of the 
stockpiled waste; (3) results from the Toxicity Characteristic Leaching 
Procedure (TCLP, SW-846

[[Page 25178]]

Method 1311) for the eight TC metals, antimony, beryllium, cyanide, 
nickel, vanadium, and zinc from representative samples of the 
stockpiled waste; (4) results from the Oily Waste Extraction Procedure 
(OWEP, SW-846 Method 1330) for the eight TC metals, antimony, 
beryllium, nickel, vanadium, and zinc from representative samples of 
the stockpiled waste; (5) results from the Extraction Procedure 
Toxicity Test (EP, SW-846 Method 1310) for the eight metals listed in 
Sec. 261.24 from representative samples of the stockpiled waste; (6) 
results from total oil and grease analyses from representative samples 
of the stockpiled waste; (7) test results and information regarding the 
hazardous characteristics of ignitability, corrosivity, and reactivity; 
and (8) results from total constituent and TCLP analyses for certain 
volatile and semi-volatile organic compounds from representative 
samples of the stockpiled waste.
    Giant is an active petroleum refinery. In October 1984, Bloomfield 
purchased the refinery located in Bloomfield, New Mexico, from Plateau, 
Inc., a subsidiary of Suburban Propane Gas Corporation. On October 4, 
1995, Giant purchased the refinery from Bloomfield. Giant has assumed 
ownership and operation of the Bloomfield site and wishes to proceed 
with the petition for delisting originally submitted by Bloomfield. 
Current refinery operations, including wastewater treatment, are 
different than the operations on-line during the time period the waste 
considered in this petition was generated. During the period of 
interest, Plateau operated the refinery primarily as a producer of 
gasoline and diesel fuel. The facility processed roughly 10,000 barrels 
per day of low sulfur crude oil. The refinery was altered substantially 
during the period of time in which the waste was generated. In 1976, 
the refinery consisted of a crude unit with a capacity of 8,000 barrels 
per day, a reformer with a capacity of roughly 2,800 barrels per day, 
and required tankage and utilities. By November 1982, the refinery had 
installed a 6,000 barrel per day fluidized catalytic cracking unit, 
expanded the crude unit to 16,500 barrels per day, installed a 
wastewater treatment system, and had added to tankage and utilities. 
The refinery experienced no periods of inactivity during this time.
    Prior to November 1982, Plateau operated two wastewater treatment 
surface impoundments; the bottoms of the two impoundments had been 
treated with bentonite to retard migration of contaminants. These two 
impoundments were used to contain water outflow from an API separator. 
The API separator was used to remove oil and oily sludges from refinery 
wastewater and consisted of two reinforced concrete bays. The API 
separator system received wastewaters from many sources during the time 
period of waste generation, including boiler blowdown; cooling tower 
blowdown; desalination water; process area runoff; small amounts of 
solvent cleaners and sealants; and lubricants used in site vehicles, 
pump reservoirs, metal machining tools, instrument air supplies, and 
during the overhaul and rebuilding of various pieces of process 
equipment. Oily wastewater entered the API separator and was contained 
for a period of approximately 27 hours (flow to the API separator 
averaged roughly 35 gallons per minute during the period of interest). 
Oil within the wastewater was allowed to rise and form a separate 
floating phase. This phase was recovered through a weir at the 
downstream end of each bay. Wastewater from each bay flowed under the 
weir, discharging into the first of two impoundments. Wastewater from 
the first impoundment was subsequently directed through an outflow pipe 
to the second impoundment. In addition, any oily sludge with a density 
heavier than the wastewater sank to the bottom of the concrete bays. 
These sludges were removed and disposed of at a hazardous waste 
facility approximately every two years.
    During the period around October and November 1982, Plateau cleaned 
the impoundments to install a 100 milliliter synthetic high density 
polyethylene (HDPE) liner. Approximately 90,000 gallons of sludge were 
removed by vacuum truck and disposed of in an offsite hazardous waste 
disposal facility. This sludge was mainly the result of the 
accumulation of windblown dirt and debris. Visibly contaminated soil 
from the impoundments was removed and disposed of in an unlined on-site 
landfill in October 1984. This landfill was a dedicated area of the 
Giant site, and did not hold any other waste material. Plateau assumed 
this material was not hazardous based on characteristic testing. As 
part of subsequent closure activities, the contaminated soil was 
reexcavated in November 1989 and stockpiled at its present location, 
where it awaits final disposal. This volume of stockpiled soil is the 
subject of Giant's delisting petition.
    The impoundments were originally installed about 1974 for fresh 
water use. Following the installation of the API separator in late 
1976, wastewater from the API separator was routed to the impoundments 
for further wastewater treatment. Prior to the installation of the API 
separator, a tank was used to recover oil from wastewater. The API 
separator was installed because of substantial expansion planned and 
underway for the refinery. Therefore, the period of generation of waste 
sludges into the impoundments (and, therefore, the generation of the 
contaminated soil) was from late 1976 until the impoundments were 
cleaned in November 1982.
    The stockpiled waste has a moisture content of roughly 25 percent. 
The waste does not contain any free liquids or liquid petroleum. The 
stockpiled waste consists only of the waste that was originally 
deposited in the landfill from the impoundments and a small amount of 
soils adjacent to the landfill that was removed during the November 
1989 excavation activities.
    To collect representative samples from a waste pile like Giant's, 
petitioners are normally requested to divide the unit into four 
quadrants (not exceeding 10,000 square feet per quadrant) and randomly 
collect five full-depth core samples from each quadrant. The five full-
depth core samples are then composited (mixed) by quadrant to produce a 
total of four composite samples. See Test Methods for Evaluating Solid 
Wastes: Physical/Chemical Methods, EPA, Office of Solid Waste and 
Emergency Response, Publication SW-846 (third edition), November 1986, 
and Petitions to Delist Hazardous Wastes--A Guidance Manual, (second 
edition), EPA, Office of Solid Waste, (EPA/530-R-93-007), March 1993.
    The first sampling and analysis of the stockpiled waste took place 
in May 1990. Two samples of waste were gathered over the full depth of 
the waste pile, from the surface to the bottom of the waste pile. This 
was accomplished by cutting trenches into the waste pile using a 
backhoe and gathering composite samples, with a trowel, from ten 
locations within each trench spanning the entire depth of the trench. 
To form a composite from the west side of the waste pile, ten samples 
each from six trenches were mixed in a bucket (for a total of 60 
samples). The same procedure was followed in forming a composite from 
the east side of the waste pile. These two composite samples were 
analyzed for the total concentrations (i.e., mass of a particular 
constituent per mass of waste) of the eight TCLP metals, nickel, 
antimony, beryllium, vanadium, selected volatile and semi-volatile 
organic constituents, and oil and grease content. These two samples 
were also analyzed to

[[Page 25179]]

determine whether the waste exhibited ignitable, corrosive, or reactive 
properties as defined, respectively, under Sec. 261.21, Sec. 261.22, 
and Sec. 261.23, including analysis for total constituent 
concentrations of cyanide, sulfide, reactive cyanide, and reactive 
sulfide. These two samples were also analyzed for TCLP concentrations 
(i.e., mass of a particular constituent per unit volume of extract) of 
the eight TC metals, nickel, and selected volatile and semi-volatile 
organic constituents. Finally, these two samples were analyzed for EP 
toxicity concentrations of the eight metals listed in Sec. 261.24.
    To highlight any possible variance of the outer material due to 
weathering, a third composite sample was formed from samples taken from 
eight locations across the surface of the waste pile. The maximum depth 
sampled was twelve inches. This composite sample was subject to the 
same analyses as the other two composite samples. In August 1990, Giant 
collected three samples, one sample each from the west side, east side, 
and surface of the waste pile. These samples were analyzed for TCLP 
concentrations of selected semi-volatile constituents.
    Giant claims that because the waste pile was subjected to several 
operations that would have mixed the waste to a significant extent, 
including dredging of the wastewater treatment impoundments; loading 
and transporting the waste; unloading and spreading the waste in the 
landfill; reexcavating, loading and transporting the waste; and 
spreading and contouring the waste, the analytical data obtained from 
the two composite samples are representative of any variation in the 
waste pile concentrations. Based on its review of information 
describing this sampling event, the EPA concluded that these samples 
were not sufficient to support a delisting determination in part, 
because only two of the samples represented the full depth of the waste 
pile. At the request of the EPA, Giant submitted an addendum to its 
delisting petition. This addendum, submitted on June 25, 1993, included 
results from the analysis of four additional samples of the petitioned 
waste. Four waste samples were collected from the waste pile at the 
Giant facility in April 1993. The waste pile was divided into four 
quadrants and four full-depth core samples were collected from each 
quadrant.
    All four samples were analyzed for total constituent concentrations 
of the TC metals, antimony, beryllium, cyanide, nickel, sulfide, 
vanadium, zinc, reactive cyanide, and reactive sulfide. The four 
composite samples were also analyzed for oil and grease content and 
leachate concentrations (using the TCLP and OWEP) of the TC metals, 
antimony, beryllium, cyanide, nickel, vanadium, and zinc (using 
distilled water in the cyanide extraction). An aliquot of the full-
depth core sample was removed and analyzed for total constituent and 
TCLP leachate concentrations of selected volatile organic constituents. 
In addition, the remainder of the sample was composited and analyzed 
for total constituent and TCLP leachate concentrations of selected 
semi-volatile organic constituents.

C. Agency Analysis

    Giant used SW-846 Methods 7041 through 7740 to quantify the total 
constituent concentrations of antimony, arsenic, lead, mercury, and 
selenium; and SW-846 Method 6010 to quantify total constituent 
concentrations of barium, beryllium, cadmium, chromium, nickel, silver, 
vanadium, and zinc in the 1990 and 1993 samples. Giant used SW-846 
Methods 9010 (modified) to quantify the total constituent 
concentrations of cyanide in the 1990 and 1993 samples. Giant used 
Methods 7.3.4.2 and 9030 modified to quantify the total constituent 
concentrations of sulfide, respectively, in the 1990 and 1993 samples.
    Using modified SW 846 Method 9071, Giant determined that the 
petitioned waste had a maximum oil and grease content of 2.35 percent. 
Two composite samples of the waste had more than one percent oil and 
grease. The leachate analyses for one sample extract (as discussed 
below) was modified in accordance with the OWEP methodology. The 
leachate analysis for the other sample extract was not modified, as the 
laboratory had already conducted the TCLP without filtration 
difficulties. Wastes having more than one percent total oil and grease 
may either have significant concentrations of constituents of concern 
in the oil phase, which may not be assessed using the standard leachate 
procedures, or the concentration of oil and grease may be sufficient to 
coat the solid phase of the sample and interfere with the leaching of 
metals from the sample.
    Giant used SW-846 Method 1311 (TCLP)/Method 6010 to quantify the 
leachable concentrations of the eight TC metals, antimony, beryllium, 
nickel, vanadium, and zinc in the 1990 and 1993 samples. SW-846 Method 
7470 was used for mercury analyses of the extracts from the 1993 
samples. Giant used SW-846 Method 1311 (TCLP; modified using distilled 
water)/Method 9010 to quantify leachable cyanide concentrations in the 
1993 samples. Extractable metals for one of the 1993 composite samples 
(i.e., Sample D) was evaluated by the OWEP (SW-846 Method 1330).<SUP>1
---------------------------------------------------------------------------

    \1\ The Oily Waste Extraction Procedure (OWEP) is a leach test 
used to determine the mobile metal concentration in oily wastes. The 
OWEP simulates biodegradation that has occurred in the landfill. The 
oil in the wastes, which tends to bind complex metals such that they 
are not available for leaching, degrades in the landfill disposal 
environment, eventually resulting in the release of the metals into 
the underlying strata and ground water. Per the EPA instructions, 
Bloomfield modified the OWEP by substituting the Toxicity 
Characteristic Leaching Procedure (TCLP) for the Extraction 
Procedure (EP) in step 7.10 of the OWEP method.
---------------------------------------------------------------------------

    Giant used SW-846 Method 1310 (EP)/Method 6010 to quantify the 
leachable concentrations of arsenic, barium, cadmium, chromium, lead, 
selenium, and silver in the 1990 samples. SW-846 Method 7470 was used 
for mercury analyses of the extracts from the 1990 samples. The EP 
analyses were only conducted on the three 1990 composite samples.
    Characteristic testing was conducted on the 1990 and 1993 samples 
of the stockpiled waste, including analysis for reactive cyanide and 
reactive sulfide (SW-846 Methods 7.3.3.2 and 7.3.4.2, respectively), 
ignitability (SW-846 Method 1010 (modified)), and corrosivity (SW-846 
Method 9045).
    Table 1 presents the maximum total constituent and leachate 
concentrations for the eight TC metals, antimony, beryllium, cyanide, 
nickel, vanadium, and zinc for the composite samples of the petitioned 
waste. Table 1 also presents maximum reactive cyanide and reactive 
sulfide concentrations.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by Giant when using the appropriate SW-846 
or Agency-approved analytical methods to analyze its waste. (Detection 
limits may vary according to the waste and waste matrix being analyzed, 
i.e., the ``cleanliness'' waste matrices varies and ``dirty'' waste 
matrices may cause interferences, thus raising the detection limits).
    Giant used SW-846 Methods 8240 and 8270 to quantify the total 
constituent concentrations of 41 volatile and 65 semi-volatile organic 
compounds, respectively, in the stockpiled waste samples. This suite of 
constituents included all of the nonpesticide organic constituents 
listed in Sec. 261.24. Giant used SW-846 Methods 8240 and 8270 to 
quantify the leachable concentrations of 21 volatile and 76 semi-
volatile organic compounds, respectively, in the stockpiled waste 
samples, following extraction by SW-846 Method 1311

[[Page 25180]]

(TCLP). This suite of constituents included all of the organic 
constituents listed in Sec. 261.24. Table 2 presents the maximum total 
and leachate concentrations of all detected organic constituents in 
Giant's waste and waste extract samples. Lastly, on the basis of 
explanations and analytical data provided by Giant, none of the 
analyzed samples exhibited the characteristics of ignitability, 
corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22 and 
Sec. 261.23.

  Table 1.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                           \1\ Stockpiled Soil                          
------------------------------------------------------------------------
                                    Total          Leachate analyses    
    Inorganic constituents       constituent ---------------------------
                                  analyses       EP/TCLP        OWEP    
------------------------------------------------------------------------
Antimony......................        < 0.3          0.07       < 0.616 
Arsenic.......................          3.9        < 0.2        < 2.05  
Barium........................        194            0.632        0.629 
Beryllium.....................          0.3          0.002      < 1.03  
Cadmium.......................          3.9          0.003      < 0.030 
Chromium (total)..............        507            0.149      < 0.0999
Cyanide (total)...............        < 1          < 0.02               
Lead..........................         26.2        < 0.08         0.916 
Mercury.......................          0.29       < 0.1        < 0.006 
Nickel........................         14.7          0.007        0.954 
Selenium......................        < 0.4        < 0.09         1.68  
Silver........................        < 0.7        < 0.007      < 0.074 
Vanadium......................         55          < 0.04       < 0.41  
Zinc..........................        302            1.67         0.978 
Cyanide (reactive)............        < 2                               
Sulfide (reactive)............       < 10                               
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  


  Table 2.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                           \1\ Stockpiled Soil                          
------------------------------------------------------------------------
                                                  Total         TCLP    
            Organic constituents               constituent    leachate  
                                                analyses      analyses  
------------------------------------------------------------------------
Acetone.....................................         0.032       < 0.1  
Benzo(a)anthracene..........................         1.2         < 0.005
Benzo(a)pyrene..............................         2.1         < 0.005
Chrysene....................................         3.9         < 0.005
Fluorene....................................         1.5         < 0.005
2-Methylnaphthalene.........................         5.9           0.006
Naphthalene.................................         0.83        < 0.005
Phenanthrene................................         4.4         < 0.005
Pyrene......................................         2.1         < 0.005 
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  

    Giant submitted a signed certification stating that the waste pile 
contains 2,000 cubic yards of waste. The EPA reviews a petitioner's 
estimates and, on occasion, has requested a petitioner to re-evaluate 
estimated waste volume. The EPA accepted Giant's certified estimate of 
2,000 cubic yards of stockpiled waste.
    The EPA does not generally verify submitted test data before 
proposing delisting decisions. The sworn affidavit submitted with this 
petition binds the petitioner to present truthful and accurate results. 
The EPA, however, has maintained a spot-check sampling and analysis 
program to verify the representative nature of the data for some 
percentage of the submitted petitions. A spot-check visit to a selected 
facility may be initiated before finalizing a delisting petition or 
after granting a final exclusion.

D. Agency Evaluation

    The EPA considered the appropriateness of alternative waste 
management scenarios for Giant's stockpiled waste and decided, based on 
the information provided in the petition, that disposal in a municipal 
solid waste landfill is the most reasonable, worst-case scenario for 
this waste. Under a landfill disposal scenario, the major exposure 
route of concern for any hazardous constituents would be ingestion of 
contaminated ground water. The EPA, therefore, evaluated Giant's 
petitioned waste using the modified EPACML which predicts the potential 
for groundwater contamination from wastes that are landfilled. See 56 
FR 32993 (July 18, 1991), 56 FR 67197 (December 30, 1991), and the RCRA 
public docket for these notices for a detailed description of the 
EPACML model, the disposal assumptions, and the modifications made for 
delisting. This model, which includes both unsaturated and saturated 
zone transport modules, was used to predict reasonable worst-case 
contaminant levels in groundwater at a compliance point (i.e., a 
receptor well serving as a drinking-water supply). Specifically, the 
model estimated the dilution/attenuation factor (DAF) resulting from 
subsurface processes such as three-dimensional dispersion and dilution 
from groundwater recharge for a specific volume of waste. The EPA 
requests comments on the use of the

[[Page 25181]]

EPACML as applied to the evaluation of Giant's petitioned waste.
    For the evaluation of Giant's petitioned waste, the EPA used the 
EPACML to evaluate the mobility of the hazardous inorganic constituents 
detected in the extract of samples of Giant's stockpiled waste. The EPA 
intends to evaluate petitions for wastes no longer being generated on a 
case-by-case basis. The DAFs are currently calculated assuming an 
ongoing process generates wastes for 20 years. Therefore, the DAF needs 
to be adjusted as appropriate for an one-time exclusion. The DAF for 
the waste volume of 2,000 cubic yards/year has been adjusted for the 
evaluation of this petition. The DAF for 2,000 cubic yards/year 
assuming 20 years of generation is 79, for this petition a DAF of 100 
is being used. The EPA's evaluation, using a DAF of 100, maximum waste 
volume estimate of 2,000 cubic yards and the maximum reported TCLP or 
OWEP leachate concentrations (see Table 1), yielded compliance-point 
concentrations (see Table 3) that are below the current health-based 
levels at an assumed risk level of 10<SUP>-6 used in delisting 
decision-making.

               Table 3.--EPACML: Calculated Compliance-Point Concentrations (ppm) Stockpiled Soil               
----------------------------------------------------------------------------------------------------------------
                                                                                                      Levels of 
                                                                                  Compliance point   regulatory 
                             Inorganic constituents                                concentrations    concern \2\
                                                                                     \1\ (mg/l)        (mg/l)   
----------------------------------------------------------------------------------------------------------------
Antimony.......................................................................          0.0007            0.006
Barium.........................................................................          0.0063            2.0  
Beryllium......................................................................          0.00002           0.004
Cadmium........................................................................          0.00003           0.005
Chromium.......................................................................          0.0015            0.1  
Lead...........................................................................          0.009             0.015
Nickel.........................................................................          0.010             0.1  
Selenium.......................................................................          0.017             0.05 
Zinc...........................................................................          0.017            10.0  
----------------------------------------------------------------------------------------------------------------
\1\ Using the maximum EP/TCLP leachate level and based on a DAF of 100 calculated using the EPACML for an one-  
  time volume of 2,000 cubic yards.                                                                             
\2\ See Docket Report on Health-Based Levels and Solubilities Used in the Evaluation of Delisting Petitions,    
  December 1994 located in the RCRA public docket for today's notice.                                           

    The maximum reported or calculated leachate concentrations of 
antimony, barium, beryllium, cadmium, chromium, lead, nickel selenium, 
and zinc in the stockpiled waste yielded compliance point 
concentrations well below the health-based levels used in delisting 
decision-making. The EPA did not evaluate the mobility of the remaining 
inorganic constituents (i.e., arsenic, mercury, silver, vanadium, and 
cyanide) from Giant's waste because they were not detected in the 
leachate using the appropriate analytical test methods (see Table 1). 
The EPA believes that it is inappropriate to evaluate nondetectable 
concentrations of a constituent of concern in its modeling efforts if 
the nondetectable value was obtained using the appropriate analytical 
method. If a constituent cannot be detected (when using the appropriate 
analytical method with an adequate detection limit), the EPA assumes 
that the constituent is not present and therefore does not present a 
threat to human health or the environment.
    The EPA also evaluated the potential hazard of 2-methylnaphthalene, 
the only organic constituent detected in the TCLP extract of samples of 
Giant's stockpiled waste. Although, the EPA does not have a health-
based level of concern for comparison, the EPA believes that the 
reported leachate concentration of 0.006 ppm does not present a 
potential concern. In particular, were this leachate concentration 
evaluated using the EPACML, the calculated compliance-point 
concentration would be 0.00006 ppm, a value lower than other chemicals 
from the naphthalene family. The EPA does not believe that this 
concentration, at the receptor well, would present an adverse impact on 
human health or the environment.
    As reported in Table 1, the maximum concentrations of reactive 
cyanide and sulfide in Giant's stockpiled waste are less than 2 and 10 
ppm, respectively. These concentrations are below the EPA's interim 
standards of 250 and 500 ppm, respectively. See Interim Agency 
Thresholds for Toxic Gas Generation, July 12, 1985, internal Agency 
Memorandum in the RCRA public docket. Therefore, reactive cyanide and 
sulfide levels are not of concern.
    The EPA concluded, after reviewing Giant's processes, that no other 
hazardous constituents of concern, other than those tested for, are 
likely to be present or formed as reaction products or by-products in 
Giant's waste. In addition, on the basis of explanations and analytical 
data provided by Giant, pursuant to Sec. 260.22, the EPA concludes that 
the waste does not exhibit any of the characteristics of ignitability, 
corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22, and 
Sec. 261.23, respectively.
    During the evaluation of Giant's petition, the EPA also considered 
the potential impact of the petitioned waste via non-ground water 
routes (i.e., air emission and surface runoff). With regard to airborne 
dispersion in particular, the EPA believes that exposure to airborne 
contaminants from Giant's petitioned waste is unlikely. The EPA 
evaluated the potential hazards resulting from the unlikely scenario of 
airborne exposure to hazardous constituents released from Giant's waste 
in an open landfill. The results of this worst-case analysis indicated 
that there is no substantial present or potential hazard to human 
health from airborne exposure to constituents from Giant's stockpiled 
waste. A description of the EPA's assessment of the potential impact of 
Giant's waste, with regard to airborne dispersion of waste 
contaminants, is presented in the RCRA public docket for today's 
proposed rule.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste landfills can effectively control 
surface water run-off, as the recently promulgated Subtitle D 
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant 
discharges into surface waters. Furthermore, the concentrations of any 
hazardous constituents dissolved in the runoff will tend to be lower 
than the levels in the

[[Page 25182]]

TCLP/EP or OWEP leachate analyses reported in today's notice, due to 
the aggressive acid medium used for extraction in the TCLP/EP and OWEP 
tests. The EPA believes that, in general, leachate derived from the 
waste is unlikely to enter a surface water body directly without first 
travelling through the saturated subsurface zone where further dilution 
and attenuation of hazardous constituents will also occur. Leachable 
concentrations provide a direct measure of the solubility of a toxic 
constituent in water, and are indicative of the fraction of the 
constituent that may be mobilized in surface water, as well as ground 
water. The reported TCLP/EP and OWEP extraction data show that the 
metals in Giant's stockpiled waste are essentially immobile in aqueous 
solution. Therefore, constituents that might be released from Giant's 
waste to surface water would be likely to remain undissolved. Finally, 
any transported constituents would be further diluted in the receiving 
surface water body due to relatively large flows of the streams/rivers 
of concern.
    Based on the reasons discussed above, the EPA believes that 
contamination of surface water through run-off from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated potential 
impacts on surface water if Giant's waste were released from a 
municipal solid waste landfill through run-off and erosion. See, the 
RCRA public docket for today's proposed rule. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below the EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). The EPA, therefore, concluded that Giant's stockpiled waste is 
not a substantial present or potential hazard to human health and the 
environment via the surface water exposure pathway.

E. Conclusion

    The EPA has reviewed the sampling procedures used by Giant and has 
determined that they satisfy the EPA criteria for collecting 
representative samples of the variations in constituent concentrations 
found throughout the waste pile. The data submitted in support of the 
petition show that constituents in Giant's waste are present below the 
health-based levels used in the delisting decision-making. In addition, 
the constituents are immobile and should not leach from the waste pile 
into potential receptors. The EPA believes that Giant has successfully 
demonstrated that the stockpiled waste is non-hazardous.
    The EPA, therefore, proposes to grant a one-time exclusion to Giant 
Refining Company, Inc., located in Bloomfield, New Mexico, for the 
stockpiled waste described in its petition as EPA Hazardous Waste No. 
K051. The EPA's decision to exclude this waste is based on descriptions 
of the excavation activities associated with the petitioned waste, 
descriptions of Giant's wastewater treatment process, and 
characterization of the stockpiled waste. If the proposed rule is 
finalized, the petitioned waste will no longer be subject to regulation 
under Parts 262 through 268 and the permitting standards of Part 270.
    If made final, the proposed exclusion will apply only to the 2,000 
cubic yards of stockpiled waste generated during the excavation of 
Giant's two wastewater treatment impoundments (referred to as the South 
and North Oily Water Ponds). The facility would need to file a new 
petition for any new waste produced. The facility must treat any 
excavated soil in excess of the original 2,000 cubic yards as hazardous 
unless a new exclusion is granted.
    Although management of the waste covered by this petition would be 
removed from Subtitle C jurisdiction upon final promulgation of an 
exclusion, the generator of a delisted waste must either treat, store, 
or dispose of the waste in an on-site facility, or ensure that the 
waste is delivered to an off-site storage, treatment, or disposal 
facility, either of which is permitted, licensed, or registered by a 
State to manage municipal or industrial solid waste. Alternatively, the 
delisted waste may be delivered to a facility that beneficially uses or 
reuses, or legitimately recycles or reclaims the waste, or treats the 
waste prior to such beneficial use, reuse, recycling, or reclamation.

IV. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. The Hazardous and Solid Waste Amendments of 1984 
amended Section 3010 of RCRA to allow rules to become effective in less 
than six-months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because 
this rule, if finalized, would reduce the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010, 
the EPA believes that this exclusion should be effective immediately 
upon final publication. These reasons also provide a basis for making 
this rule effective immediately, upon final publication, under the 
Administrative Procedure Act, pursuant to 5 U.S.C.Sec. 553(d).

V. Regulatory Impact

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

VI. Regulatory Flexibility Act

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

VII. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this proposed rule have been approved by OMB under the provisions

[[Page 25183]]

of the Paperwork Reduction Act of 1980 (Pub. L. 96-511, 44 U.S.C. 
Sec. 3501 et seq.) and have been assigned OMB Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
the EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA, the EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. The EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before the EPA establishes regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of the EPA 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon state, local or tribal governments or the private sector. The EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon state, local or 
tribal governments or the private sector. In addition, the proposed 
delisting does not establish any regulatory requirements for small 
governments and so does not require a small government agency plan 
under UMRA section 203.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. Sec. 6921(f).

    Dated: May 3, 1996.
Jane N. Saginaw,
Regional Administrator.

    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

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

                                 Table 2.--Wastes Excluded From Specific Sources                                
----------------------------------------------------------------------------------------------------------------
              Facility                         Address                           Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
Giant Refining Company, Inc........  Bloomfield, New Mexico.....  Waste generated during the excavation of soils
                                                                   from two wastewater treatment impoundments   
                                                                   (referred to as the South and North Oily     
                                                                   Water Ponds) used to contain water outflow   
                                                                   from an API separator (EPA Hazardous Waste   
                                                                   No. K051). This is a one-time exclusion for  
                                                                   approximately 2,000 cubic yards of stockpiled
                                                                   waste. This exclusion was published on       
                                                                   [insert publication date of the final rule]. 
                                                                  Notification Requirements:                    
                                                                  Giant Refining Company must provide a one-time
                                                                   written notification to any State Regulatory 
                                                                   Agency to which or through which the delisted
                                                                   waste described above will be transported for
                                                                   disposal at least 60 days prior to the       
                                                                   commencement of such activities. Failure to  
                                                                   provide such a notification will result in a 
                                                                   violation of the delisting petition and a    
                                                                   possible revocation of the decision.         
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
----------------------------------------------------------------------------------------------------------------

[FR Doc. 96-12607 Filed 5-17-96; 8:45 am]
BILLING CODE 6560-50-P