`[Federal Register Volume 74, Number 130 (Thursday, July 9, 2009)]
[Proposed Rules]
[Pages 32846-32856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16272]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2009-0108; SW FRL-8922-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: EPA is proposing to grant a petition submitted by Occidental 
Chemical Corporation (OxyChem) to exclude (or delist) a certain solid 
waste generated by its Ingleside, Texas, facility from the lists of 
hazardous wastes. EPA used the Delisting Risk Assessment Software 
(DRAS) Version 3.0 in the evaluation of the impact of the petitioned 
waste on human health and the environment.

DATES: We will accept comments until August 10, 2009. We will stamp 
comments received after the close of the comment period as late. These 
late comments may not be considered in formulating a final decision. 
Your requests for a hearing must reach EPA by July 24, 2009. The 
request must contain the information prescribed in 40 CFR 260.20(d) 
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2009-0108 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov: Follow 
the on-line instructions for submitting comments.
    2. E-mail: [email protected].
    3. Mail: Wendy Jacques, Environmental Protection Agency, Multimedia 
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445 
Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier. Deliver your comments to: Wendy 
Jacques, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0456. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute.

[[Page 32847]]

Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket. All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The 
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2009-0108, is available for viewing from 8 a.m. to 5 p.m., Monday 
through Friday, excluding Federal holidays. The public may copy 
material from any regulatory docket at no cost for the first 100 pages 
and at a cost of $0.15 per page for additional copies. EPA requests 
that you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The interested persons 
wanting to examine these documents should make an appointment with the 
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket or the 
OxyChem facility petition, contact Wendy Jacques, Environmental 
Protection Agency, Multimedia Planning and Permitting Division, RCRA 
Branch, Mail Code: 6PD-F, 1445 Ross Avenue, Dallas, TX 75202, by 
calling 214-665-7395 or by e-mail at [email protected].
    Your requests for a hearing must reach EPA by July 24, 2009. The 
request must contain the information described in Sec.  260.20(d).

SUPPLEMENTARY INFORMATION: OxyChem submitted a petition under 40 CFR 
260.20 and 260.22(a). Section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of Sec. Sec.  260 
through 266, 268 and 273. Section 260.22 (a) specifically provides 
generators the opportunity to petition the Administrator to exclude a 
waste on a ``generator specific'' basis from the hazardous waste lists.
    The Agency bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA).
    If finalized, we would conclude the petitioned waste from this 
facility is non-hazardous with respect to the original listing criteria 
and that the waste process used will substantially reduce the 
likelihood of migration of hazardous constituents from this waste. We 
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the 
environment.
    The information in this section is organized as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will OxyChem manage the waste, if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did OxyChem petition EPA to delist?
    B. Who is OxyChem and what process do they use to generate the 
petition waste?
    C. What information did OxyChem submit to support this petition?
    D. What were the results of OxyChem's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about OxyChem's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens, if OxyChem violates the terms and conditions?
V. Public Comments
    A. How may I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing to grant the delisting petition submitted by 
OxyChem to have its wastewater treatment biosludge (K019, K020, F025, 
F001, F003, and F005 listed hazardous waste) excluded, or delisted, 
from the definition of a hazardous waste.

B. Why is EPA proposing to approve this delisting?

    OxyChem's petition requests a delisting for the wastewater 
treatment biosludge derived from the treatment of hazardous wastewater 
listed as K019, K020, F025, F001, F003, and F005. OxyChem does not 
believe that the petitioned waste meets the criteria for which EPA 
listed it. OxyChem also believes no additional constituents or factors 
could cause the waste to be hazardous. EPA's review of this petition 
included consideration of the original listing criteria, and the 
additional factors required by the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 
CFR 260.22 (d)(1)-(4). In making the initial delisting determination, 
EPA evaluated the petitioned waste against the listing criteria and 
factors cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based on this 
review, EPA agrees with the petitioner that the waste is non-hazardous 
with respect to the original listing criteria. If EPA had found, based 
on this review, that the waste remained hazardous based on the factors 
for which the waste was originally listed, EPA would have proposed to 
deny the petition. EPA evaluated the waste with respect to other 
factors or criteria to assess whether there is a reasonable basis to 
believe that such additional factors could cause the waste to be 
hazardous. EPA considered whether the waste is acutely toxic, the 
concentration of the constituents in the waste, their tendency

[[Page 32848]]

to migrate and to bioaccumulate, their persistence in the environment 
once released from the waste, plausible and specific types of 
management of the petitioned waste, the quantities of waste generated, 
and waste variability. EPA believes that the petitioned waste does not 
meet the listing criteria and thus should not be a listed waste. EPA's 
proposed decision to delist waste from the facility is based on the 
information submitted in support of this rule, including descriptions 
of the waste and analytical data from the OxyChem, Ingleside, Texas 
facility.

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

    OxyChem will dispose of the wastewater treatment biosludge in a 
Subtitle D landfill.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion unless and until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months after EPA addresses public 
comments when the regulated facility does not need the six-month period 
to come into compliance. That is the case here, because this rule, if 
finalized, would reduce the existing requirements for persons 
generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect the states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows the states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under the state law. Delisting 
petitions approved by EPA Administrator under 40 CFR 260.22 are 
effective in the State of Texas only after the final rule has been 
published in the Federal Register.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended this list several times and published it in Sec. Sec.  261.31 
and 261.32. EPA lists these wastes as hazardous because: (1) They 
typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in Subpart C of Part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in 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 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

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

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not believe the wastes 
should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in Part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics and 
present sufficient information for EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See Part 261 and the background documents for the 
listed waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

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

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, EPA must consider any factors (including additional 
constituents) other than those for which EPA listed the waste, if a 
reasonable basis exists to determine that these additional factors 
could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and 
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

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

A. What waste did OxyChem petition EPA to delist?

    OxyChem petitioned EPA on September 20, 2007, to exclude from the 
lists of hazardous waste contained in Sec.  261.31, the wastewater 
treatment biosludge from its wastewater treatment plant.
    The wastewater treatment biosludge is generated from the OxyChem 
facility located in Ingleside, Texas. The wastewater treatment 
biosludge is listed under EPA Hazardous Waste No. K019, K020, F025, 
F001, F003, and F005, because it is generated in the bioreactors that 
can, on occasion, treat incinerator offgas treatment water. 
Specifically, in its petition, OxyChem requested that EPA grant 
exclusion for 7,500 cubic yards per calendar year of K019, K020, F025, 
F001, F003, and F005 waste resulting from the treatment of waste waters 
from the manufacturing processes at its facility.

[[Page 32849]]

B. Who is OxyChem and what process do they use to generate the petition 
waste?

    OxyChem produces ethylene dichloride (EDC), vinyl chloride monomer 
(VCM), chlorine, and caustic. The facility is comprised of the Chlor-
Alkali plant which produces chlorine and caustic, and the EDC/VCM 
plant. Other processes with the VCM unit include vent incineration, 
wastewater treatment, VCM storage and loading (railcar and ship), EDC 
and intermediate storage and loading, cooling towers and refrigeration 
and compressors.
    The manufacturing processes that contribute waste and vent gases to 
the incinerators are the VCM plant and the support plants (shop and 
rail loading, product storage tanks, RCRA tank and wastewater storage 
tanks). The former EDC unit in the Chlor-Alkali Plant once contributed 
waste streams, but was idled in 2002.
    OxyChem intends to dispose of the delisted wastewater treatment 
biosludge at a Subtitle D Landfill. Treatment of the waste waters, 
which result from the manufacturing process, generates the wastewater 
treatment biosludge that is classified as K019, K020, F025, F001, F003, 
and F005 listed hazardous wastes pursuant to 40 CFR 261.31. The 40 CFR 
Part 261 Appendix VII hazardous constituents which are the basis for 
listing K019, K020, F025, F001, F003, and F005 hazardous wastes are: 
K019--ethylene dichloride, 1,1,1-trichloroethane, 1,1,2-
tricholoroethane, tetrachloroethanes (1,1,2,2-tetrachloroethane and 
1,1,1,2-tetrachloroethane), trichloroethylene, tetrachloroethylene, 
carbon tetrachloride, chloroform, vinyl chloride, and vinylidene 
chloride; K020--ethylene dichloride, 1,1,1-trichloroethane, 1,1,2-
tricholoroethane, tetrachloroethanes (1,1,2,2-tetrachloroethane and 
1,1,1,2-tetrachloroethane), trichloroethylene, tetrachloroethylene, 
carbon tetrachloride, chloroform, vinyl chloride, and vinylidene 
chloride; F025--chloromethane, dichloromethane, trichloromethane, 
carbon tetrachloride, chloroethylene, 1,1-dichloroethane, 1,2-
dichloroethane, trans-1,2-dichloroethylene, 1,1-dichloroethylene, 
1,1,1-trichloroethane, 1,1,2-trichloroethane, trichloroethylene, 
1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane, 
tetrachloroethylene, pentachloroethane, hexachloroethane, allyl 
chloride (3-cholopropene), dichloropropane, dichloroprene, 2-chloro-
1,3-butadiene, hexachloro-1,3-butadiene, hexachlorocyclopentadiene, 
benzene, chlorobenzene, dichlorobenzene, 1,2,4-trichlorobenzene, 
tetrachlorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, and 
naphthalene; F001--tetrachloroethylene, methylene chloride 
trichloroethylene, 1,1,1-trichloroethane, carbon tetrachloride, and 
chlorinated fluorocarbons; F003--N.A.; F005--toluene, methyl ethyl 
ketone, carbon disulfide, isobutanol, pyridine, 2-ethoxyethanol, 
benzene, and 2-nitropropane.

C. What information did OxyChem submit to support this petition?

    To support its petition, OxyChem submitted:
    (1) Analytical results of the toxicity characteristic leaching 
procedure and total constituent analysis for volatile and semivolatile 
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for 
four wasterwater treatment biosludge samples;
    (2) Analytical results from multiple pH leaching of metals; and
    (3) Description of the wastewater treatment process.

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

    EPA believes that the descriptions of OxyChem's waste, and the 
analytical data submitted in support of the petition show that the 
wastewater treatment biosludge is non-hazardous. Analytical data from 
OxyChem's wastewater treatment biosludge samples were used in the 
Delisting Risk Assessment Software (DRAS). The data summaries for 
detected constituents are presented in Table 1. EPA has reviewed the 
sampling procedures used by OxyChem and has determined that they 
satisfy EPA's criteria for collecting representative samples of the 
variations in constituent concentrations in the wastewater treatment 
biosludge. The data submitted in support of the petition show that 
constituents in OxyChem's wastes are presently below health-based risk 
levels used in the delisting decision-making. EPA believes that OxyChem 
has successfully demonstrated that the wastewater treatment biosludge 
is non-hazardous.

Table 1--Analytical Results and Maximum Allowable Delisting Concentrations of the Wastewater Treatment Biosludge
                                                       \1\
----------------------------------------------------------------------------------------------------------------
                                       Maximum total (mg/ Maximum TCLP (mg/    Maximum allowable TCLP delisting
             Constituent                      kg)                 l)                     level (mg/l)
----------------------------------------------------------------------------------------------------------------
Antimony.............................              0.349            0.00263  0.111
Acetone..............................              0.069              0.170  533
Arsenic..............................               3.62             0.0265  0.178
Barium...............................               27.7              0.204  36.9
Benzoic Acid.........................             <0.170             0.0024  2370
Beryllium............................             0.0623            <0.0100  0.0799
Bis(2-ethylhexyl)phthalate...........             <0.170             0.0095  6.15
Cadmium..............................              0.124           0.000616  0.0933
Chromium.............................               10.4             0.0304  2.32
Cobalt...............................              0.787            0.00744  14.00
Copper...............................               44.1              0.274  26.5
Ethylbenzene.........................             <0.005              0.048  11.1
Lead.................................               2.70            0.00220  0.719
Mercury..............................            0.00813            0.00005  0.0696
Methylene Chloride...................             0.0058             0.0058  0.0809
Naphthalene..........................            <0.0066            0.00066  0.0335
Nickel...............................               25.1              0.290  13.8
Phenanthrene.........................            <0.0066            0.00028  2.72
Selenium.............................              0.633            0.00770  0.912
Silver...............................             0.0981            <0.0100  5.0

[[Page 32850]]

 
Silvex (2,4,5,-TP)...................              0.011            <0.0001  0.789
Tetrachlorodibenzo-p-dioxin (TCDD)              3.86E-04           5.92E-08  4.30E-05 mg/kg
 2,3,7,8-.
Thallium.............................             0.0962            0.00203  0.0851
Tin..................................               1.59            <0.0100  3.97E+07
Toluene..............................             <0.005              0.001  15.5
Trichloroethane......................             0.0018              0.008  11900
Trichloroethylene....................             <0.005              0.012  0.0794
Vanadium.............................               6.62            0.00586  1.00
Xylenes..............................             <0.015             <0.001  9.79
Zinc.................................               44.1              0.240  202
----------------------------------------------------------------------------------------------------------------
\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.
<  Denotes that the constituent was below the detection limit.

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

    The worst case scenario for management of the wastewater treatment 
biosludge was modeled for disposal in a landfill. EPA used such 
information gathered to identify plausible exposure routes (i.e., 
ground water, surface water, soil, air) for hazardous constituents 
present in the wastewater treatment biosludge. EPA determined that 
disposal in a Subtitle D landfill is the most reasonable, worst-case 
disposal scenario for OxyChem's wastewater treatment biosludge. EPA 
applied the DRAS described in 65 FR 58015 (September 27, 2000), 65 FR 
75637 (December 4, 2000) and 73 FR 28768 (May 19, 2008), to predict the 
maximum allowable concentrations of hazardous constituents that may be 
released from the petitioned waste after disposal and determined the 
potential impact of the disposal of OxyChem's petitioned waste on human 
health and the environment. In assessing potential risks to ground 
water, EPA used the maximum estimated waste volumes and the maximum 
reported extract concentrations as inputs to the DRAS program to 
estimate the constituent concentrations in the ground water at a 
hypothetical receptor well down gradient from the disposal site. Using 
the risk level (carcinogenic risk of 10-\5\ and non-cancer 
hazard index of 0.1), the DRAS program can back-calculate the 
acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and 
Agency health-based numbers. Using the maximum compliance-point 
concentrations and EPA Composite Model for Leachate Migration with 
Transformation Products (EPACMTP) fate and transport modeling factors, 
the DRAS further back-calculates the maximum permissible waste 
constituent concentrations not expected to exceed the compliance-point 
concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from 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 some reasonable worst-case scenarios 
resulted in conservative values for the compliance-point concentrations 
and ensured that the waste, once removed from hazardous waste 
regulation, will not pose a significant threat to human health and/or 
the environment. The DRAS also uses the maximum estimated waste volumes 
and the maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance-point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, no 
representative data exists. Therefore, EPA has determined that it would 
be unnecessary to request ground water monitoring data.
    EPA believes that the descriptions of OxyChem's wastewater 
treatment biosludge and analytical characterization which illustrate 
the presence of toxic constituents at lower concentrations in these 
waste streams provide a reasonable basis to conclude that the 
likelihood of migration of hazardous constituents from the petitioned 
waste will be substantially reduced so that short-term and long-term 
threats to human health and the environment are minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the wastewater treatment 
biosludge are presented in Table 1. Based on the comparison of the DRAS 
results and maximum TCLP concentrations found in Table 1, the 
petitioned waste should be delisted because no constituents of concern 
are likely to be present or formed as reaction products or by products 
in OxyChem's waste.

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

    EPA concluded, after reviewing OxyChem's processes that no other 
hazardous constituents of concern, other than those for which OxyChem 
tested, are likely to be present or formed as reaction products or by-
products in OxyChem's wastes. In addition, on the basis of explanations 
and analytical data provided by OxyChem, pursuant to

[[Page 32851]]

Sec.  260.22, EPA concludes that the petitioned waste, wastewater 
treatment biosludge, does not exhibit any of the characteristics of 
ignitability, corrosivity, reactivity, or toxicity. See Sec. Sec.  
261.21, 261.22, 261.23, and 261.24 respectively.

G. What other factors did EPA consider in its evaluation?

    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the wastewater 
treatment biosludge. With regard to airborne dispersion in particular, 
EPA believes that exposure to airborne contaminants from the petitioned 
waste is unlikely. No appreciable air releases are likely from the 
wastewater treatment biosludge under any likely disposal conditions. 
EPA evaluated the potential hazards resulting from the unlikely 
scenario of airborne exposure to hazardous constituents released from 
the wastewater in an open landfill. The results of this worst-case 
analysis indicated that there is no substantial present or potential 
hazard to human health and the environment from airborne exposure to 
constituents from the wastewater treatment biosludge.

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

    The descriptions by OxyChem of the hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this notice), provide a reasonable 
basis for EPA to grant the petition. The data submitted in support of 
the petition show that constituents in the waste are below the maximum 
allowable concentrations (See Table 1). EPA believes that the 
wastewater treatment biosludge generated by OxyChem contains hazardous 
constituents at levels which will present minimal short-term and long-
term threats from the petitioned waste to human health and the 
environment.
    Thus, EPA believes that it should grant to OxyChem an exclusion 
from the list of hazardous wastes for the wastewater treatment 
biosludge. EPA believes that the data submitted in support of the 
petition show the OxyChem's wastewater treatment biosludge to be non-
hazardous.
    EPA has reviewed the sampling procedures used by OxyChem and has 
determined they satisfy EPA's criteria for collecting representative 
samples of variable constituent concentrations in the wastewater 
treatment biosludge. The data submitted in support of the petition show 
that constituents in OxyChem's wastes are presently below the 
compliance-point concentrations used in the delisting decision-making 
process and would not pose a substantial hazard to the environment and 
the public. EPA believes that OxyChem has successfully demonstrated 
that the wastewater treatment biosludge is non-hazardous.
    EPA, therefore, proposes to grant an exclusion to OxyChem for the 
wastewater treatment biosludge described in its September 2007 
petition. EPA's decision to exclude this waste is based on analysis 
performed on samples taken of the wastewater treatment biosludge.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
7,500 cubic yards/year of wastewater treatment biosludge from OxyChem's 
Ingleside facility under Parts 262 through 268 and the permitting 
standards of Part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, OxyChem, must comply with the requirements in 40 
CFR Part 261, Appendix IX, Table 2 as amended by this notice. The text 
below gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituent concentrations 
for which OxyChem wastewater treatment biosludge, below which these 
wastes would be considered non-hazardous.
    EPA selected the set of inorganic and organic constituents 
specified in paragraph (1) and listed in 40 CFR Part 261, Appendix IX, 
Table 2, based on information in the petition. EPA compiled the 
inorganic and organic constituents list from descriptions of the 
manufacturing process used by OxyChem, previous test data provided for 
the waste, and the respective health-based levels used in delisting 
decision-making. These delisting levels correspond to the allowable 
levels measured in the leachable concentrations of the wastewater 
treatment biosludge.
(2) Waste Holding and Handling
    Waste classification as non-hazardous cannot begin until compliance 
with the limits set in paragraph (1) has occurred for four consecutive 
weekly sampling events. For example, if OxyChem is issued a final 
exclusion in August, the four weekly samples can be collected in 
September. If EPA deems that the four representative composite samples 
meet all the indicator constituent delisting limits, classification of 
the waste as non-hazardous can begin in October. If constituent levels 
in any annual sample (and retest, if applicable) taken by OxyChem 
exceed any of the delisting levels set in paragraph (1), OxyChem must: 
(i) notify EPA in accordance with paragraph (6), and (ii) manage and 
dispose of the wastewater treatment biosludge as hazardous waste 
generated under Subtitle C of RCRA.
(3) Verification Testing Requirements
    OxyChem must complete a verification testing program on the 
wastewater treatment biosludge to assure that the wastes do not exceed 
the maximum levels specified in paragraph (1). If EPA determines that 
the data collected under this paragraph does not support the data 
provided in the petition, the exclusion will not cover the tested 
waste. This verification program operates on two levels.
    The initial part of the verification testing program consists of 
testing four composite samples from four consecutive weeks of 
wastewater treatment biosludge for specified indicator parameters as 
described in paragraph (1). Levels of constituents measured in the 
samples of the wastewater treatment biosludge that do not exceed the 
levels set forth in paragraph (1) can be considered non-hazardous after 
all four sets of sampling data meet the levels listed in paragraph (1).
    The second part of the verification testing program is the annual 
testing of a representative composite sample of the wastewater 
treatment biosludge for all constituents specified in paragraph (1). If 
any delisting levels are not met in an annual test sample, then a 
second composite sample shall be collected within 10 days of becoming 
aware of the failure, and it must be analyzed expeditiously for the 
TCLP constituent(s) that exceeded Delisting Levels.
    If the annual testing of the wastes, and the retest, do not meet 
the delisting levels in paragraph (1), OxyChem must notify EPA 
according to the requirements in paragraph (6). EPA will then take the 
appropriate actions necessary to protect human health and the 
environment as described in paragraph (6). OxyChem must provide 
sampling results that support the rationale that the delisting 
exclusion should not be withdrawn.
    The exclusion is effective upon publication in the Federal Register 
but the change in waste classification as ``non-hazardous'' cannot 
begin until the four weekly initial verification samples

[[Page 32852]]

comply with the levels specified in paragraph (1). The waste 
classification as ``non-hazardous'' is also not authorized, if OxyChem 
fails to perform the testing as specified herein. Should OxyChem 
conduct the yearly testing as specified herein, then disposal of 
wastewater treatment biosludge as delisted waste may not occur in the 
following year(s) until OxyChem obtains the written approval of EPA.
(4) Changes in Operating Conditions
    Paragraph (4) would allow OxyChem the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment processes. However, OxyChem must 
prove the effectiveness of the modified process and request approval 
from EPA. OxyChem must manage wastes generated during the new process 
demonstration as hazardous waste through verification sampling within 
30 days of start-up.
(5) Data Submittals
    To provide appropriate documentation that the OxyChem facility is 
correctly managing the wastewater treatment biosludge, OxyChem must 
compile, summarize, and keep delisting records on-site for a minimum of 
five years. OxyChem must keep all analytical data obtained pursuant to 
paragraph (3), including quality control information, for five years. 
Paragraph (5) requires that OxyChem furnish these data upon request for 
inspection by any employee or representative of EPA or the State of 
Texas.
    If the proposed exclusion is made final, then it will apply only to 
7,500 cubic yards per calendar year of wastewater treatment biosludge 
generated at the OxyChem facility after successful initial verification 
testing.
    EPA would require OxyChem to submit additional verification data 
under any of the following circumstances:
    (a) If OxyChem significantly alters the waste treatment system 
except as described in paragraph (4).
    (b) If OxyChem uses any new manufacturing or production 
process(es), or significantly changes the current process(es) described 
in its petition; or
    (c) If OxyChem makes any changes that could significantly affect 
the composition or type of waste generated.
    OxyChem must submit a modification to the petition complete with 
full sampling and analysis for circumstances where the waste volume 
changes and/or additional waste codes are added to the waste stream. 
EPA will publish an amendment to the exclusion if the changes are 
acceptable.
    OxyChem must manage waste volumes greater than 7,500 cubic yards of 
wastewater treatment biosludge as hazardous waste until EPA grants a 
revised exclusion. When this exclusion becomes final, the management by 
OxyChem of the wastewater treatment biosludge covered in this petition 
would be relieved from Subtitle C jurisdiction. OxyChem may not 
classify the waste as non-hazardous until the revised exclusion is 
finalized.
(6) Reopener
    The purpose of paragraph (6) is to require OxyChem to disclose new 
or different information related to a condition at the facility or 
disposal of the waste, if it is pertinent to the delisting. OxyChem 
must also use this procedure if the waste sample (and retest, if 
applicable) in the annual testing fails to meet the levels found in 
paragraph (1). This provision will allow EPA to reevaluate the 
exclusion, if a source provides new or additional information to EPA. 
EPA will evaluate the information on which it based the decision to see 
if it is still correct or if circumstances have changed so that the 
information is no longer correct or would cause EPA to deny the 
petition, if presented.
    This provision expressly requires OxyChem to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is 
merited in light of EPA's experience. See the Federal Register notice 
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 
FR 63458 (December 1, 1997) where the delisted waste leached at greater 
concentrations into the environment than the concentrations predicted 
when conducting the TCLP, leading EPA to repeal the delisting. If an 
immediate threat to human health and the environment presents itself, 
EPA will continue to address these situations on a case-by-case basis. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA 553(b)(3)(B).

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

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

V. Public Comments

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

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to the Chief, 
Corrective Action and Waste Minimization Section, Multimedia Permitting 
and Planning Division, U.S. Environmental Protection Agency Region 6, 
1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the 
Industrial Hazardous Waste Permits Division, Technical Evaluation Team, 
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX 
78711-3087. Identify your comments at the top with this regulatory 
docket number: EPA-R06-RCRA-2009-0108. You may submit your comments 
electronically to Wendy Jacques at [email protected].

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

    You may review the RCRA regulatory docket for this proposed rule at 
the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, 
Dallas, TX 75202. It is available for viewing in the EPA Freedom of 
Information Act Review Room from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages and at fifteen cents per page for 
additional copies.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and

[[Page 32853]]

therefore is not a regulatory action subject to review by the Office of 
Management and Budget (OMB). This rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular 
facility only. Because this rule is of particular applicability 
relating to a particular facility, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will 
affect only a particular facility, it will not significantly or 
uniquely affect small governments, as specified in section 203 of UMRA. 
Because this rule will affect only a particular facility, this proposed 
rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, ``Federalism,'' (64 FR 43255, 
August 10, 1999). Thus, Executive Order 13132 does not apply to this 
rule. Similarly, because this rule will affect only a particular 
facility, this proposed rule does not have tribal implications, as 
specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. The basis for this 
belief is that the Agency used the DRAS program, which considers health 
and safety risks to infants and children, to calculate the maximum 
allowable concentrations for this rule. This rule is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. 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. Section 804 exempts from 
section 801 the following types of rules (1) rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: June 10, 2009.
Troy C. Hill,
Acting Director, Multimedia Planning and Permitting Division.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--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 add the following waste 
stream in alphabetical order by facility to read as follows:

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

              Table 2--Waste Excluded From Specific Sources
------------------------------------------------------------------------
           Facility                  Address         Waste description
------------------------------------------------------------------------
 
                              * * * * * * *
OxyChem Corporation...........  Ingleside, TX....  Wastewater treatment
                                                    biosludge (EPA
                                                    Hazardous Waste
                                                    Number K019, K020,
                                                    F025, F001, F003,
                                                    F005) generated at a
                                                    maximum rate of
                                                    7,500 cubic yards
                                                    per calendar year
                                                    after [publication
                                                    date of the final
                                                    rule].
                                                   For the exclusion to
                                                    be valid, OxyChem
                                                    must implement a
                                                    verification testing
                                                    program that meets
                                                    the following
                                                    paragraphs:
                                                   (1)(A) Delisting
                                                    Levels: All
                                                    concentrations for
                                                    those constituents
                                                    must not exceed the
                                                    maximum allowable
                                                    concentrations in mg/
                                                    l specified in this
                                                    paragraph.
                                                   Wastewater treatment
                                                    biosludge Leachable
                                                    Concentrations (mg/
                                                    l): Antimony--0.111;
                                                    Acetone--533;
                                                    Arsenic--0.178;
                                                    Barium--36.9; Bis(2-
                                                    ethylhexyl)phthalate
                                                    -6.15; Chromium--
                                                    2.32; Copper--26.5;
                                                    Ethylbenzene--11.1;
                                                    Methylene Chloride--
                                                    0.0809; Naphthalene--
                                                    0.0355; Nickel--
                                                    13.8; Phenanthrene--
                                                    2.72; Toluene--15.5;
                                                    Trichloroethane--119
                                                    00;
                                                    Trichloroethylene--0
                                                    .0794; Vanadium--
                                                    1.00; Zinc--202.
                                                   (B) Total
                                                    Concentration Limits
                                                    in mg/Kg:
                                                    Tetrachlorodibenzo-p-
                                                    dioxin (TCDD)
                                                    2,3,7,8 Equivalent--
                                                    4.3E-05.
                                                   (2) Waste Holding and
                                                    Handling:

[[Page 32854]]

 
                                                   (A) Waste
                                                    classification as
                                                    non-hazardous can
                                                    not begin until
                                                    compliance with the
                                                    limits set in
                                                    paragraph (1) for
                                                    wastewater treatment
                                                    biosludge has
                                                    occurred for four
                                                    consecutive weekly
                                                    sampling events.
                                                   (B) If constituent
                                                    levels in any annual
                                                    sample and retest
                                                    sample taken by
                                                    OxyChem exceed any
                                                    of the delisting
                                                    levels set in
                                                    paragraph (1) for
                                                    the wastewater
                                                    treatment biosludge,
                                                    OxyChem must do the
                                                    following:
                                                   (i) Notify EPA in
                                                    accordance with
                                                    paragraph (6) and
                                                   (ii) Manage and
                                                    dispose the
                                                    wastewater treatment
                                                    biosludge as
                                                    hazardous waste
                                                    generated under
                                                    Subtitle C of RCRA.
                                                   (3) Testing
                                                    Requirements:
                                                   Upon this exclusion
                                                    becoming final,
                                                    OxyChem must perform
                                                    analytical testing
                                                    by sampling and
                                                    analyzing the
                                                    wastewater treatment
                                                    biosludge as
                                                    follows:
                                                   (A) Initial
                                                    Verification
                                                    Testing:
                                                   (i) Collect four
                                                    representative
                                                    composite samples of
                                                    the wastewater
                                                    treatment biosludge
                                                    at weekly intervals
                                                    after EPA grants the
                                                    final exclusion. The
                                                    first composite
                                                    sample may be taken
                                                    at any time after
                                                    EPA grants the final
                                                    approval. Sampling
                                                    must be performed in
                                                    accordance with the
                                                    sampling plan
                                                    approved by EPA in
                                                    support of the
                                                    exclusion.
                                                   (ii) Analyze the
                                                    samples for all
                                                    constituents listed
                                                    in paragraph (1).
                                                    Any composite sample
                                                    taken that exceeds
                                                    the delisting levels
                                                    listed in paragraph
                                                    (1) indicates that
                                                    the wastewater
                                                    treatment biosludge
                                                    must continue to be
                                                    disposed as
                                                    hazardous waste in
                                                    accordance with the
                                                    applicable hazardous
                                                    waste requirements
                                                    until such time that
                                                    four consecutive
                                                    weekly samples
                                                    indicate compliance
                                                    with delisting
                                                    levels listed in
                                                    paragraph (1).
                                                   (iii) Within sixty
                                                    (60) days after
                                                    taking its last
                                                    weekly sample,
                                                    OxyChem will report
                                                    its analytical test
                                                    data to EPA. If
                                                    levels of
                                                    constituents
                                                    measured in the
                                                    samples of the
                                                    wastewater treatment
                                                    biosludge do not
                                                    exceed the levels
                                                    set forth in
                                                    paragraph (1) of
                                                    this exclusion for
                                                    four consecutive
                                                    weeks, OxyChem can
                                                    manage and dispose
                                                    the non-hazardous
                                                    wastewater treatment
                                                    biosludge according
                                                    to all applicable
                                                    solid waste
                                                    regulations.
                                                   (B) Annual Testing:
                                                   (i) If OxyChem
                                                    completes the weekly
                                                    testing specified in
                                                    paragraph (3) above
                                                    and no sample
                                                    contains a
                                                    constituent at a
                                                    level which exceeds
                                                    the limits set forth
                                                    in paragraph (1),
                                                    OxyChem must begin
                                                    annual testing as
                                                    follows: OxyChem
                                                    must test a
                                                    representative
                                                    composite sample of
                                                    the wastewater
                                                    treatment biosludge
                                                    for all constituents
                                                    listed in paragraph
                                                    (1) at least once
                                                    per calendar year.
                                                    If any measured
                                                    constituent
                                                    concentration
                                                    exceeds the
                                                    delisting levels set
                                                    forth in paragraph
                                                    (1), OxyChem must
                                                    collect an
                                                    additional
                                                    representative
                                                    composite sample
                                                    within 10 days of
                                                    being made aware of
                                                    the exceedence and
                                                    test it
                                                    expeditiously for
                                                    the constituent(s)
                                                    which exceeded
                                                    delisting levels in
                                                    the original annual
                                                    sample.
                                                   (ii) The samples for
                                                    the annual testing
                                                    shall be a
                                                    representative
                                                    composite sample
                                                    according to
                                                    appropriate methods.
                                                    As applicable to the
                                                    method-defined
                                                    parameters of
                                                    concern, analyses
                                                    requiring the use of
                                                    SW-846 methods
                                                    incorporated by
                                                    reference in 40 CFR
                                                    260.11 must be used
                                                    without
                                                    substitution. As
                                                    applicable, the SW-
                                                    846 methods might
                                                    include Methods
                                                    0010, 0011, 0020,
                                                    0023A, 0030, 0031,
                                                    0040, 0050, 0051,
                                                    0060, 0061, 1010A,
                                                    1020B, 1110A, 1310B,
                                                    1311, 1312, 1320,
                                                    1330A, 9010C, 9012B,
                                                    9040C, 9045D, 9060A,
                                                    9070A (uses EPA
                                                    Method 1664, Rev.
                                                    A), 9071B, and
                                                    9095B. Methods must
                                                    meet Performance
                                                    Based Measurement
                                                    System Criteria in
                                                    which the Data
                                                    Quality Objectives
                                                    are to demonstrate
                                                    that samples of the
                                                    OxyChem wastewater
                                                    treatment biosludge
                                                    are representative
                                                    for all constituents
                                                    listed in paragraph
                                                    (1).
                                                   (iii) The samples for
                                                    the annual testing
                                                    taken for the second
                                                    and subsequent
                                                    annual testing
                                                    events shall be
                                                    taken within the
                                                    same calendar month
                                                    as the first annual
                                                    sample taken.
                                                   (iv) The annual
                                                    testing report
                                                    should include the
                                                    total amount of
                                                    delisted waste in
                                                    cubic yards disposed
                                                    during the calendar
                                                    year.

[[Page 32855]]

 
                                                   (4) Changes in
                                                    Operating
                                                    Conditions: If
                                                    OxyChem
                                                    significantly
                                                    changes the process
                                                    described in its
                                                    petition or starts
                                                    any processes that
                                                    generate(s) the
                                                    waste that may or
                                                    could affect the
                                                    composition or type
                                                    of waste generated
                                                    (by illustration,
                                                    but not limitation,
                                                    changes in equipment
                                                    or operating
                                                    conditions of the
                                                    treatment process),
                                                    it must notify EPA
                                                    in writing and it
                                                    may no longer handle
                                                    the wastes generated
                                                    from the new process
                                                    as non-hazardous
                                                    until the wastes
                                                    meet the delisting
                                                    levels set in
                                                    paragraph (1) and it
                                                    has received written
                                                    approval to do so
                                                    from EPA.
                                                   OxyChem must submit a
                                                    modification to the
                                                    petition complete
                                                    with full sampling
                                                    and analysis for
                                                    circumstances where
                                                    the waste volume
                                                    changes and/or
                                                    additional waste
                                                    codes are added to
                                                    the waste stream.
                                                   (5) Data Submittals:
                                                   OxyChem must submit
                                                    the information
                                                    described below. If
                                                    OxyChem fails to
                                                    submit the required
                                                    data within the
                                                    specified time or
                                                    maintain the
                                                    required records on-
                                                    site for the
                                                    specified time, EPA,
                                                    at its discretion,
                                                    will consider this
                                                    sufficient basis to
                                                    reopen the exclusion
                                                    as described in
                                                    paragraph (6).
                                                    OxyChem must:
                                                   (A) Submit the data
                                                    obtained through
                                                    paragraph 3 to the
                                                    Chief, Corrective
                                                    Action and Waste
                                                    Minimization
                                                    Section, Multimedia
                                                    Planning and
                                                    Permitting Division,
                                                    U.S. Environmental
                                                    Protection Agency
                                                    Region 6, 1445 Ross
                                                    Ave., Dallas, Texas
                                                    75202, within the
                                                    time specified. All
                                                    supporting data can
                                                    be submitted on CD-
                                                    ROM or comparable
                                                    electronic media.
                                                   (B) Compile records
                                                    of analytical data
                                                    from paragraph (3),
                                                    summarized, and
                                                    maintained on-site
                                                    for a minimum of
                                                    five years.
                                                   (C) Furnish these
                                                    records and data
                                                    when either EPA or
                                                    the State of Texas
                                                    requests them for
                                                    inspection.
                                                   (D) Send along with
                                                    all data a signed
                                                    copy of the
                                                    following
                                                    certification
                                                    statement, to attest
                                                    to the truth and
                                                    accuracy of the data
                                                    submitted:
                                                   ``Under civil and
                                                    criminal penalty of
                                                    law for the making
                                                    or submission of
                                                    false or fraudulent
                                                    statements or
                                                    representations
                                                    (pursuant to the
                                                    applicable
                                                    provisions of the
                                                    Federal Code, which
                                                    include, but may not
                                                    be limited to, 18
                                                    U.S.C. Sec.   1001
                                                    and 42 U.S.C. Sec.
                                                    6928), I certify
                                                    that the information
                                                    contained in or
                                                    accompanying this
                                                    document is true,
                                                    accurate and
                                                    complete.
                                                   As to the (those)
                                                    identified
                                                    section(s) of this
                                                    document for which I
                                                    cannot personally
                                                    verify its (their)
                                                    truth and accuracy,
                                                    I certify as the
                                                    company official
                                                    having supervisory
                                                    responsibility for
                                                    the persons who,
                                                    acting under my
                                                    direct instructions,
                                                    made the
                                                    verification that
                                                    this information is
                                                    true, accurate and
                                                    complete.
                                                   If any of this
                                                    information is
                                                    determined by EPA in
                                                    its sole discretion
                                                    to be false,
                                                    inaccurate or
                                                    incomplete, and upon
                                                    conveyance of this
                                                    fact to the company,
                                                    I recognize and
                                                    agree that this
                                                    exclusion of waste
                                                    will be void as if
                                                    it never had effect
                                                    or to the extent
                                                    directed by EPA and
                                                    that the company
                                                    will be liable for
                                                    any actions taken in
                                                    contravention of the
                                                    company's RCRA and
                                                    CERCLA obligations
                                                    premised upon the
                                                    company's reliance
                                                    on the void
                                                    exclusion.''
                                                   (6) Reopener.
                                                   (A) If, anytime after
                                                    disposal of the
                                                    delisted waste
                                                    OxyChem possesses or
                                                    is otherwise made
                                                    aware of any
                                                    environmental data
                                                    (including but not
                                                    limited to leachate
                                                    data or ground water
                                                    monitoring data) or
                                                    any other data
                                                    relevant to the
                                                    delisted waste
                                                    indicating that any
                                                    constituent
                                                    identified for the
                                                    delisting
                                                    verification testing
                                                    is at level higher
                                                    than the delisting
                                                    level allowed by the
                                                    Division Director in
                                                    granting the
                                                    petition, then the
                                                    facility must report
                                                    the data, in
                                                    writing, to the
                                                    Division Director
                                                    within 10 days of
                                                    first possessing or
                                                    being made aware of
                                                    that data.
                                                   (B) If either the
                                                    annual testing (and
                                                    retest, if
                                                    applicable) of the
                                                    waste does not meet
                                                    the delisting
                                                    requirements in
                                                    paragraph 1, OxyChem
                                                    must report the
                                                    data, in writing, to
                                                    the Division
                                                    Director within 10
                                                    days of first
                                                    possessing or being
                                                    made aware of that
                                                    data.

[[Page 32856]]

 
                                                   (C) If OxyChem fails
                                                    to submit the
                                                    information
                                                    described in
                                                    paragraphs (5),
                                                    (6)(A) or (6)(B) or
                                                    if any other
                                                    information is
                                                    received from any
                                                    source, the Division
                                                    Director will make a
                                                    preliminary
                                                    determination as to
                                                    whether the reported
                                                    information requires
                                                    EPA action to
                                                    protect human health
                                                    and/or the
                                                    environment. Further
                                                    action may include
                                                    suspending, or
                                                    revoking the
                                                    exclusion, or other
                                                    appropriate response
                                                    necessary to protect
                                                    human health and the
                                                    environment.
                                                   (D) If the Division
                                                    Director determines
                                                    that the reported
                                                    information requires
                                                    action by EPA, the
                                                    Division Director
                                                    will notify the
                                                    facility in writing
                                                    of the actions the
                                                    Division Director
                                                    believes are
                                                    necessary to protect
                                                    human health and the
                                                    environment. The
                                                    notice shall include
                                                    a statement of the
                                                    proposed action and
                                                    a statement
                                                    providing the
                                                    facility with an
                                                    opportunity to
                                                    present information
                                                    as to why the
                                                    proposed EPA action
                                                    is not necessary.
                                                    The facility shall
                                                    have 10 days from
                                                    receipt of the
                                                    Division Director's
                                                    notice to present
                                                    such information.
                                                   (E) Following the
                                                    receipt of
                                                    information from the
                                                    facility described
                                                    in paragraph (6)(D)
                                                    or (if no
                                                    information is
                                                    presented under
                                                    paragraph (6)(D))
                                                    the initial receipt
                                                    of information
                                                    described in
                                                    paragraphs (5),
                                                    (6)(A) or (6)(B),
                                                    the Division
                                                    Director will issue
                                                    a final written
                                                    determination
                                                    describing EPA
                                                    actions that are
                                                    necessary to protect
                                                    human health and/or
                                                    the environment. Any
                                                    required action
                                                    described in the
                                                    Division Director's
                                                    determination shall
                                                    become effective
                                                    immediately, unless
                                                    the Division
                                                    Director provides
                                                    otherwise.
                                                   (7) Notification
                                                    Requirements:
                                                    OxyChem must do the
                                                    following before
                                                    transporting the
                                                    delisted waste.
                                                    Failure to provide
                                                    this notification
                                                    will result in a
                                                    violation of the
                                                    delisting petition
                                                    and a possible
                                                    revocation of the
                                                    decision.
                                                   (A) Provide a one-
                                                    time written
                                                    notification to any
                                                    state Regulatory
                                                    Agency to which or
                                                    through which it
                                                    will transport the
                                                    delisted waste
                                                    described above for
                                                    disposal, 60 days
                                                    before beginning
                                                    such activities.
                                                   (B) Update one-time
                                                    written
                                                    notification, if it
                                                    ships the delisted
                                                    waste into a
                                                    different disposal
                                                    facility.
                                                   (C) Failure to
                                                    provide this
                                                    notification will
                                                    result in a
                                                    violation of the
                                                    delisting variance
                                                    and a possible
                                                    revocation of the
                                                    decision.
 
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[FR Doc. E9-16272 Filed 7-8-09; 8:45 am]
BILLING CODE 6560-50-P`