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

6922, and 6938. 

2. In Table 1 of Appendix IX of Part 

261, it is proposed to add the following 

wastes in alphabetical order by facility 

to read as follows: 

Appendix IX to Part 261—Waste 

Excluded Under 40 CFR §§ 260.20 and 

260.22 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * 

The Valero Refining 

Company—Tennessee, L.L.C.

Memphis, TN .... Storm Water Basin sediment (EPA Hazardous Waste No. F037) generated one time at a volume of 

2,700 cubic yards [insert publication date of the final rule] and disposed in a Subtitle D landfill. 

This is a one time exclusion and applies to 2,700 cubic yards of Storm Water Basin sediment. (1) 

Reopener. (A) If, anytime after disposal of the delisted waste, Valero 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 Valero 

fails to submit the information described in paragraph (A) 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 or the environment. Further action 

may include suspending, or revoking the exclusion, or other appropriate response necessary to 

protect human health and the environment. (C) If the Division Director determines that the reported information does require EPA action, 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 the date of the Division Director’s notice to present 

such information. (D) Following the receipt of information from the facility described in paragraph 

(C) or (if no information is presented under paragraph initial receipt of information described in 

paragraphs (A) or (B), the Division Director will issue a final written determination describing EPA 

actions that are necessary to protect human health or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. (2) Notification Requirements: Valero 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 they will transport the delisted 

waste described above for disposal, 60 days before beginning such activities. (B) Update the onetime written notification, if they ship the delisted waste to 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. 

* * * * * * 

[FR Doc. E9–16261 Filed 7–8–09; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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: jacques.wendy@epa.gov. 

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. 


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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 

jacques.wendy@epa.gov. 

Your requests for a hearing must 

reach EPA by July 24, 2009. The request 

must contain the information described 

in § 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 §§ 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 

§§ 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 


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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 

§§ 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 

§ 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, §§ 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 § 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 

§ 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 

§ 261.3(a)(2)(iii) and (iv) and (c)(2)(i), 

called the ‘‘mixture’’ and ‘‘derivedfrom’’ 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 

§ 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. 


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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 ChlorAlkali 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

Constituent Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/l) 

Maximum allowable 

TCLP delisting 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 


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TABLE 1—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE WASTEWATER

TREATMENT BIOSLUDGE 1—Continued 

Constituent Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/l) 

Maximum allowable 

TCLP delisting level 

(mg/l) 

Silvex (2,4,5,-TP) ................................................................................................. 0.011 <0.0001 0.789 

Tetrachlorodibenzo-p-dioxin (TCDD) 2,3,7,8- ..................................................... 3.86E–04 5.92E–08 4.30E–05 mg/kg 

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 

1These 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, worstcase 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 windblown particulate from the landfill). As 

in the above ground water analyses, the 

DRAS uses the risk level, the healthbased 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 sitespecific 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 longterm 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 


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§ 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 

§§ 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 healthbased levels used in delisting decisionmaking. 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 nonhazardous 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 nonhazardous 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 


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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 § 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 

jacques.wendy@epa.gov. 

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 


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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 §§ 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—11900; 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: 


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TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(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. 


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TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(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. § 1001 and 42 U.S.C. § 6928), I certify 

that the information contained in or accompanying this document is 

true, accurate and complete. 

As to the (those) identified section(s) of this document for which I 

cannot personally verify its (their) truth and accuracy, I certify as 

the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification 

that this information is true, accurate and complete. 

If any of this information is determined by EPA in its sole discretion to 

be false, inaccurate or incomplete, and upon conveyance of this 

fact to the company, I recognize and agree that this exclusion of 

waste will be void as if it never had effect or to the extent directed 

by EPA and that the company will be liable for any actions taken in 

contravention of the company’s RCRA and CERCLA obligations 

premised upon the company’s reliance on the void exclusion.’’ 

(6) Reopener. 

(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. 


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32856 Federal Register / Vol. 74, No. 130 / Thursday, July 9, 2009 / Proposed Rules 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(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. 

* * * * * * * 

[FR Doc. E9–16272 Filed 7–8–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–1490; MB Docket No. 09–115; RM– 

11543] 

Television Broadcasting Services; 

Fond du Lac, WI 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission has before it 

a petition for rulemaking filed by 

WWAZ License, LLC (‘‘WWAZ’’), the 

licensee of station WWAZ–DT, DTV 

channel 44, Fond du Lac, Wisconsin. 

WWAZ requests the substitution of DTV 

channel 5 for DTV channel 44 at Fond 

du Lac. 

DATES: Comments must be filed on or 

before July 24, 2009, and reply 

comments on or before August 3, 2009. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 

445 12th Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve counsel for petitioner as follows: 

Kathleen Victory, Esq., Fletcher, Heald 

& Hildreth, PLC, 1300 North 17th Street, 

11th Floor, Arlington, Virginia 22209. 

FOR FURTHER INFORMATION CONTACT: 

David J. Brown, david.brown@fcc.gov, 

Media Bureau, (202) 418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rulemaking, MB Docket No. 

09–115, adopted June 29, 2009, and 

released July 1, 2009. The full text of 

this document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 

1–800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and braille), send an e-mail to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). This document does 

not contain proposed information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 


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