Thursday
August 6, 1998
Part II
Environmental
Protection Agency
40 CFR Parts 148, 261, 266, etc.
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste; et al.; Final Rule and Proposed
Rule
42109
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42110 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 148,261,266,268,271,
and 302
[SWH-FRL-6122-7]
R1N 2050-AD88
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Petroleum Refining
Process Wastes; Land Disposal
Restrictions for Newly Identified
Wastes; And CERCLA Hazardous
Substance Designation and Reportable
Quantities
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) is amending the
regulations for hazardous waste
management under the Resource
Conservation and Recovery Act (RCRA)
to reduce hazards to human health and
the environment from wastes generated
from petroleum refining. EPA is listing
as hazardous four wastes generated
during petroleum refining and is issuing
a decision not to list ten other
petroleum refining wastes.
This action is taken under the
authority of RCRA 3001(b)(l), which
authorizes EPA to list wastes as
hazardous, and 3001 (e) (2), which
directs EPA to make a decision whether
to list as hazardous the various
petroleum refining wastes. The effect of
listing these four wastes will be to
subject them to stringent management
and treatment standards under RCRA
and to emergency notification
requirements for releases of hazardous
substances to the environment These
notifications are required under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA or Superfund) and the
Emergency Planning and Community
Right to Know Act (EPCRA). EPA is also
issuing Reportable Quantity (RQ)
adjustments for these notifications.
This action also makes certain
changes to the RCRA regulations to
promote the environmentally sound
recycling of oil-bearing residuals.
Specifically, the Agency is excluding
certain recycled secondary materials
from the definition of solid waste. These
materials include oil-bearing residuals
from petroleum refineries when they are
inserted into the petroleum refining
process, oil from associated
petrochemical facilities inserted into the
petroleum refining process, and spent
caustic from liquid treating operations
when used as a feedstock to make
certain chemical products. This rule
also clarifies an existing exclusion for
recovered oil from certain petroleum
industry sources.
Finally, EPA is applying universal
treatment standards (UTS) under the
Land Disposal Restrictions program to
the petroleum refining wastes listed in
this rulemaklng. The listed wastes must
be treated to meet these treatment
standards for specific constituents prior
to land disposal.
EFFECTIVE DATES: This final rule is
effective February 8,1999, except for
the amendments to §§ 261.3(c)(2)(ii)(B),
261.4(a), 261.6(a)(3)(iv)(C) and
261.100(b)(3) and the removal of
§ 261.6(a)(3)(v) which are effective
August 6, 1998.
ADDRESSES: Supporting materials are
available for viewing in the RCRA
Information Center (RIC), located at
Crystal Gateway I. First Floor, 1235
Jefferson Davis Highway, Arlington, VA.
The Docket Identification Number is F-
98-PRLF-FFFFF. The RIC is open from
9 a.m. to 4 p.m., Monday through
Friday, excluding federal holidays. To
review docket materials, it is
recommended that the public make an
appointment by calling 703 603-9230.
The public may copy a maximum of 100
pages from any regulatory docket at no
charge. Additional copies cost $0.15/
page. The index and some supporting
materials are available electronically.
See the beginning of the Supplementary
Information section for information on
accessing them.
FOR FURTHER INFORMATION CONTACT: The
RCRA/Superfund Hotline, toll-free, at
(800) 424-9346 or at (703) 920-9810.
The TDD Hotline number is (800) 553-
7672 (toll-free) or (703) 486-3323 In the
Washington, DC., metropolitan area.
For technical information on the
RCRA hazardous waste listings, contact
Maximo (Max) Diaz, Jr., or Robert
Kayser. Office of Solid Waste (5304W).
U.S. Environmental Protection Agency,
1235 Jefferson Davis Highway,
Arlington. VA, (703) 308-0439. [E-mail
addresses and telephone numbers:
diaz.max@epamail.epa.gov, (703) 308-
0439; kayser.robert@epamail.epa.gov,
(703) 308-7304.] For Information related
to the exclusions from the definition of
solid waste, contact Ross Elliott at the
same address.
[elliott.ross@epamail.epa.gov; (703)
308-8748.]
For technical information on the
CERCLA aspects of this rule, contact:
Ms. Elizabeth Zeller, Office of
Emergency and Remedial Response
(5204G), U.S. Environmental Protection
Agency, 401 M Street, SW, Washington,
D.C., 20460, (703) 603-8744.
SUPPLEMENTARY INFORMATION: The index
and the supporting materials are
available on the Internet. Follow these
instructions to access the Information
electronically:
www:http://www.epa.gov/epaoswer/
osw/hazwaste.htm#id
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epaoswer
The contents of the preamble to this
final rule are listed in the following
outline:
I. Affected Entitles
n. Legal Authority and Background
A. Listing Decisions
B. Definition of Solid Waste and
Exclusions
IH. Summary of Proposal and Notice of Data
Availability
A. Proposed Exclusions
1. Exclusion of Oil-Bearing Hazardous
Secondary Materials Inserted into
Petroleum Refining, Including Petroleum
Coking
2. Recovered Oil From Associated
Petrochemical Facilities
3. Use of Spent Caustics as Feedstock
B. Proposed Listing Decisions
1. Summary of Proposed Decisions
2. Summary of Proposed Risk Assessment
Approach
C. Notice of Data Availability
IV. Changes to the Proposed Rule
A. Definition of Solid Waste Exclusions
1. Exclusion of Oil-Bearing Hazardous
Secondary Materials Inserted into
Petroleum Refining, Including Petroleum
Coking
2. Recovered Oil From Associated
Petrochemical Facilities
3. Use of Spent Caustic as Feedstock
B. Listing Determinations
C. Other Exemptions
1. Head works Exemption
2. Exemption for Catalyst Support
3. Third Party Recycling of Spent
Petroleum Catalysts
V. Response to Comments and Rationale for
Final Rule
A. Proposed Modifications to the
Definition of Solid Waste
1. Exclusion of Oll-Bearing Hazardous
Secondary Materials Inserted into
Petroleum Refining, Including Petroleum
Coking
2. Recovered Oil From Associated
Petrochemical Facilities
B. Modeling Approaches and Risk
Assessment
1. Sampling and Analysis of Refinery
Wastes
2. Waste Management Assumptions
3. Codisposal of Wastes
4. Impact of Hazardous Characteristic
Regulations
5. Other General Risk Issues
6. Specific Groundwater Modeling Issues
7. Specific Nongroundwater Modeling
Issues
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
42111
C. Residual-Specific Comments
1. Crude Oil Storage Tank Sediment
2. Clarified Slurry Oil Sediment
3. Catalyst From Hydrotreating and
Hydro refining
4. Catalyst From Sulfuric Acid Alkylation
5. Spent Caustic From Liquid Treating
6. Off-Specification Product and Fines
From Thermal Processes
7. Catalyst and Fines From Catalytic
Cracking
8. HF Alkylation Sludge
9. Sludge From Sulfur Complex and
Hydrogen Sulfide Removal Facilities
10. Catalyst From Sulfur Complex and
Hydrogen Sulfide Removal Facilities
11. Unleaded Gasoline Storage Tank
^Sediment
12. Catalyst From Reforming
13. Sludge From Sulfuric Acid Alkylation
D. Headworks Exemption
1. Application to Listed Catalysts
2. Clarification of Scope
3. Comments Opposing the Exemption
E. Third Party Recycling of Spent
Petroleum Catalysts
VI. Land Disposal Restrictions
A. Treatment Standards for Newly
Identified Wastes
B. Response to Comments
1. Constituents of Concern
2. Sulfides
3. Underlying Hazardous Constituents
4. High Temperature Metals Recovery
5. Vanadium
6. Revisions to Proposed Standards
C. Capacity Determination for Newly
Identified Wastes
1. Introduction
2. Capacity Analysis Results Summary
VII. Compliance and Implementation
A. State Authority
1. Applicability of Rules in Authorized
States
2. Effect on State Authorizations
B. Effective Date
C. Section 3010 Notification,
D. Generators and Transporters
E. Facilities Subject to RCRA Permit
Requirements
1. Facilities Newly Subject to RCRA Permit
2. Existing Interim Status Facilities
3. Permitted Facilities
4. Units
5. Closure
F. Landfill Leachate
VIII. CERCLA Designation and Reportable
Quantities
A. Reporting Requirements
B. Standard and Alternative RQ
Adjustment Methodology
C. Basis for RQ Adjustments in Final Rule
D. Response to Comments
IX. Executive Order 12866
X. Economic Analysis
A. Compliance Costs for Listings Including
LDR Impacts and the Exclusion for Oil-
Bearing Hazardous Secondary Materials
1. Universe of Petroleum Refineries and
Waste Volumes
2. Methodology for Estimating Industry
Economic Impact and Incremental
Compliance Cost
3. Potential Remedial Action Costs Within
the Refining Industry
4. Summary of Compliance Cost Results
B. Details of Industry Economic Impact
XI. Regulatory Flexibility Act
XII. Submission to Congress and the General
Accounting Office
XIII. Unfunded Mandates
XIV. Paperwork Reduction Act
XV. National Technology Transfer and
Advancement Act
XVI. Executive Order 13045—Protection of
Children from Environmental Health
Risks and Safety Risks
I. Affected Entities
Entitles potentially affected by this
action are those which handle either the
waste streams being added to EPA's list
of hazardous wastes under RCRA and to
the CERCLA list, or entities which need
to respond to releases. Affected entities
include:
Category
Affected entities
Industry
State, Local, Tribal Govt
Federal Govt
Generators of the following listed wastes, or entities that treat, store, transport, or dispose of
these wastes.
K169—Crude oil storage tank sediment from petroleum refining operations.
K170—Clarified slurry oil storage tank sediment and/or in-line filter/separation solids from pe-
troleum refining operations.
K171—Spent hydrotreating catalyst from petroleum refining operations, including guard beds
used to desulfurize feeds to other catalytic units (this listing does not include inert support
media).
K172—Spent hydrorefining catalyst from petroleum refining operations, including guard beds
used to desulfurize feeds to other catalytic units (this listing does not include inert support
media).
State and local emergency planning entities.
National Response Center, and any Federal Agency that handles the listed waste or chemical.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. This table lists
those entities of which EPA now is
aware that potentially could be affected
by this action. Other entities not listed
in the table also could be affected. To
determine whether your facility is
regulated by this action, you should
examine 40 CFR Parts 260 and 261
carefully in concert with the amended
rules found at the end of this Federal
Register notice. If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
II. Legal Authority and Background
These regulations are being
promulgated under the authority of
sections 2002(a) and 3001 (a), (b) and
(e)(2), 3004 (g) and (m) of the Solid
Waste Disposal Act (commonly referred
to as RCRA), as amended, 42 U.S.C.
6912(a), and 6921(b) and (e)(2), and
section 102(a) of CERCLA, 42 U.S.C.
9602(a).
A. Listing Decisions
Section 3001 (a) of RCRA requires EPA
to promulgate criteria for identifying
characteristics of hazardous wastes and
for listing hazardous wastes. Section
300 l(b) authorizes EPA to promulgate
regulations, based on these criteria,
identifying and listing hazardous
wastes. Section 3001(e)(2) of RCRA
requires EPA to determine whether to
list, as hazardous, wastes generated by
specific industries and production
processes, including petroleum refining
wastes. Hazardous waste, for purposes
of this rule, is defined at section
1004(5)(B) of RCRA as solid waste
which may pose a substantial present or
potential hazard to human health or the
environment when improperly
managed.
Hazardous wastes are subject to
management and treatment
requirements of RCRA Subtitle C, which
establishes stringent federal
requirements, including the need to
obtain facility operating permits for
persons who generate, transport, treat,
store, or dispose of such waste. Solid
wastes which are not hazardous may be
disposed of at facilities which are
overseen by state and local
governments. These are the so-called
RCRA subtitle D facilities, which
generally impose less stringent
requirements on management of wastes.
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42112 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
EPA's regulations at 40 CFR 261.20
provide that hazardous wastes may be
classified as "characteristic" wastes if .
they have the properties described at 40
CFR 261.21 through 261.24, which
would cause them to be classified as
having the characteristics of ignitability,
cOrrosivity, reactivity, or toxicity.
Characteristic wastes are identified by
sampling a waste, or using appropriate
company records concerning the nature
of the waste, to determine whether a
waste has the relevant properties. There
is no regulatory requirement to conduct
sampling, but persons managing
materials that are found to be
characteristic hazardous wastes are
subject to enforcement actions under
RCRA.
Criteria for listing hazardous wastes
are found at 40 CFR 261.11(a)(3), which
provides that wastes may be listed as
hazardous if they contain hazardous
constituents identified in appendix VIII
of 40 CFR part 261 and the Agency
concludes, after considering eleven
factors enumerated in §261.1-1 (a) (3),
:hat the waste is capable of posing a
substantial present or potential hazard
to human health or the environment
when improperly managed. A substance
is listed in appendix VIII if it has been
shown in scientific studies to have toxic
effects on life forms.
EPA's regulations at 40 CFR 261.31
through 261.33 contain the various
hazardous wastes the Agency has listed
from time to time. Section 261.31 lists
wastes generated from non-specific
sources, known as "F-wastes," and
§ 261.32 lists hazardous'wastes
generated from specific-sources, known
as "K-wastes." Pursuant to the
requirement of RCRA section 3001 (e) (2).
to list refinery wastes, EPA has
previously listed various petroleum
refinery wastes designated as F037,
F038, and K048 through K052. Section
261.33 lists as hazardous discarded
commercial chemical products and
other materials that become hazardous
wastes, known as "P-wastes" or "U-
wastes," when they are discarded or
intended to be discarded.
Therefore, newly listed wastes in this
rule will be added to the K-waste list.
Once listed, wastes must be managed as
RCRA Subtitle C hazardous wastes. No
testing of waste samples is required as
for characteristic hazardous wastes.
On June 12, 1997, EPA entered into a
proposed amended consent decree in a
lawsuit filed by the Environmental
Defense Fund (EDF)—EDFv. Browner,
Civ. No. 89-0598 (D.D.C.). The consent
decree sets out a series of deadlines for
promulgating RCRA rules. Paragraph
l.k. of the proposed amended consent
decree obligated EPA to promulgate a
final listing determination on or before
May 29, 1998 (EPA and EDF have since
agreed to extend this date to June 29,
1998), for 14 additional petroleum
refining process residuals. Today, EPA
is issuing final listing determinations for
these residuals (hereafter, "listing
residuals") in accordance with the
proposed consent decree's deadline.
The consent decree also identified
another 15 petroleum refining residuals
for which EPA agreed to conduct a
study (hereafter, "study residuals").
EPA published the study in 1996. (See
Study of Selected Petroleum Refining
Residuals-Industry Study, August 1996;
EPA530-R-96-018.)
All hazardous wastes listed under
RCRA and codified in 40 CFR 261.31
through 26-1.33, as well as any solid
waste that exhibits one or more of the
characteristics of a RCRA hazardous
waste, described in 40 CFR 261.20
through 261.24, are also hazardous
substances under CERCLA, as provided
in CERCLA section 101 (14) (C). CERCLA
hazardous substances are listed in Table
302.4 at 40 CFR 302.4 along with their
reportable quantities (RQs). Today's rule
also establishes RQs for the newly listed
' wastes.
Today's listing determination follows
the elements of EPA's hazardous waste
listing policy presented in the dyes and
pigments listing determination proposal
(59 FR 66072, December 22, 1994). A
description of how elements of EPA's
listing policy were applied in today's
listing determination is found in Section
III.F.2., "Risk Analysis," of the preamble
for the proposed rule. Section V.C of
this preamble discusses EPA's responses
to comments and final decisions as they
relate to the various elements of the
listing policy and their applicability to
this rule.
B. Definition of Solid Waste and
Exclusions
The jurisdictional boundaries of
RCRA are established primarily by the
definition of solid waste. When
hazardous sludges, by-products, and
spent materials (often referred to as a
group as "secondary materials") are
recycled, a question exists as to whether
such materials are "solid wastes" and so
potentially within EPA's subtitle C
jurisdiction. The regulatory definition of
solid waste, found at 40 CFR 261.2,
answers these questions, since only
materials which meet this definition are
even potentially subject to the subtitle C
regulatory program set out at 40 CFR'
Parts 262-268. Secondary materials may
be excluded from the definition of solid
waste, and therefore from regulation
under this regulatory program, if they
are recycled in certain ways. The
current definition of solid waste at 40
CFR 261.2 excludes secondary materials
from the definition of solid waste that
are used directly (i.e., without
reclamation) as ingredients in
manufacturing processes to make new
products, used directly as effective
substitutes for commercial products, or
returned directly to the original process
from which they are generated as a
substitute for raw material feedstock.
(See 40 CFR 261.2(e)(l)). As discussed
in the January 4, 1985, rulemaking that
promulgated this regulatory framework,
these are activities which, as a general
matter, resemble ongoing manufacturing
operations more than conventional
waste management and so are more
appropriately classified as not involving
solid wastes. (See 50 FR at 637-640).
However, these exclusions do not
apply to materials that are either
contained in, or used to produce, fuels
and, therefore, do not generally apply to
secondary materials recycled as part of
the petroleum refining process (see 40
CFR 261.2(e)(2)(ii)). Petroleum industry
representatives have long argued that
oil-bearing secondary materials used as
ingredients in a petroleum refining
process to make fuel should be excluded
from the definition of solid waste under
RCRA.J
While these exclusions from the
definition of solid waste are not
available to hazardous secondary
materials generated by, and used as
ingredients in, the petroleum refining
industry, these hazardous secondary
materials, or the fuels produced from
them, may be exempt from all regulatory
requirements under 40 CFR
261.6(a)(3)(iii)-(v). These exemptions
from regulatory requirements, however,
did not resolve the jurisdictional debate
involving the continued processing of
hazardous secondary materials into
fuels.
Regarding this debate ,the plain
reading of the statute has been
supplemented by case law providing
parameters within which to determine
whether secondary materials being
recycled are or are not solid wastes. In
its decision in American Mining
Congress v. EPA, (824 F. 2d 1177 (D.C.
Cir. 1987) (AMC I)), the D.C. Circuit
Court held that EPA's rules defining the
statutory term "solid waste" (RCRA
Section 1004(27)) exceeded the
Agency's statutory authority to the
extent that the rules asserted
jurisdiction over "materials that are
recycled and reused in an ongoing
manufacturing or industrial process"
1 See the proposed rule (specifically 60 FR 57752
to 57753) for a detailed discussion on the
background to these regulatory issues.
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
42113
(Id. at 1186 (emphasis original)). The
Court held that "[bjecause these
materials have not yet become part of
the waste disposal problem" (Id.), they
are not yet "discarded" within the
meaning of Section 1004(27) and so
cannot be considered to be "solid
wastes."
On January 8, 1988, EPA responded to
the AMCI decision by proposing to
exclude, from the regulatory definition
of solid waste, oil-bearing petroleum
residuals that are returned for further
refining "as part of one continuous and
ongoing process." (see 53 FR FR 525,
Jan. 8. 1988). More specifically. EPA
proposed to exclude oil-bearing residues
from the refining process when those
residues are generated on-site and
reinserted on-site into the petroleum
refining process (including the coker),
provided that the residues were not
speculatively accumulated or stored in
a manner involving land placement.
Subsequent decisions have
established that the decision in AMC I
is relatively narrow. In particular, courts
have rejected the argument that
"potential reuse of a material prevents
the Agency from classifying it as
"discarded1" (see, American Mining
Congress v. EPA, 907 F. 2d 1179.1186
(D.C. Cir. 1990) (AMC II)). The proper
test as to when, as a matter of law, the
Agency is foreclosed from classifying a
material as a solid waste is when a
material is "destined for immediate
reuse in another phase of the industry's
ongoing production process" and that
has "not yet become part of the waste
disposal problem" (Id. at 1186
(emphasis original)). EPA retains
considerable discretion in ascertaining
how to apply this standard.
For example, secondary materials
generated by one Industry and sent to
another industry for reclamation could
be classified as solid wastes (although
EPA retains some discretion as to
whether to make that determination)
(see, American Petroleum Inst. v. EPA,
906 F. 2d 726, 740-41 (D.C. Cir. 1990);
llcov. EPA, 996 F. 2d 1126 (llth Cir.
(1993); Owen Electric Steel v. Browner,
37 F. 3d 146 (4th Cir. 1994)). Similarly,
secondary materials generated onsite,
stored In surface impoundments, and
reclaimed within the process which
generated them could also be classified
as solid wastes (see AMC n). EPA must
normally justify determinations that a
secondary material being recycled is not
a solid waste by showing how the
determination is consistent with RCRA's
objective to "establish a cradle-to-grave
regulatory structure for the safe
handling of hazardous wastes" (see API,
906F.2dat741).
On July 28, 1994, EPA finalized parts
of the January 8, 1988, proposal
pertaining to petroleum refining
industry operations. As noted in that
final rule, post-AMC I decisions make
clear that the statute affords EPA great
latitude to set the jurisdictional
parameters of RCRA. As a consequence,
the July 28, 1994, final rule excluded a
more limited set of materials and
imposed greater restrictions on where
the materials can be inserted within the
petroleum refining process, than what
was proposed on January 8, 1988.
Specifically, in its January 1988
proposal, EPA did not distinguish
between recovered oil (i.e., oil
reclaimed from secondary materials,
such as wastewater, generated from
normal petroleum refining, exploration
and production, and transportation
practices) and oil-bearing hazardous
sludges, nor did it distinguish between
the petroleum coker and other
petroleum process units in defining the
scope of the proposed petroleum
refining exclusion. In the July 28, 1994,
final rule, EPA limited the exclusion to
recovered oil that is inserted into the
petroleum refining process prior to
distillation and catalytic cracking. Thus,
it did not apply to recovered oil
reinserted into the petroleum coker (see
40 CFR 261.4 (a) (12) and 59 FR at
38541-38542, July 28, 1994). In at least
one respect, the July 28, 1994, final rule
was somewhat broader than what was
proposed. The final exclusion applied to
materials generated from petroleum
industry sources other than refineries,
while the January 8, 1988, rule proposed
to exclude only oil-bearing materials
generated at a refinery and reinserted
into that refinery's refining process.
After promulgation of the July 28,
1994, final rule excluding certain
recovered oil. the EPA published a
direct final rule on March 26, 1996, to
correct an inadvertent error in the
regulatory text of the exclusion (see 61
FR 13103). Specifically, the direct final
rule amended the words describing the
point of insertion for recovered oil into
the petroleum refining process (i.e.,
"prior to crude distillation or catalytic
cracking") that was a condition of the
exclusion. The original intent was to
exclude recovered oil inserted into the
refining process where the process
removes at least some contaminants
(which does not include cokers). After
promulgating the exclusion, the Agency
learned that delineating where
recovered oil could or could not be
inserted (and be excluded) using the
words "prior to crude distillation or
catalytic cracking" was unintentionally
restrictive, i.e., those operations were
common examples but there were other
refinery units where contaminants were
removed as well. In addition to the
amended regulatory text, the Agency
also clarified that the recovered oil
exclusion applied to oil recovered from
shared wastewater treatment systems at
petroleum refineries co-located with
petrochemical facilities (see 61 FR
13104). Because the Agency received no
adverse comment as of April 9, 1996, on
the amended regulatory text, the direct
final rule became effective on May 28,
1996.
Today's final rule, which deals
specifically with petroleum residuals,
gives EPA the opportunity to address
some larger, longstanding issues
involving where the boundaries of
RCRA should be drawn regarding
jurisdiction over oil-bearing hazardous
secondary materials which are
generated by, and recycled within, the
petroleum industry. Therefore, in
addition to addressing specific
regulatory issues that may arise as a
result of a decision to list an individual
petroleum waste stream, the Agency is
issuing more comprehensive revisions
to the RCRA regulations relating to
regulatory jurisdiction over these
materials when this type of intra-
industry recycling occurs.
III. Summary of Proposal and Notice of
Data Availability
A. Proposed Exclusions
The proposed rule discussed the
applicability of the definition of solid
waste to the waste streams being
evaluated for listing, but also related to
a broader class of petroleum wastes.
This is discussed briefly below.
1. Exclusion of Oil-Bearing Hazardous
Secondary Materials Inserted Into
Petroleum Refining, Including
Petroleum Coking
In the November 20, 1995, proposal,
the Agency proposed to exclude oil-
bearing secondary materials generated
within the petroleum industry that are
inserted into the petroleum coker (see
60 FR at 57754-57755). Generally, these
secondary materials are generated as
either residues of various refining
processes or wastewater treatment
systems which collect process waters
(and oil) from the entire facility. (Note
that these secondary materials,
primarily wastewater treatment sludges,
do not meet the definition of "recovered
oil" because the contained oil is a small
percentage of the total.) Secondary
materials, such as wastewater treatment
sludges, that contain a high percentage
of oil are often processed to recover the
oil for further refining (e.g., when there
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42114 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
is free oil). However, the typical oil
recovery process (e.g., centrifugation)
cannot recover all of the oil from these
secondary materials, leaving a not
insignificant amount of oil in the
secondary materials that can only be
recovered thermally.
In conventional petroleum coking
operations (also known as "delayed
coking"), heavy oil-bearing feedstocks,
typically bottoms from crude oil
distillation or vacuum distillation (also
referred to as "resids," representing the
heaviest oil fraction of the crude oil
feedstock) are placed into a coke drum.
This material is then heated to high
temperatures, thermally breaking or
"cracking" the long-chain hydrocarbon
molecules found in heavy oil feedstock
into short-and middle-chain oil
fractions that are then recovered,
condensed, and sent for further refining
into high-value fuel products. The
remains of the heavy oil-bearing
feedstock (which is primarily carbon
and some inorganic contaminants)
forms the coke product, typically used
as a fuel.
The last step of the conventional
coking operation involves the injection
of water to quench the coke product.
Water is injected in the base of the coke
drum and works its way up through the
coke product, cooling the coke as it
goes. This quenching also serves to
remove light ends entrained within the
coke product, similar to steam stripping.
(The light ends recovered during the
quenching process are likewise
condensed and further refined into
high-value fuel products.) Once cool
enough, the coke product is typically
removed from the coke drum using high
pressure water drilling. For the
purposes of this preamble discussion, it
is important to distinguish between the
two aspects of the coking operation. The
first aspect, referred to in this preamble
as "conventional coking," involves the
recovery of light-end hydrocarbons from
the resids feedstock and produces the
coke product. The second aspect,
referred to here as the "quenching
process," involves the injection of water
into the high-temperature coke to cool it
down after the conventional coking
process.
In the preamble discussion in the
November 20, 1995, proposal, the
Agency presented its determination that
the petroleum coker is an integral part
of the petroleum refinery process, with
recovered middle-and light-end
hydrocarbons as its primary product
and petroleum coke as a co-product.
Based on the information on hand
comparing the composition of oil-
bearing hazardous secondary materials
to typical feedstocks to the coker, and
the fact that the coke produced using
oil-bearing hazardous secondary
materials demonstrated no significant
increase in hazardous metals
concentrations, the Agency proposed to
exclude such oil-bearing secondary
materials when used in the production
of petroleum coke. EPA believed this
exclusion was further justified because
the hazardous secondary materials are
managed in a manner to prevent release,
commensurate with management of
nonhazardous oil-bearing feedstocks.
(See 60 FR 57754-57755). In addition,
the proposed exclusion was conditioned
on there being no speculative
accumulation or land placement (thus
ensuring that the secondary materials
would not be stored such that they
could become part of the waste disposal
problem), and that the coke product
itself not exhibit a characteristic of
hazardous waste, which, along with
existing product specifications, would
serve to ensure that the quality of the
coke product would not degrade
through the use of hazardous secondary
materials such that it would become
part of the waste disposal problem.
At the time of the proposal, the
Agency did not distinguish between oil-
bearing hazardous secondary materials
used in either of the two aspects of the
coking operations, i.e., in the
conventional coking process (where
secondary materials would be used as
feedstocks) or during the quenching
process (where secondary materials are
mixed with water and injected into the
coke during the quenching process).
While the Agency was aware that oil-
bearing hazardous secondary materials
were being used in the quenching
process at some refineries, the primary
focus and intent of EPA's proposed
exclusion was for secondary materials
used as feedstock in the conventional
coking process, with a secondary
consideration being whether these
secondary materials legitimately could
be used in the quenching process. As
the Agency learned through comments
received, the hazardous secondary
materials in question (i.e., listed
hazardous wastes generated by
petroleum refineries) are rarely, if
indeed ever, used as feedstock along
with the resids. EPA, therefore, has
since focused its attention on the role of
oil-bearing hazardous secondary
materials in the quenching process,
maintaining the key consideration that
the exclusion is only intended for oil-
bearing hazardous secondary materials
used in a manner consistent with the
main production purpose of the coking
process, i.e., the recovery of light-end
hydrocarbons for further refining and
the production of a marketable coke
product.
2. Recovered Oil From Associated
Petrochemical Facilities
In the November 20, 1995 proposal,
EPA proposed to add an exclusion at 40
CFR 261.4(a)(13) for recovered oil2 that
is generated by certain organic chemical
industry facilities and inserted into
petroleum refining processes provided
that certain conditions are met (i.e., the
petrochemical recovered oil is not
stored in a manner involving placement
on the land, or accumulated
speculatively before being recycled) (see
60 FR at 57755. The proposed exclusion
only applied to petrochemical recovered
oil from organic chemical
manufacturing facilities that were
within the SIC code 2869, and was
further limited to situations where the
petrochemical and petroleum refinery
facilities were either co-located, or
under common ownership (co-owned).
a^.
As described in the proposed rule, the
recovered oil exclusion that was
promulgated in the July 28, 1994, final
rule did not apply to oil from organic
chemical industry operations except in
cases where petrochemical and
petroleum refining operations share a
common wastewater treatment system.
In these instances, because a portion of
the oil recovered during wastewater
treatment and returned to petroleum
refining originates from organic
chemical manufacturing, some industry
representatives questioned whether a
"petroleum industry" exclusion would
apply. However, because of the
predominance of petroleum refining
wastewaters in the shared wastewater
treatment systems, and the degree of
integration between these facilities, the
Agency believed that it was appropriate
to apply the July 28, 1994, recovered oil
exclusion to the oil recovered from
shared petrochemical and petroleum
refining wastewater treatment systems.
(see 61 FR at 13104). The EPA
subsequently became aware that some
petrochemical facilities recover oil from
their process streams in a manner
distinct from wastewater treatment
operations and send this material (so-
called "dry" hydrocarbon streams) to
2 Recovered oil, as defined within the context the
exclusion from the definition of solid waste
promulgated in the July 28,1994, final rule,
includes materials that are primarily oil and that are
recovered from any phase of petroleum exploration,
production, refining, and transportation related
thereto. Oil recovered from petrochemical facilities
associated with petroleum refineries, whether from
shared wastewater treatment systems at co-located
facilities, or from other "dry" streams recovered
from petrochemical process units, are referred to
here as "petrochemical recovered oil."
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations 42115
petroleum refineries for insertion into
the refining process. In some cases these
hydrocarbon materials might or might
not be viewed as solid wastes when
returned to petroleum refining
operations as feedstocks in producing
the normal slate of refinery produced
fuels. After promulgation of the July 28,
1994, rule, EPA received information
from the chemical manufacturing
industry indicating that these "dry"
hydrocarbon streams recovered from
their operations are comparable to oil
recovered from petroleum refining
operations, i.e., are chemically
comparable to the recovered oil already
excluded from being a solid waste. As
explained in more detail in the
proposed rule, the exclusion for
petrochemical recovered oil was
therefore based upon two specific
arguments raised by both the chemical
manufacturing and petroleum refining
industries. First, knowledge of the
composition of these petrochemical
recovered oil streams is very important
because of the potential for adverse
impacts on both refinery operations
(e.g., equipment corrosion, catalyst
fouling) and product quality (e.g.,
Introduction of contaminants that
degrade motor fuels) if these streams
contain constituents not typically
encountered in normal refinery
feedstocks. Second, analytical data the
Agency received prior to proposal
supported industry's premise that
recovered oil from petrochemical
operations is similar in composition to
that from petroleum refining, and is
therefore suitable for insertion into the
petroleum refining process.3 EPA based
the proposed exclusion for
petrochemical recovered oil on a very
limited set of data from integrated
petrochemical and petroleum refineries
that were either co-located or co-owned,
and EPA believed that this was a typical
arrangement for the return of these
hydrocarbon streams to petroleum
refineries (see 60 FR at 57756). In the
proposal, EPA solicited additional data
which could support broadening the
exclusion to recovered oil from other
SIC codes representing other types of
associated chemical manufacture (e.g.,
plastics and resins, synthetic rubber,
cyclic crude and intermediate
producers). (Id).
3. Use of Spent Caustics as Feedstock
EPA proposed an exclusion from the
definition of solid waste that would
clarify that spent liquid treating caustics
from petroleum refineries used as
'September 13,1995. letter to Becky Daiss (EPA
OIHce of Solid Waste) from Michael W. Steinberg
(Morgan, Lewis & Bocklus).
feedstock in the manufacture of
naphthenic and cresylic acid products
are not solid wastes. EPA believed that,
when used in this manner, spent caustic
is a valuable commercial feedstock that
is used in the manufacture of
commercial chemical products.
Therefore, EPA proposed to add a new
§261.4 (a) (14) to exclude spent caustic
when used in this manner.
B. Proposed Listing Decisions
1. Summary of Proposed Decisions
EPA evaluated 14 wastes (the consent
decree "listing residuals") in the
petroleum refining industry, proposing
to list 3 of these wastes as hazardous
and not the other 11 wastes. Further
general background for this rule is
provided in the preamble to the
proposed rule at 60 FR 57748-57749. As
a result of numerous comments on the
proposed rule, EPA conducted
additional analyses for these wastes,
resulting in the Agency's publishing a
Notice of Data Availability (NODA) on
April 8. 1997 (62 FR 16747). This
Section summarizes the issues raised in
the proposed rule and the following
Section describes the NODA.
The Agency proposed to list as
hazardous the following three wastes:
K170—Clarified slurry oil storage tank
sediment and/or in-line filter/
separation solids from petroleum
refining operations.
K171—Spent hydrotreating catalysts
from petroleum refining operations.
CThis listing does not include ceramic
support media.)
Kl 72—Spent hydrorefining catalysts
from petroleum refining operations.
(This listing does not include ceramic
support media.)
The Agency proposed not to list as
hazardous the following eleven residual
categories:
• Crude oil storage tank sediment
• Unleaded gasoline storage tank sediment
• Off-specification product and fines from
thermal processes
• Catalyst from reforming
• Catalyst from sulfuric acid alkylation
• Sludge from sulfuric acid alkylation
• Hydrofluoric acid alkylation sludge
• Spent caustic from liquid treating
• Catalyst and fines from catalytic cracking
• Catalyst from sulfur complex and hydrogen
sulfide removal facilities
• Sludge from sulfur complex and hydrogen
sulfide removal facilities.
EPA also noted that its decision not to
list crude oil storage tank sediment was
a close call, and that the Agency may
choose to list this waste as K169,
depending on further evaluation of the
data and comments.
The proposed listing determinations
were based on the Agency's evaluations
at the time as to whether the wastes met
the criteria in 40 CFR 261.11 (a) for
listing wastes as hazardous. EPA
assessed and considered the factors
contained in these criteria primarily by
incorporating them as elements in a risk
assessment. A detailed summary of the
risk assessment methodology is found in
the preamble to the proposed rule,
Section III.F, "Description of Health and
Risk Assessments" (60 FR 57756-
57762). EPA's view at the time of
proposal, the applicability of the risk
assessment to particular waste streams,
and the proposed reasoning for the
listing decisions are found in Section
III.G., "Waste-Specific Listing
Determination Rationales" (60 FR at
57762-57776).
EPA also proposed a number of
exemptions for the wastes proposed for
listing, described below.
Headworks Exemption
In the proposal, EPA noted that some
refineries manage the wastes EPA
proposed for listing in their wastewater
treatment system, while and others may
scour residual sludge of the wastes
proposed for listing during vessel
cleaning or tank washing into the
refinery wastewater treatment system. A
consequence of listing these wastes as
hazardous would be to cause all
wastewaters and wastewater treatment
sludges to be derived from those wastes.
The Agency noted in the proposal
that, provided the residuals derived
from the wastes proposed for listing are
discharged to the oil recovery sewer
system, the residuals carried into the
wastewater system would be removed
during primary treatment as sludges or
other wastes that are already regulated
hazardous wastes (e.g., K048, K051,
F037. or F038). Accordingly, the Agency
proposed not to include these
wastewaters in its listing determinations
and to modify an existing regulation at
40 CFR 261.3(a)(2)(iv) to provide that
these wastewaters would not be
considered hazardous wastes. This
exemption, known as the "headworks
exemption," was discussed in the
preamble for the proposed rule at 60 FR
57750 and 57781. The proposal noted
that the exemption would apply to
wastewaters containing clarified slurry
Oil (CSO) sediment and, if EPA decided
to list crude oil storage tank sediment in
the final rule, this waste as well.
Exemption for Catalyst Support
Upon removal from catalyst beds and/
or during catalyst regeneration or
reclamation, spent catalysts are
separated from the support media that
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42116 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
are used in the catalytic reactors to
optimize mixing and flow within the
reactor beds. The Agency proposed an .
exclusion from RCRA regulation (under
40 CFR 261.3(c)(2)(ii)) for these support
media because the support media are
generally inert ceramics, separate from
the catalyst, and commonly managed
separately.
Third Party Recycling of Spent
Petroleum Catalysts
Spent hydrotreating and
hydrorefining catalysts, two of the
wastes proposed for listing (as K171 and
K172, respectively), are frequently
regenerated for reuse or reclaimed off-
site to recover nonprecious metals (e.g.,
nickel, molybdenum, cobalt, and
vanadium) and other compounds sold
as products (i.e., aluminum sulfate
derived from the alumina substrate
material).
In the proposed rule preamble in
Section III.J.l., "Third Party
Regeneration/Reclamation of Spent
Petroleum Catalysts" (60 FR 57781),
EPA proposed to clarify the regulatory
status of units that regenerate or reclaim
these catalysts. The proposal would
have clarified that these units are
specifically excluded from regulation as
industrial furnaces under EPA's boiler
and industrial furnace (BIF) rules at 40
CFR Part 266, Subpart H. The proposed
clarification was based on a number of
factors, including EPA's view that the
units differed from those considered for
the BIF rule and the Agency's general
view that it did not want to impose an
unnecessary regulatory burden that may
serve to discourage environmentally
safe recycling of spent petroleum
catalysts.
The proposal also stated, however,
that EPA had not fully evaluated the
prevalence and adequacy of existing
emission controls and the potential for
uncontrolled emissions of toxic organic
compounds, toxic metals, and
particulate matter from spent
hydrotreating and hydrorefining
catalysts. Accordingly, the Agency
stated that if it found that emissions
from these units pose a threat to human
.health and the environment, it would
reconsider the proposed clarification of
the BIF rule and even could determine
that the rule should, instead, be
amended to specifically apply to spent
petroleum catalyst recovery units. Thus,
EPA solicited comment on the
adequacy/efficiency of existing controls
and data quantifying the levels emitted
of hazardous air pollutants (HAPs)
regulated under RCRA and/or section
112 of the Clean Air Act Amendments.
The Agency indicated that it had made
a preliminary finding that these units
are already equipped with pollution
controls comparable to those required
under the BIF rule such that further
regulation may be unnecessary.
Application of the Existing Exclusion
for Spent Sulfuric Acid
As described in the proposal, EPA
previously excluded from the definition
of solid waste spent sulfuric acid used
to produce virgin sulfuric acid (40 CFR
261.4(a)(7)). The Agency reexamined
this exclusion as it pertains to sulfuric
acid used as a catalyst in refinery
alkylation processes and found no
reason to change the existing regulatory
structure.
2. Summary of Proposed Risk
Assessment Approach
The proposed rule preamble describes
in detail the various risk assessment
analyses EPA carried out to determine
the potential risk that might arise from
the disposal of the refining wastes under
consideration in this rule (see 60 FR at
57756-57762). In carrying out the
modeling for these assessments, EPA
used available data it collected for this
industry, supplemented by data
gathered from surveys of waste
management practices (e.g., EPA's
National Survey of Solid Waste
(Municipal) Landfill Facilities, 1988, in
the docket). The Agency also used
information gathered in a questionnaire
prepared under RCRA 3007, hereafter
referred to as the "3007 Questionnaire,"
and site visits designed to examine the
waste characteristics, waste
management practices, and potential
pathways for release and exposure.
While EPA used this empirical data as
much as possible in its risk assessment,
the Agency nevertheless found that data
gaps existed in the available
information. Therefore, EPA also used
other generic input parameters in the
fate and transport models used to
estimate the risk a waste might present
under management scenarios known or
likely to occur. The Agency used
available data to develop input
parameters for the concentrations and
toxicity of constituents in the waste, the
mobility and fate of such constituents in
different disposal scenarios, likely
exposure routes under these scenarios,
and the location of various persons
("receptors") that might be exposed.
These receptors might be persons who
consume contaminated groundwater,
breathe air containing contaminants, or
ingest contaminated soil or food.
EPA considered what waste
management scenarios to model, based
on existing and potential practice in the
refinery industry. Also important to the
risk analyses are the volumes of wastes
disposed and the potential for
constituents in the waste to be released.
Total volumes of waste were derived by
multiplying the amount of wastes
disposed in any given year times the
active life for the disposal unit (how
long a disposal unit accepts waste
before closure). The fraction of the
waste in the disposal unit (waste
fraction) was derived from the total
volume of a waste placed in the unit
and the unit's capacity. While various
waste management practices were
considered, the Agency's modeling
focused primarily on potential releases
from waste volumes sent to
nonhazardous (Subtitle D) landfills and
land treatment units (LTUs), both on
and off the refinery site (on-site and off-
site units). For on-site., units EPA used
the data on unit size available from the
3007 Questionnaire. For off-site
landfills, EPA used generic data
available for Subtitle D unit size
available from surveys of industrial and
municipal waste management facilities.
To estimate the significance of any
potential releases of constituents from
the disposal units and the potential for
exposure to people or the environment,
EPA first considered the mode of
migration out of the landfill or LTU. The
exposure of most concern for landfills
arises from the release of constituents
from the waste to groundwater. Other
exposure routes were considered only in
preliminary analyses, and did not
present significant risks. EPA used the
Toxicity Characteristic Leaching
Procedure (TCLP) to estimate the
mobility of constituents in leachate that
may be released from a landfill to
groundwater. EPA also considered the
potential for oil in the wastes to
facilitate release and transport of
constituents from landfills by "oil-phase
flow." Such facilitated release might
occur if free oil in wastes, potentially
containing hazardous constituents,
migrated from landfills to groundwater.
However the Agency's analysis showed
this type of facilitated release was not
likely. For LTUs, the wastes are mixed
with soils on the surface of the unit.
Potential exposure routes of most
concern for land treatment arose from
the transport of contaminated soils to
receptors by both wind-borne air
releases, and the erosion/run-off caused
by precipitation. Groundwater risks
from LTUs were not found to be
significant.
To model the transport of constituents
to receptors, EPA typically used data
available from surveys to locate the
likely exposure point. Thus, to assess
potential groundwater exposures near
landfills, EPA used national surveys of
landfills, which included data regarding
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the distance from landfill units to
nearest drinking water well. For LTUs,
EPA used surveys of the distance of
residences from such disposal units.
Where appropriate, EPA attempted to
consider information related to the
blodegradation some constituents may
undergo in the unit or after release into
the environment.
The Agency used comparisons
between concentrations in the
environment and health-based levels
(HBLs) to evaluate the potential health
impacts of toxic constituents in
environmental media, such as soil or
groundwater. For noncarcinogenic
constituents, the HBL is the
concentration in the media which
results in an exposure level equal to the
"reference dose;" the reference dose is
EPA's measure of an acceptable daily
intake for a specific chemical. For
carcinogenic constituents, the HBL is
the concentration in the media that
results in an exposure level
corresponding to a specified cancer risk
level. EPA applied carcinogenic potency
estimates (Carcinogenic Slope Factors)
to calculate specific risk levels. The risk
assessment results are given in terms of
individual risk, i.e., the carcinogenic
risk is described in terms of the
additional incidence of cancer that may
occur in an exposed population. A risk
of 1 x 10-s (which will be presented in
this document as 1E-5), for example,
corresponds to a probability of one
additional case of cancer for every
100,000 people exposed. The Agency
also evaluates carcinogenic constituents
by directly calculating the estimated
cancer risk level resulting from a given
concentration of the constituent in the
environmental media.
In the modeling for risk assessment,
EPA varied some of the more sensitive
parameters to examine the range or
potential risks presented by the wastes
studied. Key parameters included the
area of the waste disposal units, waste
volumes disposed, constituent
concentrations in the wastes, and the
distances to receptors. Varying several
of these key parameters at one time can
have a large cumulative impact on the
risk results. In view of the variation in
Individual exposure risks that could
exist for the wastes, EPA performed a
number of different types of risk and
sensitivity analyses. First, the Agency
completed a "bounding analysis" in
which the key input parameters were set
to produce a worst-case scenario. This
analysis was intended to purposely
overestimate exposure to establish an
upper bound for risks. (See the EPA
guidance memo entitled, Guidance on
Risk Characterization for Risk Managers,
1992; docket number F-95-PRLP-
S0423, hereafter known as the Habicht
memo, 1992.) Thus, all key parameters
were set to their maximum or "high-
end" values (typically the 90th
percentile point on the distribution of
values available for each parameter). If
the risks resulting from the bounding
analysis were below the level of any
potential concern (i.e., carcinogenic
risks below 1E-6 and hazard quotients
(HQs) less than one), the wastes and/or
waste constituents were removed from
further consideration.
For wastes and constituents that did
not "bound out," EPA ran a double
"high-end" deterministic sensitivity
analysis, which produced point
estimates of risk based on use of single
values for input parameters. In this
method, key input parameters were
varied between the central tendency
value (50th percentile) and the high-end
(90th percentile) values. The point
estimate in which all variables were set
at central tendencies was assumed to be
the central tendency risk estimate. The
highest risk estimate for any
combination of double high-end
variables (with all other variables set at
central tendency) was assumed to be the
high-end estimate of risk. The high-end
risk estimate was presumed by the
Agency to be a plausible estimate of
individual risk for those persons at the
upper end of the risk distribution. The
intent of these descriptors is to convey
estimates of exposure in the upper end
of the distribution (i.e., above the 90th
percentile) and to avoid estimates that
are beyond the true distribution.
After completing these various
analyses, EPA compared individual
exposure levels to HBLs for the toxic
constituents to determine whether
particular wastes are candidates for
listing. In keeping with discussions of
the Agency's listing policy (see Dyes
and Pigments Listing, 59 FR at 66075-
66078), EPA used a risk level of concern
of 1E-5, and/or HQs of one, to
determine which wastes are considered
initial candidates for listing. To make
listing determinations, EPA then used a
weight-of-evidence approach that
considers the risk estimates along with
other evidence related to the factors
described in 40 CFR 261.11 (a) (3).
Based on EPA's analysis for the
proposed rule, the exposure pathway of
concern for the landfill scenario was
ingestion of groundwater contaminated
by constituents leaching out of the unit.
For the land treatment scenario, the
potential release of wastes by air or run-
off yielded exposure for nearby
residents and home gardeners via soil
ingestion and for other subpopulations
(fishers, farmers) through indirect
exposures, i.e., via ingestion of
contaminated fish and food. These
analyses led to the proposed listing
decisions as explained in the preamble
to the proposed rule.
C. Notice of Data Availability
Many issues were raised by
commenters on the proposed rule
causing EPA to rethink its analyses and
the risk assessments. These issues are
discussed in the April 8, 1997 NODA
(62 FR 16747) and the accompanying
support documents. EPA conducted
new risk assessments for both
groundwater and non-groundwater
pathways, in addition to analyses for the
headworks exemption, recycled
hydrocarbon-bearing materials, and
leaching of oily wastes. This new
information was presented for comment.
At the time, EPA believed that the
additional analyses tended to support
the proposed rule and did not propose
any new listing decisions. Important
additional analyses provided in the
NODA are briefly described below.
The NODA provided revised "high-
end" analyses for the landfill and LTU
scenarios. In the groundwater analysis,
EPA completed more detailed
sensitivity analyses and Monte Carlo
analysis to better define high-end risks,
and determine how close the high-end
risks, were to the 90th percentile.
The Agency has been using Monte
Carlo modeling methodology in various
rulemakings for many years. Monte
Carlo modeling is a statistical technique
that can be used to simulate the effects
of natural variability and informational
uncertainty which often accompany
many actual environmental conditions.
It is a process by which an outcome is
calculated repeatedly for many
situations, using in each iteration
randomly selected values from the
distributions of each variable input
parameter. When compared with
alternative approaches for assessing
parameter uncertainty or variability, the
Monte Carlo technique has the
advantages of general applicability and
no inherent restrictions on input
distributions or input-output
relationships. Monte Carlo application
results can also be used to calculate
uncertainty, and can be used to
quantitatively specify the degree of
conservativeness used. However,
potential limitations also exist when
applying Monte Carlo techniques in
modeling efforts. Variability (inherent
variation in a measure over time and
space) and uncertainty (lack of
knowledge) may be difficult to
distinguish within applications. Also,
correlations among the various data
parameters that have not been
accounted for in the modeling may
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42118 Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations
distort conclusions. Finally, sufficient
data must generally be gathered to
ensure that acceptable statistical
representations and sensitivity analyses
within Monte Carlo applications can be
properly prepared.
The Monte Carlo simulations used in
this rulemaking assessed the full
distributions of critical input data (e.g.,
distance to well, waste volumes, landfill
area) to randomly generate receptor well
concentrations of key constituents for
certain landfill situations, and then
combined the results from many runs
(10,000) to produce a probability
distribution of risks. EPA was then able
to choose points along the probability
distribution of risk for comparison to
the high-end analysis. For example, a
risk that corresponds to the 95th
percentile for a specific waste
constituent in a landfill means that the
risk would be below this level in 95
percent of the runs. EPA also modified
all groundwater risk analyses to add
risks due to noningestion exposures
(e.g., via inhalation and dermal
absorption during showering) to the
ingestion risks that may arise from
residential use of groundwater.
Further groundwater analysis was
also performed in response to comments
on the proposed rule that noted EPA
had used waste input data (TCLP) that
exceeded the existing Toxicity
Characteristic CTC) threshold and that
disposal in nonhazardous landfills was
unlikely for such wastes. This
additional groundwater analysis limited
the TCLP input used in modeling, such
that none of the input levels exceeded
the TC threshold, to examine the impact
on risk results (the "TC-capped"
analysis).
In the nongroundwater analysis
presented in the NODA, EPA
incorporated several modifications for
LTUs, including: limiting wastes
volumes modeled to nonhazardous
waste; limiting unit characteristics used
(e.g., unit area) to nonhazardous units;
correcting an error in the air dispersion
modeling; minor changes to the models
used to estimate release and transport of
contaminated soil to off-site receptors;
and incorporating further
biodegradation of key constituents after
they travel off-site.
the appropriateness of the TCLP for
petroleum wastes containing oil and the
potential for oil and other materials to
facilitate release and transport of wastes
in landfills were major areas of
comment. EPA provided additional
information in the NODA to respond to
this issue, including; analysis of the oil
content of the waste samples, the
prevalence of disposal of oily waste in
landfills, analysis using alternative
leaching procedures, and calculated
TCLP leaching efficiencies for organic
constituents in the wastes.
EPA received comments on its choice
of management practices modeled and
the way volumes were allocated. Some
commenters also suggested that volumes
of wastes beyond those under
consideration in this rule should have
been considered in various codisposal
scenarios for both landfills and LTUs. In
response, EPA presented risk analyses
in the NODA that assessed the potential
impact of codisposal of the listing
residuals with certain other refinery
wastes.
In the NODA, EPA presented
additional analyses to address
comments on the headworks exemption
for CSO storage tank sediment. While
some commenters did not favor the
exemption due to potential impacts on
downstream wastes, other commenters
argued the exemption should be
expanded to exclude wastewater from
spent hydrotreating and hydrorefining
catalysts, the other two wastes EPA
proposed for listing. The Agency
evaluated the potential impact of
including wastewater from these three
wastes in the headworks exemption,
and presented the results in the NODA
that showed excluding them would not
result in any significant risks in the
downstream wastes.
Comments on the proposal suggested
that the active life for a landfill used by
EPA was too short. This parameter is
Important because it determines the
total waste volume in the modeled
landfill, which is one of the critical
input parameters for the model. To
respond to this comment, EPA
presented data in the NODA for on-site
landfills to show that the data in the
3007 Questionnaire supports the
Agency's assumption of a 20-year active
life.
The NODA also presented other
information related to: the potential
impact of the oil-bearing residuals
exclusion on coke product, the potential
for concurrent exposure to releases from
landfills and LTUs, and the applicable
UTS under the Land Disposal
Restrictions program.
IV. Changes to the Proposed Rule
As a result of comments on the
proposed rule and NODA analyses,
certain modifications were made to the
listing determinations and definition of
solid waste exclusions. These changes
and the subsequent scope of today's
final action are described below.
Detailed reasoning behind these changes
is provided in Section V.
A. Definition of Solid Waste Exclusions
I. Exclusion of Oil-Bearing Hazardous
Secondary Materials Inserted Into
Petroleum Refining, Including
Petroleum Coking
Today, the Agency is finalizing a
portion of the proposed exclusion for
oil-bearing hazardous secondary
materials recycled within the petroleum
industry. Specifically, oil-bearing
hazardous secondary materials
generated within the petroleum refining
sector (i.e., SIC code 2911, petroleum
refineries) are excluded under today's
rule when they are to be inserted into
the petroleum refining process,
including into the petroleum coker,
provided they are not placed on the
land or speculatively accumulated
before being so recycled. As discussed
below, this exclusion applies to any oil-
bearing material generated at a
petroleum refinery, including oil-
bearing wastes currently regulated as
listed hazardous wastes (e.g., R048-
K051), and including refinery wastes
newly listed under today's rulemaking
that are suitable for insertion into
normal petroleum refining operations.
EPA is not finalizing the proposed
exclusion for oil-bearing hazardous
secondary materials generated
elsewhere within the petroleum
industry, such as from petroleum
exploration and production sites, bulk
crude oil storage, and petroleum
industry-related transportation facilities.
However, the pre-existing recovered oil
exclusion promulgated July 28, 1994, is
still being retained under today's rule
with respect to recovered oil generated
from within the petroleum industry.
EPA is also modifying an existing
petroleum-industry listing (F037) to
make it apply to discarded residues
generated from processing or recycling
petroleum-industry listed hazardous
wastes that are otherwise excluded
under today's provision.
The Agency notes that this exclusion
will have little net effect on the
materials or units involved. Under the
durrent regulatory program (i.e., prior to
today's amendments), oil-bearing
secondary materials may legitimately be
recycled into a petroleum coker. While
such materials may be considered solid
and hazardous wastes, the coking unit
would be a recycling unit exempt from
permitting requirements (40 CFR
261.6(c)(l)). The coke product is exempt
under 40 CFR 261.6(a)(3)(v), provided
the secondary materials are generated by
the same "person," defined in 40 CFR
260.10 as "an individual, trust, firm,
joint stock company, Federal agency,
corporation (including a government
corporation), partnership, association,
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Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations 42119
State, municipality, commission,
political subdivision of a State, or any
Interstate body," and the petroleum
coke does not exhibit a characteristic of
hazardous waste. The oil recovered in
the coking operation (including both
conventional coking and the quenching
process) which is used to produce fuels
is excluded from the definition of solid
waste as recovered oil under 40 CFR
261.4(a)(12).
2. Recovered Oil From Associated
Petrochemical Facilities
In today's final rule, EPA is finalizing
a somewhat narrower exclusion than
originally proposed. Specifically, EPA
proposed to exclude recovered oil from
"associated organic chemical
manufacturing facilities" where such
facilities were defined as those within
the SIC code 2869 and either co-located
or under common ownership with the
petroleum refinery receiving the
petrochemical recovered oil. In today's
rule, EPA is dropping "under common
ownership" from the definition of
"associated organic chemical
manufacturing facility" for reasons
discussed later. In addition, EPA is
limiting the applicability of the final
exclusion to petrochemical recovered
oils that are hazardous only because
they exhibit the characteristic of
ignitability (as defined in 40 CFR
261.21) and/or toxicity for benzene (40
CFR 261.24, waste code D018). Finally,
in today's rule, EPA is also excluding
petrochemical recovered oil generated at
facilities where the primary SIC code is
2869, but where three other
classifications of chemical
manufacturing units commonly occur at
these vertically-integrated facilities (SIC
codes 2821,2822,2865).
3. Use of Spent Caustic as Feedstock
Today EPA is finalizing the exclusion
proposed for spent caustic solutions
from petroleum refining when used as
feedstocks to produce cresylic or
naphthenic acid. This new exclusion is
being added at 40 CFR 261.4(a)(19).
B. Listing Determinations
Table IV-1 presents a summary of
changes to the proposed listing
decisions. Detailed bases for today's
final listing determinations are
discussed in Section V.C for each
specific waste.
TABLE IV-1 .—COMPARISON OF PROPOSED AND FINAL LISTING DECISIONS
Waste Stream
CSO Storage Tank Sediment .....
Crudo Oil Tank Sediment
Unloaded Tank Sediment
HP Alkvlotion Sludoe
Off-spoclficatlon Product & Fines
Other Wastes 1
1995 Proposal
List
List
List
No-list
Nolist
No-list
No-list
No-list
Final decision
List
List
List
List
No-list
No-list
No-list
No-list
Basis for decision
Groundwater risks due to benzene and arsenic from landfill dis-
posal; pyrophoric and self-heating nature of waste.
Groundwater risks due to benzene and arsenic from landfill dis-
posal; pyrophoric and self-heating nature of waste.
Nongroundwater risks due to PAHs from land treatment dis-
posal; some groundwater risks due to benzene from landfill
disposal; high PAH and oil content.
Groundwater risks due to benzene from landfill disposal; PAH
and oil content.
Some groundwater risks due to benzene from landfill disposal,
but no significant PAH or oil content; relatively low volume.
Relatively low groundwater risks due to benzene from landfill
disposal; no significant PAH content; benzene found in only
one TCLP sample.
Low groundwater risks due to PAHs from landfill disposal; PAHs
only found in one TCLP sample near detection limit.
No significant risks from any pathway.
11ncludes seven wastes: Catalyst from Sulfuric Acid Alkylation, Sludge from Sulfuric Acid Alkylation, Spent Caustic from Liquid Treating, Cata-
lysJ and Fines from Catalytic Cracking, Sludge from Sulfur Complex and Hydrogen Sulfide Removal Facilities, Catalyst from Sulfur Complex and
Hydrogen Sulfide Removal Facilities, and Catalyst from Reforming.
In response to additional comments
submitted on the NODA, the Agency
further examined the record and
reconsidered the entire risk assessment
and decisions for all the wastes under
consideration. Commenters on the
NODA provided detailed comments on
the groundwater modeling approach
used by EPA. Some commenters
submitted their own groundwater
modeling, purporting to show higher
risks than EPA's evaluation for a
number of wastes. While the
commenters used the same model as
EPA (EPACMTP), they adjusted key
input values to increase landfill area,
increase active life of landfills and
resulting volume disposed, move the
receptor well location to the middle of
the plume of contamination, increase
TCLP concentrations using simplifying
assumptions, and increase volumes due
to codisposal. To respond fully to
critical issues raised in comments on
the groundwater risk analysis, EPA
decided to make modifications to some
modeling assumptions and data inputs.
EPA examined the impact of other
suggestions by the commenters, but
found these to be of no importance or
did not agree that the changes were
warranted. The changes to the
modeling, and EPA's reasons for not
accepting other suggestions, are
discussed in detail in Section V.B.
Specifically, in response to NODA
comments, EPA decided that some
revisions in the modeling assumptions
were appropriate. Thus, the Agency
performed additional risk analyses to
reflect an increase in the active life for
off-site landfills (which resulted in
increased volume input to the
modeling), and the use of off-site
municipal landfill area distributions,
rather than the areas for industrial
landfills used previously. With these
changes, the final revised high-end and
Monte Carlo risks increased somewhat
from those presented in the NODA for
off-site landfills and are summarized in
Table IV-2. Also, in conducting the
Monte Carlo analysis for the NODA, the
Agency made a key assumption
concerning well location which was
inconsistent with the assumption made
for the high-end analysis (see discussion
of receptor well location in Section
V.B.6). Therefore, EPA performed
further Monte Carlo analyses using well
location assumptions consistent with
the high-end analysis, and the results
show that this also increases risks, such
that the 95th percentile Monte Carlo
risks are more comparable to the high-
end risks. Finally, while reexamining
the groundwater risk analysis for off-
specification products and fines, EPA
corrected errors in waste volumes and a
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
health-based level used for prior
analyses.
(See Additional Groundwater Pathway
Risk Analyses, 1998, in the public
docket for this rule for details on the
revised analyses.)
The final risk results for off-site
landfills, with the changes noted above,
are summarized in Table IV-2 for
wastes of concern. Other wastes either
did not have significant risk in
bounding analyses, or were not modeled
for landfill disposal because the practice
was not found.
TABLE IV-2,—SUMMARY OF REVISED GROUNDWATER RISKS FOR PETROLEUM WASTES IN OFF-SITE LANDFILLS
Waste
Clarified Slurry Oil Tank Sediment
Hydrotreating Catalyst
Hydrorefining Catalyst
Crude Oil Storage Tank Sediment
Unleaded Gasoline Storage Tank Sediment
HF Alkylation Sludge
Off-Specification Product and Fines
Codisposal Scenario
Constituent
benzene
benzene
arsenic
benzene
arsenic
benzene
benzene
benzene
benzo(a)anthracene
arsenic
Revised risks1
High-end
risks
4E-06
1E-04
8E-05
7E-05
6E-04
4E-05
3E-05
1E-05
2E-065
5E-076
8E-06
4E-06
Monte
Carlo
Risk*
(95th%)
2E-06
3E-05
2E-05
2E-05
4E-O4
1E-05
6E-06
2E-06
1E-06
8E-07
3E-06
2E-06
TC-capped risks2
High-end
risk
NC
3E-05
NC
3E-05
6E-04
3E-05
2E-05
NC
NC
NC
NC
Monte
Carlo rjsk
(95th%)
NC
9E-06
NC
8E-06
4E-04
9E-06
4E-06
NC
NC
NC
NC
1 Revised risk includes new inputs for active landfill life (30 yr.) and municipal landfill areas
2 Input leaching rates were capped at TC regulatory levels for disposal in Subtitle D landfills (0.5 mg/L for benzene and 5.0 mq/L for arsenicV
NC = no change because TCLP values were already below TC levels. <»'«=• ,iw,
a Risks using high-end values for two most sensitive parameters, and remaining parameters kept at median values.
4 Risks using Monte Carlo simulation runs at the 95th percentile level with well location restricted to plume
5 Estimated TCLP input assumed to be mean value.
6 Estimated TCLP input assumed to be one high-end parameter.
The nongroundwater risk results for
land treatment are unchanged from
those reported in the NODA (see 62 FR
at 16753). However, in response to
comment EPA performed a Monte Carlo
uncertainty analysis for land treatment
risks that supports the results presented
in the NODA. See Section V.B of today's
notice for further discussion of this
issue.
The revised groundwater risk
assessment for landfills, in conjunction
with
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations 42121
in the proposal, however, the exemption
is not intended to allow the discharge of
the entire waste stream (i.e., tank
sediments or spent catalysts), but rather
dilute waters generated during tank or
unit clean-outs and dewatering
operations,
2. Exemption for Catalyst Support
The Agency is finalizing the proposed
exemption (under 40 CFR261.3(c)(2)(ii))
for these support media because the
support media are generally inert
materials and commonly managed
separately. EPA is clarifying the
exemption so that it is no longer limited
to ceramic material, based on comments
Indicating that other inert materials,
such as stainless steel, are also used.
3. Third Party Recycling of Spent
Petroleum Catalysts
EPA does not believe at this time that
it is appropriate to issue the proposed
clarification to exempt, from permitting
requirements under Part 266.100(b),
third party units regenerating and
reclaiming hydrotreating and
hydrorefining spent catalysts. EPA is
deferring to a later day any final
decision on whether or not to clarify the
BIF rule with respect to these wastes. In
the meanwhile, EPA reiterates that
nothing in today's rule (or indeed the
proposal in this docket) changes the
current RCRA status of facilities
managing these hazardous wastes. (See
Section V.E. for further discussion of
this decision.)
V. Response to Comments and
Rationale for Final Rule
The Agency is responding in this
preamble to the most significant
comments received in response to both
the notice of proposed rulemaking and
the NODA. Other comments received by
the Agency are addressed in the
Response to Comments Background
Documents that are available in the
docket associated with this rulemaking.
A. Proposed Modifications to the
Definition of Solid Waste
1. Exclusion of Oil-Bearing Hazardous
Secondary Materials Inserted Into
Petroleum Refining, Including
Petroleum Coking
Role of the Petroleum Coker in the
Petroleum Refining Process
To determine RCRA jurisdiction, the
Agency must differentiate between
materials that are part of normal
ongoing production activities and
materials that are part of waste
management, including recycling or
treatment. Distinguishing waste
management from normal production
can sometimes be difficult when it
involves hazardous secondary materials
generated by certain production
processes and used as feedstocks in
other production processes within the
same industry that produce a relatively
low-value product (especially hazardous
secondary materials that have
sometimes been discarded in the past).
(see 50 FR at 618-620, Jan. 4, 1985).
Regarding the petroleum refining
production process, classification of the
coking operation has been historically
troublesome in delineating production
from waste management because it is
not typical of other refining processes.
Generally, and in the most basic of
terms, petroleum refining processes
serve to separate and remove
hydrocarbon components out of a
feedstream, in effect constituting a
multi-stage process of separating
valuable product materials from the
contaminants (e.g., sulfur and metals)
inherent in the original raw material
(crude oil). In the coking process,
however, the contaminants inherent in
the crude oil feedstock are incorporated
into the fuel product, along with the
carbon that results from the thermal
breaking of complex hydrocarbon
chains into more valuable small- and
middle-chain oil fractions (see detailed
description of conventional coking
versus the quenching process in Section
ffl.A.l.).
EPA first evaluated whether the
conventional coking operation is a true
production process because the crude
oil distillation bottoms, i.e., resids, used
as feedstock contain many of the
unwanted contaminants in the original
crude oil which end up in the coke
product (a low-value fuel product,
relative to the other fuel products
produced by petroleum refining) and
because a majority of the coke product
is exported rather than being used
within the United States. As stated
earlier, this is not typical of a petroleum
refining process producing a fuel
product. Thus, an argument could be
made that the petroleum coker is simply
a means of disposing of unusable heavy
oils and other contaminants associated
with crude oil feedstocks (including
hazardous heavy metals), while
producing a relatively low-value fuel.
However, the American Petroleum
Institute (API) supplied the Agency with
detailed information regarding the
conventional coking operation,
presenting a description of the physical
processes involved in the coking
process and the economic value of the
overall coking operation to the refinery,
as well as the feedstocks used and
products produced. As discussed in the
November 20, 1995, proposal preamble
(60 FR at 57754), the Agency has
determined that the use of resids as
feedstock to the petroleum coker is a
legitimate production process whose
main purpose is to thermally convert
the heaviest crude oil fractions into
light-end hydrocarbons (typically about
70 percent of the feedstock is recovered
as lighter oil fractions) used as
feedstocks for refinery processes that
produce high-value fuel products. In
many cases, the conventional coking
operation is essential to the profitable
production of petroleum products from
heavier crude oil feedstocks, being a
cost-effective process for maximizing
the amount of hydrocarbon that can be
recovered from the crude oil feedstocks.
The coke product itself may best be
characterized as a co-product of the
coking operation, while the principal
products are the light ends that are
returned to the refining process. Thus,
. the Agency is affirming that the
conventional coking operation is a
production process resids are normal
feedstocks to this process and petroleum
coke is a legitimate fuel product
(although EPA in fact notes that high-
grade petroleum coke meeting relatively
exacting specifications is used for
producing anodes for use in electric
furnaces, such as for steel and
aluminum manufacturing).
However, the fact that the Agency
considers the conventional coking
operation to be a normal production
process does not mean that any material
introduced to the coking operation is, by
definition, part of a normal production
process. Indeed, when considering the
regulatory status of hazardous
secondary materials not typically used
as feedstocks being introduced into such
a process, the Agency must consider
whether such use of the secondary
materials is legitimate use in a
production process, or rather is sham
recycling where unwanted
contaminants are being removed of
under the aegis of an ostensible
manufacturing operation. Typically, this
is evaluated through a comparison to
the normal feedstocks, with particular
focus given to whether there are
hazardous constituents contained in a
hazardous secondary material that are
not found in the normal feedstock
materials for which it is substituting
(see 50 FR at 638, Jan. 4, 1985). EPA
received many comments relevant to the
exclusion for the hazardous secondary
materials inserted into the petroleum
coker, especially the quenching process,
both supporting and opposing' to the
exclusion. Much information, both
anecdotal and analytical data, was
received concerning various aspects of
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42122 Federal Register/Vol. 63, No. 151/Thursday, August .6, 1998/Rules and Regulations
the overall coking operation. This
information included the constituent
composition of the hazardous oil-
bearing secondary materials at issue, the
normal coker feedstocks, various aspects
of the overall coking operation, the coke
product, and the marketing of petroleum
coke. The Agency made a very
considered evaluation of all of the
information provided in comment to the
proposal, much of which was
contradictory and difficult to confirm.
The discussion below presents the
Agency's reasoning in making its
determination.
Use of Hazardous Secondary Materials
in the Petroleum Coker
The Agency evaluated information
received on the role of oil-bearing
hazardous secondary materials in the
coking operation. As discussed more
below, the oil-bearing hazardous
secondary materials typically put into
the coker unit are unable to be
processed via conventional coking
because of their high water content (the
water would volatilize and create unsafe
pressures during the conventional
coking process). Therefore, the Agency's
evaluation centered around the role of
these secondary materials in the
quenching process, described in more
detail in Section III. A.I. of today's
preamble. In evaluating this
information, the Agency's focus was to
determine whether the use of oil-bearing
hazardous secondary materials in the
quenching process is consistent with the
role of oil-bearing feedstocks in the
conventional coking process, i.e., to
provide hydrocarbon for further refining
and to contribute carbon to the coke
product. (EPA's reasoning is that it is
the recovery of hydrocarbon and
production of coke that is the intent of
the overall coking operation, and thus
the legitimate use of a hazardous
secondary material in the quenching
process should likewise contribute to
this intent.) This evaluation compared
not only the constituent make-up of the
feedstocks to both conventional coking
(resids) and to the quenching process
(hazardous secondary materials), but
also what physical/chemical processes
occur in both aspects of the coking
operation. The discussion that follows
presents the Agency's evaluation.
In comparing the typical hazardous
secondary materials used in the
quenching process (i.e., listed hazardous
wastes, primarily wastewater treatment
sludges) to the residues normally used
as feedstocks to conventional coking,
the oil content in the hazardous
secondary materials is much lower
(ranging from around 8 percent to 40
percent in the hazardous secondary
materials to around 99 percent in the
crude oil distillate bottoms), while the
water content is much higher. The
hazardous constituents (primarily heavy
metals) in the secondary materials are
measurably higher. However, as stated
above, the hazardous secondary
materials are not used in conventional
coking, but rather are used in the
quenching process. Therefore, a
comparison of the hazardous secondary
materials to the resids feedstock has
limited value and is not dispositive for
determining the legitimacy of the
activity, because the hazardous
secondary materials are not substituting
for the feedstock, but are instead being
processed in a different manner than the
conventional coking feedstocks.
As described earlier, there are two
aspects of the coking operation for the
Agency to consider: (1) conventional
coking—which entails the application of
high temperatures to the heavy oil-
bearing feedstock in the coke drum in
order to break the complex hydrocarbon
chains into lighter chains that are
recovered for further refining, also
resulting in the production of coke
product, and (2) the quenching
process—which, for the purposes of the
AgengyVevaluation in today's
rutemaking, entails the insertion of oil-
bearing hazardous secondary materials
along with, or just prior to, water used
to quench the coke product before
removal from the coke drum.
Because the hazardous secondary
materials are not processed along with
the normal feedstocks to the coker, but
rather are introduced into the coke,
product during the quenching process,
the assessment of "legitimacy" becomes
somewhat more difficult since there is
no analogous raw material. (The Agency
notes that this is typically the situation
when determining the applicability of
RCRA regulations to secondary
materials used in connection with
innovative technologies or practices.)
The hazardous secondary materials are
typically mixed with water to form a
slurry that is injected into the coke at
the beginning of the quench cycle (in
some cases, the secondary materials are
not slurried and are inserted ahead of
the quench water). The hazardous
secondary materials are unable to be
used in conventional coking because of
their high water content; however, the
water content is not detrimental during
the quenching process. Thus, in
determining the legitimacy of this
activity, the task at hand is not a
straightforward comparison with
analogous nonwaste feedstocks, but
rather an evaluation of the processing
that occurs when these hazardous
secondary materials are used in the
quenching process, to determine
whether this activity may be
characterized as a "normal" production
activity or whether it is better
characterized as hazardous waste
recycling, or even simply the disposal of
hazardous wastes (i.e., sham recycling).
Indeed, some commenters opposed to
the use of hazardous secondary
materials in the petroleum coker raised
the concern that the use of listed
hazardous wastes in the quenching
process is simply a means of disposing
of RCRA hazardous wastes in a low-
value product, much of which is
exported overseas, and that if these
materials truly had value to the coking
process, they would be used as
feedstock in the conventional coking
process. Since it is obvious that these
secondary materials would otherwise be
hazardous wastes that would be treated
and disposed of if not used in the
quenching process, it would seem to be
a simple matter, as some commenters
have suggested, to ascribe a simple
waste disposal motive to this activity
and nothing more.4 However, the
Agency is compelled to go further and
determine whether the oil-bearing
secondary materials actually contribute
to the product and/or process, or
otherwise determine whether there is a
production-related value to this activity.
The petroleum industry, on the other
hand, believes that such an evaluation
is unnecessary. Industry representatives
argue that oil-bearing secondary
materials used in the quenching process
for legitimate recovery of hydrocarbon
as either a light oil fraction or by
incorporation in petroleum coke can
never be a solid waste, i.e., that these
materials must be excluded from being
RCRA solid wastes as a matter of law.5
Their argument is based on the initial
case considering the scope of the
statutory term "solid waste," namely the
first AMCI decision. In that decision,
the Court held that "materials that are
recycled and reused in an ongoing
manufacturing or industrial process"
••Indeed, Internal industry literature, as well as
public statements made by industry representatives,
relevant to the use of hazardous secondary
materials in the quenching operation would lead
one to believe that the principal purpose of this
activity is to dispose of hazardous waste sludges
(see the January 9, 1998 letter from Richard Fortuna
to Mike Shapiro); however, the Agency does not, as
a rule, take such statements as determinative and
evaluates the activity independent of how the
process may have been characterized in other
contexts. The Agency would do the same in
situations where all such industry statements
would indicate that a particular process is
legitimate production, i.e., evaluate the merits of
the activity independent of statements from
interested parties.
s See January 23,1998 letter from Paul Bailey to
Michael Shapiro.
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Federal Register/Vol. 63. No. 151/Thursday, August 6. 1998/Rules and Regulations 42123
were not yet discarded and hence not
"solid wastes." (see 824 F.2d at 1186).
EPA disagrees that an exclusion is
compelled (even assuming legitimate
recycling is occurring). First, there is
direct case authority that secondary
materials which originate from
wastewater treatment systems can be
considered to be "discarded" (see AMC
II, 907 F.2d at 1186 ("Nothing in AMC
I prevents the agency from treating as
"discarded" the wastes at issue in this
case, which are managed in land
disposal units that are part of
wastewater treatment systems, which
have therefore become 'part of the waste
disposal problem,' and which are not
part of ongoing industrial processes"
(emphasis original)). Industry indicates
that, primarily, the oil-bearing
hazardous secondary materials utilized
in the quenching process are wastewater
treatment sludges (chiefly K048, F037,
and F038), which are thus directly
analogous to the sludges at issue in the
AMC II decision, and thus could be
considered to be discarded.
These sludges likewise could be
considered to be solid wastes pursuant
to RCRA section 3004 (q) (2) (A) which
indicates that certain provisions
otherwise applicable to hazardous
waste-derived fuels do not apply to
petroleum coke produced from
"petroleum refinery wastes containing
oil which are converted into petroleum
coke at the same facility at which such
wastes were generated." The plain
language of the provision can be read to
cover the activity at issue here, and thus
indicate that wastewater treatment
sludges and other hazardous secondary
materials going to quench coking could
be classified as solid wastes.6
More basically, EPA does not regard
the use of oil-bearing wastewater
treatment sludges in the quenching
process to be the type of operation
which must necessarily be classified as
part of an ongoing manufacturing
process. The parts of the petroleum
refining process outside the Agency's
RCRA jurisdiction involve the
sequential distillation of crude oil into
various fractions such as gasoline, fuel
oil, asphalt, and conventional coking.
(see 824 F.2d at 1181). However, the
quenching process need not be viewed
as one more ongoing step in this
•The AMC I court gave this provision a restrictive
reading, stating (somewhat circularly) that is
applied only to material that had already become
a hazardous waste (824 F. 2d at 1188.) However.
given the holding of AMC II that wastewater
treatment residuals can be classified as solid wastes
and thai wastewater treatment operations break any
chain of what must be regarded as a continuous
Industrial process, the wastewater treatment
sludges destined for the quenching process could be
classified as being hazardous wastes.
process. Not only is there the temporal
interdiction of the generation of
wastewater and subsequent
management of the wastewater and
sludges in the refinery's wastewater
treatment system, but the quenching
process differs in material ways from
the standard refining operations. As
discussed above, the materials utilized
have less oil, higher percentages of
unusable materials, and the process
generates less recovered oil than any
other unit operation in the conventional
refining process. The Agency thus does
not accept the argument that exclusion
of hazardous secondary materials used
in the quenching process is legally
compelled.
This is not to say that the Agency
lacks the discretion to make such a
determination. The term "discarded" is
ambiguous, and within the Agency's
authority to interpret consistent with
the general goals and policies of the
statute. (See AMC II, 907 F. 2d at 1186;
American Petroleum Inst v. EPA, 906 F.
2d 726, 741 (D.C. Cir. 1990)). Among
these goals, of course, is encouraging
environmentally sound recycling (see
RCRA section 1003(a)(6)). Moreover,
assessing what can permissibly be
classified as continuous industrial
processes, and which types of material
recovery operations are "not part of the
waste disposal problem" (AMC II, 907
F.2d at 1186), are the types of technical
and policy questions particularly
committed to EPA's expert discretion. It
is that discretion which the Agency is
exercising in determining in this rule
that a conditional exclusion is
appropriate for certain hazardous oil-
bearing secondary materials used in the
coke quenching process.
In describing the use of oil-bearing
secondary materials in the quenching
process, industry claims that, similar to
the process of coking resids feedstock,
the oil contained in the secondary
materials is either volatilized and
condensed for further refining into high-
value fuels, or is incorporated into the
coke product. This activity may be
characterized as the efficient use of
existing heat energy in the hot coke to
recover the oil contained in the sludges,
oil which would otherwise not be
recovered (the temperature of the coke
is approximately 800-900 degrees F
before it is quenched). The oil that is not
volatilized gets incorporated into the
coke product, adding to the coke's
energy value. The quenching process is
operated such that the slurry is
discontinued once the coke reaches the
temperature of approximately 600
degrees F because, at this temperature,
the oil is less likely to volatilize and is
primarily incorporated into the coke.
(The coke product then continues to be
quenched with water.) While the oil
adds energy value, too much oil causes
the coke product to actually lose
economic value. Not only does too
much oil make the coke difficult to
handle, it also increases the Volatile
Combustible Material (VCM) level, one
of the product specifications for
petroleum coke. If the VCM is too high,
the marketability of the coke decreases.7
The Agency solicited further
information from industry to
demonstrate the recovery efficiency of
the oil contained in the hazardous
secondary materials used in the
quenching process. EPA believes that a
comparison of the recovery efficiency of
the quenching process to the recovery
efficiency of the conventional coking
process (of the resids) would provide
some indication of how "production-
related" the use of the hazardous
secondary materials in the quenching
process is (i.e., the more similar the
quenching process is to the
conventional coking process in the
recovery of hydrocarbon values, the
more it may be considered analogous to,
or a component of, the coking process).
The data supplied indicate that the
recovery efficiency of oil contained in
the secondary materials during the
quenching process is comparable to the
recovery efficiency from the feedstock
side of the coking operation.8 Thus,
although the oil content in the
hazardous secondary materials is
markedly less, at the very least, there is
demonstrated hydrocarbon recovery
from the secondary materials used in
the quenching process, which is
consistent with the overall production
intent of petroleum refining.
The Agency notes that one major
point of contention between those
commenters opposed to the exclusion
and those supporting the exclusion is
whether there is actual evidence that oil
(or hydrocarbon value) is recovered
during the quenching process. As stated
previously, the oil content of the oil-
bearing hazardous secondary materials
typically used in the quenching process
varies considerably (8 to 40 percent),
although the typical secondary materials
have an oil content around 10 percent.9
In determining the oil recovery
efficiency of the quenching process (i.e.,
a quantification of how much of the oil
contained in the secondary materials is
7 See the September 3, 1997, letter from Kyle
Isakower to William Brandes and the January 23,
1998, letter from Paul Bailey to Michael Shapiro.
8 See January 23, 1998, letter from Paul Bailey to
Michael Shapiro.
9 See the September 3, 1997, letter from Kyle
Isakower to Max Diaz and the January 9, 1998, letter
from Richard Fortuna to Michael Shapiro.
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42124 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
actually volatilized and recovered for
further refining versus how much oil is
simply incorporated into the coke
product), EPA encountered difficulty in
getting any actual data. The data the
Agency primarily relied on were
derived from surrogate tests (i.e., tests
designed to simulate the conditions the
secondary materials encounter during
the quenching process) performed on
the secondary materials typically used
in the quenching process.10 This is
because coking operations (particularly
the capture and condensing of the light-
end hydrocarbons) do not avail
themselves to the type of quantifiable
measurements that the Agency prefers.
Regarding the quenching process, this is
even more the case. However, surrogate
tests may actually be more
representative of the oil recovered from
secondary materials used in the
quenching process than actual
measurements taken during the
quenching process. This is because any
measurement of the amount of oil
recovered during the quenching process
would also likely include the light ends
that remain entrained within the coke
product from the conventional coking
operation (i.e., light-ends derived from
the resids feedstock) which are typically
recovered during the quenching process
in a manner analogous to steam
stripping.
One of the critical factors in
estimating the oil recovery efficiency of
the quenching process is the specific
gravity of the oil contained in the
hazardous secondary materials. The
lighter the oil fractions, the more oil
will volatilize during the quenching
process. Here, too, there was
disagreement among commenters over
how the oil contained in the secondary
materials should be characterized. One
commenter stated that since crude oils
have grown steadily heavier (i.e.,
contain a larger percentage of higher
molecular weight, higher boiling point
hydrocarbons) over time, a trend that is
only expected to continue, the oil
contained in the secondary materials,
especially the wastewater treatment
sludges, would be disproportionately
heavy and thus would be less and less
likely to volatilize during the quenching
process. This was supported by data
(gathered from listed hazardous wastes
sent to RCRA-permitted facilities)
demonstrating the heavy-to-light ratio
for oil contained in the wastes.'l In
response, the petroleum industry stated
that the oil contained in the secondary
materials (particularly wastewater
treatment sludges) comes from oil that
has been through some refining, and
thus the trend towards heavier crude
oils will not have a corresponding effect
on the oil contained in the secondary
materials. Also, industry claims that the
actual data used to support the assertion
that the oil contained in the secondary
materials is predominantly heavy is not
representative of the secondary
materials used in the quenching process
because, prior to sending such materials
to a permitted facility for proper
treatment and disposal, a refinery will
typically use other processes (e.g.,
centrifuging) to aggressively extract as
much oil (and water to reduce the
volume of material sent for treatment
and disposal) as possible from the
materials, more so than would be the
case if these materials are to be used in
the quenching process. The oil
recovered by these more aggressive
recovery processes would tend to be the
lighter oils, leaving a disproportionate
amount of heavy oil in the materials
analyzed.12
Based on a considered evaluation of
these conflicting comments, and using
engineering and technical judgement in
lieu of data actually demonstrating the
recovery of hydrocarbon values from the
secondary materials used in the
quenching process, the Agency believes
that oil (i.e., hydrocarbon value) is
recovered during the quenching process
and that the efficiency of this recovery
is comparable to the recovery of light-
ends during the conventional coking
process. (The Agency also notes that in
the worst case scenario provided by one
commenter opposed to the exclusion,
which assumed 80 percent of the oil in
the secondary material was too heavy to
significantly volatilize at the
temperatures encountered during the
quenching process, there was recovery
of hydrocarbon, even from the heavy oil
fraction.13)
Effect of Using Hazardous Secondary
Materials in the Quenching Process on
the Coke Product
A further consideration, in spite of the
hydrocarbon recovery and contribution
of energy value to the coke product, is
whether the use of the hazardous
secondary materials in the quenching
process actually provides some
beneficial contribution to the coke, or
whether it may degrade the coke -
product. Commenters opposed to
allowing the use of hazardous secondary
materials in the quenching process
raised two main concerns regarding the
effect on the coke product. First, these
commenters claim that the use of
hazardous secondary materials in the '
quenching process contributes nothing
beneficial to the coke product. These
commenters dismiss the notion that the
oil contained in the secondary materials
used in the quenching process
contributes energy value by stating that
any energy value that may be gained is
more than negated by the additional ash
content that is also introduced to the
coke product (thus, there is no net
benefit to the product and instead a net
degradation of the product).14
Furthermore, as at least one commenter
noted, the ability for the coke produced
using the hazardous secondary materials
in the quenching process to continue to
meet product specifications could
simply be an indication that the
specifications for this low-value fuel
product provide a great deal of
flexibility, rather than demonstrating
that the product is not adversely
affected. Thus, the product
specifications themselves would allow
for a certain amount of non-contributing
hazardous secondary materials to be
added to the coke product.15
The second concern raised regarding
the effect of the secondary materials on
the coke product is that the coke
product demonstrates no significant
change in concentration of hazardous
constituents due to the simple dilution
that occurs when a relatively small
amount of hazardous secondary material
is mixed with a much larger volume of
coke product (approximately 100
barrels, or about 20 tons of hazardous
secondary materials are used in the
quenching of 700-800 tons of coke
product). Simply stated, the lead and
chromium in the secondary materials
are being diluted by combination with
the much larger volume of coke product
containing low levels of lead and
chromium. Since these metals are not
volatilized during the quenching
process, they must remain in the coke
product. Commenters point to the
insertion of lead and chromium (which
serve no purpose in the coke product)
as evidence that the use of hazardous
secondary materials in the quenching
process is simply disposal of hazardous
constituents. Such disposition of
unwanted and unneeded hazardous
constituents, often termed "toxics along
for the ride," is a prime indicia that
sham recycling can be occurring
(depending largely on the extent of
contamination, as well as other case-
10 See January 23, 1998, letter from Paul Bailey to
Michael Shapiro.
1' See the January 9, 1998, letter from Richard
Fortuna to Michael Shapiro.
12See the February 2, 1998. letter from John
Medley to Max Diaz.
13 See the January 9, 1998, letter from Richard
Fortuna to Mike Shapiro.
14 See the January 9, 1998, letter from Richard
Fortuna to Mike Shapiro.
is See the January 9, 1998, letter from Richard
Fortuna to Mike Shapiro.
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations 42125
specific facts) (see U.S. v. Marine Shale
Processors, 81 F.3d 1361, 1366 (5th Cir.
1996)).
In evaluating the first concern, i.e.,
whether the use of oil-bearing secondary
materials In the quenching process
provides a beneficial contribution to the
coke product or process, the Agency
notes that the main purpose of the
petroleum coking unit is to recover
hydrocarbons from the oil contained in
the feedstocks for further refining.
Similarly, the main purpose of using the
secondary materials in the quenching
process is the energy-efficient recovery
of hydrocarbon from the residual oil in
the oil-bearing secondary materials.
Concerning the issue of net contribution
to the coke product (i.e., added energy
value versus added ash content), the
petroleum industry maintains that the
additional ash content is insignificant
and points to the amount of coke
product produced per cycle (ranging
from about 400 to 800 tons) that would
be endangered if the ash content (as
well as the VCM level) contributed
during the quenching process was
sufficient to lower the value or
marketability of the coke product.16 In
answer to the concern that the product
specifications for petroleum coke are too
flexible to use as an indication that the
coke is unaffected by the hazardous
secondary materials, the Agency notes
that coke product produced using
hazardous secondary materials in the
quenching process is basically similar to
coke produced without using secondary
materials in the quenching process.
Further, EPA notes that the quenching
process can and does produce anode-
grade coke, the most high-valued coke
with the most stringent product coke
specifications.17
In considering the second concern,
i.e., whether the fact that the coke
product produced using secondary
materials in the quenching process
continues to meet the product
specifications (and, in fact,
demonstrates little change in the levels
of contaminants compared with coke
produced without hazardous secondary
materials) is simply a result of dilution,
the Agency acknowledges that such
dilution does occur. However, there are
several other considerations. As stated
earlier, the primary product of the
petroleum coking process is the
hydrocarbon fraction recovered for use
as feedstock in the production of high-
value fuel products, with the coke
"Sec the September 3,1997, letter from Kyle
Istkower to William Brandos and the January 23,
1998, letter from Paul Bailey to Michael Shapiro.
"See the September 3.1997. letter from Kyle
Isakowcr to William Brandes.
product being a co-product of the coking
process. The Agency is convinced that
such recovery occurs when oil-bearing
secondary materials are used in the
quenching process. Given that the
recovered hydrocarbon is the primary
product of using the secondary
materials in the quenching process, the
simple fact that the coke product (i.e.,
the co-product) continues to meet the
applicable product specifications and
shows no appreciable increase in risk
carries more weight in the Agency's
evaluation. In other words,
demonstrating hydrocarbon recovery is
the key test in determining whether the
hazardous secondary materials actually
serve a useful role in the overall coking
operation, rather than demonstrating a
net contribution to the coke (as opposed
to no degradation of the coke).
Acknowledging that there is a potential
for some degradation of the coke
product, depending on the constituent
make-up of the particular secondary
materials used in the quenching
process, the Agency believes that the
product specifications, and the
economic consequences if those
specifications are not met, will serve to
limit the use of the quenching process
to secondary materials that will not
cause the coke to exceed its
specifications, and effectively limits the
allowable insertion of metals and excess
high boiling point hydrocarbons.
However, in cases where there is
sufficient degradation of the product (or
co-product) such that it no longer meets
product specifications or otherwise
becomes unmarketable, the Agency
would question the legitimacy of using
the secondary materials in the
quenching process. Similarly, if there
were sharply decreased efficiency of
hydrocarbon recovery stemming from
the use of the hazardous secondary
materials in the quenching process
(recovery rates of, for example, less than
50 percent of the oil contained in the
secondary materials, rather than the
minimum 70 percent efficiency EPA
believes occurs), the Agency would
question the legitimacy of the activity.
(The Agency knows of no such cases at
present.)
Taken all together, the fact that (1) the
recovery efficiency of hydrocarbons
from oil contained in the secondary
materials used in the quenching process
is comparable to the recovery efficiency
of the conventional coking process, (2)
the use of oil-bearing hazardous
secondary materials (including RCRA
listed hazardous wastes) in the
quenching process is consistent with the
overall goal of the petroleum refining
industry, namely to maximize the
recovery of hydrocarbon values from the
original crude oil feedstocks (and thus
is akin to ongoing processing), (3) the oil
cannot be recovered from these
secondary materials by any other
process customarily utilized in
petroleum refining, and (4) the coke
product continues to meet product
specifications and indicates no increase
in risk, the Agency concludes that the
use of oil-bearing hazardous secondary
materials generated by the refinery
industry can legitimately be used in the
coke quenching process, dependent
upon whether there is both hydrocarbon
recovery and no adverse effect on the
coke product.
Regulatory Status of the Quenching
Process
Having determined that certain oil-
bearing hazardous secondary materials
can be legitimately used in the
quenching process, the question then
becomes whether this activity
constitutes ongoing production and
hence is excludable, or, rather that it is
legitimate hazardous waste recycling—
potentially subject to regulation as a
form of hazardous waste treatment.
There are several factors that could lead
to either outcome. As stated earlier,
there is recovery of hydrocarbon values
from the oil-bearing secondary
materials, short- and middle-chain
fractions that are condensed and sent to
refining processes to produce high-value
fuel products (consistent with the
overall coking operation). In addition,
there is some beneficial contribution to
the coke product in the form of carbon
and higher energy values (even though
this may not be reflected by an actual
increase in market value), and the
Agency also notes that the coke product
continues to meet the market-driven
specifications for the product, even for
high-value anode grade coke. In
addition, as with other sidestreams
generated by one process "and used as
feedstocks to other production
processes, this activity constitutes a link
in the multi-step chain of processing
steps designed to recover as much of the
hydrocarbon value from the original
crude oil feedstock as possible. Thus,
there are aspects of this activity that
lead one to conclude that the oil-bearing
hazardous secondary materials used in
the quenching process can be
considered, for regulatory purposes, as
part of an ongoing production process
and hence classified as an activity not
subject to RCRA jurisdiction.
There are, however, several factors,
that were raised in comments to argue
that using the hazardous secondary
materials in the quenching process is a
form of waste management, e.g.,
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42126 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
legitimate hazardous waste recycling.
The oil-bearing secondary materials are
not typical of normal feedstocks to any
other refining process. Typical feedstock
streams are very high in oil content (i.e.,
primarily oil), while these secondary
materials contain a range of oil
concentrations that is consistently much
lower than typical feedstocks (thus
resulting in a much smaller amount of
oil being recovered, albeit at an
efficiency comparable to conventional
coking, as discussed above).
There are numerous statements, both
written and verbal, found within the
industry's internal descriptions of the
use of hazardous secondary materials in
the quenching process, that depict this
activity as an efficient means of
disposing of RCRA hazardous wastes.18
There is also anecdotal evidence of a
refinery with a coker charging another
refinery without a coker to take such oil-
bearing hazardous secondary materials
which are then used in the quenching
process, analogous to tipping fees or
charges that a hazardous waste recycling
facility would receive from a generator
in return for a waste management
activity. These issues are some of the
reasons EPA felt it was not compelled
by statute to exclude these wastes as
ongoing manufacturing, and that this is
a decision for EPA's discretion.
In considering both viewpoints, the
Agency has decided that use of
hazardous secondary materials in the
quenching process warrants an
exclusion from the definition of solid
waste (always assuming that the
particular practice is legitimate
recycling). In the Agency's view, the
primary purpose of this activity is the
recovery of the remaining hydrocarbon
values in the oil-bearing secondary
materials (with the addition of carbon
and energy value to the co-product
coke), utilizing the existing heat energy
contained in the coke product after the
conventional coking process. The
assertion, by commenters opposed to
this activity that it is questionable that
the component in the secondary
material that fulfills its primary purpose
(i.e., oil) could also be a limitation on
the use of the secondary material (i.e.,
that too much oil would degrade the
coke product itself) is not compelling. It
is not uncommon for industrial
processes to have specifications on a
feedstock material that require a
minimum of a certain component while
at the same time requiring that a
maximum level for the same component
not be exceeded because it would
degrade the quality of the product. EPA
also believes that the lead and
chromium in the secondary materials
should decline with time. This is due to
overall reductions in the use of these
metals throughout the refinery (e.g.,
leaded gasoline is no longer produced
on a wide scale and chromium-based
water treatment chemicals are no longer
used in industrial cooling towers, as a
result of Clean Air Act requirements; see
40 CFR Part 63, Subpart Q). Thus, with
the exception of lead and chromium
(which are expected to decrease due to
process changes), the hazardous metals
found in the hazardous secondary
materials can be traced back to the
metals found in the original crude oil
feedstock and so do not represent
contaminants introduced through means
other than the continued processing of
the initial raw material feedstocks.
EPA's traditional concern regarding
unnecessary hazardous constituents
being processed and ending up in a
product is mitigated in this case because
the Agency views this activity more as
the continual processing of a raw
material that contains hazardous
constituents, with concentrations of
these constituents found in the
feedstock streams to various refining
processes varying dependent on the
point in the overall production process.
In the context of a multi-step production
process, there is much less of an
element of discard of the hazardous
constituents inherent in the original raw
material than there would be had these
secondary materials been generated by
another industry or had the hazardous
constituents not been inherent to the
original raw material.
EPA also has no evidence that the
quenching process could be viewed as
part of the waste management problem,
part of the jurisdictional tests
articulated in AMC I and II. As
discussed earlier, there is no significant
evidence of degradation of coke product
quality, and indeed, coke produced with
and without using secondary materials
in the quenching process are largely
indistinguishable from the standpoint of
concentrations of hazardous
constituents.19 Finally, again, EPA
believes that the recovery of
hydrocarbon from the oil-bearing
secondary materials in the quenching
process is consistent with the overall
petroleum refining process the coking
operation in particular, i.e., the recovery
of hydrocarbons for the production of
high-value fuel products. This goal, in
turn, is consistent with the RCRA
objective to encourage safe types of
recycling (see RCRA section 1003 (a) (6)).
Therefore, the Agency is providing a
conditional exclusion for oil-bearing
hazardous secondary materials that are
inserted into the coker, based on the
assumption that, whether inserted along
with normal feedstock (i.e., resids) or
used in the quenching process,
hydrocarbons are recovered for further
refining and there is no degradation of
the coke product.
Conditions for the Exclusion
As stated at proposal (60 FR at 57754-
57755), the exclusion applicable to oil-
bearing hazardous secondary materials
destined for insertion into the
petroleum refinery, including the coker
(and the quenching process), is
conditioned on there being no land
placement and no speculative
accumulation, ensuring that these oil-
bearing hazardous secondary materials
do not become part of the waste
disposal problem. EPA reiterates its
belief, presented in the proposal, that
the management of these secondary
materials prior to insertion into the
refinery will not pose a risk to human
health and the environment, and that
the American National Standard
Institute (ANSI) standards for the
design, construction, operation,
maintenance, and inspection of
petroleum terminal and tank facilities
are sufficient to ensure that such
materials will be managed in an
environmentally protective manner. The
Agency also notes that the exclusion
being promulgated today is only for
those oil-bearing hazardous secondary
materials that are actually used in a
refining process, including the
quenching process of a petroleum coker.
Hazardous secondary materials that are
released and not immediately recovered
and used in a refining process would
not be excluded, and thus would be
subject to Subtitle C regulation as
hazardous wastes that have been
disposed.20
The Agency is also requiring that the
materials excluded under this provision
of today's rule be returned directly to a
refinery for insertion. While this is not
an issue if materials are recycled onsite,
EPA has concerns (as did some
commenters) about situations where
these materials are generated at one
refinery for insertion into another, but
are not directly sent and instead are sent
to an intermediate non-refinery facility
for processing. EPA does not think it
18 See the January 9, 1998, letter from Richard
Fortuna to Mike Shapiro.
19 See the January 23, 1998, letter from Paul
Bailey to Michael Shapiro.
20The Agency notes that today's rulemaking is
not intended to affect the applicability of existing
regulatory exclusions in § 261.2(c)(2) and (3)
regarding the reclamation of off-specification or
spilled commercial chemical products listed in
§ 261.33, or that otherwise exhibit a hazardous
characteristic (50 FR 14219; April 11, 1985).
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42127
unreasonable to assume that these
materials should either be located at the
generating refinery, at the receiving
refinery, or are otherwise in transit
between the two; this is consistent with
the underlying argument that this is
ongoing production within the
petroleum refining sector.
The Agency is maintaining the
condition that only those oil-bearing
secondary materials that result in a coke
product that does not exhibit a
characteristic of hazardous waste be
subject to the exclusion. This condition
mirrors the statutory provision stating
that petroleum coke produced from
petroleum industry hazardous wastes is
not subject to Subtitle C regulation
provided the coke does not exhibit a
characteristic of hazardous waste (see
RCRA section 3004 (q) (2) (A)). This
condition (coupled with the industry's
own product specifications) will serve
to ensure that the coke product does not
degrade such that the secondary
materials used in producing the coke
will become a part of the waste disposal
problem. As a result of this condition
and the fact that this exclusion is
limited to refinery wastes, today's
exclusion in §261.4 (a) (12) supersedes
the existing exemption in
§261.6(a)(3)(v); therefore, the
regulations are being amended to
remove § 261.6 (a) (3) (v).
The Agency considered, as suggested
in several comments, setting a minimum
oil content to define the scope of "oil-
bearing secondary materials" that are
excluded when used in the quenching
process, or to require a demonstration of
hydrocarbons actually being recovered
from the excluded secondary materials
that is comparable to oil recovery in the
conventional coking process. The
Agency rejected limiting the exclusion
based on a set minimum oil content or
a recovery efficiency requirement for
several reasons. As discussed above, the
quenching process represents the final,
and last possible process in which to
recover hydrocarbon from the original
crude oil feedstock. The refinery
processes and operating procedures are
designed to separate and process into
products as much hydrocarbon as
possible from the crude oil feedstock; in
other words, to prevent as much oil
from making its way into these
secondary materials as possible. The oil
that does make its way into these
secondary materials is generally
considered unavoidable and inevitable,
or, in some cases, too much oil in these
secondary materials is evidence of a
problem with some aspect of the overall
refining process (which helps to explain
the wide range of oil contents in these
materials). Thus, it would be counter to
the overall efficiency of the petroleum
refining process to require a minimum
oil content in the secondary materials.
Conversely, the Agency believes it is
fundamental to this exclusion that there
actually be oil recovered for further
refining when these oil-bearing
hazardous secondary materials are used
in the quenching process. To the extent
there is no recovery, or drastically
inefficient recovery, the operation could
be a type of sham recycling, as
discussed earlier.
Also, the Agency believes that, in this
case, a minimum oil content condition
would do little to ensure that only those
secondary materials from which oil can
actually be recovered would be
excluded; in other words, the Agency
does not believe that setting a minimum
oil content would ensure that secondary
materials are legitimately being used in
the quenching process. Since most of
the secondary materials in question
result from wastewater treatment, a
minimum oil content requirement
would only serve to encourage a
refinery to operate the refinery
wastewater treatment process less
efficiently to ensure that these
secondary materials contain the
minimum oil content and thus avail
themselves of an exclusion.
As for requiring a demonstration of oil
recovery efficiency comparable to the
conventional coking process, the
Agency concluded that the normal
operating practices and conditions (e.g.,
temperature) inherent to the quenching
process will result in a comparable oil
recovery efficiency. While there may be
fluctuations in the actual volume of oil
recovered (due to the fluctuations in the
oil content of the secondary materials as
well as the ratio of heavy-to-light oil in
the secondary materials), the quenching
process, when properly operated, is
such that there will be oil recovered
from oil-bearing hazardous secondary
materials due to the high temperatures
inherent in the process. Therefore,
requiring an actual demonstration of
recovery efficiency would be
unnecessarily burdensome unless there
is a question regarding a site-specific
coke quenching process or the
hazardous secondary materials being
used. Therefore, the exclusion for
refinery-generated, oil-bearing
hazardous secondary materials being
legitimately recycled into the petroleum
refining process, including in the coke-
quenching process, is conditioned only
on these materials being managed such
that there is no land placement and no
speculative accumulation, and that the
coke product produced not exhibit a
characteristic of hazardous waste.
Materials Subject to the Exclusion
At proposal, the Agency proposed to
exclude oil-bearing hazardous
secondary materials that are generated
within the broad petroleum industry
(covering SIC codes 1311, 1321, 1381,
1382, 1389, 2911, 4612, 4613, 4922,
4923, 4789, 5171, and 5172—which
comprise petroleum refining, marketing,
transportation, exploration, and
production) and inserted in the
petroleum refining process, including in
the coker. As discussed earlier in
today's preamble, the exclusion being
promulgated today is limited to only
those oil-bearing hazardous secondary
materials that are generated within the
petroleum refining sector (SIC code
2911). To conform with this limitation,
EPA is retaining (with some
clarification) the existing exclusion for
recovered oil from the broader
petroleum industry. (EPA is also
excluding petrochemical recovered oil
from certain petrochemical facilities,
which is a related but different
exclusion discussed elsewhere in
today's rule.) In the context of oil-
bearing hazardous secondary materials
being used in the quenching process,
limiting the exclusion to the petroleum
refining sector is entirely consistent
with the information evaluated in
making this determination (i.e., data
representing the materials currently
used in the quenching process, namely
F037, F038, and K048-K052). As
discussed above, the exclusion for oil-
bearing hazardous secondary materials
used in the quenching process was not
made on a strict jurisdictional basis. The
types of secondary materials, their
constituent components, and the fact
that the coke product remains basically
unchanged when such secondary
materials are used were all factors in
EPA's determination. The fact that the
Agency only evaluated oil-bearing
secondary materials that were generated
by the refining sector in its
determination is sufficient reason to
limit the exclusion to refinery-generated
secondary materials.
However, a further reason relates to
the concept that oil-bearing secondary
materials that are generated by the
refining process and continue to be
processed in the coker (by use in the
quenching process) is more akin to an
ongoing production process than would
be the case for secondary materials
generated outside the refining sector of
the petroleum industry. The Agency
maintains that the quenching process is
an ancillary activity that is somewhat
removed from the overall production
process; however, the fact that the
secondary materials are generated and
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used in another production process (i.e.,
the overall coking operation) within the
same industry, imparts a closer
association with the concept of an
ongoing production process (see AMC I)
than would be the case for secondary
materials generated by a different
industrial sector. The Agency has no
information on which to base a finding
that the use of oil-bearing hazardous
secondary materials originating in a
non-refinery sector of the petroleum
industry in the coke quenching process
would be anything other than the
management of wastes (e.g., hazardous
waste recycling) from that non-refinery
sector.
In one sense, the exclusion for
recovered oil (as opposed to "oil-bearing
secondary materials"), which spans the
scope of the broad petroleum industry,
reflects the Agency's assessment that
only those hazardous secondary
materials that are comparable to normal
feedstocks (i.e., oil) used in typical
production processes should be
excluded from RCRA without attention
to how they are processed. Oil-bearing
secondary materials (as opposed to
"recovered oil") originating from a non-
refinery sector have the potential to be
more waste-like (i.e., they are not clearly
"oil" and also may contain types or
quantities of toxic constituents that have
not been evaluated, especially if their
ultimate use is in the quenching
process) and thus do not warrant an
exclusion. Therefore, the Agency is
today promulgating an exclusion for (1)
secondary materials that are similar to
normal refining feedstocks, even if
generated by a non-refinery petroleum
industry sector (i.e., recovered oil) and
(2) secondary materials that are both
generated by and used in any refinery
production process, including the
coking operation (i.e., refinery-generated
oil-bearing hazardous secondary
materials).
The Agency notes, however, that non-
refinery generated oil-bearing secondary
materials that are used in the quenching
process (i.e., hazardous wastes) may
nevertheless be legitimately recycled by
use in the quenching process,
depending on there being oil recovered
during the quenching process and no
adverse impact on the coke product.
The oil recovered during the coking
operation (including both conventional
coking and the quenching process) is
excluded from the definition of solid
waste under 40 CFR 261.4 (a) (12). The
coke product produced from such
hazardous wastes, however, would be
subject to hazardous waste fuel
regulations. This does not represent a
change from current requirements,
because the current regulatory
exemption for coke produced using
hazardous waste (superseded by today's
exclusion for refinery waste being
recycled) does not apply to coke
produced using anything but refinery-
generated waste.
Status of Residuals from Processing or
Recycling Excluded Oil-Bearing
Secondary Materials
EPA received comments stating that
the proposed rule did not clarify the
status of residuals generated from the
processing and recycling of excluded
oil-bearing hazardous secondary
materials.21 Specifically, certain oil-
bearing hazardous secondary materials
generated at petroleum refineries are
listed hazardous wastes if they are
discarded instead of recycled as
described in today's rule. However, the
Agency is aware that these materials
may be processed in various ways prior
to insertion into the petroleum refinery,
depending upon the nature of the oil-
bearing material and the intended point
of insertion into the refinery. Some of
these processing steps may result in
residuals that are not suitable for
insertion, again based upon the choices
available to the refinery. If these
residuals are to be discarded, they are
clearly solid wastes and would not
retain their original hazardous waste
listing because of the exclusion. The
hazardous waste characteristics may or
may not capture these materials, and
therefore they could be disposed of
outside the Subtitle C system. The
Agency then became concerned about
situations where, for example, a listed
waste was generated and only
minimally processed to recover oil for
insertion into the refining process,
leaving behind a largely unchanged
residual that was to be discarded but
was no longer defined as listed waste.
The Agency agreed that this was a
potential problem with the exclusion,
and a subsequent request for comment
letter was sent to interested parties on
October 1, 1997. EPA requested
comment on whether the interested
parties viewed this situation as a
potential loophole, and what, if
anything, might be done to remedy it.
Responses to EPA's request were
somewhat mixed. Some commenters did
not believe the loophole was a realistic
construction of the effect of the
exclusion, while others agreed that it
was indeed problematic and needed to
be addressed. After reviewing the
information submitted by commenters,
the Agency has decided that it would be
an undesirable outcome if listed wastes
were only marginally processed,
generating residuals that were not
recycled and escaped regulation.
Therefore, the Agency has slightly
modified the existing hazardous waste
listing description in 40 CFR 261.31 for
the F037 waste, to include in the listing
description any residuals generated
from recycling or processing oil-bearing
secondary materials that (1) would have
otherwise met a listing description
when originally generated, and (2) are
disposed of or intended for disposal.
2. Recovered Oil From Associated
Petrochemical Facilities
It is logical that the Agency evaluate
the integrated nature of petroleum
refining and petrochemical
manufacturing to further identify oil-
bearing materials that can be
permissibly classified as part of
"ongoing manufacturing" within the
petroleum industry, and that are not
part of the waste disposal problem. In
proposing the exclusion for oil-bearing
materials from petrochemical operations
which are returned to refining, the
Agency had two important
considerations. The first consideration
was to encourage the recovery of a
valuable resource and reduce regulatory
uncertainties in cases where oil from
petrochemical facilities is returned to
petroleum refineries, specifically in
situations where the refineries generally
provide the raw materials (refinery
products) to the organic chemical
manufacturing facilities. The second
was to consider whether or not these
hydrocarbon streams have accumulated
toxic constituents through the various
chemical manufacturing processes,
constituents that have no value to the
petroleum refinery, are different from
the constituents typically encountered
in a petroleum refinery, and may be
inadequately managed through this
activity. Given the large and complex
nature of the organic chemical
manufacturing industry, this was not a
straightforward undertaking.
Accordingly, the Agency proceeded
cautiously, engaging in discussions with
representatives from both the chemical
manufacturing and petroleum refining
industries.22 As discussed at proposal,
the Agency agreed with industry
arguments indicating that because
significant volumes of materials
composed almost exclusively of oil from
petrochemical facilities are being
directed to various petroleum refining
processes, careful controls were in place
21 Comment PRLP-0054i ARCO Products
Company.
22 April 7, 1995, and July 31, 1995, letters to
Steven Silverman (EPA Office of General Counsel)
and September 13,1995 letter to Becky Daiss, from
Michael W. Steinberg (Morgan, Lewis & Bockius).
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42129
as a result of concerns about operational
upsets and product quality. (See 60 FR
at 57756). For example, representatives
from the petroleum industry have stated
that they have significant concerns
about the presence of organic chlorides
In their process units due to damage
from corrosivity. In addition, comments
submitted by the chemical
manufacturing industry describe
"feedstock quality management
programs," whereby the quality of
petrochemical recovered oil is routinely
evaluated and its contribution to
refinery product performance
determines its acceptability and value.
One commenter, an organic chemical
manufacturer, stated that due to the
critical nature of refinery finished
product specifications, all sources of
hydrocarbons to a petroleum refinery
are assessed to ensure their suitability.
This "suitability" of petrochemical
recovered oil is assessed either through
process knowledge or periodic analyses
of certain characteristics, including
water and solids content, gum-forming
compounds, and metals. As the Agency
has noted elsewhere in today's rule, the
petroleum refining process can be
described as a process of separating
valuable product materials from the
contaminants inherent in the original
feedstock, crude oil. Based on
comments submitted by the organic
chemical manufacturing facilities that
supply these hydrocarbon streams to
refineries, refinery operators cannot
simply assume that certain
contaminants will be separated from
hydrocarbon feedstocks (crude oil or
petrochemical recovered oil) during the
refining process without potentially
causing equipment fouling, corrosion, or
problems with product quality. Further,
due to the integration between some
refineries and organic chemical
manufacturers, there is a shared stake in
avoiding costly shutdowns, operational
upsets, or other situations that might
compromise the overall safety and
profitability of the combined facilities. It
is from this perspective that EPA began
reviewing information indicating that
recovered oil from organic chemical
manufacturing facilities was acceptable
to the refinery as a substitute for crude
oil.
The Agency acknowledged in the
proposed rule that this potential
exclusion was based on a "very limited
set of data" (see 60 FR at 57756). At
proposal, EPA was interested largely in
how petrochemical recovered oil
compared to refinery recovered oil, in
terms of the parameters that would
indicate suitability of the material for
refining (e.g., specific gravity;
distillation temperature range; flash
point; hydrocarbon type; and sulfur,
ash, and total chlorine/halogen content).
EPA also was interested in comparisons
to the used oil specification, in part
because EPA has used the used oil
specification in a previous rulemaking
as a surrogate for product fuel oil.
Although EPA recognizes (and two
commenters independently agreed) that
there are shortcomings in using the used
oil specification in the context of
analyzing petrochemical recovered oil
(largely because of the purposes for
which the used oil specification was
derived) the specifications for metals
and halogens are a partial surrogate for
crude oil content. The Agency also
considered comparing the composition
of the petrochemical recovered oil to
"comparable fuel specifications"
currently being developed as part of a
separate Agency effort to define
specifications which would indicate
when a secondary material would pose
no greater risk when burned than a
fossil fuel, and therefore might be
defined as products, not wastes (see
proposed rule at 61 FR at 17460, April
19, 1996). However, comparing the
petrochemical recovered oil halogen
data to the comparable fuel specification
did not seem appropriate because the
petrochemical recovered oil is not being
burned as a fuel, but is instead being
inserted into a complex series of fuel
manufacturing processes (i.e., petroleum
refining), where contaminants are
removed and hydrocarbons are
converted into various fuel products.
In response to EPA's request in the
proposed rule, data was received during
the comment period on samples of
various hydrocarbon streams from
organic chemical manufacturing
facilities (SIC code 2869) and non-
organic chemical manufacturing units
(representing SIC codes 2821, 2822,
2865) located at these same facilities.
EPA also received some data
representing other non co-located,
intercompany chemical manufacturing
facilities. The organic chemical
manufacturing data (representing SIC
code 2869) indicate that in comparison
to refinery recovered oil, the
petrochemical stream was similar, and
in some aspects, "better" than the
refinery sample (i.e., the petrochemical
recovered oil was a "narrower cut"
requiring less refining, thus preferable
to a refiner). When comparing the
submitted data representing SIC code
2869, as well as a sample of refinery
recovered oil, to the used oil
specification, both samples were well
within the specification (with the
exception of flashpoint, which is not a
concern here). Regarding total halogens,
the highest concentration reported in a
sample of petrochemical recovered oil
was 3,400 ppm (parts per million) total
chlorine. Irrespective of where this
number fell with regard to the used oil
specification for total halogens (at 1000
ppm EPA presumes mixing of used oil
with hazardous waste has occurred;
4000 ppm is an upper limit for burning
used oil without being subject to certain
requirements; see 40 CFR 279.11), the
Agency was concerned about the
possible source (s) of the halogens in the
petrochemical recovered oil.
Information submitted along with this
data indicates that chlorine could be
introduced in small amounts to
petrochemical recovered oil due to the
use of chloride-based catalysts.
Subsequent comments clarified that the
use of seawater as a "seal" in the
petrochemical facility's oil/water
separation system was the source of the
chloride in that particular sample. The
commenter indicated that although the
use of seawater as a seal or barrier in the
separation tank results in some salt
entering the recovered oil phase,
because this particular hydrocarbon
stream is sent to a co-located petroleum
refinery to be managed along with crude
oil, the chlorides are removed in the
same process that removes chlorides
typically found in crude oil (i.e., the
desalterunit).23
In summary, in the analytical data
submitted in response to the proposed
rule, certain patterns in the composition
of petrochemical recovered oil were
evident, including a similarity in,
composition to refinery recovered oil
being used as feedstock by the refinery.
Limitation on Petrochemical Recovered
Oil
As mentioned earlier, part of the
evaluation of whether or not these
recovered oils from petrochemical
facilities are part of an ongoing
manufacturing process within the
petroleum industry, and whether the
operation can be viewed as part of the
waste disposal problem, includes
whether or not these materials contain
toxic constituents not normally present
in typical refinery feedstocks and
intermediates. One concern that the
Agency has is the possibility that certain
hazardous wastes, particularly wastes
containing halogens, may end up in the
petrochemical recovered oils either
through inadvertent or intentional
mixing (i.e., "adulteration").
23 December 29, 1997, and January 22,1998,
letters to David Bussard (EPA Office of Solid Waste)
from Ronald Shipley (Chemical Manufacturers
Association).
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Specifically, there are many secondary
materials that the EPA has explicitly
listed as hazardous (e.g., K-wastes at 40
CFR Part 261, Subpart D, under
"Organic Chemical Industry"). Many of
these wastes are highly-halogenated
residuals, and EPA studied each of these
waste streams at the time they were
listed and determined that their
management is easily capable of posing
significant risks unless done properly
(viz. with exceeding care, such as is
specified in the Subtitle C regulatory
standards). EPA believes that these
listed wastes are clearly distinct from
the petrochemical recovered oils
discussed here, and based on the
information EPA has received on the
recovered oils sent to refineries, these
listed wastes are not recycled in this
manner. To ensure that this
"adulteration" of the petrochemical
recovered oils (by mixing listed
hazardous wastes) would be prohibited
under today's final rule, EPA is limiting
the petrochemical recovered oil
exclusion to those recovered oils that
are hazardous only because they exhibit
the characteristic of ignitability (as
defined in 40 CFR 261.21) and/or
toxicity for benzene (40 CFR 261.24,
waste code DO 18). EPA believes that
petroleum refineries are able to handle
hydrocarbons that are ignitable and
contain benzene, given the types of
materials that are routinely managed at
these facilities; also, based on the
information EPA has received on these
materials, these are likely the only
characteristics that would classify these
petrochemical recovered oils as
hazardous.
Co-Located and Common Ownership
EPA proposed that the exclusion for
petrochemical recovered oil apply only
where the organic chemical
manufacturing facility is "associated"
with the petroleum refinery, either by
being physically co-located or under
common ownership. As mentioned
previously, this was partly due to the
limited data the Agency had, but also
because EPA believed that the degree of
integration between a petrochemical
facility and a petroleum refinery that
occurs in co-located and/or co-owned
situations helped ensure more
familiarity with each other's
manufacturing processes, composition
of products and intermediates, and
administrative procedures. These
attributes go beyond the strict
commercial relationship that is more
typical of transactions between buyers
and sellers of various secondary
materials, by-products, and
intermediates. However, the Agency has
not been able to develop a definition of
"common ownership" that would be
clear and workable for such purposes.
As part of EPA's continuing efforts to
redefine solid waste, defining common
ownership (as a possible means of
describing certain intracompany
transfers) also has been explored and
has proven very difficult. This is largely
because of the many complex ways in
which "ownership" can be defined from
both a financial and a legal perspective.
EPA believes that to attempt to do so
here would not prove effective.
However, EPA does believe that the
concept of "co-located" is more or less
understandable and reflects physical
boundaries as well as a degree of
integration that would help ensure more
control by each facility over the transfer
of materials throughout the combined
facility. "Co-located" in today's rule
means that the petroleum refinery and
the organic chemical manufacturing
facility are physically adjacent to one
another, or otherwise share a common
boundary. In situations where the
facilities consider themselves co-located
but they are not physically adjacent nor
do they share a common boundary, the
Agency is further clarifying co-located
to include facilities that have a high
degree of integration with one another,
as evidenced by things such as shared
wastewater treatment systems; shared
manufacturing units; transfer of
materials via dedicated piping;
environmental permits that cover both
facilities; facilities that share common
emergency response equipment,
procedures, and planning; etc. These
examples can be typical of physically
co-located facilities, and therefore can
be used to clarify cases where for one
reason or another an integrated
petrochemical and petroleum refinery
do not actually share a common
boundary. Also, to better define the
relationship and degree of integration
between a petroleum refinery and the
co-located petrochemical facility, the
Agency is including in the definition of
"associated organic chemical
manufacturing facility" in §261.4(a)(18)
the condition that the petroleum
refinery that is receiving recovered oil
from a co-located petrochemical facility
also provides the hydrocarbon
feedstocks to the same co-located
petrochemical facility.
Other SIC Codes
In the proposed rule, EPA stated that
it would consider broadening the
proposed exclusion to include
hydrocarbon streams from certain other
chemical manufacturing facilities,
including plastic materials and resins
(SIC code 2821), synthetic rubber (SIC
code 2822), and cyclic crude and
intermediate producers (SIC code 2865),
if sufficient analytical data were
received to support such a broadening.
Much of the data that the Agency
received on recovered oil from these
other SIC codes actually represented
recovered oil from process units that are
located at petrochemical facilities
whose primary classification is under
SIC code 2869. In other words, many of
the organic chemical manufacturing
facilities can be described as vertically
integrated, where process units
classified under several SIC codes
operate in an integrated fashion. For
example, an organic chemical
manufacturing unit under SIC code
2869 may produce intermediates that
are then fed to a unit classified under
SIC code 2821. Both units may produce
hydrocarbon side streams that represent
unreacted feedstock or other
hydrocarbon by-products (consisting
almost entirely of oil), which are
typically commingled and sent to a co-
located petroleum refinery for refining
along with crude oil. (Of the three co-
located petrochemical facilities for
which the Agency received data on
recovered oil, only one of them was
engaged in operations classified solely
under SIC code 2869; the other two
facilities had units or activities from the
other SIC codes as well). The Agency
reviewed analytical data on recovered
oils from specific process units
representing SIC codes 2821, 2822, and
2865, and found these to be comparable
to refinery recovered oil.
Because the recovered oil from
process units classified under the SIC
codes 2821, 2822, and 2865 is similar to
refinery recovered oil (where these units
are part of vertically-integrated organic
chemical manufacturing facilities whose
primary SIC code is 2869), the Agency
is including these materials in the scope
of today's exclusion. These materials are
typically managed together and returned
to the co-located petroleum refinery
together. Commenters also pointed out
that limiting the exclusion of recovered
oil to the primary SIC code, at a
complex where several SIC codes are
represented (and where the
hydrocarbons are similar and recycled
back to the petroleum refinery together)
may have a significant impact on
facilities with multiple SIC codes.
Commenters also argued that
segregating recovered oil systems based
on differing SIC codes could be
prohibitively expensive and may result
in a reduction in hydrocarbons returned
to the refinery. The regulatory language
in today's exclusion at §261.4(a)(18) for
petrochemical recovered oil will limit
the exclusion to recovered oil from
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associated petrochemical facilities
whose "primary" SIC code is 2869
(organic chemical manufacturing), but
may also include SIC codes 2821, 2822,
and 2865.
B. Modeling Approaches and Risk
Assessment
Commenters provided extensive
comments on various aspects of the
modeling approaches and risk
assessment used in the listing
determinations. Many comments on the
determinations were raised repeatedly
for various wastes. Therefore, EPA
discusses the most important risk and
modeling issues below, and more
specific comments important for
individual wastes are addressed in
Section V.C on Residual-Specific
Comments. For complete responses to
comments on these and other issues, see
the Response to Comment documents
for comments on the proposed rule and
the NODA in the docket to today's rule.
1. Sampling and Analysis of Refinery
Wastes
Use of the TCLP for Oily Wastes
EPA characterized the wastes through
an extensive effort of waste analysis,
including analysis for constituents that
leach out of the waste using the TCLP.
In the TCLP. the waste is filtered to
separate any liquid phase present, and
the solids are then mixed with an
aqueous solution in order to estimate
the levels of the waste constituents that
dissolve and separate into the liquid
phase. The Agency's use of the TCLP as
input to groundwater modeling for
landfill disposal was challenged by
several commenters as either
underestimating or overestimating the
leaching of constituents from the
petroleum wastes studied, due to the oil
and/or the multiple phases present in
the wastes. EPA has decided that the
TCLP is appropriately used in this rule
to characterize the amount of hazardous
constituents potentially released from
landfills through aqueous leaching. As
discussed below, EPA found no need to
change its risk assessment because of
any failure of the TCLP due to potential
problems that might arise from the
presence of oil in some wastes.
One commenter argued that the TCLP
is very conservative because it assumes
that the waste is disposed of in a
municipal solid waste landfill, and
disposal of potentially hazardous
industrial wastes in a municipal landfill
Is not a likely mismanagement scenario
today. The commenter also argued that
the TCLP is a water phase model, not a
multi-phase model (multi-phase
meaning wastes with high oil content
leading to release of nonaqueous as well
as aqueous phases). The commenter
claims that use of the TCLP to estimate
risks from oil-bearing residuals (e.g.,
CSO and crude oil storage tank
sediment) would produce overestimates
of potential risks.
EPA does not agree that the TCLP
overestimates leaching levels for these
wastes. EPA did not assume in its
quantitative risk assessment that oily
liquids elute from the landfill to
groundwater, because EPA's initial and
subsequent analyses showed that oil in
the wastes in question was unlikely to
migrate from a landfill containing these
wastes. Thus, EPA did not use the TCLP
to predict movement of oily liquids.
While the commenter is correct in
stating that the TCLP procedure was
designed, in part, to represent leaching
from a municipal landfill, the industry
reported significant volumes of
residuals being disposed in precisely
the type of landfill modeled by the
TCLP. Specifically, EPA examined the
data collected from the 3007
Questionnaire and found that, in fact,
petroleum refineries reported 146
wastes that were sent to municipal
landfills (see Additional Listing Support
Analysis, 1998, in the docket for this
rule).
Other commenters felt that the TCLP
may underestimate the leachability of
constituents from the refinery wastes
due to high oil content. These
commenters pointed to an EPA report
presented in past rulemakings (e.g., the
listing of F037/F038 refinery wastes,
November 2, 1990, 55 FR 46376), which
indicated that the TCLP may
underestimate leachate concentrations
because of difficulties in the TCLP
procedure associated with filtering oily
wastes, such that any constituents in the
oily fraction in the waste are not
properly evaluated. The commenters
believed that EPA should use alternative
procedures for oily waste, specifically
the Oily Waste Extraction Procedure
(OWEP) rather than the TCLP.
EPA disagrees with these comments.
First, the report cited by the
commenters discusses difficulties in
filtering multi-phasic oily wastes
(Evaluation and Modification of Method
1311 for Determining the Release
Potential of Difficult-to-Filter Wastes,
April 1990). Multi-phasic wastes are
wastes with readily separable oil, solid,
and possibly aqueous portions. EPA's
lab results show that the wastes under
study in this rule did not exhibit the
filtration difficulties EPA has found
with other, more problematic, oily
wastes. The wastes studied were not
multiple phases, heterogeneous, or
difficult to filter. While EPA measured
levels of "total oil and grease" (TOG)
that appeared high for some wastes (e.g.,
up to 25 percent for crude oil storage
tank sediment), the Agency stresses that
the TOG method measures all
extractable organic material, some of
which are not likely to migrate out of
the waste, such as waxes, greases, and
other large molecular weight substances.
The TOG method does not measure, in
any sense, "free" oil (i.e., oil that might
migrate from the waste as a separate
phase). Furthermore, the EPA report
cited by the commenter concluded that
the TCLP method was adequate, even
for some "oily" wastes, provided the
wastes could be filtered. EPA did not
encounter the types of problems
described in previous listings during the
present rulemaking.
Second, the Agency does not believe
that the use of the OWEP method is
necessarily more appropriate for the
wastes under consideration. The OWEP
method was designed to measure the
aqueous mobility of the metals (not
organics) present in wastes, and uses a
strong solvent to remove the organic
phase prior to leaching with the
aqueous leachate used in the TCLP. This
may significantly alter the original
sample matrix and affect the leaching
results, and the Agency recognizes that
this aggressive method may not be fully
representative of possible leaching from
a landfill. Despite these concerns, EPA
performed additional analysis of
archived samples using the OWEP to
fully respond to the comment by
examining any differences in metals
mobility between the TCLP and the
OWEP. The results of this analysis were
presented in the NODA. Based on the
results of this analysis, EPA found that
metal leachate results were similar
between the two tests. Therefore, EPA
concluded that oil content (as measured
by TOG) does not appear to impact the
mobility of metals in the wastes under
study.
Commenters on the NODA OWEP
analysis argued that the results showed
some increase in the mobility of several
metals in the wastes, and argued
teachable levels of arsenic, chromium,
and lead are higher in some of the
OWEP samples. However, the same
commenters also questioned the validity
of the OWEP reanalysis because three
years had elapsed between the TCLP
and OWEP analyses and pointed out
that the reanalysis was not useful since
the detection levels were higher for the
TCLP analysis.
EPA disagrees that any measurable
differences, of which there were few, in
the OWEP/TCLP results are dramatic or
meaningful. Overall, the OWEP results
are consistent with the original TCLP
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data; only 14 out of 189 OWEP values
were greater than the original TCLP
concentrations. Moreover, 8 of the 14
higher OWEP values were associated
with residuals that contained less than
one percent oil and grease, thus
indicating oil and grease content is not
a significant factor. In fact, the
variability within each waste category is
greater than the variability between
OWEP and TCLP results. Thus, any
differences are more likely due to
sample composition variability rather
than the leaching technique.
Furthermore, if oil content were truly
interfering with the TCLP analysis, one
would expect the wastes with higher oil
content to show correspondingly greater
leaching with the OWEP, but there is no
such trend in the data (see NODA
Response to Comment Document, 1998,
Section I.C. 1, for more detailed
discussion of the OWEP data). While
there are limitations in the OWEP data,
the lack of any significant differences in
the data sets that can be compared
indicates that the use of the TCLP did
not underestimate the leaching of the
metals of concern.
In response to the commenters'
concerns over the use of the TCLP for
measuring the mobility of organics in
these refinery wastes, EPA examined the
analytical data for the wastes under
study to see if oil content (as measured
by TOG) significantly affected the
leachability of a key organic constituent
(benzene) and presented the results in
the NODA. For the 27 samples for
which the leaching efficiency of
benzene could be calculated, the
average efficiency was 53 percent, i.e.,
53 percent of the total mass of benzene
contained in the residual was extracted
into the aqueous phase. This efficiency
is governed by the solubility of benzene
in water, as well as benzene's affinity
for the specific sample matrix. In any
case, while the leaching efficiency
varied somewhat from sample to
sample, the leaching rate was fairly
consistent regardless of whether the
waste contained higher or lower total
oil; the average leaching efficiency for
the six of the 27 samples which had
TOG above 1 percent (samples of crude
oil tank and CSO tank sediment) was
also 53 percent.
Comments on the NODA suggested
using the average leaching efficiency (53
percent) for modeling the key
constituent benzene for all waste
samples analyzed by EPA, regardless of
the actual TCLP results for each waste.
EPA disagrees with the suggestion to
use the simple average TCLP leaching
efficiency for all wastes studied,
because this would ignore important
waste-specific information. This
approach would overestimate benzene
levels for some waste and underestimate
levels for others. Leaching results are
dependent on the specific matrix, and
EPA believes that the actual TCLP result
is a better indicator of the potential
mobility rather than an average for all
wastes studied. The most important
point to draw from EPA's evaluation of
leaching efficiency for benzene is that
these results indicate the TCLP mobility
of benzene is not greatly affected by the
oil content in these particular wastes.
Comments on the data presented in
the NODA also argued that EPA should
evaluate TCLP leaching efficiency for
constituents other than benzene, in
particular for polycyclic aromatic
hydrocarbons (PAHs). The commenters
were concerned the oil content and free
oil present in some wastes (CSO and
crude oil storage tank sediment) would
facilitate leaching of PAHs.
EPA disagrees that these constituents,
including benzene, will be more mobile
due to free oil in the wastes under
study, because the existing data show
"free" oil is not present. EPA evaluated
the leaching potential of benzene
because this compound was found in
various wastes and was a key
constituent in the risk analyses due to
its high toxicity and relative mobility.
However, to respond to the comment,
the Agency further evaluated the
leaching potential of four additional
constituents (xylenes, naphthalene,
methyl phenol, and phenanthrene).
These results indicate that there is no
significant discernable trend with
respect to lower leaching values
associated with higher oil and grease
content (see data presented in Tables 5
through 8 in the NODA Response to
Comment Document, 1998, in the
docket for today's notice). The
constituents generally leached in similar
proportions for all residual types. It is
not possible to calculate extraction
efficiencies for most PAHs because
these constituents were generally not
detected in the TCLP extract due to their
very low solubility in water. In any case,
EPA notes that the two wastes with the
higher measured TOG and PAH levels
(CSO and crude oil storage tank
sediments) are being listed as hazardous
waste, thus largely addressing this
concern.
Co-Solvency Effects
Some commenters felt that the TCLP
is inappropriate because it measures
only the movement of contaminants that
are dissolved in the liquid TCLP phase
into the groundwater, and thus fails to
consider the "co-solvency" effects of oil
and other compounds in the landfill.
Such effects/they argue, would facilitate
release and transport of constituents
beyond that predicted by the TCLP,
because of organic phases separating
from wastes. The commenters offered no
way to account for this in the modeling,
but indicated this would increase risks.
While the commenters' concerns are
theoretically possible, EPA has no
evidence that the co-solvency effect is
significant in this case. To respond to
the potential for co-solvency effects due
to disposal of oily waste in landfills,
EPA examined the only available data
that provides any detailed
characterization of potentially co-
disposed wastes-data from the 3007
Questionnaire for the refinery wastes
under study. Thus, EPA examined the
TOG data available from the 3007
Questionnaire for the refinery wastes
that were reported to go to landfills. As
presented in the NODA, this analysis
showed that few wastes with higher
TOG levels (i.e., >10 percent) were sent
to landfills; of the 168 wastes with TOG
data, only 14 had reported TOG levels
at 10 percent or above.
Comments on the NODA analysis
argued that the data set was limited
because most samples landfilled did not
have TOG data, especially those that
would have higher oil content (e.g.,
crude oil tank sediment). Further,
commenters noted that some of the
larger volumes sent to landfills had
significant TOG levels.
EPA disagrees. While the data set is
limited, the data available clearly
indicate that refinery wastes with
relatively high oil content are not
typically sent to landfills. In response to
the comment that larger volumes sent to
landfills had significant TOG levels,
EPA estimated volume-weighted
average TOG levels for the wastes with
TOG data that were sent to on-site and
off-site nonhazardous landfills, and
found that these values were relatively
low, i.e., less than 1 percent for on-site
landfills and about 3 percent for off-site
landfills. These weighted averages
represent the TOG if all of these wastes
were sent to the same hypothetical on-
site or off-site landfill. EPA notes that
this analysis of wastes sent to landfills
did not consider the impact due to
listing the wastes with the highest oil
content (i.e., CSO and crude oil storage
tank sediments) as hazardous under
RCRA. After listing, neither waste can
go to such a landfill and would no
longer contribute to any purported co-
solvency effects. Finally, as discussed
above in response to comments on the
TCLP method, even those wastes with
higher TOG levels did not contain
observable amounts of free oil, which
might cause co-solvency. Therefore,
EPA believes that co-solvency effects
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42133
due to oil content of the wastes under
study are not likely to be significant.
One commenter also argued that other
compounds in wastes other than those
under study may lead to co-solvency
effects in landfills and provided specific
refinery examples of codisposal of
individual waste streams in 1992 and
Toxic Release Inventory (TRI) data to
show potential co-solvency effects.
EPA disagrees with the commenter's
approach to using the TRI database to
calculate co-solvency effects at
refineries. First, EPA notes that the TRI
reporting form specifies that "quantities
reported on the form should . . . not
reflect the total quantity of waste or
constituents of the waste that are not
subject to reporting requirements." In
other words, the reported quantities are
the mass loadings of the chemical
components in land-disposed wastes
and do not reflect the total quantity of
the waste itself. Since these chemicals
were managed in on-site Subtitle D
landfills, they must have been
components of wastes that did not
exceed the TC criteria, i.e., in the part
per billion (ppb) range. The ppb
concentration range was confirmed by
dividing the TRI loadings by the total
waste quantity disposed in the on-site
units Identified by the commenter in
1992 as reported in the 3007
Questionnaire. Therefore, since these
"solvent-type" chemicals would be only
a very small component of the waste,
their co-solvency properties would be
insignificant.
Laboratory and Field Methods
Two commenters claimed that EPA's
lab and field methods were deficient.
Specifically, they believed that EPA
violated basic sampling protocols by
allowing samples to air dry prior to
collection. The commenter specifically
pointed out examples of CSO sediment
with lower volatile organic levels than
In other samples and examples of
unleaded tank sediment with lower
benzene concentrations than in other
samples. Based on these flaws, both the
total and leachable levels of volatile
organics (e.g., benzene) were
underestimated by EPA, according to
the commenter. One commenter also
argued that, by compositing samples,
EPA may have lost substantial amounts
of volatile compounds and that the
background document does not reveal
whether careful procedures were
followed.
The commenter misunderstood EPA's
sampling descriptions which described
the refineries' practices of air drying of
storage tanks generating the cited
wastes. This is a standard operating
procedure designed to comply with
basic occupational safety practices, so
that refinery personnel can enter tanks
for cleaning and inspection. In no case
did EPA allow for additional air drying.
EPA believes that the samples are
representative of residuals generated
throughout the industry. In response to
the commenter's comparison of detected
benzene levels among three gasoline
tank samples, the Agency's entire
sampling data set demonstrates a wide
concentration range for several wastes.
EPA maintains that this variability is
normal, and the Agency is neither
surprised nor concerned with the range
of benzene levels detected in the waste
samples mentioned by the commenter.
Finally, concerning the low levels of
benzene in the CSO samples, EPA
disagrees with the commenter that
benzene levels vary significantly across
these samples. Data in the proposed rule
background documents show that
benzene was only detected in one of
four samples at a level near the
quantification limit. The levels in the
other three samples were below the
quantification limit. This means that the
benzene levels were very low (at or
below the quantification level), and thus
the data do not in any sense show that
there is significant variability.
Field compositing procedures, when
necessary, were performed for the non-
volatile analytes only. EPA did not
composite samples for volatile analyses,
because the act of mixing the samples
may lead to loss of volatiles by
evaporation. The sampling and analysis
protocols used were consistent with
EPA's analytical guidance and were
documented in Sampling and Analysis
Plans. Careful procedures were followed
in sampling conducted for volatile
analyses and loss of volatiles was
minimized.
The commenters also felt that EPA
did not correctly sample CSO sediment
or HF alkylation sludge. The
commenters stated that the practice of
mixing CSO sediment with cement kiln
dust (CKD) prior to sampling
misrepresented the liquid content of the
CSO sediment and EPA should not have
dewatered HF alkylation sludges.
In response, EPA notes that it
collected samples of such wastes that
were available after tank cleanout, and
in this specific case, it had been mixed
with CKD. This was done by the facility
prior to landfilling of the waste. While
this treatment may have altered some
properties of this sample, the oil content
(16 percent TOG) was relatively low,
compared to the other three samples of
CSO sediment collected by EPA (see
Table 3.1.18 in the Listing Background
Document, 1995). Even if the Agency
discounted entirely the analytical
results for the one sample mixed with
CKD, it would not impact the risk
assessment significantly, because this
would only raise average levels of some
critical PAHs slightly (approximately
10-20 percent). In any case, EPA is
listing this waste, so inclusion of this
sample had no material impact on EPA's
final decision.
HF alkylation sludge dewatering is
conducted routinely by refineries, and
EPA collected most samples following
this step. In this case EPA believes this
waste form reflects the way the waste is
disposed in landfills. EPA did take one
sample of HF alkylation sludge directly
from the neutralization tank and
dewatered it in the laboratory to better
simulate the characteristics of the waste
as it would actually be generated.
2. Waste Management Assumptions
EPA described how the Agency
selected waste management scenarios
for risk analysis in the proposed rule,
and requested comments on its choice
of plausible management scenarios.
Some commenters wrote to support the
common sense approach the Agency
used in basing listing determinations on
plausible management practices. These
commenters stated EPA's decisions
were based on current management
practices and believed EPA obtained
accurate and relevant data on the
residuals and management practices
through site visits and the 3007
Questionnaire. However, two other
commenters suggested the Agency
should evaluate risks from other waste
management practices. These practices
included waste management in surface
impoundments, use as on-site cover for
landfill or LTUs, use as road bed
material, and storage in a pile.
EPA does not agree that these other
management practices merit further
modeling. As EPA stated in the
proposed rule, while some of these
practices were reported for several
different wastes, they typically involved
small volumes or very few generators,
and are not expected to present
significant risk. The information
collected by EPA shows that the vast
majority of the waste volume that was
disposed on the land went to landfills
and LTUs, and the Agency focused its
modeling efforts on these scenarios.
The commenter specifically cited
management of several wastes in surface
impoundments (spent caustic, HF
alkylation sludge, off-specification
product and fines). However, EPA does
not believe these are significant as
described in the sections on individual
wastes (Section V.C). In general, surface
impoundments at refineries are an
integral part of the wastewater treatment
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42134 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
system, and EPA did not typically
evaluate this system in detail for the
reasons noted in the proposed rule.
Briefly, risks from such treatment are
unlikely to be of concern because: (1)
treatment is already regulated under the
National Pollutant Discharge
Elimination System (NPDES) and air
programs; (2) primary sludges generated
from wastewater treatment are already
regulated as hazardous waste (K048,
K051, F037, F038); (3) volumes of the
discharged residuals under evaluation
are relatively small in comparison to the
volumes typically treated; (4) the
wastewater treatment systems are
designed to treat refinery wastes
effectively. Furthermore, in some cases
units receiving the waste were not, in
fact, surface impoundments, but tanks
(e.g., HF alkylation sludges), or other
concrete-lined units used as part of
refinery processes (e.g., coke drilling
pads for off-specification product and
fines). See Section V.C for the specific
wastes in question for further
discussion, and Section V.D on the
headworks exemption for other analyses
related to wastewater treatment systems.
Two commenters argued that the use
of crude oil tank sediment and CSO tank
sediment as landfill cover or on-site
road material should be evaluated. One
commenter stated that EPA's own
preliminary assessments for uncovered
landfills show that use of these wastes
as a landfill cover or for on-site road
material poses high cancer risks for
subsistence farmers and home gardeners
and high risks from mercury exposure
for subsistence fishers. Finally,
according to the commenter, it is
incorrect to assume that EPA's modeling
of LTUs would account for risks posed
by road spreading or other uses
constituting disposal.
The Agency disagrees that these
scenarios were not adequately
considered, and the Agency does not
believe that they would present
significant risk. These practices were
exceedingly rare, e.g., the one refinery
which managed its crude oil tank
sediment as "cover for on-site landfill"
in 1992 no longer uses that landfill. In
addition, the risks for crude oil tank
sediment cited by the commenter were
based on bounding levels, and resulted
from a preliminary screening analysis
designed to overestimate possible risks
for landfills. Such bounding estimates
use worst-case assumptions for all
sensitive parameters to screen out
exposures of little concern, and to
identify what pathways require further
analysis. Furthermore, the apparent
risks in the bounding analysis were
based on incorrect biotransfer factors
(used in beef, dairy, and plant indirect
paths), which EPA has since determined
to overestimate worst-case risks by at
least two orders of magnitude. Likewise,
the apparent problem from mercury was
also traced to an error in units for the
bioaccumulation factor used and when
corrected mercury does not present any
significant risk in these wastes. Thus,
EPA believes that the bounding analysis
was flawed and grossly overestimated
risks. Similarly for CSO sediment, EPA
also notes that only two refineries
reported using CSO sediment in road
bed material in 1992. EPA believes that
the modeled land treatment conditions
are conservative surrogates for road
spreading because: (1) The volumes and
areas assessed for land treatment greatly
exceed the reported road spread
volumes and areas, (2) road spreading
usually involves mixing with gravel,
asphalt, dirt, etc., thereby diluting
toxicants below that represented by the
wastes modeled for land treatment and
reducing risk; and (3) road spreading
creates a stable road base, which is
compacted and then covered by
additional fill, aggregate, or pavement,
making material less apt to wash away,
erode, leach, or enter non-groundwater
pathways than material managed by
land treatment. Finally, the issue is ,
moot because the two wastes
specifically cited by the commenters
(crude oil and CSO tank sediments) are
being listed, thereby preventing these
rare practices in any case.
One commenter stated that the
Agency did not properly evaluate the
storage of wastes such as off-
specification products and fines (i.e.,
coke-derived fines) in piles. The
Agency's response to this issue is given
in Section V.C for the specific waste in
question. EPA evaluated each waste
being studied to determine whether
waste was being generated frequently
enough to pose a potentially significant
risk, and if so, whether it was
appropriate to model interim storage
(e.g., tanks, containers, piles). In most
cases, the exposure risks of most
concern are associated with long-term
final disposal, and short-term storage
was not judged to pose significant
potential risk. Many residuals are
generated infrequently, e.g., sediments
from tanks are cleaned out about every
10 years. EPA did model interim storage
of certain wastes that were generated
more frequently when appropriate (i.e.,
spent caustic, sulfur complex sludge).
Two commenters stated that by
modeling management practices and
volumes based only on what occurred at
the time of EPA's survey in 1992, EPA
substantially understated risk and does
not reflect the potential for waste
management volumes and practices that
may occur in the future. They argued
the modeled volumes and practices are
"forever fixed" and merely reflect a
snapshot in time.
EPA does not agree that the volumes
and practices used in modeling
understate risks. Based on the economic
factors affecting the refining industry
and practices observed during the
Agency's field investigation, 1992 was a
typical year for refinery operations. As
described in the annual report issued by
the Department of Energy (DOE/EIA
Petroleum Supply Annual 1992;
Volume 1; May 1993), in 1992, the
national economy was not in extremis,
capacity rates were high, and plant
closings and openings were within
normal ranges. Furthermore, the DOE
report for 1995 shows economic and
production trends for crude oil and
petroleum products. While prices for
petroleum products and crude oil varied
from 1985 to 1995, no unusual spikes or
dips occurred during this time, and
product production remained fairly
constant over this time period.
In addition, EPA reviewed API's
Generation and Management of Residual
Materials, 1992-1993 Appendix C,
which provides trends of waste
generation from 1987-1993. In general,
1992 was representative when
comparing waste generation and
management for the API waste
categories and the residuals under
review. Only hydroprocessing catalysts
showed a slight increase in production
that year possibly due to the new low-
sulfur diesel regulations. In developing
reasonable management scenarios for
subsequent risk assessment modeling,
EPA considered some potential shifts in
management practices. These
considerations are discussed in the
context of each specific waste (see
Section V.C). For the remaining
residuals, EPA considered the industry
to be stable, and thus assumed that 1992
provided a reasonable picture of the
petroleum refining industry's practices.
EPA's approach was not "forever fixed"
but used 1992 as a reasonable starting
place for assessing the industry's waste
generation and management practices.
Finally, EPA notes that its survey of
refineries was a complete census of the
industry, and gathered information from
all active petroleum refineries in the
United States. It is reasonable for the
Agency to conclude that the large
amount of information gathered in its
1992 survey of petroleum refineries
related to waste generation,
management, and disposal practices is
representative of such practices in any
year. While individual refineries may
change practices in any given year, the
overall pattern of these practices,
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including waste volumes and the
potential environmental risks posed, are
unlikely to change significantly for the
industry as a whole. Therefore, EPA has
no reason to believe that 1992 was not
a representative year.
The commenter also stated that waste
volumes modeled in the NODA risk
assessment were inappropriate because
the individual waste volumes modeled
for land treatment were typically much
smaller than modeled for landfilling,
even though there is no legal or
technical bar for the wastes to be
managed in either fashion during any
given year. The fact that refineries relied
upon land treatment less in 1992 is not
necessarily indicative of future
practices.
In response to the commenter's
concern regarding the transferability of
wastes between land treatment and
landfilling. EPA notes that a refinery
may choose different disposal practices
based on a variety of considerations,
two of which are particularly important.
First, the refinery must consider the
waste's characteristics. Wastes with
higher liquid content are more likely to
be land treated due to the moisture
requirements of the land treatment
process, while dewatered wastes are
more likely to be landfilled due to cost
and waste volume constraints (e.g.,
more waste costs more), and liquid
content. This is supported by the data
collected in the 3007 Questionnaire,
which show that wastes sent to land
treatment contain on average higher
TOG and water than wastes sent to
landfills. The average oil and water
content reported for landfilled wastes
were 5.9 percent and 7.5 percent
respectively, compared to average oil
and water levels of 14 percent and 17
percent for land treated wastes. The
second Important consideration
regarding the transferability of wastes
between landfills and LTUs is
availability of the two disposal methods
for each refinery. Certainly, on-site
Subtitle D LTUs are rather limited and
may not be available to many refineries.
As described in information EPA
provided in the NODA, EPA's database
showed only one facility with both on-
slte nonhazardous landfill and
nonhazardous LTUs (see Supplemental
Background Document-Listing Support
Analysis, April 1997 in the docket, p.
15) and only six nonhazardous LTUs for
all refineries (ibid., p. 30). Thus, to
project that large volumes of waste
would shift between landfills and LTUs
appears Implausible. Finally, assuming
for the sake of argument that such shifts
did occur, it is possible that any change
in waste management practice for one
refinery would be offset by the opposite
change by another refinery, in effect
balancing out any changes from year to
year.
3. Codisposal of Wastes
Two commenters noted that the waste
volumes do not reflect either the actual
or potential for codisposal of wastes
(i.e., disposal of two or more wastes in
the same unit). Such codisposal of the
wastes is found in several instances in
EPA's database for on-site and off-site
units receiving these wastes. The
commenters argued that codisposal
would increase risks for the individual
wastes evaluated by EPA, because the
greater volumes would release more
toxic constituents. The commenters
noted that EPA found waste volume to
be an important parameter, especially in
the groundwater model.
In response to these comments EPA
first notes that its modeling for the
proposed rule and NODA did, in fact,
combine volumes in cases where the
same landfill accepted multiple portions
of the same waste stream for disposal.
Thus, volumes of the same residual sent
to the same landfill were aggregated and
placed into the waste volume
distribution for use in modeling. In
response to this comment, however,
EPA expanded its analysis in the NODA
to include codisposal of all 14 residuals
examined for this listing determination
that were landfilled, as well as another
set of 15 refinery wastes that were under
study. This analysis excluded only (1)
wastes that were proposed for listing,
because they could no longer be placed
in a nonhazardous landfill (spent
hydrotreating and hydrorefining
catalysts), and (2) any wastes that were
not landfilled at all (e.g., spent caustic).
EPA combined the waste constituent
and TCLP data for individual wastes by
weighing the concentrations determined
for each waste according to the volume
of the wastes used. Thus, volume
weighted waste and TCLP
concentrations were used to construct a
hypothetical scenario of all these wastes
being in one generic on-site or off-site
landfill. The codisposal analysis
showed risks below 1E-5, which EPA
does not view as significant. Revising
this assessment to reflect the changes in
the off-site landfill scenario as described
elsewhere in this Section, the high-end
risks were 8E-6, and remain below 1E-
5(seeTableIV-2).
However, comments on the NODA
argued this analysis was flawed,
because EPA used only median volumes
for each waste, and did not undertake a
full sensitivity analysis for the high-end
risk analysis. In response, EPA notes
that the NODA also presented a Monte
Carlo analysis of the codisposal
scenario, which used the full volume
distribution for these wastes, not just
the median volumes, and even at the
99th percentile, the Monte Carlo risk
was below 1E-5. After revising the
input parameters and Monte Carlo
assumptions for off-site landfills as
described earlier in this Section, the
Monte Carlo risks remain low (3E-6 at
the 95th percentile; see Table IV-2).
Commenters also argued that EPA's
codisposal approach did not consider
codisposal with other refinery wastes in
landfills that are not under examination
by EPA in the listing determination or
the study. One commenter submitted
analysis that attempted to account for
the on-site codisposal of the wastes
under study by increasing the combined
waste volume to include on-site landfill
volumes reported in the 3007
Questionnaire. The commenter also
assumed that each waste was sent to the
same landfill for 40 years. These
assumptions resulted in an increase of
about 5-fold in the total volumes
modeled. However, the commenter
noted merely increasing this volume
alone did not significantly increase risks
for the codisposal scenario. The
commenter went on to assume that the
codisposed wastes (i.e., the wastes that
were not part of EPA's current listing
determination or study) would contain
sufficient benzene to leach at one-half
the TC (i.e., 0.25 mg/L). The
commenter's analysis also made other
changes to EPA's modeling
assumptions, including assuming all
wastes leach benzene with an efficiency
of 53 percent, and that the receptor well
is located on the centerline of the plume
of contamination (see discussion later in
this Section on groundwater issues).
With these further set of assumptions,
the commenter estimated high-end risks
up to 4E-5.
EPA does not find the commenter's
codisposal analysis compelling for
several reasons. First, the assumption
that the codisposed wastes will all leach
at one-half the TC level is speculative
and without foundation. In fact, the
existing data available to EPA for the
refinery wastes under study show that
very few of these wastes contain such
high levels of benzene. EPA has no valid
reason to project that benzene levels in
other codisposed wastes would be
drastically different, as assumed by the
commenter. Also, EPA does not agree
with other modeling assumptions used
by the commenter, and the Agency has
arrived at a different conclusion in its
modified risk analysis. As noted later in
this Section, EPA believes the
commenter's assumption about well
location and landfill active life are
incorrect. (EPA used a 30-year life and
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treated well location as one of the
variable parameters). EPA's revised
high-end and Monte Carlo analyses did
not change significantly (see Table IV-
2), even when using the larger volume
inputs. This is consistent with the
commenter's initial results, as noted
above. Furthermore, EPA notes that the
final listing decisions would tend to
lower any codisposal risk, because of
EPA's final listing of two other wastes
as hazardous, crude oil, and CSO tank
sediment. Both contributed leachable
benzene to the codisposal analysis
performed by EPA (and the commenter),
thus with these wastes removed from
any possible codisposal with the
remaining wastes, any risks from
codisposal should be lower than
estimated with them included.
Finally, EPA questions how relevant
such a codisposal analysis would be,
even if it could be done to the
commenter's satisfaction. EPA is not
attempting to list landfills that may
contain a variety of wastes, but rather
the Agency is trying to determine
whether an individual waste merits
listing, based on the incremental risk
posed by a specific waste. To properly
factor in all wastes that are in each
landfill would require extensive site-
specific information that would be
essentially impossible to gather, and
would require speculation about what
wastes would be sent to a disposal unit
and how long disposal of such wastes
would occur. This could create an
analysis difficult to interpret for use in
listing determinations. In any case, this
is not necessary to protect human health
and the environment, because EPA's
analysis shows the risks from codisposal
are below levels of concern.
EPA also evaluated the impact of
codisposal on the risks from land
treatment of the wastes under study,
and provided this analysis in the
NODA. Constructing a hypothetical LTU
that contains all of the wastes so
managed is unnecessary, given the very
limited number of nonhazardous units
that are available for land treatment. Of
the 172 refineries in the 3007
Questionnaire, only 13 nonhazardous
units were reported to receive any of the
residuals of concern ( 6 on-site and up
to 7 off-site LTUs). The risks from land
treatment of individual wastes were
dependent on the PAH content in the
waste, thus the waste with high PAH
content, CSO sediment, yielded
significant risks when evaluated by
itself. As shown in the land treatment
risk analysis in the NODA, none of the
other wastes when evaluated
individually had risks approaching 1E-
6. EPA found only one on-site LTU and
three off-site LTUs that received more
than one waste under study in 1992
containing any PAHs of concern.
Because of the limited codisposal found
in LTUs, EPA examined the potential
risks from the actual disposal reported,
assuming tHat wastes proposed for
listing (most notably CSO tank
sediment) were removed. Because few
other wastes had appreciable PAH
content, the codisposal analysis yielded
negligible risk. Crude oil storage tank
sediment was included in the
codisposal analysis, however, EPA has
since decided to list this waste.
Therefore, removing this waste, which
contains moderate levels of PAHs, from
any codisposal analysis would further
reduce the likelihood that codisposal of
the unlisted wastes in LTUs will yield
significant risk.
4. Impact of Hazardous Characteristic
Regulations
Wastes Exceeding the TC
Some commenters stated that the risk
assessment in the proposed rule
overstates the risks from benzene and
arsenic (the key constituents of concern
for the wastes proposed for listing)
because EPA included benzene and
arsenic TCLP concentrations in excess
of the TC limit for these compounds.
The commenters suggested that EPA
should calculate groundwater risks from
Subtitle D landfill disposal of crude oil
tank sediments and spent hydrotreating/
hydrorefining catalysts by using only
the data that does not exceed the TC
limit. Commenters noted that EPA's risk
assessment assumed that no RCRA
Subtitle C controls were in place for any
of the management scenarios; therefore,
including any waste samples that
exhibited the TC (i.e., for benzene) in
the risk assessment would lead to
unrealistically high risk.
To respond to the commenter's
concerns, the Agency presented further
analysis in the NODA resulting from
groundwater modeling runs in which
the input TCLP data for wastes that
exceeded the TC threshold were
"capped" at the TC level. Thus, EPA
used the assumption that wastes could
contain toxic constituents at or near the
TC threshold, and that such data should
be included in the risk assessment. EPA
notes' that the groundwater risk analysis
in the proposed rule, as well as in
subsequent analyses, did not include
waste volumes reported in the 3007
Questionnaire to be hazardous and sent
to hazardous waste Subtitle C landfills
in the volume distributions used in
modeling risks from nonhazardous
Subtitle D landfills. EPA believes this is
reasonable because these volumes were
handled as hazardous and would not
affect risks from Subtitle D units. This
point is discussed further in the
following section in the context of
comments on volumes used in modelins
LTUs.
The final revised groundwater
analyses (see Table IV-2) showed some
reduction in risks, using the TC-capping
assumptions. However in all cases the
high-end risks for these TC-capped runs
exceeded the 1E-5 risk level for both
benzene and arsenic. The 95th
percentile Monte Carlo risks also
exceeded 1E-5 for one key constituent
(arsenic) for the spent hydrotreating and
hydrorefining catalysts analysis. The
TC-capping has essentially no effect on
groundwater risks from arsenic in these
catalysts, and the modeling results for
these specific wastes are discussed in
more detail below and in Section V.C.3.
Two commenters responded to the
Agency's analysis on the capping of
waste concentrations at the TC levels by
arguing that EPA's "cap" was too high,
and provided alternative methods that
would result in lower input values for
benzene and arsenic for the spent
hydrotreating and hydrorefining catalyst
wastes. EPA had capped the average
TCLP input data for the high-end
analysis at the TC level, while the
commenters suggested capping each
individual sample before averaging. The
commenters noted that EPA's Monte
Carlo analysis used the original TCLP
data and substituted the TC threshold
for individual values that exceeded the
TC. Using the approach applied by EPA
in the Monte Carlo analysis, the
commenters calculated that the average
TCLP concentrations decreased to 60
percent of the TC level used in the high-
end analysis.
The Agency believes that its approach
is more appropriate for the conservative
high-end risk analysis, but notes that the
Monte Carlo analysis, effectively, does
what the commenter suggests. The
Agency performed the TC-capped
analysis to assess the level of risk that
might occur, assuming wastes that
exceed the TC threshold are managed as
hazardous wastes. Therefore, EPA
believes that capping the actual input to
the high-end model is appropriately
conservative. As discussed in detail in
the discussions for specific residuals
(see Section V.C), the Agency believes
that even the Monte Carlo TC-capping
analyses support listing these wastes.
For the catalysts, EPA notes that using
this alternative approach in the high-
end analysis is unlikely to affect the
listing decision because: (1) the
pyrophoricity of the wastes supports
listing these wastes, (2) the arsenic risks
would remain very high under either
TC-capping approach, and (3) the high-
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end risks for benzene remain of concern.
To explain the second point, EPA notes
that the TC-capping has no effect on
hydrotreating catalyst because none of
the samples exceed the TC level for
arsenic. For hydrorefining catalysts,
which did have some values above the
TC level, even if the lower average
arsenic input levels assumed by the
commenters were used, the arsenic risks
would remain above 1E-4. (Note that
the risk results are not very sensitive to
the TCLP input level for arsenic under
the conditions modeled, because this
chemical moves very slowly in
groundwater, causing the maximum
receptor well concentration to be
relatively insensitive to the starting
leaching concentration.)
Another commenter objected to
capping waste samples at the TC level,
particularly for benzene, arguing that
this Implies the toxicity characteristic
may be an appropriate alternative to
listing the wastes. The commenter
stated the TC-capped modeling and the
underlying implications are wrong
because (1) the TCLP is unreliable for
oily wastes. (2) a generator may apply
"knowledge" in lieu of testing, (3)
generators may render inaccurate
determinations, and (4) the
characteristic does not consider the high
PAH content of some wastes.
EPA generally agrees that for the
wastes at issue, crude oil tank sediment
and spent hydrotreating/hydrorefining
catalysts, the TC does not provide
sufficient regulatory control for the
various reasons stated in the residual
specific discussions in Sections V.C. As
shown by the TC-capped modeling
analysis, the risk levels remain at levels
of concern, whether or not EPA assumes
wastes exceeding the TC levels would
be managed as hazardous. Furthermore,
as discussed later in this section on the
use of the TC as an alternative to listing.
EPA believes that listing these wastes is
supported by other factors.
EPA does not agree with the
commenter's claim that the TCLP is
unreliable for the wastes evaluated in
today's rule (see discussion at the
beginning of Section V.B.I). While EPA
agrees that inaccurate determinations by
generators may occur due to the
difficulties associated with sampling
some wastes (see discussion in Section
V.C.I), the Agency believes that the use
of a generator's knowledge in lieu of
testing is appropriate in many cases.
Finally, the Agency agrees that, to the
extent potential risks from PAHs are not
controlled by the TC, wastes should be
listed. This may occur because PAHs are
not TC constituents, as noted in the
following section on use of the TC as an
alternative to listing. Therefore, if a
particular waste exceeds TC levels only
some of the time, any PAH risks would
not be adequately covered for those
instances where the waste does not
exceed the TC levels.
Eliminating Hazardous Waste Volumes
In allocating volume inputs for the
groundwater and nongroundwater
modeling, EPA omitted waste volumes
that were reported to be hazardous (i.e.,
exhibited a characteristic defined in 40
CFR 261.24). EPA had not done this in
the proposal for wastes sent to land
treatment, and for inadvertently
modeled hazardous waste volumes that
were, in fact, disposed of in permitted
hazardous waste LTUs. EPA corrected
this in the risk analysis for land
treatment presented in the NOD A. One
commenter disagreed with EPA's
approach of not counting waste volumes
managed as hazardous in 1992, and
noted this dramatically reduced the
high-end volumes of crude oil storage
tank sediment used as input to the
NODA risk assessment for land
treatment disposal. The commenter
stated that the "recalculations" for land
treatment volumes are based on the
unverified assumption that because
certain wastes were managed in 1992 as
hazardous, they will always be managed
as hazardous. The commenter argued
that by excluding these wastes, EPA is
implicitly relying on the existing TC in
lieu of listing the waste, and therefore
making the same policy errors as the
landfill TC-capping modeling
(discussed above).
EPA does not agree with this
comment. The wastes that were
excluded for the revised land treatment
modeling were, in fact, reported to be
hazardous in the 3007 Questionnaire.
While some wastes may exhibit a
characteristic sometimes, and not at
others, EPA has no reason to believe
that 1992 was not a typical year. Thus,
EPA could reasonably assume that
similar amounts would be hazardous
from year to year, and such variation
should not lead to significant changes in
the risk analysis. While excluding these
volumes does rely on the TC as the
commenter noted, this reliance seems
justified because these wastes did, in
fact, exhibit the TC and were reported
to be managed as hazardous.
Furthermore, EPA notes that the waste
of primary concern to the commenter,
crude oil tank sediment, is being listed
as hazardous in any case due to
groundwater risks from landfill
disposal. For the other wastes modeled
in LTUs, removal of volumes regulated
as hazardous did not alter the risk
results significantly, i.e., the median
and 90th percentile volumes were only
slightly different (see Table 2.1 in the
NODA nongroundwater risk assessment
background document, Supplemental
Background Document;
Nongroundwater Pathway Risk
Assessment, March, 1997).
Use of the TC as an Alternative to
Listing
Some commenters indicated that the
use of the TC adequately regulates
potential risks, and therefore, makes
listing of the refining process residuals
unnecessary. Others commented that
the TC does not adequately capture
wastes that should be regulated, and
supported the proposed listings.
In response, the Agency notes that its
listing decisions are based on a weight-
of-evidence approach, which evaluates
various factors, including the results of
the risk analysis. In general, EPA may
consider listing wastes that frequently
exhibit a characteristic if risks are not
adequately controlled by the
characteristic. The TC, for example, was
based on an evaluation of potential
threats constituents may present if
released to groundwater (see 55 FR
46369; November 2, 1990). Thus, for a
waste that is TC hazardous, EPA may
consider listing if other pathways
besides groundwater present a risk, if
other constituents in the waste are not
included in the list of TC constituents,
or if a waste with levels of TC
constituents below characteristic
thresholds still shows significant risk
for some situations.
In today's rule, EPA is finalizing
listings for the two spent catalysts and
crude oil tank sediment, even though
these wastes are often characteristically
hazardous, because risks from
landfilling these wastes are not
adequately controlled by the TC (see
specific waste discussions).
Furthermore, EPA is listing another
waste, CSO tank sediment, that often
exhibits the TC characteristic for
benzene, because the TC does not
effectively control risks presented by
PAHs in LTUs via nongroundwater
pathways. The TC was developed to
provide protection against potential
risks from the contamination of
groundwater by leachate from land
disposal units, and was not designed for
nongroundwater pathways. In addition,
PAHs are not on the list of TC
constituents.
5. Other General Risk Issues
Consistency With Past Listings
One commenter stated that EPA's
methodology for the current listing
determination is inconsistent with
previous Agency practice and policy,
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specifically with the finalized
carbamates listing and the previous
petroleum listing. The commenter noted
that, for the carbamates listing rule
(February 9, 1995; 60 FR 7825), EPA
computed landfill waste volumes
according to the quantity of wastes that
could be landfilled, not just the quantity
that happened to be landfilled in the
reporting year. The commenter provided
examples in the current listing proposal
where waste volumes for land treatment
exceeded the volumes for landfilling,
and argued that the volumes used in the
landfilling assessment were therefore
too small. The commenter also-noted
that EPA considered the codisposal of
solvents and other oily wastes in
petroleum refining waste management
units as part of its 1990 listing
determination for refinery wastewater
treatment sludges, F037/F038
(November 2, 1990; 55 FR 46354).
As a general response, EPA notes that
the commenter did not take into
consideration the evolving nature of the
Agency's risk assessment process and
policies. EPA's risk methodologies have
progressed over the years, and the
modeling tools have been refined. The
earlier rule cited by the commenter, the
listing decision for treatment sludges
(F037/38), did not, in fact, rely on
modeling, but rather used a more
simplistic approach based on a
comparison of waste constituent
concentrations to health-based levels.
Given the modeling tools currently
available, EPA no longer believes such
an approach is appropriate, because it
does not take into account the potential
for waste constituents to be released
from the waste units, their fate and
transport in environmental media, and
the levels to which receptors may
ultimately be exposed. In today's rule,
EPA has used various models to
estimate the release and transport of the
toxic chemicals of concern, and the
Agency believes such an approach is
more useful in projecting the potential
risk to exposed individuals.
While EPA did perform modeling as
part of its risk assessment in the
carbamates listing cited by the
commenter, this was essentially the first
time the Agency attempted to use such
modeling to support listing decisions.
Thus, EPA made various simplifying
assumptions. For example, EPA created
a hypothetical off-site landfill for
modeling by assuming that all of the
carbamate wastes under examination
would be placed in the same off-site
unit. Such a simplifying assumption
would be unrealistic in the current
rulemaking, given that the petroleum
refining industry consisted of 185
facilities in 1992, and that these
facilities were widely distributed
throughout the country (for comparison,
the carbamates industry comprised 23
facilities). To use the same approach as
was used in the carbamates rule, i.e., to
assume disposal of all wastes in one
landfill, does not appear reasonable in
the current rulemaking.
Therefore, EPA believes that the
approach used in today's rule is a
reasonable progression of EPA policy.
For responses to the specific comments
related to the use of volumes reported
for land treatment and landfills, see the
discussion on Waste Management
Assumptions, which appears earlier in
this section. Elsewhere in this rule EPA
also responds to comments related to
codisposal (Section V.B.3) and co-
solvency (Section V.B.I).
The commenters also argued that
previous listing determinations were
based on lower levels of contaminant
concentrations than those found in
wastes being considered in this notice,
and that the wastes under consideration
in this rulemaking should be listed. For
example, the commenter pointed out
that the average total concentration of
benzene and PAHs, such as
benzo(a)pyrene found in crude oil tank
sediment exceeds the level of benzene
in F037 and F038 that caused those
wastes to be listed in 1990.
EPA recognizes that crude oil tank
sediment and other residuals
characterized in this listing
determination may contain
concentrations of some constituents
comparable to previously listed wastes,
including the F037 and F038 refinery
residuals. However, direct comparison
of these concentrations to previous
listing benchmarks is not an adequate
basis for listing. Listing determinations
consider many factors beyond the
concentrations of constituents in a
waste, including the waste volume,
constituent mobility, management
practices, damage cases, other
regulatory controls, etc. (see 40 CFR
261.11(a)(3)). As noted above, the listing
of F037/F038 sludges did not use
modeling for support, but instead relied
on constituent concentrations, as well as
various other factors. The other factors
that EPA relied on in this listing
included the very large volumes of
F037/F038 generated (over 400,000
metric tons per year), the widespread
use of surface impoundments to manage
the wastes, and damage cases.
Therefore, merely comparing
constituent levels may not provide a
useful measure of what wastes should
be listed. Furthermore, as noted above,
EPA's risk assessment process has
evolved, and the Agency has developed
a more sophisticated set of risk
assessment tools than were available for
listing determinations in 1990. As a
result, EPA believes that it is better able
to measure and predict risk now than
previously, and that the better
procedures and methodologies should
be used.
Individual Versus Population Risk
Several commenters stated that the
population risks estimated by EPA do
not justify a decision to regulate the
wastes proposed for listing
(hydrotreating and hydrorefining and
clarified slurry oil sediment), and that
consideration of the risks posed by these
landfills to the entire population
potentially exposed would lead to the
conclusion that these residuals do riot
pose substantial hazards to human
health, and thus, should not be listed as
hazardous wastes. Commenters argued
that EPA's failure to give serious
consideration to the low levels of
population risk is at odds with the
statute, the listing criteria, and
regulatory precedent within the federal
government. The commenters claimed
that, due to the low populations risks,
EPA cannot conclude that any of these
residuals "is capable of posing a
substantial present or potential hazard
to human health or the environment,"
as required in 40 CFR 261.11, and
should not list any of these residuals.
In response, EPA notes that
"population risk" is not explicitly used
in either the RCRA statute or the
hazardous waste listing regulations in
40 CFR 261.11. EPA does not believe it
is appropriate to allow contamination
from waste management units to cause
substantial risk to nearby residents
simply because there are few wells in
the immediate area. In addition, the
regulation cited by the commenter
clearly states that wastes are to be listed
if they are "capable of posing a
substantial present or potential hazard"
(emphasis added). Thus, the Agency
must protect against potential, as well as
present risks that may arise. The
Agency's decision to list these wastes is
based primarily on the concern over
risks to those individuals who are
significantly exposed, even if there are
relatively few of them.
Population risk is only one of many
factors to be considered in Agency
decisions, and there are numerous
precedents where the Agency has taken
action, for example at Superfund sites
and in previous listing determinations,
when there are relatively few people
potentially affected. See, for example,
the report entitled Land and Soil Health
Risks from CERCLA (Federal
Superfund), and WQARF (State
Superfund) Sites, Arizona Department
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42139
of Environmental Quality, 1995, in the
docket for today's rule, which
concluded that population risks were
low because the number of people
exposed to groundwater contamination
Is small. The Agency has stated that the
key objective of the CERCLA National
Contingency Plan (NCP) is to protect
individuals at contaminated sites (see
55 FR at 8710), and rejected using
population risk as the point of departure
for setting clean-up levels (see 55 FR at
8718). In addition, the CERCLA
regulations (see 40 CFR
300.430(e)(2)(i)(A)(2). and 55 FR at
8848) direct EPA to establish
preliminary remediation goals for
carcinogens based on "cancer risks to an
individual."
Population risks arising from
contaminated groundwater due to waste
management are expected to be low,
because often only a limited number of
domestic wells will be near these
facilities, and groundwater moves very
slowly. EPA's Guidance for Risk
Characterization (USEPA Science Policy
Council, February, 1995) states that,
when small populations are exposed,
population risk estimates may be very
small, however, "in such situations,
individual risk estimates will usually be
a more meaningful parameter for
decision-makers." Finally, it is
Important to note that the Agency is also
concerned about the loss of the
groundwater resource for the future,
which could be of particular concern if
land use patterns were to change and
there were a future demand for the
resource. In this case, beneficial uses
would be precluded or, if the potential
users were unaware of the
contamination, risks could occur.
Additive Risks From Multiple Units
One commenter stated that risks
posed through different groundwater
and nongroundwater pathways should
be summed when the potential for
simultaneous exposure exists, but that
EPA Instead assumed that groundwater
exposures were occurring after the
nongroundwater exposures. The
commenter noted that the time of travel
for benzene and perhaps other mobile
constituents in EPA's groundwater risk
assessment is 17 years or less, clearly
within the period of time
nongroundwater exposures may occur.
EPA does not agree with the
commenter's suggestion that
groundwater and nongroundwater risks
should be combined. This is because, as
discussed previously, EPA's analysis
showed that groundwater risks are only
potentially associated with landfills,
and nongroundwater risks are only
potentially associated with LTUs.
Therefore, the only potential for the
combination of groundwater and
nongroundwater risks to be significant,
would be for a situation in which a
landfill was located in close proximity
to a LTU. EPA examined the
information provided in the 3007
Questionnaire for any sites where
landfills and LTUs are co-located, and
presented the results in the April 1997
NODA. This analysis showed only one
facility at which a nonhazardous LTU
and landfill were both located at the
same site, and even in this one case the
units are approximately 5,000 feet apart,
making significant simultaneous
exposure unlikely.
6. Specific Groundwater Modeling
Issues
Active Life of Landfills
Two commenters disputed EPA's
assumption of 20 years for the active life
of landfills to estimate the total volume
of a specific waste placed in a landfill,
and argued that the report and data for
off-site landfills used by EPA to make
this assumption (National Survey of
Solid Waste (Municipal) Landfill
Facilities, EPA/530-SW88-034,
September 1988) actually demonstrate
an active life of at least 40 years. The
commenters believed that this is an
important difference, because this
would increase the total waste volume
used as input to the groundwater
models and result in increased risks.
In response, EPA reexamined the
report cited and concluded that the
assumed active life of 20 years may be
an underestimate. Using the data in the
report, however, the Agency calculated
that an average active life of 30 years is
more appropriate for us in the risk
assessment, rather than the 40-year life
suggested by the commenter. EPA
believes that the commenter simply
summed the reported average age of the
landfills (19 years) and the average
remaining life (21 years) to obtain 40
years. However, this calculation is not
appropriate, because it would
overestimate the active life for existing
units. This is because the average age in
the report included closed units, not
only existing units, and thus does not
reflect the average life for those units
still in operation. Likewise, the average
remaining life given in the report
included planned units, as well as
existing units, and this also would tend
to inappropriately increase the apparent
active life for existing units. Correcting
for this by eliminating closed and
planned units, EPA calculated a 30-year
active life, based on corrected values of
16.5 years for the average age of active
units, and 13.3 years for the average
remaining life of active units (see
Additional Listing Support Analysis,
1998, in the docket to today's rule for
full calculations). EPA has used the
revised active life (and correspondingly
larger volumes) to calculate the new risk
numbers given in Table IV-1.
The same commenters also argued
that EPA's use of a 20-year life for on-
site landfills was wrong. In the NODA,
EPA provided an analysis of the data for
on-site landfills for refineries from the
3007 Questionnaire, showing a
calculated median of about 21 years for
on-site landfills. The commenter
continued in comments on the NODA to
dispute the 20-year calculation, and
cited an alternative method presented
by EPA in the NODA to calculate a 39-
year average (i.e., mean) active life,
which the commenter argued EPA
should use.
In the NODA analysis, the Agency
used the projected date for closure of
on-site landfills reported by refineries in
the 3007 Questionnaire to estimate
active lives. EPA also examined an
alternative method to calculate on-site
landfill life for use when facilities did
not report the projected date of closure.
Under this alternative method, EPA
used the remaining capacity reported for
the units, assumed disposal rates for all
wastes in the landfills would remain
constant, and thereby estimated when
the landfill may reach full capacity. EPA
believes the direct method chosen is
most appropriate because it uses the
actual landfill lives reported in the 3007
Questionnaire, rather than relying on
estimating remaining active life by
projecting past waste disposal rates into
the future. The alternative approach is
especially uncertain when the landfill is
relatively new, thereby requiring the
extrapolation of a small percentage of
used landfill capacity into the far future,
which means that small variations or
errors in the used capacity of a landfill
may lead to widely varying landfill life
projections. Thus, EPA did not revise its
modeling for on-site landfills to reflect
a longer landfill life. EPA also used the
median active life, rather than the mean
suggested by the commenter, because
the median value lessens the impact of
widely variable data and outliers. For
example, a few very large values in a
data set would have a major impact on
the mean, but the median would not be
overweighted by the few very large
values. EPA notes that the only data
available for off-site municipal landfills
were average values, not medians, so the
Agency had no choice but to use the
average estimate active life for the off-
site landfills.
Furthermore, EPA notes that many of
the wastes of concern, such as the
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sediments from storage tanks, are
generated only intermittently, since
facilities clean out crude oil storage
tanks about every 5-10 years. While
refineries may have many such tanks of
different ages, EPA estimates that a
typical refinery may generate such a
clean out waste about every 1.5 3 years.
In effect, a typical facility may not
dispose of the tank sediments in on-site
units every year, but approximately
every 2 years. Therefore, even assuming
arguendo that the on-site active life
might be about 40 years, as the
commenter suggested, if tank sediment
is only generated every two years or so,
the total volume of a specific waste in
the unit may more closely resemble 20
years worth. EPA notes that, unlike on-
site units, off-site landfills may accept
waste from other refineries, thus
disposal may well occur every year.
Therefore, the 30-year active life used
for off-site units is a more appropriate
measure of the number of years a
specific waste may be disposed.
Finally, EPA notes that because the
revised risks from off-site landfills were
somewhat greater than risks from on-site
landfills for the wastes of most concern
to the commenter that the Agency is not
listing (i.e., unleaded gasoline tank
sediment, and HF alkylation sludge), the
off-site risks are likely to be
determinative in any case.
Waste Unit Area
Two commenters believed EPA
should have used larger waste unit area
sizes in its groundwater risk assessment,
and that this would result in the listing
of more refinery wastes. These
commenters questioned EPA's decision
to vary on-site landfill sizes for different
petroleum wastes when projecting
mismanagement scenarios. The
commenters argued that since any
petroleum waste can be disposed in any
on-site landfill, EPA should assume that
any waste will be disposed in units
representing the largest landfills. The
commenters believe that a larger waste
unit area would result in a higher
concentration at the receptor well, and
that EPA underestimated the risk
associated with several of the wastes the
Agency decided not to list.
In response, EPA notes it used waste
quantity and on-site landfill sizes in the
modeling analysis for individual waste
streams from the RCRA 3007
Questionnaire responses, which are
based on actual petroleum waste
management practices. EPA disagrees
that a refinery would necessarily use a
landfill to dispose of any number of
wastes, and the Agency believes that
there are indeed reasons why a facility
would not dispose all its generated
waste in an on-site landfill, including
permit limitations and liability
considerations. EPA verified such
limited or segregated management
practices during site visits. For example,
EPA reviewed site visit reports for four
facilities that operated on-site
nonhazardous landfills. Two facilities
manage Fluidized Catalytic Cracking
(FCC) catalyst and fines, but no other
listing or study wastes in their landfills.
The other two operate the on-site
landfills for disposal of only some of
their generated wastes. Other wastes are
disposed off-site or recycled. EPA
believes its approach of calculating
different unit areas for different wastes
was reasonable because they are
reflective of actual operating practices,
and another approach may result in
unrealistic or unreasonable assumptions
regarding waste management practices.
As noted in the above section on waste
management assumptions, a refinery
may choose different disposal practices
based on a variety of considerations,
including the waste's characteristics and
access to landfill capacity. Furthermore,
it is not necessarily true that the larger
the landfill, the higher the resulting
receptor well concentration. The
modeled receptor well concentration is
a function of a number of parameters,
such as waste volume, leachate
concentration, the concentration of
constituent in the waste, and various
chemical transport properties. Thus, for
a given waste volume, a larger landfill
area will not necessarily produce higher
well concentrations.
The commenters also stated that the
standard off-site landfill areas used by
EPA were arbitrarily small (2,020 square
meters (m2) median; 162,000 m2 high-
end) . The commenters noted that EPA
apparently derived these area sizes from
an industrial landfill survey taken of on-
site industrial waste landfills, and
therefore the areas are inappropriate to
use for off-site units. The commenters
went on to state that the Agency should
use data available for municipal solid
waste landfills for the off-site modeling,
(i.e., the same database EPA relied on
for length of active life.) They noted that
the areas reported for active municipal
waste landfills in EPA's 1988 survey
appear many times greater than the
volumes used by EPA.
EPA agrees first that the median area
used by EPA in this analysis was "in
error, and believes that the data for off-
site municipal landfill area cited by the
commenter are more appropriate for
modeling off-site landfills than the
industrial database used by the Agency.
This is primarily because, as the
commenter noted, the database
originally used by EPA reflected landfill
areas collected from what are likely
industrial on-site landfills, rather than
off-site landfills. EPA does not have, at
this time, any area data for off-site
industrial nonhazardous landfills, so the
Agency has decided to use the data
available for off-site municipal landfills.
The use of municipal landfill data is
entirely appropriate because the
refineries reported in the 3007
Questionnaire that close to one-half of
the wastes disposed off-site went to
municipal landfills. Therefore, EPA
revised the groundwater modeling for
off-site landfills to reflect the larger
areas associated with municipal
landfills, and the risk results in Table
IV-2 incorporate the revised landfill
areas.
Noningestion Exposures for
Groundwater
One commenter stated that EPA's
groundwater risk assessment only
considered the impact of ingestion of
the water, but ignored potential risks
from inhalation and dermal absorption
of contaminants that might arise from
the use of water in the home (e.g.,
showers or bathing). Such an additive
affect would increase the overall risks
from groundwater exposures.
EPA agrees with the commenter that
the noningestion exposure route for
groundwater may be important for some
constituents. The Agency presented its
analysis of such noningestion risks in
the NODA. For the wastes under study,
this was only significant for benzene (no
other toxic constituent of concern was
volatile enough to affect the risk
evaluation). EPA's analysis resulted in
effectively increasing risks from
benzene projected to reach a receptor
well by about 60 percent over the
ingestion risk (See Chapter 5,
Supplemental Background Document
for Groundwater, 1997.)
Biodegradation of Benzene
Five commenters argued that the
biodegradation of benzene should be
considered in estimating the potential
risks from Subtitle D landfilling of spent
hydrotreating catalyst, spent
hydrorefining catalyst, and crude oil
storage tank bottom sediment. Two
commenters used the groundwater
model used by EPA (EPACMTP) to
show that concentrations of benzene in
groundwater decrease when a
conservative biodegradation rate is
assumed. Several commenters
calculated benzene biodegradation rates
to show that both anaerobic and aerobic
biodegradation processes limit the
subsurface transport of benzene in
particular, and related aromatic
hydrocarbons in general (benzene,
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toluene, ethylbenzene, and xylenes, also
known as BTEX). Commenters believed
that the studies are relevant because the
levels of BTEX compounds in the
wastes' leachate are comparable to
levels measured in the studies.
Commenters argued, although the
studies do not follow the Toxic
Substances Control Act (TSCA) protocol
developed by EPA to document
biodegradation, the results should be
viewed as comparable by EPA because
they are presented in peer-reviewed
journals.
EPA conducted an evaluation of all
submitted data and the documented
anaerobic biodegradation studies of
benzene suggest that in-situ anaerobic
biodegradation of benzene rates are
strongly dependent on site-specific
conditions (e.g., availability of
chemicals to act as electron acceptors,
availability of nutrients, temperature).
The necessary conditions for anaerobic
benzene biodegradation are poorly
understood, and the absence of
biodegradation can be caused by the
presence of competing substrates, such
as toluene, xylenes and ethylbenzene, as
well as Inadequate geochemical
conditions and lack of proper electron
acceptors (e.g., nitrate, sulfate, iron).
Therefore, because of the lack of
information to correlate site-specific
controlling factors to biodegradation,
the limited number of field data, and the
field and laboratory evidence that
benzene tends to be recalcitrant to
anaerobic biodegradation,
biodegradation of benzene was not
considered directly in the groundwater
analysis. However, EPA did complete
preliminary modeling for the proposed
rule that incorporated assumed rates
into the analysis to see what impact this
might have on receptor well
concentrations (see the Petroleum
Refining Listing Determination
Background Document for Ground
Water Pathway Analysis, 1995, in the
docket for details). When assuming
degradations rate of 0.00001 and 0.0001
per day, the well concentrations for all
wastes examined decreased by
approximately 2 percent and 44 percent,
respectively. In addition, there may be
a degradation "lag time," which is the
time period between the introduction of
a constituent into the subsurface and the
start of actual biodegradation. This time
reflects the period subsurface microbial
populations may need to acclimatize to
the organic substrate before degradation
may occur. Thus, if the lag time were 10
years, the decrease in the well
concentration due to biodegradation
assuming the higher decay rate of
0.0001 day, would be lowered to only
22 percent. These results suggest that
using a conservative degradation rate
would not significantly alter the risk
results for benzene. For example, even
assuming biodegradation of benzene
lowered the high-end risks for this
constituent by about 50 percent, the
risks would remain above 1E-5 for the
hydrotreating/hydrorefining catalysts
and crude oil storage tank sediment.
EPA plans to study further the
modeling of anaerobic biodegradation in
the saturated zone of hazardous
constituents from hazardous wastes and
the physical conditions under which
anaerobic degradation occurs where the
Agency has developed sufficient data to
permit such an analysis.
Location of Receptor Well
The distance from the landfill to the
receptor well is an important parameter
in the groundwater model, because the
projected concentrations of constituents
at the well, and the corresponding risks,
increase as the well location is moved
closer. EPA received comments from six
commenters on the value used by the
Agency for the distance to the nearest
well from a landfill. One of the
commenters felt that EPA should have
used a smaller distance, while the
remaining commenters felt EPA's value
was too small.
One commenter believed EPA should
have used the distance to the nearest
well for off-site landfills that the Agency
used in past listings, (i.e., 48 meters
used in the dye and pigment proposed
listing determination.) This value was
less than half the value used for the
petroleum listing determination. The
commenter suggested that EPA perform
the two parameter high-end analyses
using the 48-meter distance to the
receptor well.
In response, EPA notes that in its
Monte Carlo analysis the Agency used
the full distribution of available receptor
well distances, including wells at
smaller distances. The risk results for
wastes of concern were presented in the
NOD A, and were subsequently revised
as described elsewhere to yield the final
results in Table IV-2 (see Section IV.B,
and the groundwater background
document in the docket, Additional
Groundwater Pathway Risk Analyses,
1998). Concerning the well distance
used in the dyes and pigments rule, EPA
notes that the Agency used essentially
the same underlying well distance data
in this rule as was used in the dyes and
pigments' proposed rule. The apparent
high-end value used in this earlier rule
(46 meters, not 48 meters cited by the
commenter) represents the 95th
percentile distance, and 104 meters is
the 90th percentile. However, EPA
states in the dyes and pigments rule risk
documentation (see page 21, Health Risk
Assessment Background Document for
the Dyes and Pigments Manufacturing
Industry, November, 1994, in the docket
for that rule) that the high-end well
distance of 46 meters was chosen
because this was the 90th percentile
value. But as Table IV-2.7 in the dyes
and pigments risk document shows, the
90th percentile value actually was 104
meters, nearly the same as the 102
meters high-end value used in the
current petroleum rulemaking..
Therefore, the use of 46 meters in the
dyes and pigments rule as the 90th
percentile distance was an oversight.
Regardless, EPA believes that the 90th
percentile value is more appropriate to
use in the type of high-end sensitivity
analysis performed for this rulemaking,
and that the 95th percent value would
be unreasonably conservative. EPA
believes that setting two critical
parameters to the 90th percentile level
is a reasonable approach to generate
high-end risks that are above the 90th
percentile, but still realistically on the
distribution. Such an approach is
consistent with EPA guidance (see
Habicht, 1992). EPA's Monte Carlo
analysis for the groundwater pathway
supports this approach, i.e., the revised
groundwater risks presented in Table
IV-2 show that the high-end risks are
above the 95th percentile risks
estimated from the Monte Carlo
analysis. Therefore, EPA believes its
approach is appropriately conservative.
The commenter also argued that the
distance to the nearest well used in the
groundwater assessment was
inconsistent with the distance to the
nearest receptor EPA used in the
nongroundwater risk assessment. The
commenter noted that the high-end
value of 102 meters used for
groundwater well distaVice is
inconsistent with the high-end value of
75 meters EPA used for the nearest
residence in the nongroundwater risk
assessment, and that this discrepancy
between the distance values is never
addressed or justified.
EPA disagrees that the distances must
be equivalent, because different
pathways are represented in each
assessment. Exposure from groundwater
pathways occurs through potentially
contaminated drinking water wells.
Exposure from nongroundwater
pathways occurs through multiple
exposure routes, such as run-off and air
releases from LTUs, and the point of
exposure is considered the location of
the residences nearest the LTU.
Therefore, EPA used different data sets
to estimate receptor distances for these
pathways to account for well locations
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42142 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
for groundwater and residences for the
nongroundwater pathways. For
distances to residences in the
nongroundwater pathways, EPA used
information compiled for Treatment
Storage and Disposal Facilities (National
Survey of Hazardous Waste Generators
and Treatment, Storage, Disposal, and
Recycling Facilities in 1986: Hazardous
Waste Management in RCRA TSDR
Units, July 1991). These values were
used instead of the ones used for
groundwater because they reflect the
distances to receptors being modeled,
(i.e., residences at which people may be
exposed to air releases or contaminated
soils.) The distances to residences will
not necessarily correspond to drinking
water well distances.
Four commenters felt that EPA should
have used data from the 3007
Questionnaire to calculate the distance
to the nearest receptor well, which
would result in a larger distance. Three
of these commenters felt that EPA's
decision to use values from the OSW
Subtitle D Waste Management Facility
Database was inconsistent with its
earlier determination to base other
information for its rulemaking on the
3007 Questionnaire. They believed that
the RCRA 3007 Questionnaire obtained
sufficient data from respondents, and
that data from this Questionnaire is
more appropriate, since unlike the OSW
data, the data are specific to refineries
and residuals considered for this listing.
Two commenters suggested that if EPA
felt there was insufficient response to
the 3007 Questionnaire, EPA should
have contacted non-respondents for
further information.
Because of the lack of completeness of
the reported well distances in the 3007
Questionnaire, the Agency decided to
use well distances from the Subtitle D
Survey Database. The 3007
Questionnaire response was incomplete
and inadequate. Of the 172 3007
Questionnaires returned, 27 facilities
reported the presence of nonhazardous
on-site landfills used for the disposal of
any waste in the survey in any year. Of
these 27, EPA found that only 15
reported the distance to the nearest
drinking water well with any reliable
documentation (e.g., well location maps,
groundwater flow gradients, company
survey of nearby wells). This limited
data set is not surprising given the
difficulty associated with seeking off-
site information from the refineries that
is not related to on-site operations.
Furthermore, wells may be placed closer
to the on-site landfills in the future.
Therefore, EPA relied on distances
obtained from the Office of Solid Waste
(OSW) database as more representative
of potential well locations. EPA notes
that the 3007 Questionnaire only
provides well location information for
evaluating on-site landfills, and even if
used, would not have impacted the
modeling results for off-site landfills.
Because the risks from off-site landfills
were higher or comparable to risks
calculated for on-site landfills, any
change in the results for on-site landfills
is unlikely to alter any decisions to list
wastes.
Two commenters disapproved of
EPA's methods for locating the receptor
well in the contaminant plume for
EPA's high-end and Monte Carlo
analyses. The commenters argued that
EPA should have assumed that the well
is always located on the centerline of
the contamination plume, in accordance
with previous Agency listing
determinations, and not have varied
well locations across the width of the
plume. The commenters submitted
modeling results purporting to show
that locating the receptor well on the
centerline would increase risk such that
a listing is required for most petroleum
refinery wastes covered by the NOD A.
EPA defined the well location for
modeling purposes by using the
distance perpendicular to the plume
centerline (Y coordinate) and the
distance from the landfill to the well (X
coordinate). The X distance to the well
was discussed in the preceding
comments. In the high-end analysis
completed in the proposed rule, EPA
fixed the Y coordinate of the receptor
well location half-way between the
plume centerline and the edge of the
plume. However, the Agency has
revised the two high-end parameter
evaluations using a full sensitivity
analysis for each waste, in which the Y-
location of the well was either placed on
the plume centerline (the high-end
value) or at plume half-width (the
median value). EPA also has performed
Monte Carlo analyses in which the
receptor well location was varied in
such a way that the location reflected
the nationwide distribution given in the
USEPA database of Subtitle D landfills.
The final revised Monte Carlo analyses
used the available distance to well data
(X coordinate) as noted earlier, and then
randomly placed the well anywhere
within the projected plume. Both of
these approaches are more appropriate
than what the commenter suggested,
because placing the well on the plume
centerline will tend to overestimate
risks in affected wells by not
considering other well locations.
Therefore, EPA does not agree with the
commenter, and believes that the
approaches used by the Agency in the
revised risk analysis fully considered
well placement. In any case, EPA notes
that the modeling submitted by the
commenter shows that simply holding
the well location on the centerline has
little impact on the results. For example,
the commenter's analyses that assumed
the receptor well was always on the
centerline yielded very minimal
increases of zero to eleven percent for
the four wastes they modeled in off-site
landfills (see Appendix A in "Analyses
Using EPACMTP to Estimate
Groundwater Pathway Risks from
Disposal of Petroleum Refinery Wastes"
King Groundwater Science, in comment
F-97-PRA-0005.A).
Finally, in conducting the Monte
Carlo analysis for the NODA, the
Agency made a key assumption
concerning well location, which was
inconsistent with the assumption made
for the deterministic analysis. In the
high-end analysis, the downgradient
wells of concern were assumed to be
those within the plume of
contamination from the landfill, as
noted above. For the Monte Carlo
analysis, all potential wells within a
180-degree arc downgradient from the
landfill were included, thus including
wells that would never be affected by
contamination from the landfill. Each
approach can provide valid assessments
of risk distributions, but the two
approaches describe risks for different
populations of receptor wells. Upon
further consideration of this issue, the
Agency determined it is most interested
in risks at well locations that could be
affected by the landfill. Including wells
that, because of their location, could not
be affected no matter how toxic or
mobile the waste constituents, provides
EPA with little information about the
waste on which EPA is making a
decision. Thus, EPA has relied on the
revised Monte Carlo analysis that
includes only those well locations that
were within the plume. The results of
this change, along with the other
revisions to waste volume and landfill
area estimates that were described
earlier, show that risks are higher than
previously reported for different
percentiles on the Monte Carlo
distribution. For example, the Monte
Carlo risk for landfills for crude oil tank
sediment with the receptor well
restricted to the plume was 1E-5, an
increase over the Monte Carlo result of
7E-6 when placing the well anywhere
downgradient, and more comparable to
the high-end results from the sensitivity
analysis, 4E-5. With this adjustment in
the Monte Carlo assumptions, the high-
end and Monte Carlo results appear
more consistent, and EPA believes that
such an adjustment is logical.
The differences between the two
different approaches in locating receptor
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wells In the Monte Carlo analysis is
most obvious when comparing the
constituent concentrations at the well
calculated to be the 50th percentile
values, otherwise known as the "central
tendency." By restricting the well
location to the plume, the 50th
percentile concentrations are over
several orders of magnitude greater than
those predicted when the well location
is allowed to be outside the plume. (See
Additional Groundwater Pathway
Analysis, 1998, section 5.3.1, in the
docket for this rule for more details.)
EPA would like to use this occasion
to make some observations about central
tendency estimates. There is a common
mlsperception that the central tendency
estimate might be an "unbiased" or
"best" estimate of risk. That could be
extremely misleading, especially where
it is difficult to distinguish variation
and uncertainty. The 50th percentile
estimates in the EPA groundwater
Monte Carlo risk assessment used to
support listing determinations under
RCRA strive to be estimates of results
for which half of the potentially
exposed receptors face more risk and
half face less risk in some group.
However, that does not mean that such
an estimate is a "best estimate" of a
relevant result. As an example, consider
if EPA did Monte Carlo estimates of
groundwater risk at all wells in a 360
degree direction from a unit. In many
cases (notably those with a fairly
constant direction of groundwater flow
relevant to any upgradient wells), well
over half of the wells within any
distance of the unit will be unaffected
by releases from the unit and will have
no risk. This would occur no matter
what the toxicity or mobility of the
hazardous constituent, and even though
deterministic modeling might show
with high certainty that wells in the
direction of groundwater flow from the
unit would have high risk. Clearly a
central tendency estimate of "no risk" is
not a "best" estimate of whether or not
there will be groundwater risks, nor
even a predictor of "mean" risk or of the
"expected value" risk. Instead, it gives
an indication that there is considerable
variation and that many or most wells
will not be affected. That indication
would not give EPA any confidence that
a hazardous constituent would not have
significant effect on the downgradient
wells, nor any particularly useful
information on the toxicity or mobility
of the waste.
Monte Carlo Versus Deterministic
Analysis
Two commenters felt that the
deterministic high-end risk assessment
used by EPA does not allow EPA to
determine what percentile of the risk
distribution is represented by the high-
end analysis. In response, EPA
performed a Monte Carlo groundwater
analysis to generate probability
distributions for risk presented by each
waste. These results were presented in
the NODA, and revised Monte Carlo
analyses, using the revised inputs for
landfill area and lifetime, are given in
Table IV-2.
Several commenters recommended
that the Monte Carlo analysis serve as
the basis for a listing decision, due to
the superior quality of the Monte Carlo-
based risk estimates in comparison to
the deterministic risk estimates (i.e.,
point estimates). They noted that in the
NODA, EPA states that the Monte Carlo
analysis "confirms" the risk findings (62
FR 16750-51); the commenters disagree
with this approach and state the Monte
Carlo results should be used as the
primary determinant of individual risk.
The commenters cite EPA guidance that
has recognized the superior quality of
Monte Carlo-based risk estimates
compared to high-end approaches.
In response, EPA notes that the
Agency's "Policy for Use of Probabilistic
Analysis in Risk Assessment" states that
"* * * such probabilistic analysis
techniques as Monte Carlo analysis,
given adequate supporting data and
credible assumptions, can be viable
statistical tools for analyzing variability
and uncertainty in risk assessments."
The policy also states that "[i]t is not the
intent of this policy to recommend that
probabilistic analysis be conducted for
all risk assessments supporting risk
management decisions." In addition, as
one of the conditions for using Monte
Carlo analysis, the policy states that
"[calculations of exposures and risks
using deterministic methods are to be
reported if possible." Thus, the
commenter's contention that
information from Monte Carlo analysis
is necessary to make a defensible listing
determination is over broad and is
inconsistent with Agency policy. The
Agency's policy indicates that Monte
Carlo analysis can be a useful tool for
providing additional information on
variability and uncertainty in certain
situations (which is the way it was
applied for this listing determination).
Furthermore, it is important to note
that the Agency's policies do not
indicate that there is any particular
point on a Monte Carlo distribution that
should be the point at which the Agency
regulates or does not regulate. The 1992
guidance (memorandum from the then
Deputy Administrator F. Henry Habicht
"Guidance on Risk Characterization for
Risk Managers and Risk Assessors")
states that "[t]he 'high end' of the risk
distribution [generally the area of
concern for risk managers] is
conceptually above the 90th percentile
of the actual (either measured or
estimated) distribution. This conceptual
range is not meant to precisely define
the limits of this descriptor, but should
be used by the assessor as a target range
for characterizing 'high-end risk'."
Therefore, a high-end estimate that falls
within the range (above the 90th
percentile but still realistically on the
distribution) is a reasonable basis for a
decision.
Exposure Duration
One commenter questioned why the
groundwater risk analysis used a
constant exposure duration of 9 years
for receptors, while the nongroundwater
risk analysis for LTUs included this
parameter in the sensitivity analysis and
used a high-end value of 30 years. The
commenter submitted modeling analysis
that purported to show that including
exposure duration as a high-end
parameter in the sensitivity analysis
would result in increased groundwater
risks, and specifically cited increased
risks for crude oil tank sediment and.
unleaded gasoline tank sediment.
EPA does not agree that exposure
duration is a particularly sensitive
parameter in the analyses at issue. In the
sensitivity analysis using exposure
duration presented in the commenter's
groundwater analysis, 30-year exposure
risks appear to be erroneously
calculated by simply multiplying the
calculated 9-year exposure groundwater
risk by a factor of 3.33, corresponding to
the ratio of 30 years/9 years. However,
EPA's risks based on a 9-year exposure
duration were calculated from the peak
well concentrations averaged over a 9-
year period, using health-based numbers
derived for a 9-year exposure period.
The more accurate approach to model
30-year exposure would be to calculate
maximum 30-year average groundwater
concentrations from the modeling
results, and then calculate the risk based
on health-based numbers derived for a
30-year exposure period. Maximum 30-
year average well concentrations may be
smaller than 9-year average well
concentrations depending on the peak
concentration period. The commenter's
apparent approach of simply scaling up
risks based on a 9-year exposure by a
factor of 3.33 will likely overestimate
the extrapolated risk for a 30-year
exposure. EPA examined the effect of
including exposure duration as an
independent parameter in a sensitivity
analysis for several wastes (HF
alkylation sludge, unleaded gasoline
tank sediment, and hydrorefining
catalyst). The results of the analysis
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42144 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
showed that exposure duration was
never a sensitive parameter, and
including it in the sensitivity analysis
had no impact on the selection of the
two high-end parameters or the risk
results for any of the wastes examined
(see Section 3 of Additional
Groundwater Pathway Risk Analyses,
1998). Therefore, EPA does not believe
this factor greatly affects the risk
calculations conducted for this
rulemaking.
Potential for Release of Oil Phase From
Wastes
One commenter believed EPA
inappropriately discounted the potential
for migration of nonaqueous-phase
liquids (NAPLs) arising from free oil in
the wastes to the groundwater zone
beneath the waste units. (Note that
NAPLs that sink in water because they
are more dense are called DNAPLs,
while NAPLs that float because they are
lighter than water are called LNAPLs).
The commenter argued that EPA
underestimated risk by evaluating
management conditions unfavorable for
NAPL release from landfills. The
commenter also stated that EPA ignored
the impact of this oil phase, or NAPL,
on transport of waste constituents in the
groundwater zone to the receptor well.
EPA's evaluation in the proposed rule
had concluded that the NAPL flow, if
any, from these residuals will not reach
the underlying aquifer and thus further
modeling was not necessary. The
commenter argues that EPA
underestimated the fraction of oily
liquid in the waste (suggesting a value
of 80 percent), falsely assumed that the
waste will be uniformly mixed with
benign material that would not
contribute to free oil, overestimated the
capacity of the soil beneath the landfill
(the unsaturated zone) to retain oil
released from the landfill, and failed to
consider the potential movement of the
oil sideways in the subsurface.
EPA does not agree with the
commenter's assertions. First, EPA notes
that the its analysis assumed a 27
percent free oil content in the waste for
its initial calculations, based on data
from the 3007 Questionnaire. This is
more realistic than the value of 80
percent cited by the commenter,
because the 80 percent value resulted
from an error in reporting. The 80
percent value represents the waste prior
to deoiling, and does not reflect the oil
content of wastes in landfills (see
Supplemental Background Document-
Listing Support Analysis, April 1997 in
the docket, App. A). The Agency used
EPA's Composite Model for Oily Waste
(EPACMOW), which accounts for both
aqueous phase and non-aqueous phase
flow and transport, to estimate
constituent transport. High-end
parameters were chosen for sensitive "
parameters (landfill area, waste
quantity, waste fraction, constituent
concentration, and infiltration rate).
Thus, even assuming the oil fraction is
free to migrate, the model predicted no
release of NAPL from the landfill,
because there is not sufficient oil to
saturate the material in the landfill
beyond the 10 percent soil or waste
saturation limit. Below this limit the oil
will not migrate as a NAPL. If the oil
does not escape the landfill, the NAPL
cannot saturate the soil beneath the
landfill, nor can NAPL-facilitated
transport in the subsurface occur.
EPA believes the commenter's
concerns about NAPL or free-oil release
from landfills are unwarranted for a
more fundamental reason. As discussed
elsewhere (see Sampling and Analysis
of Refinery Wastes), the residuals of
concern are not oily in the manner
anticipated by the commenter. While
the sampled residuals may contain oil,
this observation is not equivalent with
concluding, as the commenter does, that
free oil is present in these residuals. The
method used to estimate oil content in
the samples, the Total Oil and Grease
(TOG) method, will overestimate "free"
oil because it uses a strong organic
solvent to extract various organic
material, including waxes, greases, and
higher molecular weight oils that are not
mobile. During EPA's observation and
handling of crude oil storage tank
sediment during sampling and
laboratory analysis, a discrete free oil
phase, was not observed. None of the
samples analyzed via the TCLP in this
investigation were found to have oily
phases. In addition, as noted elsewhere,
reported oil and grease content of
landfilled wastes support EPA's
conclusion that wastes with high oil
content (whether free oil or not) are not
typically land disposed. This result is
consistent with EPA's belief that oil
concentrations in a landfill will not
reach the levels the commenter
suggested, since refineries generally
have economic incentives to. recover
free oil and minimize the amount of oil
that is disposed in wastes.
The commenter also submitted a
report to document the plausibility of
NAPL flow of contaminants from waste
management areas ("Release of Dense
Nonaqueous-Phase Liquids to
Groundwater in Waste Disposal Areas:
Part 1," March 1997). The commenter
stated that the report showed four waste
management facilities "associated" with
the petroleum sector may have released
nonaqueous phase liquids, or oil, into
the groundwater. The commenter
concluded that refinery wastes like
those at issue in this rulemaking were
codisposed with other wastes in the
units, and may have caused the NAPL
or oil release,
EPA disagrees that the report cited by
the commenter provides any
information relevant to either the wastes
under examination in this rule, or the
type of landfill disposal at issue. EPA
evaluated the report cited by the
commenter and does not believe the
information is particularly relevant to
the listing decisions under
consideration for several reasons. First,
of the 26 sites identified in the report as
having "definite" DNAPL
contamination, 24 were Superfund sites
listed on the National Priority List (NPL)
for remediation. This limited number of
NPL sites represented various industrial
sites, many having a long history of
many forms of waste mismanagement
beyond landfilling (e.g., land spreading,
land disposal of liquids, surface
impoundments). As such, these sites
can hardly be deemed to represent
typical off-site landfills. Furthermore,
the four facilities "associated" with the
petroleum sector all operated from the
late 1950s and most ceased operation by
the early 1970s (one operated until
1981). Not surprisingly, the types of
waste disposal that occurred at these
four facilities do not resemble the
typical disposal that occurs presently at
landfills. The report shows (see Table
A-3) that all of these facilities disposed
of liquid wastes and sludges in surface
impoundments; other liquid disposal
practices included dumping into
trenches and buried barrel mounds. In
fact, from the information in the report
it is not clear that any of the four sites
had any unit resembling a solid waste
landfill.
In addition, the four sites accepted a
variety of wastes, including chlorinated
solvents and other organic wastes (see
Table A-2 in the report). While two
sites were reported to receive wastes
from tanks ("wastes from tank cleaning"
and "tank bottom sludge"), there is no
evidence presented in the report to
support the commenter's assertion that
any wastes were similar to the wastes at
issue in this rulemaking. In fact, given
the apparent predominance of disposal
of liquids at these two sites, and the lack
of any mention of a landfill, it does not
appear likely that the wastes cited
resemble the wastes under evaluation in
today's rule. As noted previously, the
listing residuals of concern here did not
exhibit free oil, and the available data
indicate that residuals sent to landfills
had low total oil content. Certainly the
samples of tank sediments obtained by
EPA were not liquids. Therefore, EPA
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believes that this report does not
demonstrate anything significant,
beyond the general fact that some
landfills In the past have contained
wastes that may release NAPLs.
However, it provides no useful
Information about the wastes under
study and their potential for NAPL
formation, in either on-site or off-site
disposal, EPA does not believe the
information is particularly relevant to
the listing decisions under
consideration.
Existing Groundwater Contamination
One commenter stated that the
subsurface under many refineries is
grossly contaminated, and may affect
the rulemaking in two important ways:
(1) existing subsurface contamination
can contribute significantly to
groundwater risks at the modeled
receptor well near refinery sites, thus
EPA should include the cumulative
risks in its assessments; and (2) the
existing refinery groundwater
contamination is often in the form of
LNAPL (such phases float on top of the
groundwater and typically contain
lower molecular weight constituents,
such as those found in gasoline) or other
conditions that can facilitate the
transport of organic contaminants at
refinery sites, including but not limited
to the PAHs in refinery wastes. The
commenter noted that the rate and
extent of LNAPL migration can depend
upon site-specific circumstances, and
often results in lower dilution and
attenuation, and could result in higher
concentrations at a receptor well. The
commenter stated that while there is no
nationwide survey of LNAPL
occurrence at refinery sites, there is
ample evidence that LNAPL
contamination is frequent and severe,
and EPA must take into account the
hydrogeologic conditions known to the
Agency that can affect the transport of
hazardous constituents. However, the
commenter did not offer any suggestions
as to how to consider such "facilitated
transport" in the groundwater
assessment.
EPA agrees that there are no doubt
petroleum refineries at which
significant LNAPL contamination from
product spills exist; however the
Agency does not believe this should
have a significant impact on its listing
decisions for several reasons. First,
EPA's risk assessment is conservative in
that it assesses incremental risk
associated with targeted residuals using
a relatively low 10-5 to 10-6 risk
listing threshold, in part because of
possible exposure to unknown
pollutants. Furthermore, EPA cannot
conclude that LNAPLs would be present
at the precise sites where these wastes
are likely to be disposed and potentially
release constituents. As the commenter
also noted, the rate and extent of NAPL
migration can depend upon site-specific
circumstances. The proper
consideration of existing contamination
would call for the full analysis of many
other site-specific factors as well, some
of which may tend to reduce constituent
release from landfills, subsurface
transport, and human exposure. Such
factors would include the possible lack
of potable groundwater near the site,
and potential biodegradation at some
sites, perhaps accelerated due to the
prevalence of subsurface organisms that
may exist in areas with contamination.
Further, if LNAPL or other
contamination exists, there may well be
ongoing remediation, perhaps involving
groundwater interception or pumping
that would significantly alter or limit
groundwater flow. The Agency believes
that a site-specific assessment would be
more appropriately carried out by State
or Federal programs related to
remediation of sites, and that such an
approach would be quite difficult to
follow in pursuit of an industry-wide
listing determination.
EPA also notes that it is not likely that
aquifers so widely contaminated so as to
have floating hydrocarbons would be a
continuing source of drinking water.
Such contamination should be easily
detected and avoided, and would be
unlikely to lead to the multiple-year
transport and exposure scenario that is
the basis for EPA's risk assessments.
Furthermore, the level of benzene in
likely sources of LNAPLs, gasoline (1.6
percent average, or 16,000 ppm), would
dwarf any potential risk that might arise
from the leachable levels of benzene in
wastes under consideration in this rule,
making any concept of cumulative risk
difficult to apply in any meaningful way
in a listing determination. (For
comparison, the highest level of
benzene in any TCLP sample of listing
residual was 39 ppm for hydrotreating
catalysts). As noted above, the
commenter's approach also presumes a
number of additional worst-case
assumptions (regarding the presence of
critically placed NAPLs) that cannot be
considered in a vacuum, and would
require the consideration of many other
site-specific factors to fully evaluate.
The Agency notes that the practical
impact of considering LNAPLs and
facilitated transport, even if this could
be done, is not likely to be significant
for most wastes of concern. EPA has
decided to list the wastes with higher
oil content (CSO tank sediment and
crude oil tank sediment), as well as the
spent catalysts. Thus, the wastes for
which this comment is most relevant are
being listed, leaving unleaded gasoline
tank sediment and HF alkylation sludge
as the only other wastes that showed
any groundwater risk of concern to the
commenter. EPA notes that the effective
dilution and attenuation factors for
benzene resulting from the modeling
(DAF; calculated by dividing the TCLP
input at the point of release from the
landfill by the projected concentration
at the receptor well) for both of these
wastes were on the order of 2 to 4 (see
Additional Groundwater Pathway
Analysis, 1998). These low DAFs
approach the theoretical limit of one,
which mean that benzene released from
the landfill is estimated to reach the
receptor well at concentrations that
approach the levels in leachate released.
Therefore, it is highly unlikely that
EPA's assessment significantly
understates groundwater risks for these
wastes, and any further considerations
in the modeling (such as "facilitated
transport" due to existing
contamination) are unlikely to
significantly alter the modeling results.
Unlike the modeling for benzene,
which is relatively mobile in
groundwater, the limited modeling for
PAHs detected in TCLP samples
indicates that contaminated subsurfaces
may have the potential to affect the
migration of PAHs in groundwater.
PAHs are relatively insoluble in water
and are not expected to migrate easily
via aqueous leaching and transport, and
the high-end analysis for the PAH
benz(a)anthracene showed DAFs of 15-
64 (see Additional Groundwater
Pathway Analysis, 1998). As the
commenter noted, the presence of
existing contamination such as NAPLs
in the subsurface may facilitate
migration. Some oily wastes contained
potentially significant levels of PAHs
(CSO sediment, crude oil storage tank
sediment), and while TCLP results
showed no detectable leaching, the
detection limits in these samples were
above health-based levels. It is difficult
to assess potential groundwater risks
from PAHs with complete certainty
because undetected but potentially
significant levels might possibly be in
the TCLP leachate. PAHs could
theoretically present some risk if they
leached at their aqueous solubility
levels, which in many cases are below
detection limits. For example, the water
solubility of benz (a) anthracene (0.013
mg/L) is 32 times the health-based level
(4E-4 mg/L at the 1E-6 risk level), and
this level is very close to the method
detection limit (about 0.010 mg/L).
While EPA cannot quantify any risks
from TCLP samples in which PAHs
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were not detected, the presence of these
carcinogenic PAHs in the waste present
some potential for additional risk,
especially if transport is facilitated by
existing contamination. Therefore,
while EPA is not using the presence of
carcinogenic PAHs as the sole or
overriding factor in listing any waste
(except for CSO sediment which clearly
exhibited high risks from
nongroundwater pathways due to
PAHs), the presence or absence of
carcinogenic PAHs was a contributing
factor EPA considered in decisions to
list or not list certain wastes (i.e., crude
oil storage tank sediment, unleaded
gasoline tank sediment, and HF
alkylation sludge. However, EPA would
not list solely on the undetermined
potential for groundwater risks from
PAHs given their relative insolubility,
and because facilitated transport by
LNAPLs is a complex hypothesis that
EPA did not find likely for these
particular wastes.
7. Specific Nongroundwater Modeling
Issues
Uncertainty Analyses in Indirect
Exposure Assessment
For both the proposed rule and the
NODA, estimates of non-groundwater
pathway risks were derived using a
deterministic risk assessment method,
which produces point estimates of risk
using single values for input parameters.
In this method, input parameters are
varied between the central tendency
value (50th percentile) and the high-end
(90th percentile) values. The point
estimate in which all variables are set at
central tendency is assumed to be the
central tendency risk estimate, and the
highest risk estimate for any
combination of double high-end
variables (with all other variables set at
central tendency) is assumed to be the
high-end estimate of risk. The high-end
risk estimate is presumed by the Agency
to be a plausible estimate of individual
risk for those persons at the upper end
of the risk distribution. The intent of
these descriptors is to convey estimates
of exposure in the upper end of the
distribution (i.e., above the 90th
percentile), while avoiding estimates
that are beyond the true distribution.
The high-end risk as estimated in the
proposed rule and NODA is the highest
risk estimate for any combination of
double high-end variables defined as
those two variables modeled that, when
set at 90th percentile values, pose the
highest risk of all possible combinations
of any two variables. Using this
methodology, the point estimate in
which all variables are set at central
tendency (50th percentile) is assumed to
be the central tendency risk estimate,
and the highest risk estimate for any
combination of double high-end
variables is assumed to be the high-end
estimate of risk (above the 90th
percentile; see Agency guidance in the
Habichtmemo, 1992).
The Agency requested comments on
how best to factor uncertainty into
Agency listing determinations based on
the non-groundwater risk assessment.
These risk assessments are so-called
"indirect" exposure assessments, and
are discussed in the proposed rule
preamble at 60 FR 57762. Indirect
exposure assessments are those in
which the receptors (in this case nearby
residents, home gardeners, subsistence
farmers and subsistence fishers) are
exposed to contaminants in the waste
after these contaminants have been
transported from the waste management
area and have entered another
environmental media (in this case soil
and various food products) at the
receptor site. This issue is important for
this rule because the potential exposure
pathways of concern arose from releases
of soils through erosion (run-off) or
wind-blown air emissions from LTUs
onto adjacent areas.
Of particular concern to the Agency in
the proposal was the issue of whether it
is accurate to assume that greater
uncertainty generally results in a more
conservative risk assessment. One
commenter noted that because the
uncertainty in indirect exposure
assessment can lead to a substantial
overestimation of risks, failure to
consider uncertainty can result in listing
decisions for refining process residuals
that do not actually pose a significant
risk. The commenter suggested that EPA
could account for uncertainty in
indirect exposure assessment through a
quantitative probabilistic uncertainty
analysis, or to list those wastes
associated with substantial uncertainty
only if the estimated risks are at the
high-end of the risk range.
Other commenters questioned the use
of individual assumptions" or input
parameters in the nongroundwater risk
assessment for LTUs. Commenters
specifically noted that EPA should
include a quantitative analysis of the
following sources of uncertainty in the
risk estimates for residuals proposed for
listing: biotransfer factors, food
consumption rates, biodegradation, land
application rates, and physical transport
processes.
The Agency agrees that an uncertainty
analysis is desirable and conducted an
uncertainty and variability analysis in
support of the final nongroundwater
risk assessment. The Agency addressed
specific comments regarding use of
individual parameters (e.g.,
biodegradation rates) by including those
parameters in the uncertainty analysis.
A detailed description of the
uncertainty analysis is presented in the
document titled Uncertainty Analysis:
Nongroundwater Pathway Risk
Assessment; Petroleum Refining Waste
Listing Determination available in the
docket for today's rule. This document
identifies the source of uncertainly or
variability noted by commenters in each
step of the analysis and describes the
method of quantifying or mitigating that
uncertainty/variability. When data
distributions were available, variable
parameters were included in a Monte
Carlo simulation to provide a
quantitative measure. If little or no data
were available, a qualitative discussion
of the source and effect of the
uncertainty is provided. Key variables
included in the uncertainty analysis
include: constituent concentrations,
biodegradation rates, distance to
receptor, soil erosion parameters,
bioaccumulation factors and
bioaccumulation rates, and ingestion
and consumption rates. The uncertainty
associated with the generalized site
assumptions of LTU area, waste
quantity, and geographic location used
in the deterministic analysis was
addressed through the use of site-
specific data where available.
The nongroundwater assessment
uncertainty analysis covers three waste
streams: CSO sediment, crude oil
storage tank sediment, and off-
specification products and fines. These
were the only wastes with moderate to
high levels of carcinogenic PAHs, and
because PAHs were the constituents of
concern for LTU risks, the risks for other
wastes in this scenario were negligible
(see 62 FR at 16753). EPA proposed CSO
sediment for listing on the basis of the
nongroundwater deterministic (high-
end) analysis, which showed significant
risk from PAHs. Crude oil storage tank
sediment, which contains similar
constituents in lower concentrations,
showed risk levels from land treatment
below EPA's range of concern. Off-
specification products and fines also
have similar constituents present in
lower concentrations, but were not
originally modeled as managed in LTUs
for the proposal because the volumes
managed this way were relatively small.
However, off-specification product and
fines were modeled as part of the LTU
analysis conducted for the NODA to
respond to comments on potential risks
arising from codisposal. (See Section
V.C.6 for a full discussion of the
decision on off-specification products
and fines).
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42147
The probabilistic uncertainty analysis
was performed on a constituent specific
basis, thus comparisons between the
Monte Carlo and the high-end results
must be made for a specific constituent
to be meaningful. For example, for
clarified slurry oil sediment managed
on-site, the high-end risk analysis
estimated a risk of 5E-5 to the
subsistence farmer from
dlbenz(a,h)anthracene via oral ingestion
pathways. The uncertainty analysis for
on-slte management of clarified slurry
oil sediment indicated a 90th percentile
risk to the farmer from
dlbenz(a,h)anthracene via oral ingestion
of 5E-5 for the site modeled (Anacortes,
WA). For CSO managed off-site, the
high-end ingestion pathway risk to the
farmer from dibenz(a,h)anthracene was
estimated to be 2E-6. Based on the
probabilistic analysis, the corresponding
90th percentile risk for this waste
stream was 3E-6 and 1E-5, respectively,
for the two off-site LTUs modeled
(Robstown, TX and White Castle, LA).
For both crude oil storage tank sediment
and off-specification products and fines,
the uncertainty analysis indicates that
risks are below 1E-5 at the 90th and
95th percentiles for all exposure
scenarios associated with on-and off-site
management of these waste streams in
LTUs. consistent with the high-end
deterministic results.
The uncertainty analysis confirms
that the high-end risk results presented
in the NODA are plausible estimates of
risk for individuals at the upper end of
the risk distribution. In the high-end
analysis presented in the NODA, the
total carcinogenic risk (i.e., the
combined risk from all of the hazardous
constituents) for this waste was 2E-4, a
level well above EPA's benchmark level
of concern (1E-5). For the on-site CSO
scenario, the uncertainty analysis
indicates risks of 1E-5 from individual
constituents at the 90th percentile of the
risk distribution. Thus, the uncertainty
analysis indicates that on-site high-end
risks for CSO from individual hazardous
constituents clearly do not represent
risks that are outside of the true
distribution. Rather, the probabilistic
analysis indicates that high-end risks for
individual hazardous constituents in
some cases represent exposure below
the 90th percentile of the risk
distribution.
The total carcinogenic high-end risk
for CSO for off-site units was 2E-5. For
this waste management scenario, the
uncertainty analysis indicates risks of
1E-5 from a single constituent at well
below the 90th percentile. The off-site
probabilistic analysis also suggests that
the high-end risks may be somewhat
below the 90th percentile for this
scenario.
Based on the results of the uncertainty
analysis, therefore, the deterministic
analysis certainly does not appear to
overestimate risks from CSO. In any
case, the decision to list CSO sediment
is clearly supported by the uncertainty
analysis. The Monte Carlo risk results
below 1E-5 under all conditions for
crude oil storage tank sediment and off-
specification product and fines also
confirms the decision not to list these
wastes based on nongroundwater risks
(note that EPA has decided to list crude,.
oil storage tank sediment based on
groundwater risks from landfill
disposal).
Run-on/Run-off Controls
EPA received numerous comments
regarding the use of run-on/run-off
controls for LTUs, which indicated that
there was some confusion about EPA's
assumptions regarding these controls in
the risk assessment. The proposed
listing determinations (as well as
today's final decision) assumed no
controls for the high-end analysis, and
50 percent effective controls for the
central tendency analyses. Commenters
challenged these assumptions as
outlined below.
Two commenters argue that there is
no legal or factual foundation for the
Agency's assumption that any plausible
mismanagement involving land
treatment now or in the future will
occur at a facility with run-off controls,
much less with controls achieving 50
percent efficiency. Conversely, seven
commenters state that even where there
are no Subtitle C or mandatory state
Subtitle D regulatory requirements for
these controls, numerous other factors
are motivating their use, as evidenced
by the fact that most facilities use them.
EPA conservatively assumed that no
run-off controls were present in its high-
end analysis of risk to individuals
residing near land treatment facilities
because the presence and effectiveness
of such controls could not be verified.
The central tendency scenario, however,
assumed that controls were in place that
were 50 percent effective. After
consideration of all comments and the
available data, EPA did not change these
assumptions in subsequent risk
assessments for the NODA. The bases
for these assumptions were responses to
the 3007 Questionnaire and a survey of
State programs. In the 3007
Questionnaire, refineries were asked to
characterize whether run-on or run-off
controls were in place at LTUs used in
1992. Based on this information, all of
the 18 facilities with LTUs reported
some level of controls. As part of the
revised risks analysis for LTUs
presented in the NODA, EPA
determined all but 6 LTUs are permitted
Subtitle C units, and thus required to
have run-on/run-off controls (see 40
CFR 264.273). For the nonhazardous
units, it was not possible to quantify the
effectiveness of the controls due to the
very general nature of the questions and
responses.
EPA's survey of State programs
showed that, while some states have
established minimum standards for
Subtitle D units, many states do not
have regulations on run-on/run-off
controls (see Communications with
State Authorities on Requirements for
Land treatment Units, EPA, 1995;
Docket # F-95-PRLP-S0019). The
effectiveness of run-off control is
dependant on many factors (e.g., level of
engineering design, operation and
maintenance practices, regulatory
oversight and minimum standards,
weather conditions), and the
effectiveness may vary because of the
lack of Federal nonhazardous LTU
standards. As a result, EPA assumed
only partial effectiveness, 50 percent
controls, for the central tendency
analysis, and no controls for the high-
end analysis. EPA does not have data
available that would allow for more
precise quantification of effectiveness.
The Listing Program's mandate to
consider potential mismanagement
scenarios clearly does not rely on
assumption of the best controls, but
rather must more closely evaluate the
weakest plausible management
scenarios. In the case of LTUs, this
includes the potential for no or minimal
run-on or run-off controls in many
states, reflecting the lack of national
minimum standards. (EPA notes that, in
the revised NODA analysis, the Agency
did not use LTU areas for hazardous
waste units in its risk assessment,
because these units are assumed to have
effective controls in place. This
information would not be applicable to
estimating risks for nonhazardous
LTUs).
Furthermore, EPA notes that the risks
arising from soil run-off have limited
impact on the Agency's final listing
decisions based on the outcome of the
risk for the nongroundwater pathways.
This is because EPA has discovered
that, due to an error in the air dispersion
modeling conducted for the proposal,
the risk attributable to the air pathway
has increased and is now the same order
of magnitude as the risk due to soil
erosion. (The error was in converting
units from ng/m2 to g/m2). The unit
conversion correction makes the risk
due to air deposition from windblown
soil from the LTU comparable to the risk
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attributed to soil erosion. For example,
for on-site LTU risk for CSO sediment,
the total carcinogenic risk due to soil
transport is 1E-4. The risk due to air
deposition is approximately 7E-5, and
the risk from soil run-off is about 3E-5
(see the NODA response to comment
document for a more detailed
discussion). Thus, soil erosion and run-
off control assumptions are not as
critical for the listing determination,
because even in the absence of exposure
through run-off, the risks for this waste
are well above 1E-5 and merit listing.
The relative contributions to the media
concentrations of contaminants from air
and erosion were investigated in the
uncertainty analysis conducted in
support of this listing determination.
Soil Transport
EPA received numerous comments to
both the proposed rule and the NODA
questioning the methodology used to
estimate soil run-off and transport from
an LTU to surrounding fields and water
bodies. Commenters to the proposal
stated that transport of soil from the
land treatment area to the receptors was
not physically possible as modeled by
EPA's use of the Universal Soil Loss
Equation (USLE).
The USLE is an empirical erosion
model originally designed to estimate
average soil erosion losses to
waterbodies from an agricultural field
having uniform slope, soil type,
vegetative cover, and erosion control
practices. In the proposed risk
assessment, the USLE was used to
estimate the mass of soil lost per year
per unit area from a LTU and deposited
onto an adjacent receptor site. EPA
estimated the percentage of the eroded
soil that reached the receptor site using
a fixed sediment delivery ratio. The
Agency estimated the amount of soil
eroded from the LTU and deposited on
each receptor site (agricultural field,
residential lot, home garden)
independently of soil eroded and
deposited into the nearby waterbody.
In response to comments on the
proposed rule, EPA substantially
revised its approach to estimating soil
concentrations. This approach is
presented in the NODA. Revisions were
made to more accurately model an
integrated soil erosion setting that
includes the field, a buffer zone and the
water body. The revised method for
estimating soil erosion incorporates
mass balance assumptions within the
field to stream setting, and places the
receptor field between the landfill and
the waterbody. The model estimates rate
of soil delivery to the nearest waterbody
and assumes that the soil eroded from
the source that does not reach the
stream is deposited evenly over the
subbasin, including the garden.
Commenters on the NODA regarding
EPA's use of USLE to estimate soil
erosion centered on the assertion that
run-off after leaving the land treatment
area does not flow uniformly across the
landscape, but will instead flow in a
"channel" moving downstream toward
the outlet of the basin or watershed. A
number of commenters also argued that
EPA's assumption of receptor locations
relative to LTUs is unreasonable. They
noted that EPA assumed that residences
are directly downgradient of LTUs and
that there are no obstructions to flow,
when in fact the existence of a ditch,
fence, wooded area, road, building, or
swale between the landfarm and a
garden eliminates this pathway of
exposure. Commenters contended that
the run-off cannot reach the gardens,
farms and adult residents without
unrealistic assumptions regarding
location of receptors. These commenters
argued that EPA failed to adequately
respond in the NODA to proposed rule
comments that the run-off from an LTU
cannot physically reach the home
gardens as assumed and that therefore
the revisions presented in the NODA are
inadequate.
EPA's revised method for estimating
soil erosion assumes that the sediment
delivery ratio is constant across the area
between the LTU and the waterbody
(i.e., it does not assume channeling),
and that receptor sites are assumed to be
downgradient from the source and
within the same defined subbasin as the
LTU. EPA believes that these
assumptions are reasonable in order to
estimate risk that might be expected to
occur at petroleum refining locations. In
the absence of specific data, EPA
believes that its assumptions are
reasonable and appropriately
conservative, because residential
locations may change over time. In
addition, EPA notes that to properly
consider channeling in soil erosion
would require extremely detailed site
descriptions of the topography and local
conditions, and sufficiently detailed site
descriptions are not available. In the
absence of such detailed data, EPA used
simplifying assumptions to estimate soil
erosion that may occur over a wide
range of possible scenarios.
Furthermore, while the commenters
disputed the modeling approach used
by the Agency, they did not provide any
alternative model that could be used
with the information available.
For listing determinations, EPA wants
to ensure that its risk estimates are
conservative, and do not underestimate
risks from releases from LTUs
containing these wastes. As noted
extensively elsewhere in this Section,
other commenters have raised reasons
why EPA's modeling of LTUs may
underestimate risks (e.g., existing
contamination around refineries,
codisposal with other wastes). EPA
believes that its overall modeling
approach for LTUs is an appropriate
middle ground and reflects risks that
may arise from such units. The models
used by EPA to develop this rule are
exceedingly complex. It would not be
practicable, and likely impossible, to
develop models that would account for
all possible sources of site-specific
variability. Accordingly, EPA has used
reasonable, simplifying assumptions to
estimate risks.
As described above in the discussion
on run-on/run-off controls, EPA
inadvertently made an error in the
modeling for the proposed rule in unit
conversion, which created an
underestimation of risk due to air
deposition. This change was described
in the nongroundwater risk background
document for the NODA. Because the
unit conversion correction makes the
risk due to air deposition from
windblown soil the same order of
magnitude as the risk attributed to soil
erosion, USLE modeling assumptions do
not provide the sole basis for the listing
determination.
Specific comments regarding the
individual parameters and assumptions
used in EPA's USLE calculations (e.g.,
steepness of slope, soil delivery rate,
meteorologic and soil data) are
addressed in detail in the response to
comment documents for the proposal
and the NODA. In addition, the
modeling conducted as part of the
uncertainty and variability analysis for
LTUs included site-specific
meteorologic data, soil data, USLE
parameter values, and the distance
between the LTU and the home
gardener receptor. This analysis has
shown that the listing decision is not
altered by the use of site-specific data
for some of the parameters questioned,
or by variation in the receptor location.
Bioavailability and Bioaccumulation
EPA received a number of comments
on the manner in which biological
processes such as bio-uptake,
biotransformation, and bioaccumulation
were considered in the non-
groundwater risk assessment. One
commenter states that EPA should have,
but did not, consider the potential
health effects to subsistence farmers and
fishers due to bioaccumulation of PAHs.
The commenter contends that EPA
simply ignored this exposure route for
these receptors due to the "high
uncertainty" associated with fish and
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42149
plant-to-animal bioconcentration factors
for the PAHs of concern in this
rulemaking. The commenter believes
that EPA should consider the
Information qualitatively, and/or
present a range of results based upon
possible bioconcentration factors. EPA
responds that the Agency appropriately
considered bioaccumulation of PAHs in
these receptors as discussed below. A
more detailed response to this issue is
found in the uncertainty and variability
analysis conducted in support of the
risk assessment for this rule.
The subsistence farmer scenarios were
evaluated initially for the proposed rule
using beef and milk biotransfer factors
for PAHs that were estimated based on
the octanol/water partition coefficient
(Kow). KOW is a measure of the affinity
a chemical has for a nonaqueous,
organic environment (octanol), versus
its tendency to stay in water, and is
commonly used to assess the absorption
rate of a given compound from the
environment into organisms. Beef and
dairy biotransfer factors are used to
estimate the transfer of constituents
from the diet of cattle into meat and
milk products consumed by humans.
Kow was initially used as a surrogate for
biotransfer because measured data on
the biotransfer of PAHs from plants to
cattle or other ruminants are currently
unavailable. However, in the NODA,
EPA decided not to use these estimates
In the risk assessment because the
Agency believes that use of Kbw greatly
overestimates biotransfer for
constituents with large Kows. This
includes the PAHs of concern in
petroleum waste streams.
Estimates of biotransfer based upon
Kow only consider transfer of the
constituent from the concentration in
the diet into the concentration in the
Ilpld storage in the animal. These
estimates do not consider metabolic
pathways for any constituents. In fact,
PAH compounds with large Kows are
readily metabolized by the mixed
function oxidase metabolic pathway in
mammals to water-soluble substances,
which are then excreted. In other words,
these PAHs tend not to bioaccumulate
in animal or human tissue, but rather to
be metabolized and excreted.
To summarize, because it is not
possible to estimate PAH biotransfer
factors without at least one measured
value for any PAH compound, the
Agency did not quantitatively model
risks from bioaccumulation of PAHs for
the farmer and child of farmer scenarios.
Rather, based on knowledge of how
PAHs with large Kows are metabolized
in mammals, the Agency has concluded
that risk attributable to the beef and
dairy pathway are likely to be less than
the risk attributable to other ingestion
pathways for these scenarios. A more
detailed discussion of the metabolic
pathways for these constituents is
provided in Section 4.5 of the
uncertainty and variability analysis.
Subsistence fisher scenarios were
evaluated using measured
bioaccumulation and bioconcentration
factors (BAFs and BCFs) where
available. BAFs generally reflect the
transfer of contaminant from the
environment to the fish from food
sources. BCFs represent the transfer
from the dissolved phase to the fish
tissue BCF. Because measured BAFs are
usually not available, BCFs are most
often used. For those constituents for
which neither measured BAFs nor BCFs
were available, EPA assumed that BAFs
did not exceed 1000 liters per kilogram
offish body weight (L/kg). This
assumption is based on the data
presented in Derivation of Proposed
Human Health and Wildlife
Bioaccumulation Factors for the Great
Lakes Initiative (U.S. EPA, 1993).
While there are insufficient data to
define the distributions and correlations
needed for a reliable Monte Carlo
analysis of bioaccumulation of PAHs in
fish, EPA did conduct a quantitative
uncertainty analysis after the NODA for
BAFs using interval analysis. This is an
appropriate statistical method for
estimating missing values in a
distribution even when data are limited
as is the case for BAFs for PAH.
This analysis indicates that although
there is not enough information to
define the distribution and correlations
needed for a reliable Monte Carlo
analysis, the estimation of 1,000 I/kg is
appropriate and within the range of
uncertainty predicted for PAH
compounds. A more detailed discussion
of EPA's assessment of bioaccumulation
of PAHs in fish is provided in Section
4.5 of the uncertainty analysis for the
nongroundwater pathway risk
assessment, as well as in the response
to comment document for this rule (see
Section M of the response to comment
document for the proposed rule).
One commenter questioned the air-to-
plant biotransfer factors (Bv) used by
EPA in the analysis conducted for the
proposed rule. The commenter stated
that EPA's calculations of Bv contain
errors, and claimed that EPA did not
adequately explain or provide the basis
for its estimate of Bv values. In
comments on the NODA, the same
commenter argued EPA continued to
overestimate air-to-plant transfer.
EPA responds that the errors noted by
the commenter were corrected in the
reanalysis presented in the NODA. The
basis for EPA's estimate of Bv values is
as follows. Measured values for air-to-
plant biotransfer factors are available for
many PAH constituents. Where
available, EPA used measured values.
The remaining Bvs are estimated from
the KOW (using the Bacci equation). As
previously noted, KOW tends to
overestimate the bioaccumulation of
constituents with very large KOWS such
as PAHs. EPA compensated for this
overestimate by reducing the calculated
Bv by a factor of 40. This approach was
first presented in the 1993 Addendum
to Methodology for Assessing Health
Risks Associated with Indirect Exposure
to Combustor Emissions (EPA document
number EPA/600/AP-93/003).
One commenter argues that the
assumption of 100 percent
bioavailability of deposited constituents
is overly conservative because many
constituents, particularly PAHs, bond
tightly to soils and are unlikely to be
available to an organism even if the soil
is ingested.
In response, EPA contends that the
100 percent bioavailability represents a
reasonably conservative estimate of risk
that will result in a rule protective of
health and the environment. The
bioavailability of PAHs from ingested
soil depends on several environmental
and physiologic factors. The process by
which ingested soil-bound PAHs are
made more or less bioavailable in the
digestive tract and the effect of soil
characteristics are not well understood;
study results are conflicting. A recent
study on the oral bioavailability of
PAHs from soil, reported that the oral
absorption 6f PAHs in rats, hamsters, or
humans from diet or oil is
approximately 92 percent. Another
recent abstract presented data for the
bioavailability of the PAH
benzo(a)pyrerie (BaP) from soil in terms
of fraction of the BaP in soil that is
absorbed relative to the BaP ingested.
Based on that report, the fraction of BaP
absorbed varied from 0.07 to 0.75. (A
more detailed discussion of this issue is
provided in Section III.F of the response
to comment document for the proposal
in the docket). Due to the uncertainty
regarding the bioavailability of PAHs in
soil, the Agency believes it is
appropriate to assume PAHs to be 100
percent bioavailable in order to be fully
protective of human health.
Exposure Factors
Three commenters provided
comments on risk to home gardeners
from consumption of contaminated
produce. In comments to the proposed
rule, one commenter argued that EPA's
estimate of risks from root vegetable
consumption are overestimated by two
orders of magnitude. EPA responds that,
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based on this comment, the ingestion
rates used for vegetables consumed by
home gardeners and subsistence farmers
were corrected and the corrected rates
were used in the revised risk assessment
presented in the NODA.
Another commenter states that the
percentage of the population assumed to
have gardens is overestimated because
EPA did not account for the fact
different rates of produce consumption
by the home gardener correspond to
different types of gardens. The
commenter contends specifically that
EPA's assessment of risk to the home
gardener from CSO sediment is
significantly overestimated due to
overestimation of the amount of
produce consumed. The commenter
states that EPA should have used data
from the National Gardening
Association's 1994-95 survey for
assumptions regarding percentage of the
population with vegetable and fruit
gardens and fruit and vegetable
ingestion rates.
In response, EPA notes that the
exposure factors (e.g., patterns of fruits
and vegetables consumption by home
gardeners) used in the analysis
presented in the NODA were obtained
from the 1997 Exposure Factors
Handbook, which provides EPA's most
recent data on the various factors used
in assessing exposure. Furthermore,
EPA addressed the variability in
consumption rates within different
subpopulations as a component of the
uncertainty and variability analysis
performed after the NODA. As
previously noted, results from the
uncertainty and variability analysis
support the findings of the revised high-
end risk analysis presented in the
NODA.
Several commenters contend that EPA
overestimated soil ingestion. One
commenter asserts that EPA did not
account for the fact that individuals
ingest soil in proportion to the time
spent at each location (i.e., away from
home, indoors at home, outdoors at
home). EPA responds that variability in
soil ingestion rates has also been
addressed in the uncertainty and
variability analysis conducted in
support of the risk assessment for this
rule. The uncertainty analysis used data
on soil ingestion rates provided in the
1997 Exposure Factors Handbook.
Background Contamination
One commenter notes that EPA's
modeling assumes no background or
other contaminant exposure to nearby
receptors, an unjustifiable assumption
given other waste management practices
occurring at these facilities, the pre-
existing contamination at many
refineries, and the routine and
accidental releases associated with
refinery operations.
As EPA noted elsewhere in today's
notice when discussing existing
groundwater contamination, the Agency
does not believe this is appropriate to
consider for this listing for several
reasons. First, EPA does not have the
type of specific information on off-site
contamination that would be required,
nor did the commenter provide any.
Furthermore, without extensive site-
specific data, EPA cannot conclude that
existing soil contamination would occur
at the same off-site locations that might
be impacted by releases from LTUs
containing the wastes under study. The
proper consideration of existing
contamination would call for the full
analysis of many other site-specific
factors, some of which may reduce
constituent release, transport,
bioaccumulation, and exposure. Such
factors include specific LTU design, the
direction of any slope from the unit, the
existence of downgradient residential
receptors, and corrective action
requirements that may lead to clean up
of any release.
Fate, Transport, and Toxicity of PAHs
Commenters to the proposal pointed
out that EPA failed to consider the
biodegradation of PAHs in LTUs and at
off-site receptor locations, thus
overstating risks from PAHs in soils.
One commenter noted that failure to
consider biodegradation of the PAHs,
7,12-dimethylbenz(a)anthracene ((7-12-
DMBA) and 3-methylcholanthrene (3-
MC) in the risk analysis for CSO
sediment resulted in the overestimation
of risks, because these two compounds
have high cancer slope factors. While
biodegradation of PAHs within LTUs
was considered in the analysis for the
proposed listing, biodegradation that
may occur during transport of soil from
the LTU to the receptor location was not
considered in that assessment.
EPA agrees that biodegradation during
transport may be a significant removal
process for PAHs and should be
considered in analysis of PAH fate and
transport. Therefore, in response to this
comment, the nongroundwater risk
analysis conducted for the NODA was
expanded to include biodegradation of
PAHs (including 7,12-DMBA and 3-MC)
at the receptor location for the waste
streams of concern. Detailed results of
this analysis are provided in the revised
risk assessment technical background
document in the docket for the NODA.
The reanalysis presented in the NODA
did not significantly change the risk
estimates for these waste streams;
however, because .some of the PAHs
have relatively long half-lives (e.g., 3-
methyl cholanthrene's half-life is
reported to be from 1.67 to 3.84 years)
so they are unlikely to biodegrade
significantly prior to reaching the
receptor.
Contrary to the commenter's
prediction, consideration of
biodegradation at the receptor did not
result in reduction of risk estimated for
CSO sediment. For example, based on
the analysis for the proposed rule, the
high-end cancer risk for the home
gardener scenario from CSO sediment
managed on-site was estimated to be
9E-5. Based on the NODA analysis,
high-end risks for this scenario were
estimated to be 1E-4.
For the analysis conducted for the
NODA, EPA used only the most
conservative value for biodegradation
rates in order to assure that
biodegradation is not overestimated
when conditions and locations are not
ideal for biodegradation. However,
biodegradation rates were varied as part
of EPA's analysis of the uncertainty and
variability associated with non-
groundwater risk assessment presented
in the NODA. As discussed above, the
results of the uncertainty/variability
analysis support the findings of the
revised high-end risk analysis presented
in the NODA
C. Residual-Specific Comments
The most important risk and
modeling issues raised by commenters
that were general in nature, or were
raised repeatedly for various wastes, are
addressed in the preceding section.
Below EPA discusses specific comments
important for individual wastes and
presents the Agency's rationale for the
final listing decisions.
1. Crude Oil Storage Tank Sediment
Summary
EPA is listing as hazardous crude oil
storage tank sediment from petroleum
refinery operations. This waste stream
meets the criteria set out at 40 CFR
261.11 (a) (3) for listing a waste as
hazardous, because it may pose a
substantial or potential hazard to human
health or the environment. The Agency
has identified substantial risks to
consumers of groundwater associated
with releases from off-site Subtitle D
landfilling due to benzene, which EPA
has decided will not be adequately
regulated under the TC. The revised
groundwater risk assessment results are
summarized in Table IV-2.
Discussion
The Agency proposed not to list as
hazardous tank sediment from the
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storage of crude oil at petroleum
refineries, either on-site or at tank farms
owned by or affiliated with the
refineries or refinery companies. In the
proposal, the Agency found risks at
levels of potential concern (3E-5, high-
end groundwater risk) associated with
disposal in off-site landfills; however
EPA believed that because the only
constituent of concern, benzene, is
already regulated under the TC, listing
might not have been warranted. See 60
FR 57763. The proposal also reported
low risks from carcinogenic PAHs
potentially released from land treatment
operations (60 FR 57762). The Agency
solicited comment on the decision not
to list this waste stream, particularly on
whether the TC captures wastes of
concern, whether the Agency
adequately characterized the risk for
this waste, and whether any other
factors should be considered.
The revised risk analysis presented in
the NODA for land treatment continues
to show insignificant risks (
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Thus, even if a facility attempts to
perform the TCLP test in good faith,
sampling such a material is a difficult
challenge and could lead to inaccurate
results.
Finally, consistent with the proposal,
it is EPA's intent that the listing for
crude oil storage tank sediment from
refinery operations be limited in scope
to wastes generated from tanks that are
either on the refinery site, or at tank
storage areas owned or under contract to
the refinery. Thus, the listing does not
apply to storage tanks upstream at
exploration and production sites, or
associated with pipelines or other crude
oil transportation conveyances. EPA's
meaning with respect to the term
"affiliated" was to extend the scope of
the listing to all tanks containing crude
oil that are owned by the refinery and
used in refinery operations. EPA has not
collected data necessary to characterize
non-refinery sediments. Furthermore,
many of these non-refinery materials are
governed by special statutory provisions
(i.e., the "Bevill" provisions), and are
currently exempt from regulation as
hazardous waste (See 60 FR at 57764.)
2. Clarified Slurry Oil Sediment
Summary
EPA is listing as hazardous CSO
storage tank sediment and/or in-line
filter/separation solids from the
filtration of CSO from petroleum
refinery operations. This waste stream
meets the criteria set out at 40 CFR
261.11 (a) (3) for listing a waste as
hazardous, because it may pose a
substantial or potential hazard to human
health or the environment. The Agency
identified substantial risks to residents
and home gardeners near on-site and
off-site LTUs through direct ingestion of
contaminated soil released from these
units. The contaminants of concern,
PAHs, also tend to accumulate in food
sources such that this waste causes even
higher risks to nearby subsistence
farmers and fishers. EPA is not
promulgating any of the proposed
options for conditional listing, because
revised risk analysis for releases from
off-site landfills showed some risks of
concern to consumers of groundwater
(see Table IV-2).
Discussion
The Agency proposed to list sediment
from CSO storage tanks (including
solids from in-line filtration or
separation of CSO) as hazardous, due to
high-end cancer risks of up to 9E-5 and
8E-5 arising from receptors exposed to
contaminated soil released from on-site
and off-site LTUs respectively. High-end
risks associated with the landfill
disposal of this waste stream were
below the 1E-6 level, and EPA proposed
various options for a conditional listing
that would allow nonhazardous landfill
disposal, but prevent the practice of
land treatment. (See 60 FR at 57776).
In response to comments on the
proposal, EPA modified the landfill and
land treatment risk assessments and
published revised risks in a NODA (see
62 FR at 16748). The overall risk pattern
did not change significantly for land
treatment. Specifically, for the on-site
land treatment, the revised high-end
risks increased slightly (up to 2E-4),
and for off-site land treatment the
revised risks decreased slightly (risks up
to 3E-5)(see 62 FR at 16753). The
revised high-end groundwater risks due
to benzene from off-site landfill disposal
increased from
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entire industry could be listed based on
a single estimated concentration in one
sample.
EPA does not agree that any
uncertainty in the analysis resulted in
an overestimation of risk. First, EPA
notes that even constituents assigned a
"J" value were reliably detected in the
waste, although the precise level has
increasing uncertainty as the
measurement approaches the detection
limit. More importantly, contrary to the
commenter's assertion, the CSO listing
determination did not hinge on a single
estimated value, but rather considered
all of the constituents that showed risk.
Several highly toxic PAHs detected in
CSO tank sediment (BaP,
benz(a)anthracene,
dibenz(a,h)anthracene, 7,12-DBMA)
were measured at levels above the
quantification limits, and these
constituents in the waste presented
substantial risks (i.e., > 1E-5) without
any consideration of "J" values.
Commenters argued that EPA did not
follow its own guidance in applying
listing factors to CSO sediment, and that
a description as to how each of the
listing factors weighs for or against
listing should be provided.
In response, EPA first notes that all
the factors In 40 CFR 261.11 (a) (3) are
considered in this listing decision. The
commenter has not specifically
Identified any §261.11(a)(3) factors that
were not considered. Furthermore, EPA
disagrees with the commenter and notes
that its revised risk assessment fully
supports the listing determination for
CSO sediment and is in accordance with
applicable guidance. The guidance the
commenter cites is contained in the
December 22. 1994 proposed rule for the
dye and pigment listings, in which EPA
discussed the use of risk levels in
making listing decisions (59 FR at
66075-66077). EPA's decision to list
this waste is consistent with the
guidance, i.e., the risks associated with
this residual are well above the 1E-5
listing benchmark.
EPA received comments that the
Agency overstated the potential risks
from CSO sediment that is land treated,
and that there are no documented
damage cases involving migration of
PAH contaminated soils from land
treatment of CSO sediments.
In response, EPA points out that it
attempted to identify damage cases
wherever possible to support its listing
determinations (See Assessment of
Risks from the Management of
Petroleum Refining Wastes: Background
Document. October 1995, in the docket).
While EPA has Identified damage cases
resulting from releases at petroleum
refineries, it was not possible to tie the
releases directly to CSO sediments (or
other wastes under review in this rule)
in LTUs due to (1) the management of
multiple residuals in LTUs, (2) the
infrequent generation of CSO sediments,
and (3) the lack of a marker contaminant
unique to CSO sediments that could be
linked to documented releases. The lack
of empirical evidence is not surprising,
but does not prove that releases are not
possible or even unlikely. For this
reason, EPA did not rely heavily on
damage cases that directly linked
releases to the specific residuals of
concern. Instead EPA's weight of
evidence considerations emphasized its
data collection efforts (i.e., the 3007
Questionnaire and field study) that
provided EPA with the raw material to
evaluate a wide variety of measures of
risk (e.g., modeling of numerous
pathways, groundwater modeling,
hazardous waste characteristics). By
using information beyond proven
damage cases, EPA hopes to prevent
releases that lead to environmental
damage.
Several commenters requested that
EPA clarify the definition of the K170
listing for CSO waste. Their questions
relate to whether the listing: (1) applies
just to CSO separately stored/managed
or also to all mixtures of CSO and other
fuels, (2) includes fiuidized catalytic
cracker (FCC) clean out/turnaround
sediments, (3) includes sediments from
"affiliated" tank farms, and (4) includes
spills of CSO.
Concerning mixtures of CSO and
other fuels, EPA points out that any
sediments derived from CSO or CSO
mixtures are considered K170 because
of the contribution of the CSO sediment
to the ultimate residual. All tanks that
hold CSO have the potential to generate
CSO sediment, and this sediment may
mix with sediment generated by other
materials stored in the tanks. Thus, the
resulting sediment mixture would be
classified as hazardous waste K170
under the "mixture" rule (see 40 CFR
261.3(a)). The Agency anticipates that
refiners will use the 6-month period
between the final rule date and the
effective date to remove "marginal"
storage tanks from service for sediment
clean out and subsequently use
dedicated tank service for CSO storage
to minimize the number of tanks
generating the listed hazardous waste.
Concerning clean out/turnaround
sludges, throughout the EPA's industry
study, the Agency intended to
incorporate clean out/turnaround
sludges from in-line particulate removal
units within the scope of the CSO
sediment definition (see the 1995
Listing Background Document at page
43). One primary component of these
sediments and storage tank sediments is
FCC catalyst fines. Samples were
collected from three storage tanks and
one in-line filter. No samples of
turnaround sediments were available
during the Agency's field investigation;
however, several refineries described
the removal of sediments from other in-
line separation units such as
hydroclones during turnarounds. EPA
believes that sediments removed from
the hydroclone during turnarounds
would be comparable to sludges
removed from in-line filters which serve
the same purpose, because both are
designed to perform the same function,
i.e., to remove solids from lines leading
to CSO tanks. No information was
submitted by the commenters to
demonstrate that clean out/turnaround
sediments from such in-line separation
devices differ from storage tank
sediments.
The Agency therefore continues to use
the broader definition of CSO
sediments, which includes sediments
collected in filters and other separation
devices in lines that move the CSO from
the FCC unit to storage tanks. EPA does
not, however, expect that all residuals
generated during FCC turnaround
would be classified as K170, but rather
only those associated with in-line
particulate removal equipment (e.g.,
hydroclones, in-line filters). This would
not include sediments and tars that may
accumulate within the distillation
columns.
EPA's meaning with respect to the
term "affiliated" was to extend the
scope of the listing to all tanks
containing CSO that are owned by the
refinery that produced the CSO. (See 60
FR at 57766). This CSO has not yet been
sold or transferred to another entity or
corporation, and remains the property of
the refinery from which it originated.
All sediments settling from the CSO
prior to sale are subject to the hazardous
waste listing. Similarly, once the CSO
has been sold or transferred in
commerce, it is no longer under control
of the producing refinery. The listing
determinations in today's rule are for
wastes generated from refinery
operations, thus EPA has not examined
for this rule whether other sediments
might be generated, and if generated,
under what conditions, after the CSO
has been sold or transferred.
Concerning spills of CSO product,
EPA does not intend to regulate as
hazardous the CSO itself, only the
sediments that are removed from this
hydrocarbon product such as those
generated in in-line separators and those
sediments that gravitate to the bottom of
storage tanks. CSO that is accidentally
spilled on the ground may in fact
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contain particulates that would have
settled out as tank sediment. However,
the Agency did not address such spills
in the proposed rule and, in response to
this comment, is clarifying that it does
not currently intend to regulate CSO
spills as K170. Spills of K170 waste, of
course, would be regulated.
One commenter noted that EPA
should consider an exemption from
designation as hazardous for CSO
sludges that are de-oiled, and claimed
that de-oiled solids may be managed
similarly to FCC catalyst and fines units
because they are very similar in
composition (i.e., the wastes would be
landfilled and should not present a
risk). The commenter argued that
providing a conditional exemption for
de-oiled sludges, perhaps with separate
Land Disposal Restrictions (LDR)
treatment standards, would be
environmentally sound, and would
tailor treatment to the nature of the
waste stream.
EPA did consider whether the data
available allow the Agency to
distinguish between CSO sediment (as
well as crude oil storage tank sediment)
before and after de-oiling, especially for
use in risk assessment. However, the
Agency concluded that distinguishing
between the two forms of CSO sediment
was inappropriate based on the data
available (see Listing Background
Document, 1995, pages 46 and 29).
Therefore, EPA disagrees with the
commenter's suggestion to only list
"non-deoiled" sediment because: (1)
Available data do not provide a
sufficient comparison differentiation of
risks between oily and de-oiled CSO
tank sludges, (2) the deoiling process
may not remove the PAHs of concern,
and (3) crafting a definition of de-oiled
sludges would be difficult and may
cause enforcement problems.
Furthermore, as shown by the high PAH
content in CSO sediment, the solids
appear to be more than just spent FCC
catalyst. EPA believes the exclusion for
recycled oil-bearing residuals that EPA
is promulgating in today's rule is a more
effective approach to encouraging the
recycling of the material.
3. Catalyst From Hydrotreating and
Hydrorefining
Summary
EPA is listing as hazardous spent
hydrotreating and hydrorefining
catalysts from refining operations. This
waste stream meets the criteria set out
at 40 CFR 261.11 (a) (3) for listing a waste
as hazardous, because it may pose a
substantial or potential hazard to human.
health or the environment. The Agency
identified substantial risks to consumers
of groundwater associated with releases
from on-site and off-site Subtitle D
landfilling due to benzene and arsenic,
which EPA has decided will not be
adequately regulated under the TC. The
revised groundwater risk assessment
results are summarized in Table IV-2. In
addition, these materials also present a
hazard because of their pyrophoric and
self-heating properties.
Discussion
The Agency proposed to list spent
hydrotreating and hydrorefining
catalysts from refining operations due to
high-end cancer risks of up to 1E-5 and
6E-5 respectively arising from releases
of benzene and arsenic to groundwater
from landfill disposal. (See 60 FR at
57766-57768). In addition, as the
Agency discussed in the proposed
notice, these materials also present a
hazard because of their potential to
spontaneously ignite when removed
from the processing unit and exposed to
air.
The revised groundwater risks in the
NODA increased substantially for these
scenarios when compared to the
proposed rule. The high-end risks for
hydrotreating catalyst were up to 7E-5
for off-site landfills and up to 8E-5 for
on-site landfills. For hydrorefining
catalyst, the high-end risks were up to
7E-4 for off-site landfills and 4E-4 for
on-site landfills. The TC-capping
assessment in the NODA resulted in
some decrease in risks from benzene
compared to the proposal, while the
arsenic risks showed little or no
decrease. Thus the maximum high-end
risks were not materially affected. In
addition, EPA provided a Monte Carlo
analysis that yielded somewhat lower
groundwater risks; however, as noted in
an earlier section, EPA subsequently
revised the Monte Carlo analysis.
As a result of the revised risk analysis
completed in response to comments on
the NODA, the off-site landfill
groundwater risks increased further. As
shown in Table IV-2, the revised off-site
risks for hydrotreating catalyst are 1E-
4 for benzene and 8E-5 for arsenic; the
TC-capped results for this waste showed
lower risk for benzene (3E-5), but
arsenic was unchanged. Similarly, the
revised off-site risks for hydrorefining
catalyst are 7E-5 for benzene and 6E-4
for arsenic, and the TC-capped analyses
for these wastes lowered die benzene
risks (3E-5) but had no impact on
arsenic risk. The revised Monte Carlo
risks for hydrotreating catalyst (benzene
3E-5, arsenic 2E-5 at the 95th
percentile) and hydrorefining catalyst
(benzene 2E-5, arsenic 4E-4 at the 95th
percentile) were somewhat lower, but
still well above the listing benchmark of
1E-5. As in the NODA analysis, the
high-end and Monte Carlo risks for
arsenic were not lowered by the TC-
capped analysis. The TC-capped
benzene risks for both catalysts were
somewhat lower in the high-end (both at
3E-5) and Monte Carlo analyses (9E-6
and 8E-6 for the hydrotreating and
hydrorefining risks respectively).
EPA believes that the overall results
are strongly supportive of listing both
spent catalysts. Even in the TC-capping
results, both catalysts present risks in
off-site landfills that exceed 1E-5.
Specifically, for both hydrotreating and
hydrorefining catalysts, the TC-capped
arsenic risks exceed 1E-5 for the Monte
Carlo and high-end evaluations, and the
benzene risks exceed this benchmark in
the high-end evaluation and approaches
this level in the Monte Carlo analyses.
As shown by the TC-capped modeling
analysis, the risk levels may remain at
levels of concern, even assuming wastes
above the TC level are not disposed of
in nonhazardous landfills.
In addition to the groundwater risks
posed by these materials, the pyrophoric
and self-heating nature of these catalysts
also support EPA's conclusion that
these materials present a substantial
hazard. During several site visits to
catalyst reclaimers, EPA observed
smoking catalyst storage areas used to
stage the catalysts immediately prior to
insertion into the reclamation process.
One facility told EPA during the site
visit that fires occur every few months.
These areas were carefully monitored
and controlled, but clearly the materials
exhibited pyrophoric properties. In
addition, the refineries generating these
residuals described the significant risks
during reactor turnaround associated
with the potential pyrophoric nature of
these catalysts. Therefore, EPA believes
that it has solid basis for using the
potential self-igniting characteristic of
these catalysts to support its decision to
list these residuals.
EPA wishes to clarify the scope of
these listings, however. In the proposal,
the Agency indicated that the listings
would not include ceramic support
media that are separated from the spent
hydrotreating or hydrorefining catalyst
prior to catalyst disposal or recycling,
because these support media are inert,
separate from the catalyst, and
commonly reused or sent for cleaning
prior to reuse. (See 60 FR at 57780). EPA
continues to believe this is appropriate.
Some commenters requested that EPA
modify the regulatory language to refer
to "inert support media," rather than
the proposed "ceramic support media,"
because other types of inert materials
are used, such as stainless steel. EPA
agrees that the commenter's language
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better reflects the Agency's intentions,
and Is modifying the exemption
language in 40 CFR 262.3(c)(2)(ii)(E) and
the listing descriptions for K171 and
K171 to reflect this change.
In the proposed rule EPA also noted
that the terms "hydrotreating" and
"hydrorefining" are somewhat loosely
used within the industry. Several
commenters requested a more concise
definition of the terms to clarify the
definitions of hydrotreating,
hydrorefining, and hydrocracking
processes. EPA provides further
discussion of the definitions of these
wastes in the following section on
residual-specific comments. EPA is
modifying the final regulatory language
slightly to clarify this issue, as noted in
Section IV.B.
Specific Comments
Definition of Hydrotreating and
Hydrorefining Catalysts
EPA examined three types of
hydroprocessing catalysts identified in
the EOF consent decree: hydrotreating
catalyst (listing candidate),
hydrorefining catalyst (listing
candidate), and hydrocracking catalyst
(study residual). Spent hydrotreating
and hydrorefining catalysts have been
proposed for listing and will be
promulgated as hazardous wastes in
today's rule; no action has been
proposed to date for spent
hydrocracking catalyst. (However, the
listing of the spent hydrotreating and
hydrorefining catalysts does not release
the generator from determining whether
spent hydrocracking catalyst is a
hazardous waste due to the
characteristics under 40 CFR 262.11).
Public comment was submitted
regarding EPA's hydroprocessing
catalyst definitions.
All three processes are part of a
continuum of catalytic hydroprocessing
units. Definitions for the three
categories of hydroprocessors are not
universally established or accepted. In
general, the three processes may be
viewed in the following order of
increasing degrees of severity of
operating conditions and conversion of
larger hydrocarbons to smaller
molecules ("cracking"), and/or feeds:
hydrotreating, hydrorefining, and
hydrocracking. The types of catalysts
used can be similar in all three
processes.
The proposed regulatory language did
not attempt to define these catalysts, or
differentiate them from hydrocracking
catalysts. The proposal referred to
definitions used in the Oil and Gas
Journal (60 FR at 57767, fn. 7), which
indicates that hydrotreating includes
processes where essentially no
reduction in the molecular size of the
feed occurs, that hydrorefining includes
processes where 10 percent of the feed
or less is reduced in molecular size, and
that hydrocracking includes processes
where 50 percent of the feed or more is
reduced in molecular size.
Commenters on the proposal noted
that the preamble definitions did not
provide a complete continuum,
resulting in an unclear area between
hydrorefining and hydrocracking.
Specifically, since hydrorefining
covered conversion rates up to 10
percent and hydrocracking covered
conversion rates greater than 50 percent,
as defined by the Oil and Gas Journal,
it was not apparent how EPA would
classify processes with conversion rates
between 10 and 50 percent. Several
solutions were suggested by the
commenters:
One refiner suggested that EPA establish a
definition of hydrocracking that assumes a
conversion rate of 15 percent or greater and
the use of downstream fractionation.
A catalyst reclaimer suggested extensive
regulatory language describing the specific
types of catalysts, catalysts support media,
and catalytic applications associated with the
different hydroprocessing categories.
Other refiners commented that EPA should
clarify that any process with conversion rates
greater than 10 percent should be classified
as hydrocracking.
Each of the options is problematic.
Reliance on specific conversion rates
may allow for slight changes in
operating and accounting practices to
result in reclassification of units that
would otherwise be considered
hydrorefiners. Similarly, use of
fractionation could be interpreted to
include stripper columns commonly
employed after hydrotreating and
hydrorefining. The catalyst reclaimer's
suggested language was an exhaustive
attempt to distinguish the types of
processes EPA intends to be within the
scope of the listings; however, other
commenters argued it was inappropriate
to adopt the reclaimer's suggestion
because EPA did not have sufficient
basis to expand the definition in this
way. At this time, the Agency is
reluctant to adopt this extensive list
within the regulatory language without
additional review and perhaps further
information collection.
Upon reviewing all of the relevant
materials available in the docket, the
Agency believes that the simplest way
to differentiate between hydrocracking
units and other hydroprocessing units is
to rely on the categorization used in the
DOE's Petroleum Supply Annual.
Refineries are required to submit Form
EIA-820 annually to DOE's Energy
Information Administration. This form
includes the mandatory submission of
data on operating capacity for catalytic
hydrocracking and catalytic
hydrotreating. Catalytic hydrocracking
is defined in the Petroleum Supply
Annual as:
A refining process that uses hydrogen and
catalysts with relatively low temperature and
high pressures for converting middle boiling
or residual material to high-octane gasoline,
reformer charge stock, jet fuel, and/or high
grade fuel oil. The process uses one or more
catalysts, depending upon product output,
and can handle high sulfur feedstocks
without prior desulfurization.
In addition, catalytic hydrotreating is
defined in the Petroleum Supply
Annual as:
A refining process for treating petroleum
fractions from atmospheric or vacuum
distillation units (e.g., naphthas, middle
distillates, reformer feeds, residual fuel oil,
and heavy gas oil) and other petroleum (e.g.,
cat cracked naphtha, coker naphtha, gas oil,
etc.) [i]n the presence of catalysts and
substantial quantities of hydrogen.
Hydrotreating includes desulfurization,
removal of substances (e.g., nitrogen
compounds) that deactivate catalysts,
conversion of olefins to paraffins to reduce
gum formation in gasoline, and other
processes to upgrade the quality of the
fractions.
For the purposes of the K171 and K172
listing descriptions, catalytic
hydrorefining is defined as a refining
process with more severe (higher
temperature and pressure) operating
conditions than the catalytic
hydrotreating process defined above for
treating the heavier molecular weight
petroleum fractions, residual fuel oil
and heavy gas oil.
Based on the Petroleum Supply
Annual definitions stated above, if a
refinery has been classifying its
hydroprocessor as a catalytic
hydrocracker for the purposes of the
DOE's Form EIA-820, spent catalyst
from this unit would not be covered by
K171 or K172 (with the exception of
guard beds, as discussed further below).
Conversely, if a refinery has been
classifying its hydroprocessor as a
hydrotreater processing feeds other than
residual fuel oil or heavy gas oil, spent
catalyst from this unit would be
classified as K171; spent catalyst from a
similar unit processing residual fuel oil
or heavy gas oil would be classified as
K172. Refineries have been reporting
capacity information to DOE for many
years and today's rulemaking should
serve as a reference for the classification
of these units.
In addition to the issue of defining
hydrocracking units that are not subject
to the K171/K172 listing, there is
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disagreement among commenters from
the petroleum industry and catalyst
reclaimers regarding the classification of
guard beds. The.se units, also known as
desulfurization pretreaters, are used to
extend the life of the downstream
catalytic bed (e.g., reformer,
hydrocracker, isomerization reactor) by
removing sulfur, oxygen, nitrogen, and/
or heavy metals. Reclaimers argued to
include such pretreatment of
hydrocracker feeds, sulfur guards,
reformer pretreatment, and
isomerization pretreatment as part of the
definition of hydrorefining or
hydrotreating. The petroleum refining
industry disagreed, stating that these
pretreatment processes use more severe
conditions (much higher pressure, high
ratio of hydrogen to hydrocarbon) to
achieve contaminant removal, and also
provide a significant reduction in
feedstock molecular size, often greater
than the 10 percent cutoff in the EPA/
Oil and Gas Journal hydrorefining
definition. Thus, industry contends
such catalysts more appropriately
belong in the hydrocracking category.
EPA agrees that these pretreatment
units, or "guard units," should be
covered under the listing descriptions in
today's rule.
In reviewing the 3007 Questionnaire
responses, EPA found that some
refineries reported the catalysts from
their guard beds under the category of
the downstream unit. For example,
nickel/molybdenum catalyst from a
reformer pretreatment unit was
sometimes reported as spent reforming
catalyst, however, true reforming ,
catalysts are based on precious metals
such as platinum and palladium. EPA
believes that these units were not
reported as hydrotreaters because they
often reside within the unit boundaries
of the downstream units, are closely
integrated with the downstream units,
and such reporting simplified the
refinery's response to the extensive 3007
Questionnaire. However, because this
type of guard bed does not result in
catalytic reforming (and similarly
isomerization), these units were re-
coded as hydrotreaters in the Agency's
database. EPA_has modified the
regulatory language to clarify that the
spent catalyst from all such
pretreatment units should be classified
asK171orK172.
Risk Assessment and Basis for Listing
Some commenters stated that EPA's
groundwater analysis understated the
risks for these wastes. These comments
reflected many of the issues already
discussed in the portion of today's
notice devoted to the Modeling
Approach and Risk Assessment, but the
Agency notes a few issues specific to
these wastes. Despite the commenters'
arguments, EPA remains convinced that
it is appropriate to use the TCLP to
characterize the leaching potential of
these residuals, as noted in Section
V.B.I. The Agency's analysis of total oil
and grease content of the catalysts
showed very low oil and grease content
(less than 0.2 percent) for the six
samples for which EPA was able to
conduct total oil and grease analysis,
thus these are not the "oily" wastes that
the commenter believes represent a
problem for the TCLP. As the
commenters noted, EPA did not
consider codisposal for these wastes.
However EPA believes it would be
inappropriate to assess the impact of
codisposal of the catalyst residuals with
other refinery wastes because EPA is
listing these wastes, and thus they must
be disposed of in Subtitle C units in the
future.
Several commenters argued that
EPA's analysis overestimated risks in
the Agency's assessment of spent
catalysts from hydrotreating and
hydrorefining for various reasons. These
commenters argued that EPA data
shows that 81 percent of these catalysts
are already recycled or reclaimed, but
EPA assumed in its risk analysis that all
this material will go into landfills.
EPA disagrees with this comment.
The Agency chose landfill disposal as
the mismanagement scenario for the
groundwater risk analysis for these
wastes; because economic
considerations and other information in
the record show that the recycled
material could plausibly go to landfills.
To calculate waste volumes to use as
input to the modeling, EPA evaluated
the data in two ways: (1) EPA arrayed
the volumes disposed in on-site and off-
site Subtitle D landfills in 1992 and
determined the 50th and 90th percentile
quantities (Tables 3.3.4 and 3.3.11 of the
1995 Listing Background Document),
and (2) EPA arrayed the volumes for all
volumes generated by any facility
regardless of the actual management
method (except for excluding wastes
sent to Subtitle C), and determined the
50th and 90th percentile quantities for
these wastes. EPA has used the second
set of statistics in its risk assessment.
Use of these data reflects the real.
potential that shifts might occur in
management practices away from
recycling and toward less expensive
landfilling if the wastes are not listed
(see a discussion of this issue in the
Listing Background Document, 1995,
pp. 78-79). Support for this assumption
is found in industry comment that
refineries may send spent catalysts to
either recycling or landfill disposal,
depending on the associated costs.
During site visits to both refineries and
catalyst recyclers, EPA learned that
factors affecting spent catalyst
management include the price of metals,
and consequently the value of spent
catalyst, and corporate policies toward
recycling versus landfilling. For
example, one report from a visit to a
refinery (document* 95-PRLP-S0041)
states: "the spent catalyst is sent off-site
for metals reclamation or to a special
waste landfill, depending on market
conditions." Another report from a site
visit to a reclaimer (95-PRLP-S0057)
states that the company's fee structure is
driven by metals prices, and their costs
and/or credits are dependent on the
current metals market. The reclaimer
noted that more spent catalyst is
reclaimed when metal prices are high
than when prices are low. EPA therefore
believes that management patterns of
these particular residuals could change
in the future.
EPA only applied this assumption to
three wastes (K171, K172, and spent
catalyst from sulfur unit tail gas treating
units), because these are all similar
spent catalysts that are recycled at the
same facilities. EPA did not project
changes in waste management practices
for other residuals, because the Agency
has no specific information that such
changes are plausible or that special
trends in management practices exist.
As noted in Section V.B.2, for the
remaining residuals, EPA considered
that 1992 provided a reasonable picture
of the petroleum refining industry's
practices.
Moreover, comparison of the two data
sets shows the commenters' concern
that the approach used overestimates
risks is unfounded. The high-end (90th
percentile) annual volumes calculated
for both approaches are nearly identical
for hydrotreating catalyst, 70 metric tons
(MT) for the first approach versus 77
MT for the second. For hydrorefining
catalyst, use of volumes that are
recycled actually reduced the high-end
volume somewhat, from 2,250 to 500
MT. (Note that the decrease in the 90th
percentile in this case is because the
addition of the recycled volumes creates
a larger data set, and the 90th percentile
point in the set is lowered for that in the
smaller data set for volumes sent to
landfills). Thus, EPA's approach does
not overestimate risks.
TC-Capped Modeling
One commenter argued that EPA
should not list hydrotreating catalyst
because, based on the TC-capped
modeling analyses EPA performed for
the NODA, the risks for spent
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hydrotreating catalyst disposal in
landfills range from 2E-5 to 4E-6 from
exposure to benzene (See 62 FR at
16752), and that these risk levels are
within EPA's discretionary range for not
listing. One commenter stated that EPA
appropriately reported the risks from
arsenic as not applicable because spent
catalysts containing arsenic at levels
sufficient to pose such risks are already
covered by the TC Rule and regulated
under RCRA. The commenter also
argued that the risks found in the Monte
Carlo analysis for hydrotreating catalyst
were only 4E-6 at the 95th percentile,
and, thus, support a no-list decision.
EPA disagrees with the commenters.
First, the commenters are mistaken in
suggesting that the arsenic risks are not
applicable for the TC-capped analysis.
On the contrary, the risks do not change
under this assumption because none of
the samples exceeded the TC level for
arsenic. As such, under the TC-capped
analysis the arsenic risks would remain
the same as the uncapped analysis. As
noted In the Discussion section above,
EPA continues to believe that the risks
from the high-end analysis fully support
listing this waste, and the somewhat
higher revised groundwater risks further
support EPA's decision. Even for the
TC-capped results, the revised arsenic
high-end risks (8E-5) and Monte Carlo
results (2E-5 at the 95th percentile), as
well as the high-end risk for benzene
(3E-5) clearly exceed the listing
benchmark of 1E-5.
Commenters also argued that for
hydrorefining wastes, TC-capped
groundwater risks from benzene range
from 2E-5 to 6E-6 (See 62 FR at 16752),
and these risk levels are within EPA's
discretionary range for listing (See 59
FR at 66073). While the comments
conceded that the TC-capped risk for
arsenic in this waste are in the range
EPA could consider for listing (4E-4 to
1E-4), the fact that the peak arsenic
concentrations may not reach the
receptor well until 3400 to 8400 years
after release, indicates that this is not
significant. The commenters also noted
that the risks from benzene and arsenic
cannot be added because the time for
peak concentrations at the well is much
shorter for benzene (13-50 years). The
commenters argued that EPA should
base its decision on the lower Monte
Carlo results (TC-capped risk of 6 x
10"6 at the 95th percentile for benzene).
EPA disagrees with the commenters.
As noted in the Discussion section
above, EPA continues to believe that the
risk analyses fully support listing this
waste, and the somewhat higher revised
groundwater risks further support EPA's
decision. Even for the TC-capped
results, the revised Monte Carlo and
high-end risks for arsenic (4E-4 at the
95th percentile and 6E-4), and the high-
end risk for benzene (3E-5) clearly
exceed the listing benchmark of 1E-5.
Contrary to what the commenter
implied, EPA did not add the benzene
and arsenic risks, because of the large
differences in travel time. Further, EPA
did not discard the arsenic risk results
merely because the modeling suggested
the constituent may not reach the
receptor well in the near future. The
timeframe for travel may be uncertain,
but the results suggest arsenic will be a
serious problem when it reaches the
well.
EPA received comments stating that
spent catalyst residuals should not be
listed based on the characteristic of
ignitability, because the spent catalysts
do not demonstrate the property of self-
heating, nor do they fail the ignitability
test.
As noted in the discussion above,
persistent smoldering fires that may
propagate to other codisposed materials
have been reported for these residuals.
Thus, listing of these wastes is further
supported by actual environmental and
health damages. Actual damages
constitute one of the factors to be
considered in listing wastes as
hazardous under 40 CFR
261.11(a)(3)(ix). As noted previously, it
is rare to have actual damage cases to be
attributable specifically to the wastes
being listed. The fact that EPA has
knowledge of actual damage cases for
these wastes gives special support to
their listing determination.
Furthermore, under the mismanagement
criterion of 40 CFR 261.11 (a) (3) (vii), it is
appropriate to consider the physical
properties of these wastes that may
result in hazards if there is improper
management through co-management
with combustibles. Therefore, EPA
considers the self-heating physical
property of these spent catalysts to be
very important in its decision to list
these wastes.
With regard to commenter opinion
that a listing is not warranted to protect
against fires resulting from spent
catalyst being landfilled, EPA observed
and was told by catalyst reclamation
and refinery facility operators that these
wastes exhibit pyrophoric properties
and do result in fires. Even where
catalysts are coated with heavy oils to
reduce pyrophoric properties, this effect
is not permanent as the oil coating
degrades, particularly if the material is
disturbed at a later date and exposed to
the air, as could easily happen at
landfills. EPA, therefore, has a solid
basis for using the potential self-igniting
characteristic of these catalysts to
support its decision to list these
residuals
Impact of Listing on Recycling
EPA received a request for
confirmation that solids generated from
scrubbers used to control emissions
during the reclamation and processing
of spent hydrotreating and
hydrorefining catalysts will not be
designated hazardous under the
"derived from" definition as a result of
these proposed rules. The Agency
points out that the commenter is
incorrect. In general, wastes generated
from the treatment of listed hazardous
wastes are considered hazardous wastes,
under 40 CFR 261.3(c)(2). This includes
residuals generated by the recycling
activities described by the catalyst
reclaimers who submitted comments on
this rule. Wastes generated in the
manner described by the commenter
(e.g., "derived from" air pollution
control wastes) would continue to carry
the hazardous waste code and be subject
to land disposal restrictions.
EPA received several comments
regarding the impact of this listing on
recycling and management practices.
Commenters noted that spent catalyst
can be generated such that it meets the
LDR UTS for organics, and that the
metals of concern can be treated using
metal fixation. This would be relatively
inexpensive compared to the increased
cost of recycling that will result from
this listing, and might discourage
recycling.
EPA does not agree with the
commenters' scenario for several
reasons. First, the treatment standards
for the spent catalysts require that any
treatment reduce levels of organics to
low levels. For example, nonwastewater
levels of benzene, toluene, and xylene
must be 10 mg/kg or lower, and levels
of naphthalene and phenanthrene are
set at 5.6 mg/kg. Because the K171 and
K172 wastes each frequently contain
reactive sulfides and as a result may
exhibit self-heating pyrophoric
properties, the Agency also listed
reactive sulfides as one of the hazardous
constituents of concern in these wastes
and specifically proposed to apply
deactivation to these wastes. Thus, EPA
does not believe it is likely that
generators can meet all applicable LDR
standards without appropriate
treatment, such as treatment at a
recycling facility. EPA concedes that
listing may increase costs for recycling,
however, EPA is not convinced that
costs for other forms of treatment and
disposal would be appreciably less. In
any case, EPA's decision to list these
materials is based on the risks they
pose, and how this listing may
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ultimately affect competing treatment
technologies is not a central issue in the
Agency's decision.
Other commenters pointed out that
current recycling of these catalysts has
been due, in part, to the economics of
reclamation compared to disposal. A
listing would, however,
disproportionately increase costs of and
liability concerns about recycling. Some
commenters noted that by listing these
wastes, transportation costs will become
a significant factor as materials will
need to be transported as hazardous,
regardless of their characteristics;
increased transportation costs would
strongly favor local disposal at a
Subtitle C facility, and generators would
be less likely to ship wastes farther
distances to recycling facilities. Another
commenter suggested that a listing will
decrease recycling, and increase the
demand for virgin metals. Thus, the
overall environmental benefits from the
listing determination are likely to be
negative, because there will be more
disposed of catalyst, and more
production of virgin metals.
EPA cannot know precisely what the
ultimate costs will be for refineries to
recycle or dispose of spent catalysts.
The Agency believes the liability
concerns described will continue to
play a role in both landfilling and
recycling decisions upon promulgation
of this listing. The affected industry
must first explore means to eliminate or
minimize the newly listed waste, and
then to optimize recycling, treatment,
and management of remaining wastes.
The basis of EPA's listing decision,
however, centers on the results of its
risk assessment, which demonstrates
that these materials pose a potential risk
to human health and the environment,
and warrant Subtitle C control. The
Agency also points out that, because of
the listing, the recycling/disposal cost
differential may arguably be reduced or
reversed, because Best Demonstrated
Available Technology (BDAT) and
Subtitle C disposal costs will greatly
increase the costs of disposal over the
current practice of Subtitle D landfills.
Thus, recycling is likely to continue to
be an effective management option for
these residuals.
Furthermore, based on EPA's
discussions with the recycling industry
(see discussion of metal reclaiming for
hydrotreating catalyst in Listing
Background Document, 1995, pages 76-
79), many of the reclaimers currently
have RCRA storage permits to allow
them to manage characteristically
hazardous catalyst, so it is not clear that
the costs for recycling should increase
significantly due to listing. Even if
recycling costs may increase as a result
of this rule, EPA continues to believe
that it is completely appropriate to bar
these materials from Subtitle D disposal
because of the risk levels identified
through the Agency's risk assessment
procedures. EPA has no evidence, nor
did commenters provide any, to support
the supposition that the listing would
increase demand for virgin metals.
Many commenters requested that the
Agency consider an exemption for the
regeneration/reclamation/recycling of
spent catalyst. The catalysts would be
listed only if they are disposed of in a
landfill (or, alternatively, not recycled).
Other commenters proposed a
conditional listing for catalyst residuals
going to land disposal. The suggested
conditions include that the residual is
sent to metals reclaiming, catalyst
regenerators, or other recycling or reuse
(provided it is not a "use constituting
disposal"), records are kept on recycling
and reuse, and that self-heating
residuals are shipped in Department of
Transportation (DOT) bins. The
commenters argue that such a listing
would encourage recycling rather than
landfilling.
EPA believes that the catalyst wastes
present several risks beyond those
necessarily associated with landfill
disposal, including pyrophoric
properties and significant levels of
benzene and arsenic (all of which may
pose risks via pathways other than
groundwater exposure, including risks
from improper storage or other
handling, and risks from uncontrolled
air emissions from thermal treatment).
Thus, this waste is not a good candidate
for a conditional listing. Given the
hazardous nature of this waste, EPA
believes it is entirely appropriate for it
to be transported and stored as
hazardous waste before recycling. (See
40 CFR 261.6 for regulations applicable
to hazardous wastes that are recycled).
EPA points out that examples of
problems at sites recycling these wastes
have been noted in the record (see
enforcement case described in the
docket, document #PRA-S0037).
4. Catalyst From Sulfuric Acid
Alkylation
Summary
The Agency is not listing as
hazardous catalyst from sulfuric acid
alkylation, as proposed. EPA hereby
incorporates, as a final decision, the
proposed preamble discussion for this
waste stream at 60 FR 57768-57769.
The residual is managed almost entirely
(> 99 percent) under an existing
exemption from the definition of solid
waste (40 CFR 261.4 (a) (7)). Also, this
residual consistently exhibits the
characteristic of corrosivity and is
subject to regulatory control if not
returned to the production of virgin
sulfuric acid. No significant comments
against this decision not to list were
received during the public comment
period. Therefore, EPA has no basis to
change the decision not to list.
5. Spent Caustic From Liquid Treating
Summary
EPA is issuing a final decision not to
list spent caustic from liquid treating as
a hazardous waste. About 70 percent of
the spent caustic is managed in ways
that are exempt from RCRA regulation,
because it is reused as an ingredient in
producing other products. The Agency
has identified certain management
practices used for spent caustics for
which the Agency is clarifying the
application of the definition of solid
waste, and in one case proposes a
modification to the definition.
Almost all of the remainder is sent to
regulated wastewater treatment systems
in such small volumes relative to other
discharges, that the diluted constituents
of concern from the spent caustics are
not expected to present any significant
risk. Furthermore, any solids from the
caustic that separate out prior to
downstream biological treatment are
already regulated as hazardous wastes.
After analyzing other potential
exposure pathways, EPA concluded that
with regard to any remaining risks, with
the exception of air exposure pathways
from open tank storage, there were no
potential risk pathways that need to be
modeled. EPA found that risks from air
releases from the open tank storage
scenario presented insignificant risk.
Moreover, this residual will
frequently exhibit the characteristic of
corrosivity (i.e., pH will be above 12.5)
and toxicity due to cresol leachability
(and sometimes ignitability) and is
subject to all applicable regulatory
controls when any of the hazardous
waste characteristics are present.
Discussion
The Agency proposed not to list this
waste as hazardous and has found no
reason to change this decision after
consideration of public comments and
all other information available in the
rulemaking record. EPA's 3007
Questionnaire showed that 51 percent of
the waste stream is reused as an
ingredient or substitute for virgin
caustic and, is thus eligible for
exclusion from the definition of solid
waste under 40 CFR 261.2(e). The
exclusion provides that secondary
materials that are used or reused
directly (i.e., without reclamation) are
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not subject to regulation under RCRA
and are therefore not subject to any
listing determination. In addition, the
proposal noted that characteristically
hazardous spent materials that are
reclaimed prior to reuse would still be
hazardous wastes subject to pertinent
management requirements. Therefore, as
noted in the proposal and confirmed in
this final decision, there is no reason to
cover this portion of the waste stream in
the listing.
In addition, 17 percent of the spent
liquid treating caustics are used as
valuable commercial feedstocks in the
manufacture of cresylic or naphthenic
acids. Accordingly, EPA in today's final
rule, for reasons stated in the preamble
to the proposed rule at 60 FR 57769-
57770, is amending 40 CFR 261.4(a)(19)
to clarify that spent caustics used in this
manner are not solid wastes and,
therefore, should not be subject to
listing.
For the 29 percent of the wastes sent
to wastewater treatment systems, EPA's
analysis in the proposed rule found that
risks from this practice are unlikely. As
noted In the proposed rule, risks from
such treatment are unlikely to be of
concern because: (1) Treatment is
already regulated under Federal water
(NPDES) and air (benzene National
Emissions Standards for Hazardous Air
Pollutants (NESHAP), Maximum Air
Control Technology (MACT) standards)
programs; (2) sludges generated from
wastewater treatment are already
regulated as hazardous waste (i.e., K048,
K051, F037, F038); (3) volumes of the
discharged residuals under evaluation
are relatively small in comparison to the
volumes typically treated in wastewater
systems; and (4) the wastewater
treatment systems are designed to treat
refinery wastes effectively (see
discussion below).
The Agency concluded that there
were no potential risk pathways that
needed to be modeled except air
exposure pathways from open tank
storage. For open tank storage, the
Agency's bounding risk assessment
estimates resulted in no significant risks
(see 60 FR at 57770). In addition, this
waste consistently exhibits the
characteristic of corrosivity (and often
toxiclty due to cresols), and, therefore,
could not be otherwise discarded
without being subject to regulation as a
hazardous waste.
Specific Comments
In comments on the proposed rule,
one commenter argued EPA only
evaluated potential risks associated with
tank storage, that EPA must evaluate the
groundwater impacts from surface
impoundment management, since that
method of management is both an actual
and plausible mismanagement scenario.
The commenter stated that several
refineries reported managing spent
caustic in surface impoundments in
1992, and that the high-end volume of
596 MT managed in surface
impoundments exceeds volumes EPA
modeled for other waste practices. The
commenter also noted that controls on
surface impoundment risks by Phase III
and Phase IV LDR rules cited by EPA in
the proposal as being able to effectively
regulate these wastes were not finalized.
In response, EPA wishes to clarify a
few points. First, in every case
described in the 1992 database, these
surface impoundments were part of the
refineries' wastewater treatment
systems. EPA has no data indicating that
undiluted caustics were managed in
surface impoundments. Therefore, to
model this scenario appears
unreasonable. Second, EPA did, in fact,
conduct a screening analysis of the
impact spent caustic would have on the
wastewater treatment plant, as
described in the docket to the proposed
rule, butfound that the dilution with
other process wastewaters was so great
that no impact was observed (see page
152 of the Listing Background
Document, 1995). In further considering
this scenario, EPA estimates that the
90th percentile quantity of spent caustic
discharged to wastewater treatment in
1992 (approximately 4,000 MT) would
be diluted by a factor of about 3000.
Thus, EPA does not believe that
additional risk assessment is necessary.
In addition, the constituents of concern
(relatively low levels of certain volatile
organics and metals, see the 1995
Listing Background Document for
details) in these residuals are generally
indistinguishable from those found in
other residuals (many already listed as
hazardous waste) typically discharged
to wastewater treatment, making it
virtually impossible to attribute any
subsequent concentrations in sludges or
environmental releases to the
contribution from spent caustics. The
combination of dilution and the
expected toxicant removal and
destruction that the wastewater
treatment plants are designed to
accomplish should effectively treat the
spent caustic.
In addition, the Agency continues to
believe that significant regulatory
control of any spent caustic-derived
treatment sludges already exists.
Sludges and other residuals from the
initial oil/water/solids separator are
already regulated as K048 and K051.
Sludges from oil/water/solids removal
surface impoundments are also
regulated as hazardous in the petroleum
refining industry, through the F037/
F038 listings. Clearly, risks associated
with biological treatment sludges and
wastewaters downstream from these
units are reduced as a result of the prior
removal and treatment, including
biodegradation. Further regulatory
controls also exist for these sludges and
wastewaters via the TC. In addition, the
benzene NESHAP (58 FR 3072, January
7, 1993) and the planned air standards
for volatile organics emissions (MACT
standards proposed in 61 FR 17358,
April 19, 1996) provide regulatory
mechanisms for control of air emissions,
and wastewater discharges are covered
by the NPDES program.
EPA does agree that it is no longer
appropriate to rely on the regulatory
controls originally anticipated via the
Phase III and IV land disposal
restrictions. The Land Disposal Program
Flexibility Act of 1996 caused the
Agency to withdraw the LDR Phase III
treatment standards (see 61 FR 15660,
April 8, 1996), and not to finalize the
proposed LDR Phase IV provisions (see
62 FR 25997, May 12, 1997). However,
as required under the Act, EPA is
currently conducting a 5-year study of
surface impoundment usage, and if the
study indicates that risks from
impoundments are significant, EPA will
then consider the need for further
regulatory controls.
One commenter noted that EPA's
sampling indicates that spent caustic
from liquid treating "consistently
exhibits" a characteristic (the
corrosivity characteristic, and TC for
cresols and benzene), thus it should be
listed as hazardous under EPA's listing
criterion in 40 CFR 261.11 (a) (1). The
commenter argued that current
regulatory control depends upon
whether the particular waste exhibits a
characteristic (a determination the
generator can reach based solely upon
his or her "knowledge" of the waste).
EPA agrees that this residual
frequently and typically exhibits one or
more of the characteristics. However,
because the majority of caustic
management practices are either exempt
from regulatory control or are
adequately regulated under other
regulations (e.g., the characteristics), the
Agency believes that listing as
hazardous waste is not necessary. In
response to the commenter's concern
regarding knowledge that this residual
exhibits a characteristic, EPA notes that
this material is commonly
acknowledged as corrosive due to its
highly caustic nature (hence its name),
and managed in a manner to minimize
corrosion problems during storage.
Thus, the Agency believes that
generators of spent caustic are well
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aware of the potential for this residual
to exhibit hazardous waste
characteristics, and manage their spent
caustic accordingly. Given the existing
regulatory controls and management
practices for this waste, EPA continues
to believe that listing is not warranted.
Several commenters believed that the
use of caustics in the manufacture of
cresylic acid and naphthenic acid has
always been excluded from the
definition of solid waste under 40 CFR
261.2(e)(l)(I) and that a promulgation of
the proposed specific exclusion might
indicate that up until now, these
caustics have not been excluded. Thus,
the commenters requested clarification.
In response, EPA notes that the
Agency and several states have been
involved in a longstanding discussion
with industry regarding the regulatory
status of these materials. The
promulgation of this rule presents EPA's
final findings, and is intended to put an
end to discussions regarding possible
ambiguities in the current rules. The
purpose is to settle this matter once and
for all, and we are doing so by providing
a clear regulatory exclusion.
6. Off-Specification Product and Fines
From Thermal Processes Summary
EPA is not listing as hazardous off-
specification product and fines from
thermal processes. No risks of concern
were identified for those materials that
actually are discarded. Most of the
materials generated from these thermal
processes are coke product and are
stored in piles with other coke product
before they are resold. These piles are
not, therefore, subject to RCRA
jurisdiction or they are exempt from
RCRA regulations.
Discussion
The Agency proposed not to list these
materials, which are generated from
various refinery coking operations. Of
the 194,300 MT of these materials
generated, approximately 87 percent is
collected and combined with product
inventory to be sold. However, more
than 7,250 tons (3.7 percent) are
landfilled in on-site or off-site Subtitle
D landfills. These discarded materials
were the wastes on which the Agency
conducted its risk assessment.
EPA determined that other
management practices, including fines
sent to wastewater treatment, would not
serve as a basis for listing and adopts
the reasoning in the proposal for this
determination as part of its final
decision. (See 60 FR at 57770-57771). In
summary, fines sent to wastewater
treatment are insoluble and will be
incorporated in primary treatment
sludges that are already listed as K-and
F-wastes; LTUs received very small
waste volumes; and other management
practices do not actually isolate the
materials from the coking process and,
thus, are not wastes.
Commenters questioned why EPA did
not assess risks from coke fines placed
on piles of coke product, arguing that
the waste does not become a product
simply because it is placed on the pile
and combined with another material. In
the NODA, EPA provided further
clarification on the jurisdictional basis
for not evaluating the majority of off-
specification product and fines that are
managed as coke product. The Agency
explained that only particle size
distinguishes coke fines from other coke
product. The majority of coke is
removed from the coker by hydraulic
drilling and coke fines are merely the
smaller pieces of coke generated during
this process.
In addition, EPA explained there is a
jurisdictional distinction between coke
fines produced from non-hazardous
materials and coke fines produced from
hazardous wastes (waste-derived
fines).24 Fines generated from non-
hazardous materials are simply coke
product, as would be expected because
they are produced from the same coking
drum. In the case of waste-derived fines,
so long as the fines are legitimate coke
product, they are exempt from RCRA
regulation unless the material exhibits a
characteristic as provided in 40 CFR
261.6(a)(3)(v). (See also RCRA section
3004(q)(2)(A)). EPA had no information
that waste-derived coke fails any
hazardous waste characteristic. The
Agency invited comment or data to the
contrary but received none.
In any event, EPA determined that the
use of hazardous waste in the
production of coke would result in
little, if any, change to the qualities and
the properties of the coke and fines
produced. These coke fines would have
essentially the same composition as
fines generated from non-hazardous
feed materials. The waste-derived fines
are combined with other coke in a
product pile for storage prior to sales
and are coke product. The NODA also
provided additional analyses on the
similarity of coke fines to existing coke
product, and the potential impact of
recycling hazardous waste to the coker.
EPA has ho reason to change this
jurisdictional determination or the
determination that management
scenarios other than Subtitle D
landfilling could not serve as a basis for
24 See the discussion on oil-bearing hazardous
secondary materials inserted into the petroleum
refining process, including the coke, in today's
preamble for modifications to the definition of solid
waste concerning these materials.
listing. Therefore, the Agency adopts
these determinations as part of the basis
for issuing the final decision not to list
this waste stream as hazardous.
With respect to the Subtitle D
landfilling scenarios EPA evaluated for
the off-specification product and coke
fines that were discarded, EPA notes
that groundwater risk estimate of 1E-5,
as well as the revised high-end risks in
the NODA of 5E-6 to 2E-5 were within
the Agency's initial risk level of
concern.
However, EPA noted significant
problems with the groundwater risk
assessments. First, this risk was based
entirely on the detection of one PAH,
benzo(a)anthracene, in only one out of
six leaching samples at a level 8-fold
below the analytical quantification
limit. Thus, EPA had low confidence in
this value and the subsequent modeling
based on this number. Second, the water
solubility of this chemical is also very
low, indicating that its aqueous
concentration is likely to be very low.
Third, this chemical is tightly adsorbed
to organic material in soils and
sediment, indicating that the constituent
is relatively immobile in groundwater
The NODA analysis, therefore, led
EPA to determine that it is highly
unlikely that this waste would present
a significant risk in a groundwater
scenario. EPA finds no reason to change
that determination either based on
NODA comments or any other
information in the rulemaking record. In
addition, further assessments in the
NODA showed no significant risks from
the relatively small volumes that were
disposed in LTUs.
EPA's decision not to list is further
supported by additional analysis after
comments received on the NODA. In its
reexamination of the groundwater
analysis EPA found that it had
mistakenly used the wrong carcinogenic
risk factor for benzo(a)anthracene. As
shown in Table IV-2, when the revised
groundwater analysis was performed
with the longer active life and
municipal landfill areas, using the
correct health-based number caused the
risks to drop 20-fold, such that even the
maximum high-end risk was 2E-6. See
Additional Groundwater Pathway
Analyses, 1998, contained in the public
docket for this rule for details. Given the
even lower groundwater risk calculated,
still using the suspect
benzo(a)anthracene measurement, EPA
finds even further reason to believe that
the listing of off-specification product
and fines is not warranted.
Specific Comments
One commenter claimed EPA data
indicates that several respondents store
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42161
off-specification products and fines in
surface impoundments as an "interim"
management method, and therefore the
Agency should model this management.
In response, EPA finds only one
respondent, not several, that reported
managing off-specification product and
fines in a "surface impoundment" in
1992. This "surface impoundment" acts
as a drilling water clarifier. All delayed
coking units recycle their drilling water.
and to do so, any entrained fines in the
drilling water must be recovered.
Typically, the concrete coke storage pad
Is sloped so that drilling water drains to
one end and proceeds through a series
of baffles that separate out the coke
fines. This is the type of "surface
impoundment" the refinery identified.
Thus it is not a typical surface
Impoundment, but rather an integral
part of the decoking process. These are
lined (concrete) drilling water collection
and recycle systems, confined within
the coke battery, and are unlikely to
pose significant risk.
Comments related to the aspects of
the groundwater modeling are discussed
earlier in this notice (see Section V.B.6);
however, EPA makes several points for
this specific wastes. Regarding the
commenters" criticism of EPA's use of
TCLP results as input values to the
landfill groundwater modeling for this
material because it is "oily," the Agency
points out that off-specification product
and fines are generally not oily. The
Agency conducted total oil and grease
analyses on four samples and the
average level of oil and grease
(measured as Total Oil and Grease, i.e.,
not truly "free" oil) was two percent
(three samples were below one percent).
Furthermore, the data from the 3007
Questionnaire show that the typical
material has relatively low oil content
(90th percentile value was five percent).
Therefore. EPA believes that the use of
the TCLP was valid.
With regard to commenter concern
over free-phase flow of contaminants
from off-specification product and fines
due to oil content, it is particularly
Important to note that none of the six
off-specification product and fines from
thermal processes samples exhibited
multi-phase behavior, and that the
measured oil content was low, as noted
above.
The commenter went on to state that
a risk assessment EPA conducted for
this waste as part of the 1995 proposal
showed that risks associated with air
releases from uncovered landfills made
up of coke fines exceeded 1E-3 for
home gardeners, subsistence farmers,
and subsistence fishers, and a high risk
to subsistence fishers from mercury
exposure was also predicted. The
commenter also noted that the NODA
risk modeling for disposal in LTUs was
not a meaningful surrogate for
evaluating the risks posed by pile
storage, because the annual volumes
modeled were small (high-end volumes
of 21-34 MT).
The commenter is attempting to use a
bounding analysis EPA undertook for
nongroundwater risks for coke fines
disposed in landfills as an indication
that air releases from piles containing
this material would present similar
risks. In response, EPA first notes that
bounding estimates are used as an
initial screening estimate that
overestimates the exposure or dose for
the purpose of screening out exposures
of little concern. The purpose of the
bounding analysis is simply to
determine what pathways and scenarios
require further evaluation and does not
represent an assessment of risks. The
bounding analysis included worst-case
assumptions (no cover or dust
suppression, highest constituent levels,
largest waste volumes and landfill area,
worst climate, etc). Furthermore, the
levels near 1E-3 arose from indirect
pathways (ingestion of beef, dairy, fish,
and plant products); the direct pathway
of soil ingestion, even in the bounding
analysis, was on the order of 1E-6. Most
importantly, the biotransfer factors used
in the bounding analysis for beef, dairy,
and plant indirect paths have been
determined to overestimate risks by at
least two orders of magnitude; likewise
the apparent problem from mercury also
was traced to an error in units for the
bioaccumulation factor used. Thus, EPA
believes that the bounding analysis was
flawed and grossly overestimated risks.
EPA notes that the subsequent high-
end analyses for nongroundwater risks
from landfill disposal of off-spec
product and fines did not show
significant risk. While the high-end
analysis included the assumption of
daily cover for the landfill, and thus
may not be the best surrogate for air
releases from piles, the scenario did
consider windblown dust from on-site
roads and particulate release caused by
traffic (i.e., dump trucks), loading,
unloading, etc. The high-end analysis
showed risks no higher than 2x10-6 for
any receptor (see U.S. EPA, Assessment
of Risks from the Management of
Petroleum Refining Wastes Background
Document (F-95-PRLP-S0006), page
10-3). Therefore, some of the possible
release mechanisms that could occur in
a waste pile scenario (e.g., unloading/
loading, traffic) were addressed in the
risk assessment supporting the proposal
and the pathway was not significant.
EPA also points out that some
important characteristics of the coke
pile and details of management
practices used by refineries would tend
to mitigate potential risks. The piles are
not comprised simply of coke fines, but
are mixtures of much larger pieces of
coke product that are drilled from coker
units; the larger chunks of coke would
make up the bulk of the pile.
Furthermore, coke is drilled out of the
coker approximately once a day with
hydraulic drills; thus, new wet coke/
fines from drilling are added to the coke
pile, making air releases of dry
particulates less likely. EPA also has
found that coke piles are managed using
various practices to control release of
dust, including: (a) Contained product
storage areas (b) dust-suppression water
spray systems (c) covered conveyor
systems and, (d) direct loading from
coke-drums into railcars (see NODA
response to comment document for a
summary of these practices). In
addition, EPA expects that particulate
releases from these areas would be
controlled by Federal, State, or local air
regulations and permit programs.
Finally, the commenter also argued
that, pursuant to the Consent Decree in
EDFv. Browner, EPA is required to
issue a listing determination for off-
specification products and fines, and
that because piles present a substantial
risk to human health and the
environment based upon the
assessments conducted to date, the
required listing determination must
include a decision as to whether off-
spec products and fines warrants listing
pursuant to 40 CFR 261.33'as a
commercial chemical product. The
commenter suggested that, if EPA argues
that the piles of coke fines are product,
then the material that blows off the piles
and cannot be recovered is discarded
commercial chemical product and
should become a listed U-waste under
40CFR261.33(f).
EPA disagrees with the commenter.
The Agency has, in fact, made a listing
decision for the off-specification
product and fines that are known to be
discarded by refineries, i.e., the volumes
of wastes that are disposed. EPA
believes it has fulfilled the requirements
of the consent decree for production
wastes from petroleum refining. While
the Agency is not constrained to making
decisions required under the consent
decree, EPA is not making a listing
decision on product use in this
rulemaking. Furthermore, at this time
the Agency has no valid assessment that
indicates these wastes present a
"substantial risk" when added to coke
piles.
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7. Catalyst and Fines From Catalytic
Cracking
Summary
As proposed, EPA is not listing as
hazardous Fluidized Catalytic Cracking
(FCC) catalyst and fines. Two
subcategories of this waste were
evaluated due to their physical
difference in particle size: spent
equilibrium catalyst and catalyst fines.
The usual constituents of concern found
in other petroleum residuals (i.e.,
carcinogenic PAHs and benzene) were
not detected in spent FCC catalysts.
More than 70 percent of the equilibrium
catalyst and 20 percent of the catalyst
fines are reused (in other FCC units) or
recycled (primarily by cement plants).
For the reasons stated in the proposal,
the Agency chose to model the monofill
and surface impoundment scenarios
(see 60 FR at 57771) for FCC catalyst
and FCC fines. Bounding estimates (run
under worst-case assumptions using
multiple high-end assumptions for
critical parameters) for the
nongroundwater exposures from volatileN
and particulate emissions from
monofills showed no significant risk for
either FCC equilibrium catalyst or FCC
fines. The Agency also found no
significant risk, for either subcategory,
from the high-end analysis for the
groundwater pathway from the monofill
or surface impoundment scenarios.
Furthermore, the revised risk analyses
in the NODA in response to comments
showed no significant risks for this
waste. The few comments EPA received
on this waste agreed with EPA's
decision not to list. Therefore, the
Agency continues to believe that a no-
list decision is warranted and adopts
that final decision incorporating the
reasoning in the preamble to the
proposal.
samples, indicating that the risk
attributed to this chemical would
generally be lower. EPA did not model
other waste management practices
because they were already regulated
under RCRA (e.g., combustion in a
industrial furnace), extremely rare
(discharge to a surface impoundment
that has been closed), recycling
practices (on-site recovery), and/or
would present no significant risk
(discharge of small volumes to
wastewater treatment systems).
In the NODA, the Agency revised the
groundwater risk analysis for landfill
disposal and found slightly higher high-
end risks for groundwater for off-site
and on-site landfills (both 6E-6) due to
benzene. EPA also presented a
groundwater Monte Carlo analysis in
the NODA that showed risks of 2E-7 for
on-site, and 2E-6 for off-site landfills.
Revised nongroundwater risks from
disposal in LTUs remained insignificant
(less than 1E-7; see 62 FR at 16753).
Further groundwater pathway
analysis performed in response to
comments on the NODA showed a slight
increase in the high-end risk to 1E-5 for
off-site landfills. The revised Monte
Carlo analysis yielded no change in the
risk (2E-6). (See Table IV-2, and
Additional Groundwater Pathway
Analyses, 1998, contained in the public
docket for this rule).
EPA decided not to list this waste
based on the relatively low groundwater
high-end risks of 1E-5 due solely to
benzene, and the fact that benzene is not
frequently found in the TCLP analysis
(one of five samples). Furthermore, this
waste typically does not have high oil
or PAH content; none of the
carcinogenic PAHs were detected in the
samples collected by EPA. Therefore,
the Agency is issuing a final decision
not to list this waste stream.
8. HF Alkylation Sludge
Summary
The Agency is not listing as
hazardous sludge from hydrofluoric
acid (HF) alkylation processes. As noted
in the proposal and confirmed by
analysis of comments and all other
relevant information in the record, only
marginal risk was identified for the
groundwater ingestion pathway in off-
site landfilling due to benzene. Also, no
significant risks were found from land
treatment of this material.
Discussion
In the proposal, EPA found a high-end
groundwater risk for landfills of 3E-6
due to benzene (see 60 FR at 57772).
The Agency also noted that benzene was
found in only one out of five TCLP
Specific Comments
The Agency received comments
arguing that sludges from HF alkylation
are frequently generated and managed
in surface impoundments and were not
evaluated by EPA because it is a "rare"
management practice. The commenter
stated that there are an ample number
of surface impoundments at refineries
that could be used in this manner, there
is no legal or other barrier to surface
impoundment management of HF
alkylation sludge, and that this practice
should be considered a plausible
management scenario. The commenter
noted that the waste is sometimes
generated in "pits," and this means
management in an impoundment is a
reasonable assumption.
EPA disagrees with the comment that
HF sludge is commonly generated or
managed in surface impoundments.
From site visits, EPA found that HF
alkylation sludge is commonly
generated in concrete lined pits or tanks
within the HF process unit boundary;
these are not unlined surface
impoundments. The one case of actual
management of this waste in a surface
impoundment in 1992 was reported to
be discontinued that year (see Listing
Background Document, October, 1995).
Therefore, EPA does not believe
management in surface impoundments
is plausible.
One commenter criticized EPA's
modeling of risks from LTUs, and these
are addressed elsewhere in today's
notice (see Section V.B.7). However,
EPA would like to note that
nongroundwater risks are unlikely to be
significant for this waste because HF
alkylation sludge has none of the
carcinogenic PAHs that were of concern
for other wastes. For example, while
CSO sediment samples had an average
of 132 ppm of the PAH benzo(a)pyrene,
none was detected in any sample of HF
alkylation sludge.
One commenter argued that EPA
should list this waste based on the
groundwater risks estimated by EPA, as
well as the risk calculated by the
commenter using alternative
groundwater modeling (2E-5). EPA
disagrees with the commenter, and
continues to believe the risks do not
justify listing this waste. As noted in the
discussion above, EPA's revised high-
end risk was 1E-5, and the revised
Monte Carlo risk only 2E-6. EPA has
decided not to list this waste after
considering other factors. Most
importantly, the risk was due to the
presence of one constituent, benzene,
that was detected in only one of the five
TCLP samples. Thus, the constituent
was not found frequently or typically in
this waste. Furthermore, EPA found
none of the carcinogenic PAHs in
samples of this waste that were so
pronounced in other wastes of concern
(e.g., CSO sediment).
9. Sludge From Sulfur Complex and
Hydrogen Sulfide Removal Facilities
Summary
As proposed, the Agency is not listing
as hazardous sludge from sulfur
complex and hydrogen sulfide removal
facilities. No significant risks were
found for any exposure pathway from
disposal in on-site or off-site landfills,
or in on-site and off-site LTUs, nor from
potential air releases from storage in
dumpsters (well below 1E-6 in all
cases). In addition, the Agency noted
that the sludges that may be generated
from treatment of this waste in the
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42163
primary wastewater treatment system
are already listed. Furthermore, the
revised high-end risk analyses in the
NODA in response to comments also
showed no significant risks for this
waste (well below 1E-6 in all cases).
The few comments EPA received on this
waste agreed with EPA's decision not to
Hst. Therefore, the Agency continues to
believe that a no-list decision is
warranted and adopts the final decision
incorporating the reasoning in the
preamble to the proposal.
10. Catalyst From Sulfur Complex and
Hydrogen Sulfide Removal Facilities
Summary
The Agency is not listing as
hazardous any of the spent catalysts
generated from fr^S removal and sulfur
complex operations. The Agency
divided this residual into two
subcategories: Spent Glaus unit catalyst,
and spent SCOT-like tail gas catalyst.
For the first subcategory, no significant
risks were found from bounding
estimates (run under worst-case
assumptions using multiple high-end
assumptions for critical parameters) for
the groundwater exposure pathway as
well as for the direct and indirect
pathways of volatile emissions and
paniculate emissions. For the second
subcategory, the Agency also did not
find significant risks associated with the
disposal of this waste in on-site and off-
site landfills. Furthermore, the revised
risk analyses in the NODA in response
to comments continued to show no
significant risks for this waste stream.
Therefore, the Agency continues to
believe that a no-list decision is
warranted and adopts the final decision
incorporating the reasoning in the
preamble to the proposal.
11. Unleaded Gasoline Storage Tank
Sediment
Summary
EPA is not listing as hazardous
sediment from the storage of unleaded
gasoline in tanks. The Agency assessed
the potential risks associated with four
selected management practices, on-site
and off-site Subtitle D landfilling, and
on-site and off-site land treatment. Only
marginal risk was identified for the
groundwater ingestion exposure
pathway. Although revisions to the risk
assessment showed higher risks above
the level of concern, EPA has still
decided not to list this waste because:
(1) The waste is primarily rust and scale
and has none of the carcinogenic PAHs
or high oil content of potential concern
in other wastes, (2) the TC is expected
to control some risks, (3) the volume of
waste Is relatively small, and (4) the
reduction of benzene levels in
reformulated gasoline should reduce
levels in wastes in the future.
Discussion
EPA proposed not to list unleaded
gasoline tank sediment as hazardous
due to the absence of any significant
risks, except for the marginal risks
found for the groundwater ingestion
pathway for off-site landfill disposal
(high-end risk, 2E-6). The Agency also
noted that this waste was infrequently
generated, volumes of this waste
disposed were relatively modest, and
that the only constituent of concern,
benzene, would be controlled by the TC.
The revised modeling completed by
EPA in response to comments on the
proposal and the NODA included a full
sensitivity analysis to determine the
most critical high-end parameters, and
resulted in off-site landfill groundwater
risks increasing to 3E-5 (see Table IV-
2). The high-end risk was lowered
slightly to 2E-5 in the TC-capped
results. However, the revised Monte
Carlo risk, 6E-6, is below EPA's level of
concern (1E-5), and the TC-capped
Monte Carlo risks drop to 4E-6,
suggesting the TC may control most
risks of concern for this waste. After
considering these risk results, and the
other factors discussed below, EPA
finds that the listing of this waste is not
warranted.
First, while the levels of benzene in
the waste and TCLP samples are of
potential concern, the TC for benzene
should provide some measure of control
of wastes with high benzene levels.
Nearly 40 percent (52) of the 141
unleaded gasoline tank sediment wastes
streams generated in 1992 were reported
in the 3007 Questionnaire to be coded
as hazardous waste (due primarily to the
TC for benzene and occasionally for
ignitability). While EPA's risk analysis
using TCLP input data capped at the TC
level still showed some risk (2E-5),
many of the wastes that are not TC-
hazardous will likely have benzene
levels below the TC level. Thus, given
the existing regulatory control afforded
by the TC, the incremental benefit to
listing this waste appears limited.
Furthermore, this waste does not have
the features that EPA found compelling
in deciding to list other wastes
examined in this rule. Specifically, this
waste lacks the pyrophoricity and
arsenic concerns exhibited by the spent
catalysts, and it has low oil content and
PAH levels compared to the crude oil
and CSO tank sediments. The oil
content of this waste is typically low as
evidenced by the median TOG levels
reported in the 3007 Questionnaire (6
percent), and samples taken by EPA (<1
percent). This contrasts with much
higher TOG levels in Crude Oil Storage
Tank Sediment (34 percent average from
the 3007 Questionnaire, and 21 percent
average from the six samples EPA
analyzed) and CSO Tank Sediment (30
percent average from the 3007
Questionnaire, and 37 percent average
from EPA's samples). EPA's analyses of
samples of unleaded gasoline storage
tank sediments also snowed none of the
carcinogenic PAHs that were of concern
in sediment from CSO and crude oil
tanks. For example, average
benzo(a)pyrene levels found in
sediment from CSO and crude oil
storage were 132 ppm and 12
respectively, but none was found in
sediment from unleaded gasoline
storage. In addition, one of the major
constituents measured in the unleaded
gasoline tank sediment was iron (e.g.,
the average iron level for the three
samples was 41, thus this waste appears
to be largely rust and scale, rather than
the higher organic content of the other
tank sediments. Therefore, EPA is more
confident that the other constituents of
gasoline tank sediment will not present
any potential problem.
Also, as noted in the proposed rule,
the total volume of the waste reported
for 1992 is relatively small (3,583 MT),
and the volumes sent to landfills are
even smaller (633 MT, 22 MT average
per waste stream). These volumes are
significantly smaller than the volumes
of crude oil storage tank sediment
generated (22,017 MT) and sent to
landfills (2,338 MT, 123 MT average).
Finally, EPA has promulgated
regulations under the Clean Air Act
(CAA) that will result in the reduction
of benzene levels in gasoline (see the
Reformulated Gasoline Rule, February
16, 1994; 59 FR 7716). This rule sets a
1.0 percent (by volume) benzene limit
on reformulated gasoline for non-
attainment areas of the United States. In
conventional gasoline, benzene is
incorporated into gasoline to increase
the octane rating, and the average
amount of benzene in conventional
gasoline is 1.6 percent, ranging up to 5.0
percent. Therefore, as the levels of
benzene in gasoline are reduced,
sediment from storage of gasoline
should also show a corresponding
reduction in the levels of benzene/This
will reduce the potential groundwater
risks resulting from benzene in
unleaded gasoline storage tank
sediment.
Specific Comments
One commenter noted that EPA did
not model the use of unleaded gasoline
tank sediment waste as landfill cover or
road spreading. In response, the Agency
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points out that no refineries reported
use of unleaded gasoline tank sediment
as landfill cover or in road spreading.
The Agency has no data supporting
these management scenarios and
therefore does not see the need to model
this pathway.
While the Agency already discussed
the general issues related to the
appropriateness of the TCLP for the
wastes examined in this rulemaking due
to oil content, EPA notes that for this
specific waste the total oil and grease
levels in the available samples collected
by EPA were well below 1 percent.
Thus, the commenter's concern about
problems with the TCLP and oily waste
are clearly unfounded for this waste.
One commenter criticized EPA's
modeling of risks from LTUs, and these
are addressed elsewhere in today's
notice (see Section V.B.7). However,
EPA would like to note that
nongroundwater risks are unlikely to be
significant for this waste under any
scenario because unleaded gasoline tank
sediment has none of the carcinogenic
PAHs that were of concern for other
wastes, such as CSO.
One commenter argued that EPA
should list this waste based on the
groundwater risks calculated by the
commenter using alternative
groundwater modeling (8.8E-5). EPA
disagrees with many of the commenter's
suggested modifications to the modeling
(see Section V.B.6) and continues to
believe that the risks do not justify
listing this waste. As noted in the
discussion above, EPA's revised high-
end risk was 3E-5, and the revised
Monte Carlo risk was 6E-6 (see Table
IV-2), and after considering the other
factors noted, EPA has decided not to
list this waste. Furthermore, the revised
Monte Carlo risks for this waste were
6E-6, below EPA's 1E-5 level of
concern. In addition, the Monte Carlo
TC-capped risk of 2E-6 suggests that the
TC will be effective in controlling much
of the risk for this waste.
prior to reclamation, and no significant
risk was found from this pathway. In
addition, the Agency believes generator
site environmental release other than
potential de minimis spills would be
unlikely because the valuable spent
reforming catalysts are controlled and
tracked between the refining and
reclamation facilities to prevent loss.
The one comment EPA received on the
Agency's assessment agreed with the
decision not to list. Therefore, the
Agency continues to believe that a no-
list decision is warranted and adopts the
final decision incorporating the
reasoning in the preamble to the
proposal.
12. Catalyst From Reforming
Summary
The Agency is not listing as
hazardous spent catalyst from reforming
operations, as proposed. The proposal
noted that 94 percent of the wastes
generated in 1992 were recycled at
reclamation facilities for the precious
platinum content. The remaining 6
percent consist primarily of other
materials generated during catalyst
replacement, e.g., ceramic support
media that are inert. The Agency
conducted risk analysis of the potential
air exposure pathway from the
combustion of the reforming catalyst
13. Sludge From Sulfuric Acid
Alkylation
The Agency is not listing as
hazardous sludge from sulfuric acid
alkylation. In the proposal, the Agency
noted that this waste was infrequently
generated, and the volumes generated in
1992 were very small (608 MT). Based
on the bounding estimates (run under
worst-case assumptions using multiple
high-end assumptions for critical
parameters) conducted for land
treatment and landfilling practices, no
significant risk was found. Furthermore,
the revised land treatment risk analyses
in the NODA in response to comments
showed no significant risks for this
waste stream. Therefore, the Agency
continues to believe that a no-list
decision is warranted and adopts the
final decision incorporating the
reasoning in the preamble to the
proposal.
D. Headworks Exemption
As noted in Section III.A in the
proposed rule, EPA proposed to extend
the existing exemption for wastewaters
from cleaning of petroleum tanks to
include those generated for CSO tank
sediment, and if listed, crude oil storage
tank sediment. In the NODA, EPA
proposed to extend the exemption to
include wastewaters generated from the
clean out of processing units holding
spent hydrotreating and hydrorefining
catalysts.
1. Application to Listed Catalysts
Many commenters requested
clarification that the headworks
exemption would include wastewaters
from spent hydrotreating and
hydrorefining catalysts. This would
allow refiners to continue the practice of
using water to cool and wash out these
spent catalysts from the process units
prior to further management. One
commenter stated that sufficient
controls are in place within refineries to
manage minor residuals that are drained
to the refinery sewer systems. These
residuals will be removed in the system
and become listed hazardous wastes.
Without these exemptions, refiners
would be forced to either use more
costly or more dangerous methods in
managing catalyst or be forced to collect
and ship these wash waters off-site.
As described in the NODA, EPA
considered the commenters' request and
conducted an assessment to determine
the appropriateness of expanding the
headworks exemption. The results of
this analysis show that little risk is
likely to be incurred by this practice.
The use of water during the catalyst
changeout process provides a number of
benefits, including lowering emissions
of volatile organics (if the wash water is
treated to remove volatiles prior to
discharge to the sewer system), lowering
the risks associated with the catalysts'
potential self-heating nature, and
minimizing risk to workers entering the
confined space of the catalytic reactors
during changeouts. Therefore, EPA, has
concluded that it is appropriate to
include this low risk, beneficial practice
under the headworks exemption.
Many commenters approved of
expanding the proposed headworks
exemption to cover water associated
with catalyst management. These
commenters saw the exemption as
consistent with EPA's listing criteria in
40 CFR 261.11(a)(3), and agreed with
EPA that the exposure pathways from
wastewater management associated with
CSO sediment and hydroprocessing
catalysts in the refinery wastewater
treatment system are sufficiently
regulated under the Clean Water Act
(CWA), the CAA NESHAP, and the
existing RCRA hazardous waste listing
for refinery wastewater treatment
sludges (K048, K051, F037, and F038)
EPA agrees that existing NESHAP and
effluent guideline controls on these
materials, as well as the existing sludge
listings (F037, F038, K048, K051), and
the inherent differences between the
wastes modeled and the aqueous
residuals generated during tank and unit
washings, support EPA's decision to
finalize the headworks exemption.
2. Clarification of Scope
EPA received a request for
clarification about whether the
proposed exemption is limited to dilute
wastewaters resulting from the cleanout
of tanks or other units containing these
wastes, or whether the proposed
exemption applies to the listed waste
(sediment) itself. One commenter stated
that the exemption would be abused
and would encourage wholesale
discharge of the sediments to the
wastewater treatment system. EPA
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reiterates that the headworks exclusion
is not meant to serve as an incentive to
discharge tank sediments (or spent
catalyst) to the wastewater treatment
plant. This was not the Agency's intent,
and EPA requested comment in the
NODA on how to ensure that the
headworks exemption is not a loophole
to dump catalyst or CSO sediment in the
sewer.
One commenter argued that the
exemption would not be a loophole for
two important reasons. First there
would be a significant economic penalty
for this action, because solid material
dumped in the sewer will emerge again
as hazardous waste sludges upstream of
biological treatment (F037, F038, K051
and K048). The commenter stated that
any wastewater sludge that these solids
generate would likely be many times the
original weight of the solids in the water
(up to 10-fold due to the oil water-
bacteria emulsion that forms around
these solids). The commenter claimed
that the increased costs associated with
increased volumes of difficult to manage
emulsions would be a severe economic
penalty for allowing excess solids into
a sewer. Secondly, the commenter noted
that sewers are critical to a refinery's
operation, such that any discharge of
solids into a sewer runs the risk of
interrupting refinery operations (with
heavy costs), or at least overloading the
system with solids, endangering
compliance with water discharge
permits. Therefore, the commenter
concluded there is no need for EPA to
further define allowable wastewater
solids content, and this would only
create unneeded analytical, record
keeping, and related compliance
burdens.
The Agency agrees with this
commenter that there are financial
disincentives to discharging excess
solids to the refinery wastewater
treatment system. Furthermore, the
Agency observes that many refineries
conduct deoiling of tank contents and
sediments prior to disposal and tank
Inspection. This practice reduces
sediment quantities by an average of 40
percent, with a substantial savings of
raw materials (i.e., oil recycled back to
the refining operations) and disposal
costs. Upon promulgation of today's
listings and the exclusion for oil-bearing
residuals, EPA believes even greater
amounts are likely to be subjected to oil
recovery and waste minimization. Any
water in the tank clean out material will
likely be separated as a part of the
deoiling process, and would be
discharged to the wastewater treatment
plant. Thus, with respect to some
commenters' concerns regarding
impacts on the wastewater treatment
system, these recycling activities will
likely increase and further reduce the
load on the treatment system.
A commenter asked EPA to clarify the
scope of the exemption in the final rule,
since water is used in any number of
different ways in the proper handling of
CSO sediment and spent
hydroprocessing catalysts. They stated
that EPA should clarify in the final rule
that the exemption extends to all
wastewaters derived from the
management of the residuals, as long as
the wastewaters are managed in a
system subject to the Clean Water Act.
EPA is aware of the following uses of
water associated with the generation of
K169 to K172. In reference to crude oil
storage and CSO tank sediments (K169
and K170), wastewater is generated (1)
by dewatering (e.g.. centrifuging)
sediment removed from the tank, and
(2) by conducting a "rinse" as
mentioned by the commenter. In
reference to K171 and K172, wastewater
is generated from drilling out the
catalyst, steam stripping or washing,
and pad drainage.
EPA believes that the headworks
exemption is appropriate for waters
generated from all of these practices,
because these aqueous residuals would
be dilute and contain low levels of the
original listed wastes. Therefore, the
Agency is finalizing the exemption for
all the wastes that are being listed: CSO
sediment, crude oil sediment, spent
hydrotreating catalysts, and spent
hydrorefining catalysts. As noted in the
proposal, however, the exemption is not
intended to allow the discharge of the
entire waste stream (i.e., tank sediments
or spent catalysts), but rather dilute
waters generated during tank or unit
clean outs and dewatering.
Another commenter requested
clarification that the headworks
exemption extends to zero discharge
facilities that have CWA equivalent
wastewater treatment units. The Agency
wishes to clarify that the exemption
would extend to facilities subject to
regulation under section 402 or section
307 (b) of the CWA and would include
facilities that have eliminated the
discharge of wastewater. However, this
clarification is already included in the
regulations in 261.3(a)(iv) and specifies
that wastewaters at facilities that have
eliminated discharges are included.
Facilities that elect to use the
headworks exemption should
understand the potential compliance
implications for Subpart FF, the
benzene waste operations NESHAP, (40
CFR 61.340). Subpart FF conditions the
need for air pollution controls and
waste treatment on the total annual
benzene quantity (TAB) from a facility's
waste. Facilities must include any waste
stream "that has a flow-weighted annual
average water content greater than 10
percent or that is mixed with water or
other wastes at any time and the
mixture has an annual average water
content greater than 10 percent." Since
1995, refineries with a TAB of 10 MT
per year or greater must treat all
benzene wastes and control emissions
from drains, sewers, tanks, oil-water
separators, impoundments, and
containers. Thus, if facilities elect to use
the headworks exemption, any wastes
put in sewers that did not previously
count toward the TAB will have to be
included in TAB calculations. If
refineries have TAB that exceeds 10
MT/yr, they would be out of compliance
with Subpart FF.
3. Comments Opposing the Exemption
One commenter urged the rejection of
EPA's proposal to exempt from
regulation previously listed refinery
wastes (K050), CSO residuals, and crude
oil storage tank sediment, because it
encourages waste constituent
volatilization and dilution, rather than
pollution prevention and responsible
waste management. The commenter
noted that EPA's sole justification for
the proposal was the Agency's belief
that the hazardous constituents in these
wastes would wind up in RCRA
regulated wastewater treatment sludges.
The commenter asserted that EPA failed
to address why hazardous constituents
in the discharges would not be released
into the air, or remain in the wastewater
and bypass the primary sludge only to
settle in the unregulated treatment
sludges further down the treatment
train.
As noted earlier in today's notice (see
discussion on Waste Management
Assumptions in Section V.B.2), EPA
does not believe that discharges to
wastewater treatment systems are likely
to present significant risks. EPA also
notes it did not find air releases of
volatiles, such as benzene, to be a
significant risk for any of these wastes
for any disposal practice evaluated.
Thus, EPA does not believe that any air
releases from a much more dilute waste
generated during tank or unit clean outs
are likely to present significant risk. The
Agency notes that the benzene NESHAP
(58 FR 3072; January 7, 1993) provides
significant control of emissions from the
wastewater conveyance system at larger
refineries, and that the reported amount
of sediments managed in this manner is
small relative to the total volume of
waste being given this exemption.
Refineries also avoid overloads to their
biological treatment trains in order to
maintain their effectiveness.
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EPA also notes that the discharge of
aqueous wastes generated during tank
cleaning are generated only
infrequently. EPA's data from the 3007
Questionnaire, shows that, on average, a
single CSO tank is cleaned every 9 years
and, on average, a refinery has four
tanks containing CSO (for those that
generate the residual). Therefore, a
typical refinery generates CSO tank
cleaning wastewaters less than once per
year. Discharges of tank cleaning waters
are infrequent and are expected to
generate relatively small volumes of
water in comparison with the typical
wastewater flow through a refinery
treatment system (see analysis noted
below).
Tank cleanings are used to facilitate
tank inspections, which are critical to
ensuring tank integrity and to avoiding
catastrophic tank failure. Without this
exemption, tank washing would become
. much more difficult because of the need
to find alternative Subtitle C disposal
methods for these wastewaters. Also,
the tank washings are dramatically
different in nature from the sediments
characterized for the listing
determination. While these washes are
primarily water, the sediments are
primarily solid, subject to land disposal
methods such as the landfilling and
land treatment evaluated in EPA's risk
assessment.
To respond fully to this commenter,
EPA presented a further analysis in the
NODA to illustrate the magnitude of
treatment and dilution that would occur
at the headworks of a refinery for both
CSO tank sediment and spent
hydrotreating/hydrorefining catalysts.
(See Sections 8 and 9 in Supplemental
Background Document-Listing Support
Document, March 1997). EPA notes that
it completed a similar analysis for crude
oil storage tank sediment to respond to
the commenter's concerns expressed
about this waste also (see Additional
Listing Support Analysis, 1998 in the
docket). EPA concluded from these
analyses that any impact on the
downstream wastewater treatment
sludge or wastewaters would be
negligible.
Comments on the NODA analysis for
the headworks exemption argued that
EPA based the assessment for CSO
sediment on disposal of the waste itself
in the wastewater treatment system, and
that the exemption should be limited to
dilute wastewaters. The commenter
suggested that EPA set limits on
maximum concentrations for
contaminants in discharges, and limit
the exemption to rinsate from the
cleaning of tanks or other units. The
commenter stated that these limitations
should also apply to the existing
exemption for heat exchanger bundle
cleaning sludge, currently listed as
hazardous waste K050, because the
existing exemption suffers from the
same flaws as the proposal. The
commenter also indicated that if EPA
does not limit the exemption to rinsate,
the CSO assessment is flawed because it
was based on the waste volume of the
one facility reporting waste discharge
into a wastewater treatment system in
1992. The commenter recognized that
the facility no longer intends to employ
the practice, but argued the potential
exists for any generator of the waste to
do so.
In response, EPA notes that the
purpose of the NODA exercise was to
develop a "what if scenario,
representing the extreme case of CSO
washwater loading to wastewater
treatment. EPA concluded that because
its "what if scenario showed negligible
risk, then no specific restrictions on
washwater composition would be
required. Furthermore, as discussed
above in this section, EPA believes that
there are significant disincentives for
refineries to discharge high solids
content waste to their wastewater
treatment system. Finally, EPA notes
that the existing exemption for heat
exchanger bundle cleaning sludge
(K050) was not explicitly reopened for
comment, therefore the Agency is not
considering any modification of this
exemption in today's rule.
Certainly, on-site wastewater
treatment systems are available for this
purpose throughout the refinery
industry. EPA based its evaluations on
the actual waste quantities used in
particular management scenarios. EPA
has no reason to believe, for example,
that a quantity of waste destined for
land treatment would be managed in a
wastewater treatment system. EPA
points out that a significant fraction of
the wastes being listed must already be
handled as hazardous, because they
exhibit the TC or other characteristics.
Yet despite this apparent incentive to
avoid costly Subtitle C management, the
disposal of tank sediment directly into
the wastewater treatment system was
extremely rare (i.e., only once each for
CSO and crude oil storage tank
sediments).
The commenter also questioned
whether the Agency accurately
estimated the impact posed by the
exemption, because EPA ignored the
possibility that contaminants from other
wastes and wastewaters would be
codisposed with the potentially exempt
waste in the wastewater treatment
system. In response, EPA notes that its
analysis was an attempt to gauge the
significance of a worst-case discharge
into the treatment system to determine
if any significant incremental risks
would result from the practice. EPA
found no such incremental risks and
therefore concluded that the exemption
was appropriate. In fact, EPA found that
risks due to the exempted wastes would
be extremely small.
The commenter expressed concern
that the exemption would likely be
encouraging the generation of larger
quantities of hazardous wastewater
treatment sludge, which would be
incompatible with the waste
minimization policy and objectives
articulated by Congress in Section 1003
ofRCRA.
In response, EPA believes that
refineries have no incentive to discharge
solids to wastewater treatment, because
the solids would end up as F037 or
other hazardous waste. As discussed
above, other comments noted that the
quantity of such primary sludge would
be much greater than the quantity of
solids initially dumped into the system.
E. Third Party Recycling of Spent
Petroleum Catalysts
In the November 20, 1995 proposal,
the Agency suggested that it might be
appropriate to exempt these thermal
petroleum catalyst recovery units from
RCRA Subtitle C regulation. The Agency
solicited important additional
information needed to adequately assess
the basis for promulgating this potential
exemption (see 60 FR at 57780). This
information included the extent to
which petroleum catalyst recovery units
are currently equipped with emission
control devices, the adequacy/efficiency
of existing controls, and the amounts
and concentrations of emissions of
HAPs regulated under section 112 of the
CAA as well as under Subtitle C of
RCRA. (Id.)
The Agency's preliminary findings in
1995, based on very limited data,
indicate that these units may already be
equipped with pollution controls
comparable to those required under
RCRA regulations for boilers and
industrial furnaces (BIFs) that burn
hazardous waste. However, EPA pointed
out in 1995 the importance and need for
additional air emissions data, in
particular, information on the types and
levels of HAPs being emitted from these
offsite hazardous waste reclamation and
regeneration units. (Id.)
No information on these key factors
was forthcoming on these units. Only
one facility submitted a copy of its state
air permit. The nature of, and data
associated with, this facility's state
permit are much too limited to provide
an adequate record for the Agency to
make a determination on whether to
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exempt from RCRA controls this entire
class of reclamation and regeneration
units. The information in the permit is
manifestly insufficient for such a
determination. Even if it were more
complete, EPA could likely not
extrapolate the information from this
single facility to all thermal units with
an adequate degree of confidence. For
instance, the permit contains limits only
on emission rates of CAA criteria air
pollutants carbon monoxide (CO),
sulfurlc oxides (SOx). nitrogen oxides
(NOx). paniculate matter (Method 10)
(PMio), and volatile organic constituents
(total-VOCs) on an average annual basis.
Daily/hourly mass discharge rates or
concentrations for these pollutants were
lacking, as was any information on
HAPs of concern under Section 112 of
the CAA (and, because of their
hazardousness, under RCRA as well), or
the means by which such HAPs might
be controlled. Also, this permit report
lacks information on the destruction
and removal efficiency (DREs) that the
combustion unit can achieve for
potential principal organic constituents
(POCs) fed to the regeneration process
(see 40 CFR 266.104(2)). Finally, the
permit report lacks information on the
kind of controls for metal emissions as
well as the types and levels of metals
being emitted.
EPA has no additional data on similar
units and on the key factors to be
considered in determining whether to
finalize the proposed exemption. At this
point, therefore, the administrative
record for this rule is simply not
sufficient to support a final decision one
way or the other.
Given the current state of the
administrative record and the other
circumstances discussed above, EPA is
deferring to a later day any final
decision on whether or not to exempt
these units from RCRA Subtitle C air
emission standards. The timing of this
decision depends, in large part, on the
gathering and submittal of additional
data on the key factors Identified above,
especially the types and levels of HAP
emissions from these units and the
adequacy of air pollution controls for
these emissions.
EPA encourages owners and operators
of these facilities to supplement the
record with design, operation, and
emissions information so that further
progress toward a final determination
on the potential exemption can be
made. In the interim, EPA reiterates that
nothing in today's rule (or indeed the
proposed rule) changes the current
RCRA status of facilities managing these
hazardous wastes.
VI. Land Disposal Restrictions
A. Treatment Standards for Newly
Identified Wastes
The land disposal prohibition
statutory provisions essentially require
pretreatment of hazardous wastes so
that threats to human health and the
environment posed by land disposal of
the waste are minimized (RCRA sections
3004 (g) (4) and (m)). Land disposal
prohibitions for hazardous wastes are to
be promulgated pursuant to a phased
schedule, the determination for newly
listed wastes-those listed after adoption
of the 1984 amendments-to be made
within six months of promulgation of
the listing (RCRA section 3004 (g) (4));
see generally, 55 FR 22523, June 1,
1990.) A determination to prohibit
hazardous wastes from land disposal is
essentially automatic, since only land
disposal that satisfies the exacting
statutory no-migration standard may be
disposed without first satisfying the
section 3004 (m) treatment standards.
(Id). A method of land disposal may not
be determined to be protective of human
health and the environment until the
waste has complied with 3004 (m)
pretreatment regulations, unless upon
application of an interested person, it
has been demonstrated to the
Administrator, to a reasonable degree of
certainty, that there will be no migration
of hazardous constituents from the
disposal unit or injection zone for as
long as the wastes remain hazardous
(RCRA section 3004 (d)). No one
contends that disposal of the petroleum
wastes listed in this rulemaking satisfies
the no-migration standard.
EPA has traditionally developed
treatment standards for prohibited
hazardous wastes based upon the
performance of BDAT. The Agency
further refined this approach to use the
same set of technology-based numerical
treatment standards whenever factually
justified. These are the so-called UTS
set out in §268.48, which provide
numerical treatment standards for all
hazardous constituents (i.e.,
constituents listed in Appendix VIII of
Part 261).
As part of the proposed rule, EPA
proposed to apply the UTS applicable to
the hazardous constituents in the newly
listed petroleum refining industry
wastes (see 60 FR 57783, November 20,
1995). EPA further requested data to
adjust the numerical treatment
standards applicable to the subject
wastes to be consistent with the
revisions to the UTS being considered
in the Agency's Phase IV Land Disposal
Restrictions rulemaking (see 62 FR
16751, April 8,1997). EPA has in fact
recently slightly amended the treatment
standards for the hazardous constituents
antimony (see 63 FR 28562, May 26,
1998) and nickel (see 63 FR 28569, May
26, 1998). EPA also has amended the
treatment standard for vanadium, which
is not an underlying hazardous
constituent (40 CFR 268.2(i)), but is
being regulated in these wastes for the
reasons given below. The constituents of
concern as proposed and the treatment
standards as revised are being
promulgated for the newly identified
K169, K170, K171, and K172 wastes. In
accordance with section 3004 (g) (4), EPA
is also prohibiting the underground
injection of these wastes (unless the
wastes meet the treatment standard
before injection without being diluted
impermissibly, or unless the wastes are
injected into a no-migration unit). Since
underground injection is a type of land
disposal (see section 3004 (k)), this
action is automatic, and implements the
mandatory directive to prohibit land
disposal of newly listed hazardous
wastes found in section 3004 (g) (4).
B. Response to Comments
Additional comments, along with
EPA's responses, are provided in the
Response to Comments Background
Documents for the proposed rule and
the NODA located in the docket for this
rule. Key comments are discussed
below.
1. Constituents of Concern
EPA received comment asking that, if
listed, the LDR constituents of concern
should be limited to benzene and
arsenic. The commenter determined that
these are the only two compounds
which have significant risk associated
with their management. The commenter
maintains that the inclusion of the PAH
compounds and other metals is not
warranted and will require additional
cost to characterize the material prior to
management, and that their inclusion
may prevent beneficial recycling
practices due to unnecessary LDR
requirements on reclaimer residuals.
The Agency disagrees. EPA is
required by statute to set "...levels or
methods of treatment, if any, which
substantially diminish the toxicity of
the waste or substantially reduce the
likelihood of migration of hazardous
constituents from the waste so that
short-term and long-term threats to
human health and the environment are
minimized" (RCRA section 3004(m), 42
U.S.C. 6924(m)). While the commenter
is correct in that for K171 and K172
only benzene and arsenic were given as
the basis of listing, treatment standards
were also proposed for additional
metals and PAHs. PAH compounds are
highly carcinogenic, even at low
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42168 Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations
concentrations, and are present at
significant concentrations in some
petroleum residuals at levels exceeding
the treatment standards. Although these
constituents were not modeled to show
significant risks through the pathways
considered, the presence of these
carcinogens in the wastes remains a
potential threat to human health and the
environment when the wastes are land
disposed. Certainly, there is no basis for
finding that threats posed by these
constituents have been minimized
without treatment (see Chemical Waste
Management v. EPA, 976 F.2d at 16.)
The Agency also notes that treatment
standards for PAHs and nickel are
currently required for other similar
listed petroleum wastes (F037, F038,
and K048-K052) and that damage cases
associated with these wastes have noted
environmental effects due to both
metals and PAHs (see Background
Document to Support Listing of Primary
Oil/Water Separation Sludges, August
20, 1990, pages 6-8). Thus, the Agency
is convinced that treatment of these
constituents is necessary to minimize
threats posed by the wastes' land
disposal, and further convinced that the
treatment standards are not established
below levels at which such threats are
minimized. The Agency is therefore
promulgating treatment standards for all
the constituents that were proposed to
be regulated.
2. Sulfides
The commenter recommended that if
a new treatment standard for K171 and
K172 is adopted, it must include a
concentration level for sulfides. The
commenter believes a level of 500 ppm
reactive sulfide should be specified as
an exit level for land disposal
restrictions, because the level has been
used in Agency guidance to identify
wastes that exhibit a hazardous waste
characteristic for reactive sulfides as per
OSWER policy memorandum No.
9443.1985(04). The commenter believes
that without a numerical treatment
level, the regulated community may be
held to a double standard of having to
meet the treatment standards for both a
Listed Waste and a Characteristic Waste.
EPA responds by clarifying that those
K171 and K172 wastes that exhibit the
hazardous waste characteristic of
reactive sulfide are currently prohibited
from land disposal unless first being
treated to remove the characteristic by
deactivation. Underlying hazardous
constituents also must be treated (see
existing § 268.35 (prohibition on land
disposal of reactive hazardous wastes)
and § 268.40 (e) (underlying hazardous
constituents in reactive wastes must
also be treated). Furthermore, even after
the listing takes effect, listed wastes may
also exhibit one or more characteristics
of a hazardous waste. Listed wastes
which also exhibit characteristics of a
hazardous waste must comply with all
applicable treatment standards for
characteristic wastes (unless the
treatment standard for the listed waste
contains a standard for the constituent
that causes the waste to exhibit a
characteristic; see §268.9(b)). Finally,
treatment must reflect the "minimize
threat" level for land disposal (3004
(d)(l) and (g)(4) (land disposal is
prohibited "unless the Administrator
determines the prohibition on one or
more methods of land disposal of such
waste is not required in order to protect
human health and the environment..."),
and so may require treatment of
constituents not technically hazardous
constituents, but which make a waste
more dangerous to land dispose (see 56
FR at 41168 (Aug. 19, 1991) and other
sources there cited). Thus, although
sulfides are not hazardous constituents
(since they are not listed in Appendix
VIII of Part 261), they nevertheless are
present in these wastes at
concentrations sufficient to provide
harmful properties, including self-
heating pyrophoric properties and
potential reactivity which must be
minimized for safe disposal (See 60 FR
57783-57785).
As a point of clarification, the newly
listed K171 and K172 wastes, which
also are reactive, would have to comply
with the UTS numerical levels for the
specified hazardous constituents and
deactivation for reactive sulfide prior to
land disposal, but would not have to
demonstrate compliance with all the
underlying hazardous constituents (see
§268.9 (b)). This is because the
treatment standard itself already
indicates what other constituents are
present in these wastes requiring
treatment so as to minimize threats
posed by the wastes' land disposal. The
Agency will continue to determine if a
separate UTS number is required to
access the deactivation of sulfide from
reactive wastes and, if so, will propose
a number in the future.
3. Underlying Hazardous Constituents
A commenter stated that EPA should
not subject listed hazardous wastes to
LDR regulations regarding Underlying
Hazardous Constituents (UHCs). The
Agency wishes to clarify that listed
wastes are not subject to UHCs per se.
UHCs are regulated in characteristic
wastes (40 CFR 268.1). Listed wastes are
regulated for the constituents which
caused the waste to be listed and any
other hazardous constituents specified
in the specific treatment standard that
are found to be present at levels where
they could possibly cause harm to
human health and the environment
when the wastes are land disposed (see
also discussion in the preceding
paragraph). The basis for the distinction
is that EPA has already studied the
listed wastes to determine the
hazardous constituents that are typically
present, but is unable to do so for
characteristic wastes, since, as a class,
they are much more diverse. The
Agency is promulgating treatment
standards for each of the proposed
hazardous constituents.
4. High Temperature Metals Recovery
EPA received comments suggesting
the designation of High Temperature
Metals Recovery (HTMR) as an
exclusive method of treatment. The
Agency has finalized numerical
standards for the newly listed wastes.
Treaters may use any method they
choose to achieve those standards, so
long as the treatment is not considered
impermissible dilution. The Agency
believes this degree of flexibility is
highly desirable to provide as many
treatment options as possible, so long as
the treatment satisfies the standards.
In the case of the vanadium
containing K171 and K172 wastes,
metals recovery may be required to
reduce the constituent to levels that can
be subsequently treated to comply with
the LDR treatment standard. Vanadium
treatment is discussed more fully in the
following section.
5. Vanadium
Vanadium is not an underlying
hazardous constituent of hazardous
wastes that requires treatment in all
characteristically hazardous wastes, (see
268.48 note 5). However, vanadium in
the form of ammonium vanadate or
vanadium pentoxide, are underlying
hazardous constituents (since they are
included in Appendix VIII of Part 261).
In the course of the combustion of coke
residues on the spent catalysts,
vanadium compounds adsorbed on the
catalysts are converted to vanadium
pentoxide and the wastes are typically
subjected to metals recovery for the
vanadium pentoxide. Because the
presence of vanadium pentoxide would
impart acute toxicity to the wastes and
can be readily measured as the
vanadium metal, the Agency proposed
treatment standards for vanadium as a
constituent of concern in K171 and
K172 as a surrogate measure to limit the
presence of vanadium pentoxide in the
wastes and to insure that the toxicity of
the waste was diminished prior to
disposal (see also 60 FR 57784,
November 20, 1995). Without reduction
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of their vanadium content, the K171 and
K172 wastes would contain significant
levels of vanadium in the form of toxic
vanadium pentoxide.
Commenters claimed that the
proposed treatment standard for
vanadium is not feasible and
appropriate, based on EPA's testing. In
response, EPA evaluated additional data
from the stabilization of wastes
containing vanadium at levels below
which metals recovery is feasible and,
based on this data, calculated a standard
of 1.6 mg/L TCLP for nonwastewaters.
The Agency proposed that this higher
standard replace the 0.23 mg/L TCLP
standard originally proposed and
believes that this standard is readily
achievable (see 62 FR 26047, May 12,
1997). A facility unable to comply with
the treatment standard may apply for a
treatabllity variance under 40 CFR
268.42 (assuming the waste has been
treated using the properly-operated
technology on whose performance the
treatment standard is based and is still
unable to meet the treatment standard).
One commenter claims that the
Agency incorrectly assumed that spent
catalysts and their residuals are
physically and chemically similar to
K048-K052 and K061 wastes. The
commenter noted that the chemical
composition of K048-K052 and K061
wastes is quite different than that of the
K171 and K172 spent catalysts. The
commenter identified other physical
differences between spent catalysts and
K048-K052 and K061 wastes, and
argued such differences apparently
prevent the stabilization of vanadium in
spent catalysts.
The commenter is correct that the
residuals are chemically and physically
quite different at their respective points
of generation, the principal difference is
the higher concentration of vanadium in
K171/K172. However, both K061 and
K171/K172 contain similar constituents
of concern which are largely metal
oxides once K171/K172 is deactivated.
Data assembled by the commenters
show that K048-K052 contain 1-350
ppm vanadium and that K061
concentrations range from 0-830 ppm,
while vanadium in K171 ranges from
10-3300 ppm and, in K172, vanadium
ranges from 25-31000 ppm. The
commenter also states that K172 has
been observed as high as 150,000 ppm
vanadium and notes that after
deactivation to remove the D003
characteristic, the vanadium present is
highly leachable. However, the
commenter presents data reflecting
attempts to stabilize the deactivated
waste with cement and lime, rather than
proceeding through the reclamation of a
vanadium pentoxide product normally
produced by metal reclaimers. The
Agency maintains that following such
reclamation, the treated waste would be
very comparable to K046-K052 and
K061 in vanadium content since little
vanadium would remain. Data from
reclaimers indicate that these processes
recover over 90 percent of the vanadium
present. Without such reclamation, it
would be unlikely that high vanadium
wastes, like K171/K172, could be
stabilized to the UTS level. The level of
vanadium remaining after reclamation
would still require stabilization to
reduce the mobility of the toxic forms of
vanadium. The Agency believes the
vanadium UTS level can be achieved,
therefore, through proper treatment
which includes a reclamation step. Data
on stabilization alone for high vanadium
wastes do not reflect proper and
effective treatment, and the Agency
therefore is not compelled to modify the
level based on this data.
One commenter asserted that the
treatment standard for vanadium could
not be rationally based on International
Mill Service (IMS) K061 data and, to the
extent that the standard could be based
on INMETCO's K061 waste, the
standard cannot be automatically
transferred to spent catalysts because
the resulting standards would not be
achievable. The Agency responds that
the prior treatment standard for
vanadium was based on data obtained
from IMS's HTMR facility. As revised in
the recent Phase Four LDR Rule, the
vanadium standard is derived from
stabilization data. The performance
levels promulgated were achievable by
the other facilities from whom the
Agency had also collected data (see 59
FR 47980, September 19, 1994). The
Agency believes that the residuals
following vanadium metal recovery of
the K171 and K172 wastes can achieve
the treatment standards measured on
the basis of vanadium and provide
protection against the significant
presence of acutely toxic vanadium
pentoxide in the land disposed waste.
The commenter provided no data
demonstrating that the treatment
standards could not be met when metals
recovery is performed.
6. Revisions to Proposed Standards
The Agency requested data to adjust
the numerical treatment standards
applicable to the petroleum wastes
subject of this rulemaking to be
consistent with the treatment standards
proposed in the Phase IV Land Disposal
Restrictions (see 62 FR 26041, 26047-
26048; May 12, 1997). Commenters
supported the proposed revisions to the
treatment standards. In each case, the
proposed standards reflect the higher of
the stabilization-based or HTMR-based
calculations, in order to provide
flexibility to use various well-
performing treatment technologies
which substantially reduce toxicity or
mobility of hazardous constituents. The
commenter believes the revised
treatment standards that EPA has
proposed for antimony, nickel, and
vanadium are supported by the
underlying data and are achievable by
both major treatment technologies.
The Agency concurs with the
commenters and also believes the BOAT
methodology has been properly applied
to the available data to calculate the
revised treatment standards and that the
levels are achievable by both major
treatment technologies. Based on data
submitted in the Phase IV rulemaking
for nonwastewaters, the treatment level
for antimony is finalized at 1.15 mg/L
TCLP, the treatment level for nickel is
finalized at 11.0 mg/L TCLP, and the
treatment standard for the vanadium,
which is applicable only to K061, K171,
and K172 as a constituent of concern in
these wastes, is finalized at 1.6 mg/L
TCLP. The Agency is therefore
promulgating these standards consistent
with the levels finalized in the Phase
Four Rulemaking. All other standards
are promulgated as proposed.
C. Capacity Determination for Newly
Identified Wastes
1. Introduction '
This section summarizes the results of
the capacity analysis for the wastes
covered by today's rule. For a detailed
discussion of capacity analysis-related
data sources, methodology, and detailed
response to comments for each group of
wastes covered in this rule, see the
following document: "Background
Document for Capacity Analysis for
Land Disposal' Restrictions: Newly
Identified Petroleum Refining Process
Wastes (Final Rule)" (i.e., the Capacity
Background Document).
EPA's decisions on whether to grant
a national capacity variance are based
on the availability of alternative
treatment or recovery technologies.
Consequently, the methodology focuses
on deriving estimates of the quantities
of waste that will require either
commercial treatment or the
construction of new on-site treatment or
recovery as a result of the LDRs. The
resulting estimates of required
commercial capacity are then compared
to estimates of available commercial
capacity. If adequate commercial
capacity exists, the waste is restricted
from further land disposal before
meeting the LDR treatment standards. If
adequate capacity does not exist, RCRA
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section 3004(h)(2) authorizes EPA to
grant a national capacity variance for
the waste for up to two years or until
adequate alternative treatment capacity
becomes available, whichever is sooner.
2. Capacity Analysis Results Summary
For this capacity analysis, EPA
examined data on waste characteristics
and management practices that have
been gathered for the petroleum refining
industry study in the 1992 RCRA
Section 3007 survey. The Agency
analyzed the capacity-related
information from the survey responses,
reviewed the public comments received
in response to the proposed rule,
contacted several commenters to obtain
more specific information, and
identified the following annualized
quantities of newly identified hazardous
wastes requiring commercial treatment:
4,400 tons of K169; 3,200 tons of K170;
3,400 tons of K171; and 7,400 tons of
K172. The available data sources
indicate that there are no quantities of
K169-K172 wastewaters that will
require alternative commercial
treatment.
EPA is finalizing the rule to apply
UTS to these wastes. The treatment
standards for nonwastewaters
containing organic constituents are
based on combustion. The Agency
determined that the available
combustion capacity to treat these
wastes far exceeds the waste quantities
requiring alternative treatment when the
listing determinations for these wastes
become effective. Also, the Agency
recognizes that the treatment residuals
from these wastes may require
additional treatment capacity (e.g.,
stabilization) to achieve the UTS for
metal constituents. The Agency
estimated that there several million MT
per year of available commercial
stabilization capacity. EPA also
identified several metal recovery
technologies that are commercially
available, and some of these
technologies are being used currently by
the petroleum refining industry to
recycle K171 and K172, although
permitting and regulatory concerns
expressed by some catalyst recyclers
may need additional time to upgrade or
expand their storage units. Since EPA is
finalizing numerical standards for these
wastes, all the technologies capable of
achieving the final LDR treatment
standards are not prohibited. Sufficient
alternative treatment or recovery
capacity exists to treat these wastes to
meet the LDR standards. Therefore, EPA
is not granting a national capacity
variance under LDR for these wastes.
The LDR standards for these wastes will
become effective when the listings
become effective.
For soil and debris contaminated with
the newly listed wastes, EPA proposed
to not grant a national capacity variance.
EPA received no comments regarding
this issue. EPA believes that the
majority of contaminated soil and debris
will be managed on-site and therefore
would not require substantial off-site
commercial treatment capacity.
Therefore, EPA is not granting a
national capacity variance to hazardous
soil and debris contaminated with the
newly listed wastes covered under this
rule. Based on the questionnaire, there
were no data showing the mixed
radioactive wastes with the newly listed
wastes. There were also no comments
concerning the radioactive wastes
mixed with the newly identified wastes.
EPA is not granting a national capacity
variance for mixed radioactive wastes or
soil and debris contaminated with these
mixed radioactive wastes.
EPA received comments concerning
the availability of treatment and
recovery capacity. One commenter
requested a six-month delay in the
effective date of the final rule, and two
commenters requested that EPA grant a
one- to two-year capacity variance to
obtain permit modifications and
construct any necessary plant upgrades.
Commenters requested additional time
to comply with various Subtitle C
requirements, particularly relating to
permitting and upgrading of areas used
for storing K171 and K172 prior to the
catalyst recycling process. Commenters
requesting a two-year capacity variance
for recycling facilities expressed
concern about the potential economic
impact on the facilities the Agency is
relying on to provide the required
treatment capacity. The commenters
noted that, if promulgated as proposed,
the Agency's listing would also mandate
the application of the "mixture" and
"derived from" rule for all management
activities after the point of generation,
placing additional regulatory burden
(LDR treatment standards, upgrading of
storage areas, potential Subpart CC
compliance, and obtaining permits/
variances) on environmentally sound
management practices.
Based on the results of the Agency's
capacity analysis, adequate
commercially available treatment or
recovery capacity does currently exist
for K171 and K172 wastes. Furthermore,
granting a national capacity variance
only exempts the waste from treatment
standards prior to land disposal during
the variance period, but does not
exempt the waste from other Subtitle C
requirements, such as the requirement
to have a permit for storage of hazardous
waste for greater than 90 days (at
generator's sites). EPA believes that six
months is sufficient to allow facilities to
determine whether their wastes are
affected by this rule and identify and
locate alternative treatment or recovery
capacity if necessary. Therefore, LDR
treatment standards will become
effective when the listing
determinations become effective for the
wastes covered under this rule (see
RCRA section 3004 (h)(l) (land disposal
prohibitions must take effect
immediately when there is sufficient
protective treatment capacity for the
waste available).
VII. Compliance and Implementation
A. State Authority
1. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
hazardous waste program within the
State. (See 40 CFR Part 271 for the
standards and requirements for
authorization.) Following authorization,
EPA retains enforcement authority
under Sections 3007, 3008, 3013 and
7003 of RCRA, although authorized
States have primary enforcement
responsibility.
Before the Hazardous and Solid Waste
Amendments of 1984 (HSWA) amended
RCRA, a State with final authorization
administered its hazardous waste
program entirely in lieu of the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities located in
the State with permitting authorization.
When new, more stringent Federal
requirements were promulgated or
enacted, the State was obligated to enact
equivalent authority within specified
time-frames. New Federal requirements
did not take effect in an authorized State
until the State adopted the requirements
as State law.
By contrast, under section 3006 (e) of
RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by the HSWA (including the hazardous
waste listings finalized in this notice)
take effect in authorized States at the
same time that they take effect in non-
authorized States. While States must
still adopt HSWA-related provisions as
State law to retain final authorization,
EPA is directed to implement those
requirements and prohibitions in
authorized States, including the
issuance of permits, until the State is
granted authorization to do so.
Authorized States are required to
modify their programs only when EPA
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Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations 42171
promulgates Federal standards that are
more stringent or broader in scope than
existing Federal standards. Section 3009
of RCRA allows States to impose
standards more stringent than those in
the Federal program. See also 40 CFR
271.1(1). For those Federal program
changes, both HSWA and non-HSWA,
that are less stringent or reduce the
scope of the Federal program, States are
not required to modify their programs.
Less stringent regulations, both HSWA
and non-HSWA, do not go into effect in
authorized States until those States
adopt them and are authorized to
implement them.
2. Effect on State Authorizations
Today's rule is promulgated pursuant
in part to HSWA authority and in part
pursuant to non-HSWA authority. The
listing of the new K wastes is
promulgated pursuant to RCRA section
3001 (e) (2), a HSWA provision.
Therefore, the Agency is adding this
rule to Table 1 in 40 CFR 271.1 (j), which
identifies the Federal program
requirements that are promulgated
Pursuant to HSWA and take effect in all
tales, regardless of their authorization
status. The land disposal restrictions
and the UTS for these wastes are
promulgated pursuant to RCRA Section
3004 (g) and (m). also HSWA provisions.
Table 2 in 40 CFR 271.1(j) is modified
to indicate that these requirements are
self-implementing. States may apply for
either interim or final authorization for
the HSWA provisions in 40 CFR
271.10). as discussed below.
Until the States receive authorization
for these more stringent HSWA
provisions. EPA will implement them.
EPA will also implement the
exemptions that are directly related to
the new listings, such as the headwork
exemption and the catalyst support
media exemption. These exemptions are
relevant only when regulating the newly
listed wastes.
Today's rule also includes several
non-HSWA provisions that reduce the
scope of the Federal program. These are
the exclusions from the definition of
solid waste of certain oil-bearing
hazardous secondary materials from
petroleum refining and certain
recovered oils from associated
petrochemical facilities. Although the
States do not have to adopt these
provisions, EPA strongly encourages
them to do so, because the exclusions
encourage material recovery within
those industries.
Today's revision to the listing
description for F037 wastes at §261.31
neither broadens nor narrows the scope
of the current program. This revision
was made to ensure that residuals
derived from recycling listed wastes,
that are otherwise excluded under
today's revised §261.4 (a) (12), would
remain listed. Because today's revision
to the F037 waste code only applies in
situations where the exclusion at
§261.4 (a) (12) applies, these provisions
(the exclusion and the associated
revised listing) should be adopted
together, and taken together are
considered to reduce the scope of the
existing Federal requirements.
Today's rule also amends the existing
regulations to clarify that certain spent
caustic solutions used as feedstock are
not solid waste. This clarifying
amendment (40 CFR 261.4(a)(19)) does
not change the scope of the RCRA
program because it does not actually
change the current definition of solid
waste. States do not need further
authorization to interpret their
regulations in accordance with this
clarification.
Lastly, regarding the non-HSWA
amendments to the definition of solid
waste (i.e., exclusions), a number of
States qualified for final authorization
prior to being required to adopt the
redefinition of solid waste rulemaking
of January 4, 1985 (50 FR 614). Since the
January 4, 1985, rule is more stringent
than the rule under which such States
were authorized, such States were
required to revise their programs in
accordance with §271.21. Today's
changes will not preclude EPA's ability
to authorize States which have
subsequently adopted the January 4,
1985, rule since it would reduce the
scope of the Federal requirements.
However, certain aspects of the State's
regulation will be broader in scope than
the Federal program and therefore not
part of the authorized State program.
This means that while they are
enforceable under State law, they are
not subject to Federal regulatory
enforcement.25
A State submitting a program
modification for the portions of this rule
promulgated pursuant to HSWA
25 Today's rule affects only the regulatory
definition of solid waste. It does not interpret the
term "solid waste" for purposes of the non-
regulatory authorities in RCRA sections 3007, 3013,
7002, and 7003. thus, for purposes of those
authorities, the Agency would have the benefit of
the full jurisdictional reach of the statutory
definition of solid waste. See Connecticut Coastal
Fishermen's Association v. Remington Arms Co.,
989 F2d 1305, 1314-15 (2d. Cir. 1993) (comparing
the narrower regulatory definition of solid waste for
determining the scope of Subtitle C regulation with
the broader statutory definition); Comite. Pro
Rescate de la Salud v. Puerto Rico Aqueduct and
Sewer Authority, 888 F.2d 180, 187 (1st Cir. 1990)
(noting that under RCRA EPA could implement two
different definitions of solid waste: a broader
definition for imminent and substantial
endangerment authority and a more narrow
definition for regulatory purposes).
authority may apply to receive either
interim authorization under RCRA
section 3006 (g) or final authorization
under 3006 (b), if the State requirements
are, respectively, substantially
equivalent or equivalent to EPA's
requirements. States can only receive
final authorization for program
modifications implementing non-HSWA
requirements. The procedures and
schedule for final authorization of State
program modifications are described in
40 CFR 271.21. It should be noted that
all HSWA interim authorizations are
currently scheduled to expire on
January 1, 2003 (see 57 FR 60129,
February 18, 1992).
Section 271.21(e)(2) of EPA's State
authorization regulations (40 CFR part
271) requires that States with final
authorization modify their programs to
reflect Federal program changes and
submit the modifications to EPA for
approval. The deadline by which the
States must modify their programs to
adopt this regulation is determined by
the date of promulgation of a final rule
in accordance with section 271.21(e)(2).
Table 1 at 40 CFR 271.1 is amended
accordingly. Once EPA approves the
modification, the State requirements
become RCRA Subtitle C requirements.
States with authorized RCRA
programs already may have regulations
similar to those in this rule. These State
regulations have not been assessed
against the Federal regulations being
finalized to determine whether they
meet the tests for authorization. Thus, a
State would not be authorized to
implement these regulations as RCRA
requirements until State program
modifications are submitted to EPA and
approved, pursuant to 40 CFR 271.21.
Of course, States with existing
regulations that are more stringent than
or broader in scope than current Federal
regulations may continue to administer
and enforce their regulations as a matter
of State law. In implementing the
HSWA requirements, EPA will work
with the States under agreements to
avoid duplication of effort.
B. Effective Date
The effective date of today's rule is
February 8, 1999, except as specified in
the Effective Dates section. As discussed
above, since today's rule is issued
pursuant to HSWA authority, EPA will
regulate the management of the newly
identified hazardous wastes until States
are authorized to regulate these wastes.
Thus, EPA will apply Federal
regulations to these wastes and to their
management in both authorized and
unauthorized States.
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C. Section 3010 Notification
Pursuant to RCRA section 3010, the
Administrator may require all persons
who handle hazardous wastes to notify
EPA of their hazardous waste
management activities within 90 days
after the wastes are identified or listed
as hazardous. This requirement may be
applied even to those generators,
transporters, and treatment, storage, and
disposal facilities (TSDFs) that have
previously notified EPA with respect to
the management of other hazardous
wastes. The Agency has decided to
waive this notification requirement for
persons who handle wastes that are
covered by today's listings and have
already (1) notified EPA that they
manage other hazardous wastes, and (2)
received an EPA identification number.
The Agency has waived the notification
requirement in this case because it
believes that most, if not all, persons
who manage these wastes have already
notified EPA and received an EPA
identification number. However, any
person who generates, transports, treats,
stores, or disposes of these wastes and
has not previously received an EPA
identification number must obtain an
identification number pursuant to 40
CFR 262.12 to generate, transport, treat,
store, or dispose of these hazardous
wastes by November 4, 1998.
D. Generators and Transporters
Persons that generate newly identified
hazardous wastes may be required to
obtain an EPA identification number if
they do not already have one (as
discussed in section VI.C, above). In
order to be able to generate or transport
these wastes after the effective date of
this rule, generators of the wastes listed
today will be subject to the generator
requirements set forth in 40 CFR part
262. These requirements include
standards for hazardous waste
determination (40 CFR 262.11),
compliance with the manifest (40 CFR
262.20 to 262.23), pretransport
procedures (40 CFR 262.30 to 262.34),
generator accumulation (40 CFR
262.34), record keeping and reporting
(40 CFR 262.40 to 262.44), and import/
export procedures (40 CFR 262.50 to
262.60). It should be noted that the
generator accumulation provisions of 40
CFR 262.34 allow generators to
accumulate hazardous wastes without
obtaining interim status or a permit only
in units that are container storage units
or tank systems; the regulations also
place a limit on_the maximum amount
of time that wastes can be accumulated
in these units. If these wastes are
managed in surface impoundments or
other units that are not tank systems or
containers, these units are subject to the
permitting requirements of 40 CFR parts
264 and 265, and the generator is
required to obtain interim status and
seek a permit (or modify interim status
or a permit, as appropriate). Also,
persons who transport newly identified
hazardous wastes will be required to
obtain an EPA identification number as
described above and will be subject to
the transporter requirements set forth in
40 CFR part 263.
facility receives either a permit or a
change in interim status allowing such
activity (40 CFR 270.10 (g)).
3. Permitted Facilities
E. Facilities Subject to Permitting
1. Facilities Newly Subject to RCRA
Permit Requirements
Facilities that treat, store, or dispose
of wastes that are subject to RCRA
regulation for the first time by this rule
(that is, facilities that have not
previously received a permit pursuant
to section 3005 of RCRA and are not
currently operating pursuant to interim
status), might be eligible for interim
status (see section 3005(e)(l)(A)(ii) of
RCRA). In order to obtain interim status
based on treatment, storage, or disposal
of such newly identified wastes, eligible
facilities are required to comply with 40
CFR 270.70(a) and 270.10(e) by
providing notice under section 3010 and
submitting a Part A permit application
no later than February 8, 1999. Such
facilities are subject to regulation under
40 CFR part 265 until a permit is issued.
In addition, under section 3005 (e) (3)
and 40 CFR 270.73 (d), not later than
February 8, 1999, land disposal facilities
newly qualifying for interim status
under section 3005(e)(l)(A)(ii) also must
submit a Part B permit application and
certify that the facility is in compliance
with all applicable groundwater
monitoring and financial responsibility
requirements. If the facility fails to
submit these certifications and a permit
application, interim status will
terminate on that date.
2. Existing Interim Status Facilities
Pursuant to 40 CFR 270.72 (a) (1), all
existing hazardous waste management
facilities (as defined in 40 CFR 270.2)
that treat, store, or dispose of the newly
identified hazardous wastes and are
currently operating pursuant to interim
status under section 3005 (e) of RCRA,
must file an amended Part A permit
application with EPA no later than the
effective date of today's rule, (i.e.,
February 8, 1999). By doing this, the
facility may continue managing the
newly listed wastes. If the facility fails
to file an amended Part A application by
that date, the facility will not receive
interim status for management of the
newly listed hazardous wastes and may
not manage those wastes until the
Facilities that already have RCRA
permits must request permit
modifications if they want to continue
managing newly listed wastes (see 40
CFR 270.42(g)). This provision States
that a permittee may continue managing
the newly listed wastes by following
certain requirements, including
submitting a Class 1 permit
modification request by the date on
which the waste or unit becomes subject
to the new regulatory requirements (i.e.,
the effective date of today's rule),
complying with the applicable
standards of 40 CFR parts 265 and 266
and submitting a Class 2 or 3 permit
modification request within 180 days of
the effective date.
Generally, a Class 2 modification is
appropriate if the newly listed wastes
will be managed in existing permitted
units or in newly regulated tank or
container units and will not require
additional or different management
practices than those authorized in the
permit. A Class 2 modification requires
the facility owner to provide public
notice of the modification request, a 60-
day public comment period, and an
informal meeting between the owner
and the public within the 60-day period.
The Class 2 process includes a "default
provision,'' which provides that if the
Agency does not reach a decision within
120 days, the modification is
automatically authorized for 180 days. If
the Agency does not reach a decision by
the end of that period, the modification
is permanently authorized (see 40 CFR
270.42(b)).
A Class 3 modification is generally
appropriate if management of the newly
listed wastes requires additional or
different management practices than
those authorized in the permit or if
newly regulated land-based units are
involved. The initial public notification
and public meeting requirements are the
same as for Class 2 modifications. .
However, after the end of the 60-day
public comment period, the Agency will
grant or deny the permit modification
request according to the more extensive
procedures of 40 CFR part 124. There is
no default provision for Class 3
modifications (see 40 CFR 270.42(c))
Under 40 CFR 270.42(g)(l)(v), for
newly regulated land disposal units,
permitted facilities must certify that the
facility is in compliance with all
applicable 40 CFR part 265 groundwater
monitoring and financial responsibility
requirements no later than February 8,
1999. If the facility fails to submit these
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42173
certifications, authority to manage the
newly listed wastes under 40 CFR
270.42(g) will terminate on that date.
4. Units
Units in which newly identified
hazardous wastes are generated or
managed will be subject to all
applicable requirements of 40 CFR part
264 for permitted facilities or 40 CFR
part 265 for interim status facilities,
unless the unit is excluded from such
permitting by other provisions, such as
the wastewater treatment tank
exclusions (40 CFR 264.1(g)(6) and
265.1(c)(10)) and the product storage
tank exclusion (40 CFR 261.4(c)).
Examples of units to which these
exclusions could never apply include
landfills. LTUs, waste piles,
incinerators, and any other
miscellaneous units in which these
wastes may be generated or managed.
5. Closure
AH units in which newly identified
hazardous wastes are treated, stored, or
disposed after the effective date of this
regulation that are not excluded from
the requirements of 40 CFR parts 264
and 265 are subject to both the general
closure and post-closure requirements
of Subpart G of 40 CFR parts 264 and
265 and the unit-specific closure
requirements set forth in the applicable
unit technical standards Subpart of 40
CFR parts 264 or 265 (e.g.. Subpart N for
landfill units). In addition, EPA
promulgated a final rule that allows,
under limited circumstances, regulated
landfills, surface impoundments, or
LTUs to cease managing hazardous
waste but to delay Subtitle C closure to
allow the unit to continue to manage
non-hazardous waste for a period of
time prior to closure of the unit (see 54
FR 33376. August 14, 1989). Units for
which closure is delayed continue to be
subject to all applicable 40 CFR parts
264 and 265 requirements. Dates and
procedures for submittal of necessary
demonstrations, permit applications,
and revised applications are detailed in
40 CFR 264.113(c) through (e) and
265.113(c) through (e).
F. Landfill Leachate
Just weeks before the date for
signature of this rule, one waste
management company raised to the
Agency an issue not addressed in their
(or any other commenters") public
comments. The issue is that the
company claims to operate landfills in
which some or all of the wastes being
listed today have already been disposed.
These landfills generate substantial
volumes of leachate, which is collected
and managed—mostly by shipment via
truck for treatment at Publicly Owned
Treatment Works (POTWs). On the date
the listings take effect, the wastes
become hazardous, and a consequence
is that this leachate would likewise be
a hazardous waste by virtue of the
derived-from rule. See generally 53 FR
at 31147 (August 17, 1988); see also
Chemical Waste Management v. EPA,
869 F. 2d 1526, 1536-37 (D.C. Cir. 1989)
(sustaining this interpretation).
Although the landfills in which the
wastes have been previously disposed
do not thereby become subject to
Subtitle C regulation, id., leachate
which is collected and actively managed
would be regulated under Subtitle C. Id.
EPA's Office of Water recently
proposed national effluent limitations
guidelines and pretreatment standards
for wastewater discharges (e.g., leachate)
from certain types of landfills. 63 FR
6426 (February 6, 1998). In support of
this proposal, EPA conducted a study of
the volume and chemical composition
of wastewaters generated by both
Subtitle C and Subtitle D landfills. EPA
did not propose pretreatment standards
for Subtitle D landfill wastewaters sent
to POTWs because the Agency's
information indicated that such
standards were not required due to
several factors, including (1) raw
leachate data was below published
biological Inhibition levels, and (2) lack
of pass-through of toxics (including lack
of showing of adverse impact on POTW
sludge quality). 63 FR at 6444. EPA
initially found, among other things, that
"the majority of pollutants typically
found in raw [non-hazardous landfill]
leachate were at levels comparable to
wastewater typically found at the
headworks of a POTW." Id.
Leachate from non-hazardous waste
landfills that have historically managed
the newly-listed wastes would be
leachate from a Subtitle D facility, and
so could ultimately be determined not
to require pretreatment under this
pending proposal. However, if Subtitle
C regulation were to apply to leachate
generated from such landfills, leachate
now trucked to POTWs would, as a
practical matter, no longer be managed
by POTWs, since POTWs would not
wish to become RCRA Subtitle C
facilities. Given the pending proposal
that directly addresses the treatment of
landfill leachate under the Clean Water
Act, EPA believes it worthwhile to
study whether RCRA regulation of such
leachates may be duplicative within the
meaning of RCRA section 1006(b)(l)
(which requires EPA to integrate
regulations under RCRA with other
statutes implemented by EPA in a
manner that avoids duplication to the
maximum extent possible, consistent
with the goals and policies of RCRA and
the other statutes).
Since this leachate issue was not
brought to the Agency's attention in a
timely manner, EPA is taking no action
on this issue in this rulemaking. The
final rule thus simply finalizes four of
the proposed listings (K169, K170,
K171, and K172), therefore the
possibility exists that some leachate
may be classified by one or more of
these waste codes (after the effective
date of today's rule) for the reasons
outlined above. However, the Agency is
seeking public comment on the issue by
means of a Notice of Data Availability
(NODA), published elsewhere in today's
Federal Register. EPA plans to take
some type of action addressing this
issue, after considering any public
comments to this projected NODA,
before today's listings take effect. One of
the options the Agency might consider
(after consideration of comments and
information in response to the NODA)
would be temporarily deferring the
application of the listings to the
leachate.
VIII. CERCLA Designation and
Reportable Quantities
All hazardous wastes listed under
RCRA and codified in 40 CFR 261.31
through 261.33, as well as any solid
waste that is not excluded from
regulation as a hazardous waste under
40 CFR 261.4(b) and that exhibits one or
more of the characteristics of a RCRA
hazardous waste (as defined in
§§261.21 through 261.24), are
hazardous substances under CERCLA,
as amended (see CERCLA section
101(14)(C)). CERCLA hazardous
substances are listed in Table 302.4 at
40 CFR 302.4 along with their reportable
quantities (RQs). If a hazardous
substance is released in an amount that
equals or exceeds its RQ, the release
must be reported immediately to the
National Response Center (NRC)
pursuant to CERCLA section 103.
A. Reporting Requirements
Under CERCLA section 103(a), the
person in charge of a vessel or facility
from which a hazardous substance has
been released in a quantity that is equal
to or exceeds its RQ must immediately
notify the NRC as soon as that person
has knowledge of the release. The toll-
free telephone number of the NRC is 1-
800-424-8802; in the Washington, DC,
metropolitan area, the number is (202)
267-2675. In addition to this reporting
requirement under CERCLA, section 304
of EPCRA requires owners or operators
of certain facilities to report releases of
extremely hazardous substances and
CERCLA hazardous substances to State
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and local authorities. EPCRA section
304 notification must be given
immediately after the release of an RQ
or more to the community emergency
coordinator of the local emergency
planning committee for any area likely
to be affected by the release and to the
State emergency response commission
of any State likely to be affected by the
release.
Under section 102(b) of CERCLA, all
hazardous substances (as defined by
CERCLA section 101(14)) have a
statutory RQ of one pound, unless and
until the RQ is adjusted by regulation.
In today's final rule, EPA is adding
waste streams K169, K170, K171, and
K172 to the CERCLA list of hazardous
substances and adjusting the one-pound
statutory RQs for these wastes.
B. Standard and Alternative RQ
Adjustment Methodology
EPA's methodology for adjusting the
RQs of individual hazardous substances
begins with an evaluation of the
intrinsic physical, chemical, and
toxicological properties of each
hazardous substance. The intrinsic
properties examined-called "primary
criteria"-are aquatic toxicity,
mammalian toxicity (oral, dermal, and
inhalation), ignitability, reactivity,
chronic toxicity, and potential
carcinogenicity.
Generally, for each intrinsic property,
EPA ranks the hazardous substance on
a five-tier scale, associating a specific
range of values on each scale with an
RQ value of 1, 10, 100, 1,000, or 5,000
pounds. Based on the various primary
criteria, the hazardous substance may
receive several tentative RQ values. The
lowest of the tentative RQs becomes the
"primary criteria RQ" for that
substance.
After the primary criteria RQ is
assigned, the substance is evaluated
further for its susceptibility to certain
degradative processes, which are used
as secondary RQ adjustment criteria.
These natural degradative processes are
biodegradation, hydrolysis, and
photolysis (BMP). If a hazardous
substance, when released into the
environment, degrades relatively
rapidly to a less hazardous form by one
or more of the BHP processes, its
primary criteria RQ is generally raised
one level. Conversely, if a hazardous
substance degrades to a more hazardous
product after its release, the original
substance is assigned an RQ equal to the
RQ for the more hazardous substance,
which may be one or more levels lower
than the RQ for the original substance.
The standard methodology used to
adjust the RQs for RCRA hazardous
waste streams differs from the
methodology applied to individual
hazardous substances. The procedure
for assigning RQs to RCRA waste
streams is based on an analysis of the
hazardous constituents of the waste
streams. The constituents of each RCRA
hazardous waste stream are identified in
40 CFR part 261, Appendix VII. EPA
determines an RQ for each constituent
within the waste stream and establishes
the lowest RQ value of these
constituents as the adjusted RQ for the
waste stream. In a November 20, 1995,
proposed rule (60 FR 57747), EPA
proposed one-pound RQs for waste
streams K169, K170, K171. and K172
based on this standard methodology.
In the same rule, however, the Agency
also proposed an alternative method for
adjusting the RQs of these four
petroleum refining wastes. The
proposed alternative method involved
developing "concentration-weighted"
RQs for the four wastes. Using this
alternative method, EPA first
determined the maximum observed
concentrations of each hazardous
constituent in the wastes. EPA then
used these concentrations to calculate
the amount of each petroleum refining
waste necessary to contain the RQ of
each constituent of concern.
Based on these calculated amounts,
EPA assigned a "concentration-
weighted" RQ value of 1, 10, 100, 1,000,
or 5,000 pounds to each waste stream
constituent. If the calculated amount for
a particular constituent was greater than
the maximum RQ level of 5,000 pounds,
the "concentration-weighted"
constituent RQ would be 5,000 pounds.
If the calculated amount fell between
two RQ levels, then the "concentration-
weighted" constituent RQ would be the
lower of the two levels. Finally, under
this alternative method, the lowest of
the concentration-weighted constituent
RQs would become the RQ for the waste
stream.
C. Basis for RQ Adjustments in Final
Rule
In today's final rule, EPA has decided
to use the standard RQ adjustment
methodology to assign RQs to petroleum
refining wastes K169, K170, K171, and
K172. The Agency believes that
introduction of a second methodology
(i.e., the alternative method described
above), in addition to the standard
method already in use, may be difficult
to implement and may unnecessarily
confuse the public and the regulated
community.
EPA considered three specific
implications of adopting the alternative
RQ adjustment methodology in making
its determination to retain the standard
method. First, promulgation of RQs
based on the alternative methodology
for the four petroleum refining wastes
would have introduced a potentially
confusing situation in which RQs for
currently listed hazardous waste
streams would be based on two different
methodologies. Second, since EPA's
initial RQ adjustment rulemakings were
first published in 1983, EPA has
consistently applied the standard
methodology to adjust the RQs for all
previously listed RCRA wastestream.
Members of the public and the regulated
community understand and are
complying with this methodology and
related reporting requirements. Third,
the reduced reporting burden expected
from the application of the alternative
method (i.e., reporting based on
constituent concentrations) to the four
petroleum refining wastes can be
achieved by applying the mixture rule
(as described in Section VIII.D,
"Responses to Comments," of this
preamble), without creating a second,
different RQ adjustment methodology.
Based on these considerations, the
Agency has decided to use the standard
methodology, rather than the alternative
method, to adjust the RQs for the
petroleum refining wastes in today's
final rule. Using the standard method,
EPA today is assigning one-pound
adjusted RQs (as proposed) for waste
streams K170, K171, and K172 based on
the constituents) within each of these
newly listed waste streams with the
lowest RQ. The Agency, however, is
modifying its interpretation of the
mixture rule (as described in detail in
Section VIII.D below) to allow facilities
to use the maximum observed
concentrations of the constituents
within the petroleum refining wastes in
determining when to report releases of
these wastes.
In addition, EPA mentioned in the
preamble to the November 20, 1995,
proposed rule that the Agency was
considering listing waste stream K169
(crude oil storage tank sediment).
Subsequent to the proposal, EPA has
decided to list K169 as a RCRA
hazardous waste and a CERCLA
hazardous substance, and to adjust its
RQ.
In the November 20, 1995 rule, EPA
was considering a one-pound RQ for
K169 based on the one-pound RQs of
three substances (benzo(a)pyrene,
dibenzo(a,h)anthracene, and
benzo(b)fluoranthene) originally
identified by the Agency as constituents
of this waste stream. After further
evaluation of the constituent data,
however, the Agency has decided in
today's final rule to identify only one
hazardous constituent (i.e., benzene) for
waste stream K169 in Appendix VII to
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations 42175
40 CFR part 261 (see Section V.B.2 for
a discussion of the basis for listing
K169). Thus, using the standard RQ
adjustment method, EPA is
promulgating a 10-pound RQ for K169
in today's final rule based on the 10-
pound RQ of the waste's single
hazardous constituent, benzene.
D. Response to Comments
As noted above, the Agency has
decided to use the standard
methodology to adjust the RQs for K169,
K170, K171. and K172. The commenters
on the proposed rule, however, favored
the alternative RQ adjustment
methodology. These commenters
suggested that reporting should be based
on actual concentration levels observed
in each of the petroleum refining wastes
and that these levels are more likely to
warrant notification of government
authorities.
In addition, one of the commenters
asked EPA to clarify that a waste
generator could retain the option of
applying the mixture rule to releases of
these petroleum refining wastes.
Specifically, this would allow the
generator to report at a higher level if
the generator knew that the
concentrations of the constituents in the
waste were lower than the maximum
observed concentrations identified by
EPA.
EPA acknowledges the commenters'
support for less burdensome reporting
requirements and agrees with the
commenters' assertion that reporting for
the four petroleum refining wastes
should be based on actual concentration
levels observed in each of these wastes.
The Agency, however, believes that
reductions in the reporting burden for
these four wastes can be achieved
through the use of the mixture rule,
without creating a second, distinct RQ
adjustment methodology. In response to
the commenters' concerns, the Agency
is modifying its interpretation of the
mixture rule, as described below, to
allow facilities to use the maximum
observed concentrations of the
constituents within K169, K170, K171,
and K172 in determining when to report
releases of these wastes.
For K169, K170, K171, and K172,
where the person in charge does not
know the actual concentrations of the
hazardous constituents, that person will
have the option of reporting on the basis
of the maximum observed
concentrations that have been identified
by EPA (see Table VIII-1 below). The
change in EPA's interpretation of the
mixture rule that will allow use of these
maximum concentrations is codified in
40 CFR 302.6(b)(l) as a new
subparagraph (iii) in today's rule. Thus,
although the person in charge lacks
actual knowledge of constituent
concentrations, constructive knowledge
of the EPA-identified maximum
concentrations is assumed. This
assumption is reasonable and
conservative because the sampling data
presented in the Technical Listing
Document accurately identify the
maximum observed concentrations of
the hazardous constituents in each of
the petroleum refining wastes. Table
VIII-1 below identifies the hazardous
constituents for waste streams K169,
K170, K171, and K172, their maximum
observed concentrations in ppm, their
constituents' RQs as listed in Table
302.4 of 40 CFR part 302, and the
number of pounds of the waste needed
to contain an RQ of each constituent.
TABLE VI11-1 .—POUNDS REQUIRED TO CONTAIN RQ FOR EACH CONSTITUENT
Waste
K1RQ
tf1 7fl
K171
K17P
Constituent
Arsenic
Max ppm
220
.2
230
49
390
110
110
27
1,200
500
1,600
100
730
RQ (Ib)
10
10
1
1
10
1
5000
10
1
10
1
10
1
Pounds re-
quired to con-
tain RQ
45,455
8,333,333
4,348
20,408
25,641
9,090
45,454,545
370,370
833
20,000
625
100,000
1,370
For example, if waste stream K171 is
released from a facility and the person
In charge does not know the actual
concentrations of the benzene and
arsenic constituents, the person may
assume that the concentrations of
benzene and arsenic are 500 and 1,600
ppm. respectively. Thus, applying the
mixture rule, 625 pounds of the K171
waste would need to be released
(assuming the maximum concentrations
indicated in the table) to reach the RQ
for arsenic in this waste.
Where the person in charge knows the
concentration levels of all the hazardous
constituents in a particular petroleum
refining waste, the traditional mixture
rule can be applied. Under this scenario.
reporting would be required only when
an RQ or more of any hazardous
constituent is released. As applied to
the petroleum refining wastes in this
rule, EPA's overall reporting approach
reduces the burden of notification
requirements for the regulated
community and adequately protects
public health and welfare and the
environment. In addition, EPA believes
that the approach described above is
consistent with the view expressed by
the commenters that reporting for the
four wastes should be based on actual
concentration levels.
In the proposed rule preamble, EPA
identified "self-heating solids" as a
hazardous constituent of waste streams
K171 and K172. Two of the commenters
disagreed with the Agency's use of this
term and indicated that most K171 and
K172 wastes do not demonstrate the
RCRA characteristic of ignitability.
According to these commenters, the few
wastes that do exhibit this characteristic
will already be subject to the 100-pound
RQ that applies to ignitable
characteristic wastes. Finally, the
commenters stated that EPA's use of the
term "self-heating solid" as a
constituent of K171 and K172 wastes
would unfairly lower the RQ for those
wastes that do not possess the RCRA
characteristic of ignitability. EPA agrees
with the commenters and has removed
the term "self-heating solids" from the
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42176 Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations
list of constituents of KIT 1 and K172 in
Table VIII-1 of today's final rule.
IX. Executive Order 12866
Under Executive Order 12866,
"Regulatory Planning and Review" (58
FR 51735, October 4, 1993), the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) have an annual effect on the economy
of $100 million or more or adversely affects
in a material way the economy, a sector of
the economy, productivity, competition, jobs,
the environment, public health or safety, or
State, local, or tribal governments or
communities
(2) create a serious inconsistency or
otherwise interferes with an action taken or
planned by another agency
(3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof
(4) raise novel legal or policy issues arising
out of legal mandates, the President's
priorities, or the principles set forth in this
Executive order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action" because of policy issues arising
out of legal mandates. As such, this
action was submitted to OMB for
review. Changes made in response to
OMB suggestions or recommendations
are documented in the public record;
X. Economic Analysis
Summary
This section of the preamble develops
the costs and the industry economic
impact for the petroleum refining waste
listings including land disposal
restriction (LDR) impacts. Based on this
economic analysis, the Agency
estimates that the listing of the four
refinery wastes discussed above,
including LDR impacts, the oil-bearing
hazardous secondary material exclusion
(oil-bearing exclusion) and the
wastewaters from the headworks
exemptions for crude oil storage tank
sediment (K169) and CSO sediment
• (K 170), will result in nationwide
annualized compliance costs between
$20 and $40 million, with an expected
value of about $30 million ($1997)26
(see Table X-2 below). Although Table
X-2 shows a range from approximately
26 The range of cost estimates is explained in
Document 5 of the "Background Documents for the
Cost and Economic Impact Analysis of Listing Four
Petroleum Refining Wastes as Hazardous Under
RCRA Subtitle C," January 10, 1998.
$12 million to $60 million (columns 5
and 6), the likely range will be narrower
due to the available refinery choices and
expected waste volumes. The wide
variance is nonetheless due to a high
degree of uncertainty in costing and,
particularly, in volumes to be processed.
Of special note is the relationship of
previously listed petroleum refinery
wastes to this rulemaking. The ability to
recycle wastes through coker
processing, as described herein, will
enable refineries to process previously
listed wastes in a like manner. These
. wastes include FO37, FO38, KO48,
KO49 and KO51. A conservative
estimate of the volume of these wastes
that may be processed, yielding oil that
may be converted to product, results in
feedstock having a value of some $14
million to $28 million ($1997); see
background document entitled "Other
Benefits From Recovery of Oil in Coker
Processing Units", dated August 24,
1995. Clearly, the impact of this "other"
benefit as a potential offset to the costs
of the rule described herein can be
substantial. If the volumes available
from previously listed wastes are higher
than estimated, the value of oil
generated may substantially offset the
costs of this rulemaking. It is important
to note that EPA has insufficient data to
judge the extent to which the industry
may already be generating this added
feedstock.
Industry pricing and operating
impacts, developed using partial
equilibrium analysis, are expected to be
minimal. This is due both to the size of
the industry and the latitude afforded
industry in this rulemaking. The full
economic analysis is available in the
regulatory docket titled "Background
Documents for the Cost and Economic
Impact Analysis of Listing Four
Petroleum Wastes as Hazardous Under
RCRA Subtitle C," January 10, 1998.
In the cited background document,
supplemental cost impact analyses
accounting for the cost savings of the
oil-bearing exclusion and the headworks
exemption are included, as well as
impacts resulting from the new Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA) and the
potential for unfunded mandates.
Finally, as noted above, cost savings
from the recovery of oil in coker
processing units are evaluated for five
previously listed petroleum refining
industry wastes but, also as noted, are
not included as offsets to the costs
estimated for this rulemaking.
A. Compliance Costs for Listings
Including LDR Impacts and the
Exclusion for Oil-Bearing Hazardous
Secondary Materials
This Section describes (1) the
universe of petroleum refineries and
volumes of petroleum refining wastes in
the four waste groups listed, including
LDR impacts, (2) an overview of the
industry impact methodology, later
described in detail, and detail of the
methodology for determining
incremental compliance cost, (3) the
potential remedial action costs, and (4)
a summary of incremental compliance
cost results.
1. Universe of Petroleum Refineries and
Waste Volumes
In order to estimate costs, it was first
necessary to estimate total annual
generation of petroleum refining wastes.
The domestic petroleum refining
industry affected by this ruling is
composed of 162 refineries owned/
operated by 80 companies. The quantity
of waste at the point of generation (i.e.,
entering the waste management system)
could range from 91,600 to 177,900
metric tons per year, with an expected
value of approximately 134,800 metric
tons per year.27
2. Methodology for Estimating Industry
Economic Impact and Incremental
Compliance Cost
Industry Impact, Overview
Partial equilibrium analysis, as was
noted, was used to evaluate possible
changes in market demand, estimate the
post-control shift in market supply,
predict the change in market
equilibrium (price and quantity), and
estimate plant closures. Petroleum
refineries produce several hundred
products. The economic impact analysis
evaluates the impact of the listings
based on ten petroleum products (i.e.,
ethane/ethylene, butane/butylene,
normal butane/butylene, isobutane/
isobutylene, finished motor gasoline, jet
fuel, distillate and residual fuel oil,
asphalt, and petroleum coke), which
represented 91 percent of domestically
refined petroleum products in 1992.
Because compliance costs for the
hazardous waste listings cannot be
allocated to any specific products,
output in the partial equilibrium model
is defined as a composite, bundled
product equal to the sum of price
27 Waste quantity estimates for the point of
generation and final management are presented in
Table 3.3 of Document 1 of the "Background
Documents for the Cost and Economic Impact
Analysis of Listing Four Petroleum Refining Wastes
as Hazardous Under RCRA Subtitle C," January 10
1998. '
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations 42177
multiplied by the weighted production
volumes of all ten products.
Due to the wide range of potential
costs, as shown in the table at the end
of this section, a bounding analysis was
conducted to evaluate the maximum
potential industry economic impact of
this listing determination. Highest cost
options bounded the industry economic
impact analysis. The upper bound LDR
Scenario assumes a pretreatment
management method of solidification
prior to Subtitle C landfill for metal-
based wastes, combustion in a Subtitle
C incinerator/BIF for organic-based
wastes, and a listing exemption granted
for organic-based wastes that are
recycled to a coker. The lower bound
LDR Scenario uses the same
assumptions except on-site incineration
costs are assumed for those refineries
generating sufficient quantities to
warrant construction of an incinerator.
EPA's judgement that industry impact is
minimal is based on upper-bound costs
to the industry.
Incremental Compliance Cost
EPA's approach to the compliance
cost analysis for this rule was to
compare the cost of current management
practices, as reported in the RCRA
section 3007 Questionnaire of
petroleum refineries, with the projected
cost of management to comply with die
RCRA Subtitle C hazardous waste
program. This difference in cost, when
annualized28, represents the
incremental annual compliance cost
attributable to the rule.
Three scenarios are evaluated in this
Cost and Economic Impact Analysis.
The first scenario, Listing Scenario,
assesses the costs incurred by the
petroleum refining industry to comply
with Subtitle C regulation excluding
LDR regulations. The Listing Scenario
assumes an end disposal management of
Subtitle C landfilling or continued
combustion of wastes, where indicated
as the baseline management practice, in
a Subtitle C incinerator/BIF.
The second scenario, LDR Scenario,
expands on the Listing Scenario by
adding in cost impacts attributable to
LDR regulations. Two options are
assessed for the LDR Scenario. In
Option 1, the upper-bound estimate, oil-
based crude oil storage tank sediment
(K169) and CSO sediment (K170) are
combusted In off-site Subtitle C
Incinerators and spent hydrotreating
and hydrorefining catalysts (K171,
K172, respectively) are combusted in
off-site Incinerators followed by
vitrification and Subtitle C landfill of
the ash. In Option 2, the lower-bound
estimate, oil-based crude oil storage
tank sediment (K169) and CSO sediment
(K170) are assumed to be managed in
on-site Subtitle C incinerators for those
refineries generating sufficient
quantities and currently in the RCRA
permitting program (thereby avoiding
potential corrective action costs). Spent
hydrotreating and hydrorefining
catalysts (K171, K172) are assumed to be
regenerated/reclaimed in RCRA-exempt
off-site metal recovery units.29
Compliance with LDR requirements is
presumed to be mandatory.
The third scenario, Oil-Bearing
Exclusion Scenario, modifies the Listing
and LDR Scenarios by assuming the
refinery will process crude oil storage
tank sediment (K169) and CSO sediment
(K170) in coking units where it is more
cost-effective than Subtitle C
management. Two options are assessed
for the Oil-Bearing Exclusion Scenario.
In Option 1, the upper-bound estimate,
crude oil storage tank sediment (K169)
and CSO sediment (K170) are processed
in on-site and intracompany (i.e., "same
company") coking units when it is more
economical than management in off-site
Subtitle C incinerators. In Option 2, the
lower-bound estimate, crude oil storage
tank sediment (K169) and CSO sediment
(K170) are processed in intercompany
(i.e., "not same company") coking units
when it is technically feasible and/or
more economical than management in
off-site incinerators. "Not same
company" costs are lower because more
companies will avail themselves of this
option if permitted to do so. Spent
hydrotreating and hydrorefining
catalysts (K171, K172, respectively) are
combusted in off-site incinerators
followed by vitrification and Subtitle C
landfill of the ash.3"
Baseline or Current Management
Scenario
Relying on 3007 Questionnaire
responses and engineering site visits,
EPA was able to determine the current
(i.e., 1992) management practices for the
handling and disposal of petroleum
refining wastes. Current management
practices varied among facilities and
waste streams, and included such
practices as on-/off-site Subtitle C/D
landfill, off-site Subtitle C incinerator/
BIF, on-site surface impoundment,
*« Costs are discounted at a rate of 7 percent over
a 20 year period.
29 These cost estimates are presented In
Document 1 of the "Background Documents for the
Cost and Economic Impact Analysis of Listing Four
Petroleum Refining Wastes as Hazardous Under
RCRA Subtitle C," January 10. 1998.
30These cost estimates are presented in
Document 5 of the "Background Documents for the
Cost and Economic Impact Analysis of Listing Four
Petroleum Refining Wastes as Hazardous Under
RCRA Subtitle C," January 10, 1998.
recycling, recovery, regeneration, and
reclamation. These "current"
management practices at each facility
represent the baseline scenario of the
analysis.
As part of the 3007 Questionnaire,
EPA asked each facility to identify
current costs for the management of
petroleum refining wastes. For this
analysis, EPA relied on and has not
changed the industry's own waste-
specific estimates concerning the cost of
current management. Industry average
unit costs were developed for each
baseline management practice from the
3007 Questionnaire data. EPA estimated
costs for baseline management practices
when limited or no cost data were
provided in the 3007 Questionnaire.
These calculated industry average and
estimated unit costs were used when a
facility did not provide its own unit cost
estimates. EPA realizes that future
events such as waste minimization
efforts or increased demand for refinery
products may change waste generation
volumes and, thus, future waste
management costs.31 It is important to
note that EPA also estimated missing
quantities to associate costs with these
quantities.
Post-Regulatory Management Scenarios
In predicting how industry would
comply with the listing of petroleum
refinery wastes as RCRA hazardous
wastes, EPA developed the three post-
regulatory management scenarios,
previously noted, that represent
reasonable management reactions on the
part of industry. Details of the
compliance assumptions are presented
by baseline management practice in
Table X-l. EPA developed these post-
regulatory management categories based
on knowledge of current waste
management and the physical and
chemical properties of the wastes. These
scenarios are further described as
follows:
The "Listing" Scenario assumes an end
disposal management method of Subtitle C
landfill or continued combustion of wastes,
where indicated as the baseline management
practice, in a Subtitle C incinerator/BIF. The
use of the word "Listing" is intended to
emphasize that this scenario embodies only
Subtitle C costs.
The LDR Scenario presents two options. In
the first option, the metal-based spent
catalyst wastes are combusted in a Subtitle C
incineration followed by vitrification, and
Subtitle C landfill of the ash and the oil-
based sediment wastes are combusted in off-
31 Baseline unit cost estimates are presented in
Tables 3.8 and 3.10 of Document 1 in the
"Background Documents for the Cost and Economic
Impact Analysis of Listing Four Petroleum Refining
Wastes as Hazardous Under RCRA Subtitle C,"
January 10, 1998.
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42178 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
site Subtitle C incinerator/BIF units. This
option reflects the highest cost situation of all
those examined. Other technologies may be
applicable (e.g., solvent extraction instead of
incineration or solidification instead of
vitrification for metal-based wastes) to meet
LDR standards, but these are lower cost
options and will not provide an upper-bound
to the cost and economic analysis. In the
second option, the spent hydrotreating and
hydrorefining catalysts (K171, K172,
respectively) are reclaimed/recovered to take
advantage of the recycling exemption under
RCRA Subtitle C regulation. However,
recordkeeping, storage, and transportation
activities are regulated under RCRA Subtitle
C, while no LDR treatment costs are
included. The oil-based wastes are
combusted in either an on- or off-site Subtitle
C incinerator/BIF depending on the
economic feasibility of constructing on-site
incinerator units. If a facility does not
currently have a RCRA Part B permit, EPA
assumed the facility would choose not to
construct an on-site incinerator in order to
avoid incurring potential costs under the
RCRA corrective action program.
The Oil-Bearing Exclusion Scenario also
presents two options. Because of the
uncertainty regarding plant-specific coker
capacity availability, access limitations, cost
limitations, feedstock quality limitations, and
State regulatory restrictions, the two options
given in Table X-2 were evaluated to bound
the possible results of the LDR scenarios with
an oil-bearing exclusion. Refiners will seek
new cost optimization solutions since coking
is now economical when compared to
Subtitle C management instead of Subtitle D
management. The first cost option considers
that, when economical, facilities will
transport crude oil storage tank sediment
(K169) and CSO sediment (K170) to the
nearest refinery within the same company
(i.e., intracompany) that currently operates a
coker. As a lower-bound cost option, it is
assumed that technology allowing insertion
of de-oiled crude oil storage tank sediment
(K169) and CSO sediment (K170) into coker
feedstocks will be developed and
intercompany transfers will occur, without
the transferring company paying the
receiving company for the right to avoid
Subtitle C costs. However, it is not likely that
there will be no market pricing given
potential profits (compared to Subtitle C
management costs) and potential benefits
received by both the generator and recycler;
thus the lower bound.
Incremental compliance costs are
determined for each management and
transportation practice by subtracting
the baseline management cost from the
compliance management cost. For
example, the incremental unit
compliance cost for wastes currently
managed in off-site municipal Subtitle D
landfills that now will be managed in
Subtitle C landfills is $202/MT ($260/
MT—$58/MT). This incremental unit
cost is then multiplied by the quantity
of waste generated by the facility to
estimate the total incremental
compliance cost.32 Note that from Table
X-2 it is possible to select various mixes
of compliance options. For this
rulemaking, EPA believes that the 2
right hand columns bound the
compliance costs. However, Option 1
(LDR Scenario) was used in developing
the worst case industry impact analysis.
TABLE X-1.—BASELINE vs. COMPLIANCE PRACTICES
Baseline management practice
Wastes managed
Compliance assumptions
Storage Methods:
Tank
Container (e.g., drum),
Pile
Roll-on/Roll-off Bin ,
Other
K169—crude oil storage tank sedi-
ment K170—CSO sediment
K171—spent hydrotreating cata-
lyst K172—spent hydroreffining
catalyst.
K169, K170, K171, and K172 ....
K169, K170, and K172
K169, K170, K171, and K172 ....
K169, K170, K171, and K172 ....
Treatment methods:
On-site Industrial Furnace
Other On-site Thermal Treat-
ment.
Off-site Incineration
K170.
K169.
Washing with Distillate
Washing with Water
Other Cleaning/Extraction
Sludge Thickening
Sludge De-watering
Settling
Filtration
Pressure Filtration/Centrifuging
Chemical Emulsion Break
Thermal Emulsion Break
Other Phase Separation
K169 and K171
K169 and K170
K169
K171 and K172 .
K169 and K170 .
K169 and K170 .
K169andK170 .
K169 and K170 .
K169 and K170 .
K169
K169 and K170
K169,K171,andK172
Upgrade to Subtitle C accumulation tank systema
Upgrade to Subtitle C accumulation container storage area.*")
Construct new Subtitle C accumulation tank storage system.*1")
Upgrade to Subtitle C accumulation container storage area.w
Assume most common storage type reported by the industry for that
waste type.
In compliance. Add RCRA Part 264 and 270 administrative costs to
permit unit.
On-site industrial furnace.
In compliance. Construct a new on-site Subtitle C incinerator if more
economical than off-site management.
Upgrade to Subtitle C accumulation tank system. <">
Upgrade to Subtitle C accumulation tank system.*")
Upgrade to Subtitle C accumulation tank system/")
Upgrade to Subtitle C accumulation tank system.<">
Upgrade to Subtitle C accumulation tank system.*")
Upgrade to Subtitle C accumulation tank system.*") {
Upgrade to Subtitle C accumulation tank system.*')
Upgrade to Subtitle C accumulation tank system for existing units.*")
Construct a new on-site Subtitle C pressure filtration/centrifuge unit
for a waste minimization opportunity for oily sludges.
Jpgrade to Subtitle C accumulation tank system.*")
Jpgrade to Subtitle C accumulation tank system.*")
Upgrade to Subtitle C accumulation tank system.*")
32 Compliance unit cost estimates are presented in
Table 3.9 and 3.10 of Document 1 in the
"Background Documents for the Cost and Economic
Impact Analysis of Listing Four Petroleum Refining
Wastes as Hazardous Under RCRA Subtitle C,"
January 10, 1998.
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations 42179
TABLE X-1 .—BASELINE vs. COMPLIANCE PRACTICES—Continued
Baseline management practice
Wastes managed
Compliance assumptions
On-site Land treatment
Off-site Land treatment
Discharge to On-site WWT
Facility.
Drying on a Pad
On-site Oxidation of
Pyrophoric Material.
On-site Stabilization
Off-site Stabilization
Other Treatment
Transfer Methods:
Transfer of Precious or Non-
procious Metal Catalysts for
Reclamation/Regeneration.
Transfer to Non-Petroleum
Refinery for Direct Use as a
Fuel or to Make a Fuel.
Transfer for Use as an Ingre-
dient In Products that are
Placed on the Land.
Transfer to Other Off-site En-
tity.
Disposal methods:
NPDES
Off-site Municipal Subtitle D
Landfill.
Off-site Industrial Subtitle D
Landfill.
Off-site Subtitle C Landfill
On-site Subtitle D Landfill
On-site Subtitle C Landfill
On-site Surface Impoundment
K169, K170, and K171
K169 and K170
K169 and K170
K169 and K170
K171 and K172
K169, K170, K171, and K172 .
K171
K169
K171 and K172
K169 and K170
K169,
K169andK171
K169
K169, K170, and K171
K169, K170, K171, and K172 .
K169, K170, K171, and K172 .
K170, K171, and K172
K169, K171.andK172
K169.
Listing Scenario: Abandon on-site land treatment unit and dispose
waste in off-site Subtitle C landfill.
LDR Sce/7a/7b/K169/K170—On-/Off-site incineration;
K171—Option 1: Off-site incineration and ash vitrification; Option 2:
Transfer precious or non-precious metal catalysts for reclamation or
regeneration.
Listing Scenario: Off-site Subtitle C landfill.
LDR Scenario: On-/Off-site incineration.
In compliance due to the headwaters exemption for wastewaters dis-
charged to NPDES or POTW.
Construct new Subtitle C accumulation tank system. <">
Upgrade to Subtitle C accumulation tank system. <">
Upgrade to Subtitle C accumulation tank system.«
Listing Scenario: In compliance.
LDR Scenario: fish vitrification following off-site incineration.
Upgrade to Subtitle C accumulation tank system.
Reclamation/regeneration facility will increase Subtitle C storage ca-
pacity and upgrade to Subtitle C transportation and management.
Off-site Subtitle C BIF.
Off-site Subtitle C BIF.
Assume most common reported transfer method reported by industry
for each waste type.
In compliance.
Listing Scenario: Off-site Subtitle C landfill.
LDR Scenario: On-/Off-site incineration.
Listing Scenario: Off-site Subtitle C Landfill.
LDR Scenario: On-/Off-site incineration.
Listing Scenario: In compliance.
LDR Sc£wa/70.-K169/K170—On-/Off-site incineration;
K171 /K172—Option 1: Off-site incineration followed by ash vitrifica-
tion; Option 2: Transfer precious or nonprecious metal catalysts for
reclamation or regeneration.
Listing Scenario:'Off-site Subtitle C landfill.
LDR Scenario: K170—On-/Off-site incineration;
K171/K172—Option 1: Off-site incineration followed by ash vitrifica-
tion; Option 2: Transfer precious or nonprecious metal catalysts for
reclamation or regeneration.
Listing Scenario: In compliance.
LDR Scenario: K169—On-/Off-site incineration;
K171/K172—Option 1: Off-site incineration followed by ash vitrifica-
tion; Option 2: Transfer precious or nonprecious metal catalysts for
reclamation or regeneration.
Dredge impoundment sludge and dispose in off-site Subtitle D Landfill
prior to final listing and then recommission impoundment for non-
hazardous waste use; Upgrade existing on-site filtration system to a
Subtitle C accumulation system for sludge management.^)
Listing Scenario: Off-site Subtitle C landfill.
LDR Scenario: On-/Off-site incineration.
(•Management costs (i.e., operation and maintenance costs) for baseline and compliance are the same for this management method. Second-
a%manaflernentScosts (i-e^OSM costs) for baseline and compliance are the same for this management method. Secondary containment is in-
cluded where appropriate. The compliance cost will involve closure of the drying pad and construction of a drying tank system with secondary
containment.
3, Potential Remedial Action Costs
Within the Refining Industry
In addition to the refinery waste
management costs themselves, the
petroleum refining hazardous waste
listing could affect the management of
soils, leachates, groundwater, and
remedial materials. The Agency's
"contained in" policy defines certain
remediation wastes "containing" a
listed hazardous waste as a RCRA
hazardous waste (see Chemical Waste
Management v. EPA, 869 F.2d 1526,
D.C.C, 1989). Industry sites where
newly identified hazardous wastes have
been managed prior to the effective date
of the new listings may still have
contaminant concentrations which
exceed "contained in" levels. Any firm
actively managing such material could
become a generator of RCRA hazardous
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42180
Federal Register/Vol. 63, No. 151/Thursday. August 6. 1998/Rules and Regulations
waste. Releases from all solid waste
management units at these TSDFs,
including those that in the future would
be found to contain a waste meeting the
petroleum listing descriptions, are
covered by facility-wide corrective
action under 40 CFR 264.101.
Associated costs, e.g., RCRA Facility
Assessment, were addressed in the draft
proposed corrective action rule.
4. Summary of Compliance Cost Results
Table X-2 presents a summary of
estimated incremental annualized
compliance costs for each waste due to
(1) listing, (2) listing including potential
LDR pre-treatment regulations, and (3)
listing including LDR impacts and oil-
bearing exclusion cost benefits.
Under the oil-bearing exclusion
scenarios, the expected value represents
recycling of 65 percent of the oil-based
crude oil storage'tank sediment (K169)
and CSO sediment (K170) in either on-
site coking units or intracompany
transfers when it is economically
feasible, off-site incineration of the
remaining 35 percent of the oil-based
crude oil storage tank sediment (K169)
and CSO sediment (K170) quantity, and
off-site incineration and vitrification of
the spent hydrotreating and
hydrorefining catalysts. It is estimated
that 65 percent of the oil-based crude oil
storage tank sediment (K169) and CSO
sediment (K170) quantity is recycled
into coking units.
All of the above cost estimates, under
each scenario, assume implementation
of waste minimization for filtering
"oily" crude oil storage tank sediment
(K169) and CSO sediment (K170) and
recycling the oil filtrate back into
process units. Revenues from the
recycled oil are roughly estimated at
about $1 million per year but are not
included as an offset to costs in this
table.
TABLE X-2.—SUMMARY OF COST OF COMPLIANCE
(1997 $millions per Year) 1.2
Waste stream
Crude Oil Storage
Tank Sediment.
Clarified Slurry Oil
Sediment.
Spent Hydrotreat- ing
Catalyst.
Spent Hydrorefining
Catalyst.
RCRA Administrative
Costs.
Total
Listing Scenario
Average Cost [Low-
High]
2.5 [1.1-4.4]
3.1 [1.6-5.4]
1.5(0.9-3.2]
1.7 [0.8-4.2]
0.6 [0.4-0.7]
9.4 [4.8-17.9]
LDR Scenario
Option 1— Off-site In-
cineration of
K169.K1 70 and Off-
site Incineration and
Vitrification of K1 71,
K172
Average Cost [Low-
High]
24.1 [10.4-43.3]
25.1 [12.5-42.0]
5.6 [3.9-8.5]
13.0 [9.3-18.4]
0.6 [0.4-0.8]
68.4 [36.5-1 13.0]
LDR Scenario
Option 2— OnVOff-
site Incineration of
K1 69, K1 70 and Re-
generation or Rec-
lamation of K1 71,
K1723
Average Cost [Low-
High]
1 ft ft FQ f\ Q "t fil
1 O.D H?.U— o 1 .OJ
18.8 [10.5-29.6]
2.6 [1.3-5.0]
4.4 [2.1-8.8]
0.9 [0.7-1.1]
45.3 [23.6-76.1]
Oil-Bearing Exclusion
Scenario Including
LDR Impact
Option 1 — De-oil
K169, K170, "Not
Same Company" Re-
cycling to Coker, Off-
site Incineration of
Remaining Sludge,
and Regeneration or
Reclamation of K1 71,
K1724
Average Cost [Low-
High]
-
8.7 [4.1— 14.9]
8.1 [3.9-13.8]
2.6 [1.3-5.0]
4.4 [2.1-8.8]
0.6 [0.4-0.8]
24.4 [11. 8-43.3]
•
Oil-Bearing Exclusion
Scenario Including
LDR Impact
Option 2 — De-oil
D169, K170, "Same
Company" Recycling
to Coker, Off-site In-
cineration of Remain-
ing Sludge, and Re-
generation or Rec-
lamation of K1 71,
K172<
Average Cost [Low-
High]
13.0 [5.9-22.6].
13.5 [6.8-22.4].
2.6 [1.3-5.0].
4.4 [2.1-8.8].
0.6 [0.4-0.8].
34.1 [16!5-59.6].
a-fa'n oTL^nwKTho'' "* ^''^ (K169) and CSO
B. Details of Industry Economic Impact
As noted, a partial equilibrium model
was used to estimate primary and
secondary impacts from implementation
of the listings. Primary economic
impacts include changes in market
equilibrium price and output levels,
changes in the value of shipments or
revenues to domestic producers, and
plant closures. Secondary impacts
include changes in employment, use of
energy inputs, balance of trade, and
regional refinery distribution. Impacts
associated with the two Oil-Bearing
Exclusion compliance scenarios will fall
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Federal Register/Vol. 63. No. 151/Thursday, August 6, 1998/Rules and Regulations
42181
between the range of primary and
secondary economic impacts predicted
for the Listing and LDR compliance
scenarios as shown in Table X-2 (the
low and high cost scenarios).
Predicted price increases and
reductions in domestic output are less
than 1 percent for the ten products
evaluated under both the Listing and
LDR compliance scenarios.33 The
projected 1992 price increase for the ten
Sroducts combined ranges from 0.03 to
.76 percent under the low- and high-
cost scenarios, respectively.34 Under the
low- and high-cost scenarios, 1992
production is expected to decrease,
ranging from 1.3 to 30.9 million barrels
per year, representing a 0.02 to 0.59
percent decrease in annual production,
respectively. The value of shipments or
revenues for domestic producers are
expected to increase for the ten products
combined, ranging from $9.0 to $213
million (1992 dollars) annually for the
low- and high-cost scenarios,
respectively. This revenue increase
results given that the percent increase in
price exceeds the percent decrease in
quantity for goods with inelastic
demand. The model estimates that up to
two refineries may close as a result of
the predicted decrease in production
under both regulatory scenarios. Those
refineries with the highest per unit
control costs are assumed to be marginal
In the post-control market. No
significant regional impacts are
anticipated from implementation of the
listings since only up to two facilities
are anticipated to close and impacts
overall are estimated to be minimal.
Primary economic Impacts are not
anticipated to be significantly different
in the later years of this decade and
even beyond (even though 1992 data
were used herein) in that the industry
Is mature and not one that changes often
or dramatically absent an external
shock.
Under the low- and high-cost
scenarios, the number of workers
employed in 1992 by firms in SIC 2911
are estimated to decrease ranging from
12 to 282 workers annually,
representing a 0.03 and 0.59 percent
decrease in total employment,
respectively. The small magnitude of
predicted job loss directly results from
the relatively small decrease in
production anticipated and the
relatively low labor intensity in the
industry. An estimated decrease in
energy use ranging from $1.02 to $24.32
million ($1992) per year is expected for
the industry, under the low- and high-
cost scenarios, respectively. As
production decreases, the amount of
energy input utilized by the refining
industry also declines. The change in
energy use does not consider the
increased energy use associated with
operating and maintaining the
regulatory control equipment due to the
lack of available data. Finally,
imposition of the listings will further
increase the negative balance of trade.
Under the low- and high-cost scenarios,
net exports are anticipated to decline
ranging from 0.2 to 4.7 million barrels
per year, representing a 0.1 and 2.8
percent decline, respectively. The dollar
value of the total decline in net exports
ranges from $6.35 to $152.6 million
($1992) per year. Given the magnitude
of the estimated compliance costs,
refineries are expected to incur minimal
economic impacts. Secondary economic
impacts are not anticipated to be
significantly different in 1997.
Economic impacts may be slightly
underestimated as a result of the
following model input changes:
The economic analysis was based on a
lower CSO sediment quantity estimate of
9,000 MT/yr managed in final management
practices. This quantity was revised to 13,100
MT/yr. As a result, impacts for facilities
generating this sediment are underestimated
for all scenarios.
The regulatory options (i.e., waste
management options) used to evaluate
economic impacts differ slightly from those
that were used to calculate the cost of
compliance for the lower- and upper-bound
LDR Scenarios, such that waste management
costs were understated by $3 and $31 million
($1992), respectively. As a result, economic
impacts may be understated for the lower-
and upper-bound LDR Scenarios. However,
the Oil-Bearing Exclusion Scenario, with
estimated costs from $31 to $67 million
($1992) and an expected value of $45
million, fall within the range of costs used in
the economic impact analysis for the LDR
Scenarios. Therefore, the lower-and upper-
bound LDR Scenarios bound the anticipated
cost of the rule (i.e., the Oil-Bearing
Exclusion Scenario).
Economic impacts may be
overestimated as a result of the
following model assumptions:
The model assumes that all refineries
compete in a national market. In reality,
some refineries are protected from market
fluctuations by regional or local trade barriers
and may therefore be less likely to feel
impact.
The total cost of compliance is assigned
exclusively to ten petroleum products, rather
than the entire product slate for each
refinery.
Some refineries may find it profitable to
expand production in the post-control
market. This would occur when a firm found
its post-control incremental unit cost to be
smaller than the post-control market price.
Expansion by these firms would result in a
smaller decrease in output and increase in
price than otherwise would occur.
The economic analysis was initially based
on the listing of five waste streams including
unleaded gasoline sediment, which has since
been removed from the list of wastes
included in this listing determination. As a
result, economic impacts for the 98 facilities
generating unleaded gasoline sediment will
be overestimated.
With the combined effects of analyzing five
waste streams and using a lower CSO
sediment quantity and a less costly upper-
bound LDR Scenario management option, the
total cost of compliance for the Listing
Scenario is understated by $2 million and the
lower-bound and upper-bound LDR
Scenarios are understated by $5 million and
$31 million ($1992), respectively. As a result,
economic impacts may be understated for the
Listing and LDR Scenarios. How.ever, as
noted, economic impacts estimated for the
Listing and LDR scenarios bound the
anticipated economic impacts associated
with the Oil-Bearing Exclusion Scenario.
Under any realistic set of assumptions
associated with this listing, industry
economic impact is likely to be very
slight. The results of the economic
impact analysis are summarized in
Table X-3.
TABLE X-3.—SUMMARY OF ECONOMIC IMPACTS1-2
Economic impacts
Listing sce-
nario lower-
bound
LDR sce-
nario lower-
bound
LDR sce-
nario upper-
bound
Primary Economic Impacts
Average Price Increase:
Over All Products ...
0.03%
0.08%
0.76%
*»The ten petroleum products Include ethane/
elhylcnc, butane/butylene, normal butane/butylene,
Isooutanc/lsobutylone. finished motor gasoline. Jet
fuel, distillate and residual fuel oil, asphalt, and
petroleum coke.
34 Similar percentage increases would apply to
current prices.
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42182 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
TABLE X-3.—SUMMARY OF ECONOMIC IMPACTS1-2—Continued
Economic impacts
Annual Production Decrease:
Amount (MMbbl) .
Percentage Change
Annual Value of Shipments
Amount (MM$92)
Percentage Change
Number of Plant Closures
Listing sce-
nario lower-
bound
(1.3)
(0 03%)
$9.0
0.01%
0-2
LDR sce-
nario lower-
bound
(3.27)
(0.06%)
$22.59
00.02%
0-2
LDR sce-
nario upper-
bound
(30.93)
(0.59%)
$213.34
0.16%
0-2
Secondary Economic Impacts
Annual Job Loss:.
Number
Percentage Change
Annual Decrease In Energy Use:
Amount (MM$92)
Percentage Change
Annual Net Foreign Trade Loss:
Amount (MMbbl)
Percentage Change
Dollar Value ($/MMbbl)
M2i
(0 03%)
($1 02)
(0 03%)
(020)
(0 12%)
($6.35)
(30}
in ofi%)
(&2 571
(0 06%)
(049)
in i%\
($15.96)
/OQO\
(£o£)
/n £Qo/ \
ft94 ^^\
(O CQO/A
(A *7fi\
l«K/U)
(O QO/ \
($152.60)
1 Assumes listing of five waste streams: crude oil storage tank sediment, clarified slurry oil sediment, unleaded tank sediment, spent
hydrotreating catalyst, and spent hydrorefining catalyst. Unleaded tank sediment was not listed. Impact will be reduced with four.
2 The analysis was conducted using 1992 cost and price data. Costs and prices were not inflated to 1997 dollars and the economic impact
analysis was not revised because the economic impacts are not anticipated to change significantly. Anticipated costs with the granting of a oil-
bearing exclusion fall within the range used in the economic impact analysis.
XI. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980 as amended by SBREFA
requires Federal agencies to consider
"small entities" throughout the
regulatory process. EPA policy suggests
that an initial screening analysis be
performed to determine whether small
entities will be affected by the
regulation. If affected small entities are
identified, regulatory alternatives
should be considered which mitigate
the potential impacts. Small entities as
described in the Act are only those
"businesses, organizations and
governmental jurisdictions subject to
regulation." In addition, the Agency
must prepare an IRFA, unless the head
of the Agency certifies that the rule will
not have a significant impact on a
substantial number of small entities.
The Small Business Administration
(SBA) size standards criteria apply to
firm size, whereas the economic impact
analysis for this rulemaking was
conducted at the facility level (i.e.,
refinery level). Few companies employ
more than 1,500 employees, and data on
the number of employees at company
level were much less readily available
than were capacity data. For single-
plant firms, the SBA criteria were
applied directly. For firms (i.e.,
companies) owning more than one
refinery, crude capacity was aggregated
for all plants (i.e., refineries) to
determine the overall size of the
company.35 Despite the high percentage
of small entities in the population of
refinery companies affected by the
listing determination, anticipated
impacts as a result of implementation of
the listings were minimal, with a
maximum of two plant closures
predicted under the most conservative
assumptions used in each of the
scenarios evaluated.
Of the 66 affected companies, 32
entities fit the definition of a small
entity as defined by the RFA. Table XI-
1 presents the estimated annualized
incremental compliance costs borne by
the 32 small businesses in the
petroleum refining industry. The annual
incremental cost of the rule for the 32
facilities ranged from $4,566 to $11.8
35 According to "EPA Guidelines for
Implementing the Regulatory Flexibility Act"
(February, 1997) and the Small Business Size
Regulations (13 CFR 121), any refinery that
produces petroleum products (SIC 2911) of less
than or equal to 75,000 barrels of crude per day and
has no more than 1,500 employees, constitutes a
"small entity." The Agency believes that none of
the entities which would incur incremental
compliance costs as a result of this rulemaking
produce more than 75,000 barrels and have less
than 1,500 employees.
million (1992 dollars). For each of the
32 facilities impacted, these annual
costs constitute less than 0.96 percent of
total annual sales. EPA believes that
these costs do not represent a significant
impact. Hence, pursuant to section
605(b) of the RFA, 5 U.S.C. 605(b), the
Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities.
XII. Submission to Congress and the
General Accounting Office
The Congressional Review Act, 5
U.S.C. 801 etseq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. This action is not
a "major rule" as defined by 5 U.S.C.
§804(2). This rule will be effective six
months from the date of publication.
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Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations 42183
TABLE XI-1.— RESULTS OF THE REGULATORY FLEXIBILITY ANALYSIS GO
Summary of economic impacts on small entities
Range of Annualized Compliance Costs as a Percentage of Company
Refinery Sales
Listing scenarios
$4,566-$305,379
$1
0.001 %-0.236%
LDR scenario lower
bound
$4,556-$7,561,781
9,377,340-$1, 21 8,936,7
0.001 %-0.620%
LDR scenario upper-
bound
$4,556-$1 1,765,904
10
0.001 %-0.965%
WThe analysis was conducted using 1992 cost and price data. Costs and prices were not inflated to 1997 dollars and the analysis was not re-
vised because the anticipated impacts would still be insignificant.
XIII. Unfunded Mandates
Under section 202 of the Unfunded
Mandates Reform Act of 1995
("UMRA") signed into law on March 22,
1995, The EPA must prepare a statement
to accompany any rule where the
estimated costs to State, local, or tribal
governments, or to the private sector,
will be $100 million or more in any one
year. Section 203 requires the epa to
establish a plan for informing and
advising any small governments that
may be significantly or uniquely
impacted by the rule.
Under section 205, agencies also must
develop a process to permit elected
State, local, and tribal government
officials to provide "meaningful and
timely input" into the development of
regulatory proposals "containing
significant intergovernmental
mandates." In addition, agencies must
consider a "reasonable number of
regulatory alternatives" and select the
least costly, most cost-effective, or least
burdensome alternative that achieves
the objectives of the rule, unless the
provisions of the alternative are
inconsistent with the law or an
explanation is provided by the head of
the affected agency.
EPA has determined that this rule
does not include a Federal mandate that
may result in estimated costs of $100
million or more to either State, local, or
tribal governments in the aggregate or to
the private sector. The rule would not
impose any Federal intergovernmental
mandate because it imposes no
enforceable duty upon State, tribal, or
local governments. States, tribes, and
local governments would have no
compliance costs under this rule, which
applies only to facilities managing the
listed petroleum production wastes. It is
expected that States will adopt similar
rules and submit those rules for
inclusion in their authorized RCRA
programs, but they have no legally
enforceable duty to do so. For the same
reasons. EPA also has determined that
this rule contains no regulatory
requirements that might significantly or
uniquely affect small governments.
In addition, as discussed above, the
private sector is not expected to incur
costs exceeding $100 million in any one
year. The upper-bound of the range of
potential average annual costs is
estimated to be $60 million ($1997) with
the granting of an oil-bearing exclusion,
considerably below the $100 million
annual threshold. The Agency believes
that this average annual cost represents
the typical cost for any given year and
that this rulemaking will not result in a
spike in annual cost that might rise
above $100 million in any given year
above for the following reasons. First,
compliance with these new
requirements does not involve
significant capital costs which could
generate such a spike. Treatment and
disposal capacity for these wastes
already exist and the typical costs
incurred come from treatment and
disposal on a routine basis. Second,
waste generation rates for these wastes
are expected to be relatively constant
over time. No signficant surge in
generation of the wastes listed in this
rule involving a concomitant increase in
costs are anticipated.
XIV. Paperwork Reduction Act
This rule does not contain any new
information collection requirements
subject to OMB review under the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501 etseq. Facilities will have
to comply with the existing Subtitle C
recordkeeping and reporting
requirements for the newly listed waste
streams.
To the extent that this rule imposes
any information collection requirements
under existing RCRA regulations
promulgated in previous rulemakings,
those requirements have been approved
by the Office of Management and
Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 etseq.,
and have been assigned OMB control
numbers 2050-0009 (ICR no. 1573, Part
B Permit Application, Permit
Modifications, and Special Permits);
2050-0120 (ICR 1571, General Facility
Hazardous Waste Standards); 2050-
0028 (ICR 261, Notification of
Hazardous Waste Activity); 2050-0034
(ICR 262, RCRA Hazardous Waste
Permit Application and Modification,
Part A); 2050-0039 (ICR 801,
Requirements for Generators,
Transporters, and Waste Management
Facilities under the Hazardous Waste
Manifest System); 2050-0035 (ICR 820,
Hazardous Waste Generator Standards);
and 2050-0024 (ICR 976, 1997
Hazardous Waste Report.
Release reporting required as a result
of listing wastes as hazardous
substances under CERCLA and
adjusting the RQs has been approved
under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 etseq.,
and has been assigned OMB control
number 2050-0046 (ICR 1049,
Notification of Episodic Release of Oil
and Hazardous Substances).
XV. National Technology Transfer and
Advancement Act
Under Section 12(d) of the National
Technology Transfer and Advancement
Act, the Agency is directed to use
voluntary consensus standards in its
regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures,
business practices, etc.) that are
developed or adopted by voluntary
consensus standard bodies. Where
available and potentially applicable
voluntary consensus standards are not
used by EPA, the Act requires the
Agency to provide Congress, through
the OMB, an explanation of the reasons
for not using such standards.
This rule does not establish any new
technical standards and thus, the
Agency has no need to consider the use
of voluntary consensus standards in
developing this final rule.
XVI. Executive Order 13045—
Protection of Children From
Environmental Health Risks and Safety
Risks
The Executive Order 13045 is entitled
"Protection of Children from
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42184 Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
Environmental Health Risks and safety
Risks (62 FR 19885, April 23, 1997).
This Order applies to any rule that EPA
determines (1) is "economically
significant" as defined under Executive
Order 12866, and (2) the environmental
health or safety risk addressed by the
rule has a disproportionate effect on
children. If the regulatory action meets
both criteria, the Agency must evaluate
the environmental health or safety
effects of the planned rule on children,
and explain why the planned regulation
is preferable to other potentially
effective and reasonably feasible
alternatives considered by the Agency
This final rule is not subject to E.O.
13045 because this is not an
economically significant regulatory
action as defined by E.O. 12866.
List of Subjects
40 CFR Part 148
Administrative practice and
procedure. Hazardous waste, Reporting
and recordkeeping requirements, Water
supply.
40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 266
Environmental protection, Boilers and
industrial furnaces. Energy, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 268
Environmental protection, Hazardous
waste, Reporting and recordkeeping
requirements.
40 CFR Part 271
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous materials transportation,
Hazardous waste, Indians-lands,
Intergovernmental relations, Penalties, •
Reporting and recordkeeping
requirements, Water pollution control.
Water supply.
40 CFR Part 302
Environmental protection, Air
pollution control, Chemicals, Hazardous
substances, Hazardous waste,
Intergovernmental relations, Natural
resources. Reporting and recordkeeping
requirements, Superfund, Water
pollution control. Water supply.
Dated: June 29, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, title 40, chapter I, of the Code
of Federal Regulations is amended as
follows:
PART 148—HAZARDOUS WASTE
INJECTION RESTRICTIONS
1. The authority citation for part 148
continues to read as follows:
Authority: Sees. 3004, Resource
Conservation and Recovery Act, 42 U.S.C.
6901 etseq.
2. Section 148.18 is amended by
adding paragraph (i) to read as follows:
§ 148.18 Waste specific prohibitions—
newly listed and identified Wastes.
*****
(i) Effective February 8, 1999, the
wastes specified in 40 CFR 261.32 as
EPA Hazardous Waste Numbers K169,
K170, K171, and K172 are prohibited
from underground injection.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y), and 6938.
4. Section 261.3 is amended by
revising paragraphs (a) (2) (iv) (C) and
(c) (2) (ii) (B); and by adding paragraph
(c) (2) (ii) (E) to read as follows.
§ 261.3 Definition of hazardous waste.
(a) * * *
(2) * * *
(iv) * * *
(C) One of the following wastes listed
in § 261.32, provided that the wastes are
discharged to the refinery oil recovery
sewer before primary oil/water/solids
separation—heat exchanger bundle
cleaning sludge from the petroleum
refining industry (EPA Hazardous Waste
No. K050), crude oil storage tank
sediment from petroleum refining
operations (EPA Hazardous Waste No.
K169), clarified slurry oil tank sediment
and/or in-line filter/separation solids
from petroleum refining operations
(EPA Hazardous Waste No. K170), spent
hydrotreating catalyst (EPA Hazardous
Waste No. K171), and spent
hydrorefining catalyst (EPA Hazardous
Waste No. K172); or
*****
(c) * * *
(2) * * *
(ii) * * *
(B) Waste from burning any of the
materials exempted from regulation by
§261.6(a)(3)(iii)and(iv).
*****
(E) Catalyst inert support media
separated from one of the following
wastes listed in §261.32—Spent
hydrotreating catalyst (EPA Hazardous
Waste No. K171), and Spent
hydrorefining catalyst (EPA Hazardous
Waste No. K172).
*****
5. In §261.4, new paragraphs (a)(18)
and (a) (19) are added, and paragraph
(a) (12) is revised to read as follows:
§261.4 Exclusions.
(a) * * *
(12) (i) Oil-bearing hazardous
secondary materials (i.e., sludges,
byproducts, or spent materials) that are
generated at a petroleum refinery (SIC
code 2911) and are inserted into the
petroleum refining process (SIC code
2911—including, but not limited to,
distillation, catalytic cracking,
fractionation, or thermal cracking units
(i.e., cokers)) unless the material is
placed on the land, or speculatively
accumulated before being so recycled.
Materials inserted into thermal cracking
units are excluded under this paragraph,
provided that the coke product also
does not exhibit a characteristic of
hazardous waste. Oil-bearing hazardous
secondary materials may be inserted
into the same petroleum refinery where
they are generated, or sent directly to
another petroleum refinery, and still be
excluded under this provision. Except
as provided in paragraph (a)(12)(ii) of
this section, oil-bearing hazardous
secondary materials generated
elsewhere in the petroleum industry
(i.e., from sources other than petroleum
refineries) are not excluded under this
section. Residuals generated from
processing or recycling materials
excluded under this paragraph (a)(12)(i),
where such materials as generated
would have otherwise met a listing
under subpart D of this part, are
designated as F037 listed wastes when
disposed of or intended for disposal.
(ii) Recovered oil that is recycled in
the same manner and with the same
conditions as described in paragraph
(a)(12)(i) of this section. Recovered oil is
oil that has been reclaimed from
secondary materials (including
wastewater) generated from normal
petroleum industry practices, including
refining, exploration and production,
bulk storage, and transportation
incident thereto (SIC codes 1311, 1321
1381, 1382, 1389, 2911, 4612, 4613
4922, 4923, 4789, 5171, and 5172.)
Recovered oil does not include oil-
bearing hazardous wastes listed in
subpart D of this part; however, oil
recovered from such wastes may be
considered recovered oil. Recovered oil
does not include used oil as defined in
40 CFR 279.1.
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Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations 42185
(18) Petrochemical recovered oil from
an associated organic chemical
manufacturing facility, where the oil is
to be inserted into the petroleum
refining process (SIC code 2911) along
with normal petroleum refinery process
streams, provided:
(i) The oil is hazardous only because
it exhibits the characteristic of
ignltabllity (as defined in §261.21) and/
or toxicity for benzene (§261.24, waste
code DO 18); and
(ii) The oil generated by the organic
chemical manufacturing facility is not
placed on the land, or speculatively
accumulated before being recycled into
the petroleum refining process. An
"associated organic chemical
manufacturing facility" is a facility
where the primary SIC code is 2869. but
where operations may also include SIC
codes 2821, 2822, and 2865; and is
physically co-located with a petroleum
refinery; and where the petroleum
refinery to which the oil being recycled
is returned also provides hydrocarbon
feedstocks to the organic chemical
manufacturing facility. "Petrochemical
recovered oil" is oil that has been
reclaimed from secondary materials
(i.e., sludges, byproducts, or spent
materials, including wastewater) from
normal organic chemical manufacturing
operations, as well as oil recovered from
organic chemical manufacturing
processes.
(19) Spent caustic solutions from
petroleum refining liquid treating
processes used as a feedstock to produce
cresylic or naphthenic acid unless the
material is placed on the land, or
accumulated speculatively as defined in
§261.l(c).
§261.6 [Amended]
6. In §261.6, paragraph (a)(3)(iv)(C) is
amended by removing "; and" at the
end of the paragraph and adding a
period in its place; and paragraph
(a)(3)(v) is removed.
7. In §261.31 (a), the table is amended
by revising the entry for F037, to read
as follows:
§ 261.31 Hazardous wastes from non-
specific sources.
(a) * * *
Industry and
EPA hazard-
ous waste No.
Hazardous waste
Hazard
code
F037 Petroleum refinery primary oil/water/solids separation sludge-Any sludge generated from the gravitational separation (T)
Of oil/water/solids during the storage or treatment of process wastewaters and oily cooling wastewaters from pe-
troleum refineries. Such sludges include, but are not limited to, those generated in oil/water/solids separators;
tanks and impoundments; ditches and other conveyances; sumps; and stormwater units receiving dry weather
flow sludge generated in stormwater units that do not receive dry weather flow, sludges generated from non-con-
tact once-through cooling waters segregated for treatment from other process or oily cooling waters, sludges gen-
erated in aggressive biological treatment units as defined in §261.31(b)(2) (including sludges generated in one or
more additional units after wastewaters have been treated in aggressive biological treatment units) and K051
wastes are not included in this listing. This listing does include residuals generated from processing or recycling
oil-bearing hazardous secondary materials excluded under §261.4(a)(12)(i), if those residuals are to be disposed
of.
8. In §261.32. the table is amended by adding in alphanumeric order (by the first column) the following waste
streams to the subgroup "Petroleum refining" to read as follows:
§261.32 Hazardous wastes from specific sources.
Industry and
EPA hazard-
ous waste No.
Hazardous waste
Hazard
code
Petroleum re-
fining^ ......
K169 Crude of) storage tank sediment from petroleum refining operations CO
K170 Clarified slurry oil tank sediment and/or in-line filter/separation solids from petroleum refining operations (T)
K171 Spent Hydrotreating catalyst from petroleum refining operations, including guard beds used to desulfurize feeds to (I,T)
other catalytic reactors (this listing does not include inert support media).
K172 Spent Hydrorefining catalyst from petroleum refining operations, including guard beds used to desulfurize feeds to (I,T)
other catalytic reactors (this listing does not include inert support media).
9. Appendix VII to Part 261 is amended by adding the following waste streams in alphanumeric order (by the
first column) to read as follows.
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42186 Federal Register/Vol. 63, No. 151 /Thursday, August 6, 1998/Rules and Regulations
APPENDIX VII TO PART 261—BASIS FOR LISTING HAZARDOUS WASTE
EPA hazard-
ous waste No.
Hazardous constituents for which listed
K169 Benzene.
K170 Benzo(a)pyrene, dibenz(a,h)anthracene, benzo (a)
methylcholanthrene, 7,12-dimethylbenz(a)anthracene.
K171 Benzene, arsenic.
K172 Benzene, arsenic.
anthracene, benzo (b)fluoranthene, benzo(k)fluoranthene, 3-
PART 266—STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF
HAZARDOUS WASTE MANAGEMENT FACILITIES
The authority citation for part 266 is revised to read as follows:
Authority: 42 U.S.C. 1006, 2002(a). 3004, and 3014, 6905, 6906, 6912, 6922, 6924, 6925, and 6937.
11. Section 266.100(b)(3) is revised to read as follows:
§266.100 Applicability.
*****
(b)* * *
(3) Hazardous wastes that are exempt from regulation under §§261.4 and 261.6(a)(3) (iii) and (iv) of this chapter
and hazardous wastes that are subject to the special requirements for conditionally exempt small quantity generators
under § 261.5 of this chapter; and
PART 268—LAND DISPOSAL RESTRICTIONS
12. The authority citation for part 268 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart C—Prohibitions on Land Disposal
13. Section 268.35 is added to subpart C to read as follows:
§268.35 Waste specific prohibitions-petroleum refining wastes.
(a) Effective February 8, 1999, the wastes specified in 40 CFR part 261 as EPA Hazardous Wastes Numbers K169,
K170, K171, and K172, soils and debris contaminated with these wastes, radioactive wastes mixed with these hazardous
wastes, and soils and debris contaminated with these radioactive mixed wastes, are prohibited from land disposal.
(b) The requirements of paragraph (a)
of this section do not apply if:
(1) The wastes meet the applicable
treatment standards specified in Subpart
D of this part;
(2) Persons have been granted an
exemption from a prohibition pursuant
to a petition under §268.6, with respect
to those wastes and units covered by the
petition;
(3) The wastes meet the applicable
treatment standards established
pursuant to a petition granted under
§268.44;
(4) Hazardous debris that have met
treatment standards in §268.40 or in the
alternative treatment standards in
§268.45; or
(5) Persons have been granted an
extension to the effective date of a
prohibition pursuant to §268.5, with
respect to these wastes covered by the
extension.
(c) To determine whether a hazardous
waste identified in this section exceeds
the applicable treatment standards
specified in §268.40, the initial
generator must test a sample of the
waste extract or the entire waste,
depending on whether the treatment
standards are expressed as
concentrations in the waste extract or
the waste, or the generator may use
knowledge of the waste. If the waste
contains constituents in excess of the
applicable Universal Treatment
Standard levels of §268.48, the waste is
prohibited from land disposal, and all
requirements of this part are applicable,
except as otherwise specified.
Subpart D—Treatment Standards
14. In §268.40, the Table of Treatment
Standards is amended by adding in
alphanumeric order new entries for
K169, K170. K171, and K172 to read as
follows. The appropriate footnotes to
the Table of Treatment Standards are
republished without change.
§ 268.40 Applicability of treatment
standards.
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998 /Rules and Regulations 42187
TREATMENT STANDARDS FOR HAZARDOUS WASTES
[Note: NA means not applicable]
Waste
codo
Waste description and treatment/
regulatory subcategory1
Regulated hazardous constituent
Common Name CAS2 No.
Wastewaters
Concentration in
mg/L3; or tech-
nology code4
Nonwastewaters
Concentration in
mg/kg5 unless
noted as "mg/L
TCLP"; or tech-
nology code4
K169
K170
K171
K172
Crude oil tank sediment from pe-
troleum refining operations.
Benz(a)anthracene
56-55-3 0.059 3.4
Clarified slurry oil sediment from
petroleum refining operations.
Spent hydrotreating catalyst from
petroleum refining operations,
Including guard beds used to
dosulfurize feeds to other cata-
lytic reactors (this listing does
not include inert support
media.).
Spent hydrorefining catalyst from
petroleum refining operations,
Including guard beds used to
desulfurize feeds to other cata-
lytic reactors (this listing does
not include Inert support
media.).
Benzene
Benzo(g,h,i)perylene
Chrysene
Ethyl benzene
Fluorene
Naphthalene
Phenanthrene
Pyrene
Toluene (Methyl Benzene)
Xylene(s) (Total)
Benz(a)anthracene
Benzene
Benzo(g,h,i)perylene
Chrysene
Dibenz(a,h)anthracene
Ethyl benzene
Fluorene
lndeno(1,2,3,-cd)pyrene
Naphthalene
Phenanthrene .'.
Pyrene
Toluene (Methyl Benzene)
Xylene(s) (Total)
Benz(a)anthracene
71-43-2
191-24-2
218-01-9
100-41-4
86-73-7
91-20-3
81-05-8
129-00-0
108-88-3
1330-20-7
56-55-3
71-43-2
191-24-2
218-01-9
53-70-3
100-41-4
86-73-7
193-39-5
91-20-3
81-O5-8
129-00-0
108-88-3
1330-20-7
56-55-3
0.14 10
0.0055 1.8
0.059 3.4
0.057 10
0.059 3.4
0.059 5.6
0.059 5.6
0.067 8.2
0.080 10
0.32 30
0.059 3.4
0.14 10
0.0055 1.8
0.059 3.4
0.055 8.2.
0.057 10
0.059 3.4
0.0055 3.4
0.059 5.6
0.059 5.6
0.067 8.2
0.080 10
0.32 30
0.059 3.4
Benzene
Chrysene
Ethyl benzene
Naphthalene
Phenanthrene
Pyrene 129-00-0
Toluene (Methyl Benzene)
Xylene(s) (Total)
Arsenic
Nickel
Vanadium
Reactive sulfides
Benzene
71-43-2
218-01-9
100-41-4
91-20-3
81-05-8
0.067
108-88-3
1330-20-7
7740-38-2
7440-02-0
7440-62-2
NA
71-43-2
Ethyl benzene
Toluene (Methyl Benzene)
Xylene(s) (Total)
Antimony
Arsenic
Nickel
Vanadium
Reactive Sulfides
100-41-4
108-88-3
1330-20-7
7740-36-0
7740-38-2
7440-02-0
7440-62-2
NA
0.14 10
0.059 3.4
0.057 10
0.059 5.6
0.059 5.6
8.2.
0.080 10
0.32 30
1.4 5 mg/L TCLP
3.98 11.0 mg/L TCLP
4.3 1.6 mg/L TCLP
DEACT DEACT
0.14 10
0.057 10
0.080 10
0.32 30
1.9 1.15 mg/L TCLP
1.4 5 mg/L TCLP
3.98 11.0 mg/L TCLP
4.3 1.6 mg/L TCLP
DEACT DEACT
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42188
Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Regulated hazardous constituent
Waste Waste description and treatment/
code regulatory subcategory1
Common Name
CAS 2 No.
Wastewaters
Concentration in
mg/L3; or tech-
nology code4
Nonwastewaters
Concentration in
mg/kgs unless
noted as "mg/L
TCLP"; or tech-
nology code4
1The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Raaulatorv
Subcategories are provided, as needed, to distinguish between applicability of different standards "escnpnons or i reatment/Regulatory
2^AO „,„„„„ ^u , Abstract services. When the waste code and/or regulated constituents are described as a combination of a chemical
a Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
4 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 26842
Table 1—Technology Codes and Descriptions of Technology-Based Standards <&o.4t
wprfX0C«ftShMch^iet-alS (*Ph°r TCLP) a"d pyanjdes.O"01?1 and Amenable) the nonwastewater treatment standards expressed as a concentration
o n?nf!fo«= I 'K SaA' bated uJ?on Incinerat'on.'n un'ts operated in accordance with the technical requirements of 40 CFR part 264 Subpart
0 or part 265 Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements A
Se b^sed^SK/Srab StandardS aCC°rdin9 t0 Pr°ViSi°nS '" 4° CFR *68'40(d)- A" concentr^ standards fo noSTewalers
******* Authority: 42 U.S.C. 6905, 6912(a), and
6926.
yS!^2S^SSSSm SubpartA-ReauirementsforFina,
AUTHORIZATION OF STATE Authorization
HAZARDOUS WASTE PROGRAMS 16. Section 271 1(j) is amended by
ic TV, *t, •*. -ii- r 0-71 adding the following entries to Table I
15. The authority citation for part 271 in chr°nological order by date of
contmues to read as follows: publication in the Federal Register, and
by adding the following entries to Table
2 in chronological order by effective
date in the Federal Register, to read as
follows:
§ 271.1 Purpose and scope.
*****
0)* * *
TABLE 1 .—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Promulgation date
Title of regulation
Federal Register reference
Effective date
August 6, 1998 Petroleum Refining Process Wastes [Insert FR page numbers] February 8, 1999.
TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984
Effective date
Self-implementing provision
RCRA citation
Federal Register
reference
February 8, 1999 .
Prohibition on land disposal of newly listed and 3004(g)(4) (C) and 3004 (m)
identified wastes; and prohibition on land dis-
posal of radioactive waste mixed with the newly
listed or identified wastes, including soil and de-
bris.
August 6, 1998. 63
FR [Insert page
numbers]
PART 302—DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION
17. The authority citation for part 302 continues to read as follows:
Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 1361.
18. In §302.4, table 302.4 is amended by adding footnote f and the following new entries in alphanumerical order
at the end of the table to read as follows:
§ 302.4 Designation of hazardous substances.
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Federal Register/Vol. 63. No. 151/Thursday. August 6, 1998/Rules and Regulations 42189
TABLE 302.4—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
[NOTE: All Comments/Notes Are Located at the End of This Table]
Hazardous substance
CASRN
Regulatory syno-
nyms
Statutory
RQ
Codet
RCRA
Final RQ
waste No. rntpnorv Pounds
category K
K169f
Crude oil storage tank sedi-
ment from petroleum refin-
ing operations.
K17(X
Clarified slurry oil tank sedi-
ment and/or in-line filter/
separation solids from pe-
troleum refining operations.
K171'
Spent hydrotreating catalyst
from petroleum refining op-
erations. (This listing does
not include inert support
media.)
K172'
Spent hydrorefining catalyst
from petroleum refining op-
erations. (This listing does
not Include inert support
media.)
4 K169
4 K170
4 K171
4 K172
10(4.54)
1 (0.454)
1 (0.454)
1 (0.454)
t Indicates the statutory sources as defined by 1, 2, 3, and 4 below.
« » * *
1*—Indicates that the 1-pound RQ is a CERCLA statutory RQ.
. *
rSee 40 CFR 302.6(b)(1) for application of the mixture rule to this hazardous waste.
19. Section 302.6 is amended by
revising paragraphs (b)(l)(i) and
(b)(l)(ii) and by adding paragraph
(b)(l)(tH) to read as follows:
§302.6 Notification requirements.
(b)* * *
(1) * * *
(i) If the quantity of all of the
hazardous constituent (s) of the mixture
or solution is known, notification is
required where an RQ or more of any
hazardous constituent is released;
(ii) If the quantity of one or more of
the hazardous constituents) of the
mixture or solution is unknown,
notification is required where the total
amount of the mixture or solution
released equals or exceeds the RQ for
the hazardous constituent with the
lowest RQ; or
(iii) For waste streams K169, K170,
K171, and K172, knowledge of the
quantity of all of the hazardous
constituents) may be assumed, based
on the following maximum observed
constituent concentrations identified by
EPA:
Waste
K171 ........
K172
Constituent
Arsenic
Max ppm
220.0
1.2
230.0
49.0
390.0
110.0
110.0
27.0
1,200.0
500.0
1,600.0
100.0
730.0
*****
|FR Doc. 98-19929 Filed 8-5-98; 8:45 am]
mUJf«J CODE 6560-60-P
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42190
Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[FRL-6127-9]
RIN 2050-AD88
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Petroleum Refining
Process Wastes; Land Disposal
Restrictions for Newly Identified
Wastes; and CERCLA Hazardous
Substance Designation and Reportable
Quantities; Notice of Data Availability
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule; notice of data
availability and request for comment.
SUMMARY: The Environmental Protection
Agency (EPA) is making available for
public comment information relating to
its Notice of Proposed Rulemaklng
(NPRM) published in the Federal
Register on November 20.1995 (60 FR
57747). That NPRM proposed to amend
EPA regulations under die Resource
Conservation and Recovery Act (RCRA)
by listing as hazardous wastes certain
petroleum refining waste streams, and
to apply universal treatment standards
under the Land Disposal Restrictions
program to the wastes proposed for
listing. That NPRM also proposed to
broaden existing RCRA exclusions for
the recycling of oil-bearing residuals in
petroleum refineries.
Several weeks before the date of
signature of the final rule published
elsewhere in this issue of the Federal
Register, EPA received specific
information from one company that
owns and operates non-hazardous waste
landfills, some of which received one or
more of the petroleum wastes which the
Agency was proposing to list This
company realized belatedly that, after
the effective date of the new listings for
these petroleum wastes, the leachate
generated from these landfills would
carry the waste code for one or more of
the newly-listed hazardous wastes, and
could be subject to Subtitle C regulation
if collected and actively managed.
EPA is not reopening its settled
position that when a waste is listed as
hazardous, all wastes meeting the listing
description, including those disposed
before the listing effective date, are now
classified as the listed hazardous waste.
The same applies to wastes derived
from the treatment, storage, or disposal
of those wastes (again, a settled position
not being reopened). Subtitle C
regulation can apply to such wastes, and
to residues derived from such wastes, if
active management occurs after the date
the listings become effective (likewise a
settled position not being reopened).
However, the late information does
present a legitimate issue as to whether,
under limited circumstances, the
listings should apply to leachate derived
from management of these particular
wastes. This is because to the extent
these leachates are being adequately
managed under the Clean Water Act
(CWA) program, the EPA would prefer
to minimize any possible disruptions to
the management of this leachate, and try
to Integrate the RCRA and CWA
regulatory schemes if possible. There is
also an ongoing rulemaklng activity
under the Clean Water Act that directly
addresses pretreatment standards and
effluent limitations for indirect and
direct discharges of such leachates.
Because this issue was brought to EPA's
attention so late, and for other reasons
discussed in this document, EPA
believes it needs more time to determine
how best to coordinate these programs
with respect to this leachate. Therefore,
EPA is presenting the pertinent
information it has received on this
question and soliciting comment on the
general issue of whether the Agency
should temporarily defer application of
these four new petroleum waste codes
(published elsewhere In today's Federal
Register) to leachate from previously
disposed wastes that now meet the
listing description, provided the
leachate is treated at Publicly Owned
Treatment Works (POTW) or treated to
meet effluent limitations for direct
discharge, pending further study of this
issue.
DATES: The Agency is reopening the
comment period only for the limited
purpose of obtaining information and
views on the new data and information
described in this document. Comments
on the additional data will be accepted
through September 8,1998. This
document does not reopen the comment
period for the recently proposed
rulemaklng on effluent guidelines and
pretreatment standards for landfills (63
FR 6426: February 6,1998).
ADDRESSES: Commenters must send an
original and two copies of their
comments referencing docket number
F-98-PR3A-FFFFF to: RCRA Docket
Information Center, Office of Solid
Waste (5305G), U.S. Environmental
Protection Agency Headquarters (EPA,
HQ), 401 M Street, SW, Washington, DC
20460. Hand deliveries of comments
should be made to the Arlington, VA,
address listed below. Comments may
also be submitted electronically by
sending electronic mail through the
Internet to: rcradocket@epamail.epa.gov.
Comments In electronic format should
also be identified by the docket number
F-98-PR3A-FFFFF.
Commenters should not submit
electronically any confidential business
Information (CB1). An original and two
copies of CBI must be submitted under
separate cover to: RCRA CBI Document
Control Officer, Office of Solid Waste
(5305W), U.S. EPA, 401M Street, SW,
Washington, DC 20460.
Public comments and supporting
materials are available for viewing in
the RCRA Information Center (RIC),
located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway,
Arlington, VA. The RIC is open from 9
a.m. to 4 p.m., Monday through Friday,
excluding federal holidays. To review
docket materials, it is recommended
that the public make an appointment by
calling (703) 603-9230. The public may
copy a maximum of 100 pages from any
regulatory docket at no charge.
Additional copies cost $0.15/page. For
information on accessing paper and/or
electronic copies of the document, see
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at (800) 424-9346 or TDD (800)
553-7672 (hearing Impaired). In the
Washington, DC, metropolitan area, call
(703) 412-9810 or TDD (703) 412-3323.
For information on specific aspects of
this document, contact Ross Elliott or
Robert Kayser, Office of Solid Waste
(5304W), U.S. Environmental Protection
Agency, 401 M Street comment, SW,
Washington, DC 20460. (E-mail
addresses and telephone numbers:
elllottross@epamail.epa.gov, (703) 308-
8748; kayser.robert@epamail.epa.gov,
(703) 308-7304).
SUPPLEMENTARY INFORMATION: All
electronic comments must be submitted
as an ASCII file avoiding the use of
special characters and any form of
encryption. If comments are not
submitted electronically, EPA is asking
prospective commenters to voluntarily
submit one additional copy of their
comments on labeled personal computer
diskettes in ASCII CTEXT) format or a
word processing format that can be
converted to ASCH (TEXT). It is
essential to specify on the disk label the
word processing software and version/
edition as well as the commenter's
name. This will allow EPA to convert
the comments into one of the word
processing formats utilized by the
Agency. Please use mailing envelopes
designed to physically protect the
submitted diskettes. EPA emphasizes
that submission of comments on
diskettes is not mandatory, nor will It
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Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Proposed Rules
42191
result In any advantage or disadvantage
to any commenter.
The official record for this action will
be kept In paper form, and will be
maintained at the address in ADDRESSES
at the beginning of this document The
Index to die docket is available on the
Internet Follow these Instructions to
access the Information electronically:
www: http://www.epa.gov/epaoswer/
qsw/hazwaste.htm#ld
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epaoswer
In addition, die document entitled
Development Document for Proposed
Effluent Limitations Guidelines and
Standards for the Landfills Point Source
Category. EPA-821-R-97-022. January
1998. placed in die docket for tills
document, can be obtained through die
internet at www.epa.gov/OST/Rules/
21ndfls/techdev.html. EPA will transfer
all comments received electronically
into paper form and place diem in die
official record, which will also include
all comments submitted dlrecdy in
writing. The official record is die paper
record.
EPA responses to comments, whether
the comments are written or electronic,
will be In a document published In die
Federal Register or in a response to
comments document placed in die
official record for this rulemaking at die
same time this document is published
in die Federal Register. EPA will not
immediately reply to commenters
electronically other than to seek
clarification of electronic comments that
may be garbled in transmission or
during conversion to paper form, as
discussed above.
Background
Very late in die rulemaking process,
die Agency was alerted to die concern
(not raised by any commenter during
die comment period) diat any new
hazardous waste listings for petroleum
wastes may have potentially significant
(but as yet undetermined) impacts on
die management of leachate collected
from certain non-hazardous waste
landfills. Specifically, one company that
owns and operates non-hazardous waste
landfills expressed concern that because
some of their facilities have historically
received and disposed of some or all of
die waste streams listed in die final
rulemaking (l.e., K169, K170, K171. and
K172) (published elsewhere in today's
Federal Register), die leachate that is
collected and managed from these
landfills would be classified by tfiese
same waste codes after die effective date
of die new petroleum waste listings.
However, if Subdtle C regulation were
to apply to leachate generated from such
landfills, leachate now trucked to
POTWs (a practice of particular concern
with tills company) would, as a
practical matter, no longer be managed
by POTWs, since POTWs would not
wish to become facilities subject to
RCRA Subtitle C regulation. This
company argued that tills could lead to
vastly increased treatment and disposal
costs without necessarily any
environmental benefit EPA is
considering whether it would be
appropriate to defer temporarily die
application of die new petroleum waste
codes to such leachate in order to avoid
disruption of ongoing leachate
management activities while die Agency
decides how to integrate die two
regulatory schemes, consistent wltii
RCRA section 1006(b)(l) (which
requires EPA to integrate regulations
under RCRA with tiiose of die other
statutes Implemented by EPA in a
manner tiiat avoids duplication to die
maximum extent possible, consistent
wldi die goals and policies of RCRA and
die other statutes).
Applicability of New Listings to
Landfill Leachate
Leachate that is derived from die
treatment, storage, or disposal of listed
hazardous wastes is classified as a
hazardous waste by virtue of the
"derived-from" rule in 40 CFR
261.3(c)(2). The Agency has been very
clear in the past on die applicability of
hazardous waste listings to wastes
disposed of prior to the effective date of
a listing, even if die landfill ceases
disposal of die waste when die waste
becomes hazardous. 53 FR at 31147
(August 17,1988). EPA also has a well-
established interpretation that listings
likewise apply to leachate derived from
the disposal of listed hazardous wastes,
including leachate derived from wastes
disposed before a listing effective date
which meet die listing description. Id.
EPA's interpretations were emphatically
upheld by die Court of Appeals for die
District of Columbia Circuit in Chemical
Waste Management, Inc. v. EPA, 869
F.2d 1526,1536-37 (D.C. Cir. 1989).
None of these Issues is reopened by die
present Notice.
Of course, as set out in detail in the
August 1988 notice, tills does not mean
that landfills holding wastes which are
now listed as hazardous become subject
to Subtitle C regulation. However,
previously disposed wastes now
meeting die listing description,
including residues such as leachate
which are derived from such wastes,
which are actively managed do become
subject to Subtitle C regulation. 53 FR
at 31149. In many, Indeed most
circumstances, active management of
leachate would be exempt from Subtitle
C regulation because the usual pattern
of management is discharge either to
POTWs via die sewer system, where
leachate mixes widi domestic sewage
and is excluded from RCRA jurisdiction
(see RCRA Section 1004(27) and 40 CFR
261.4 (a) (1)), or to navigable waters, also
excluded from RCRA jurisdiction (see
RCRA Section 1004(27) and 40 CFR
261.4(a)(2)). In addition, management of
leachate in wastewater treatment tanks
prior to discharge under the CWA is
also exempt from RCRA regulation (40
CFR264.1(g)(6)).
The company indicated, however,
that these exemptions do not apply to
its current prevalent means of managing
its leachate: collection followed by
transport by truck to a POTW (ratiier
tiian discharge to a POTW by a sewer
system, where leachate would mix with
domestic sewage, which would not
trigger Subtitle C, as just explained).
The company also alleged that it would
incur large costs because POTWs would
no longer accept the leachate in order to
remain outside die Subtitle C regulatory
system. (The company is probably
correct as to POTWs' reaction, although
die potential costs die company could
incur have not yet been verified.)
Proposed Clean Water Act
Requirements for Leachate from Non-
Hazardous Waste Landfills
EPA's Office of Water recently
proposed national effluent limitations
guidelines and pretreatment standards
for wastewater discharges (e.g., leachate)
from certain types of landfills. 63 FR
6426 (February 6,1998). In support of
tills proposal, EPA conducted a study of
die volume and chemical composition
of wastewaters generated by both
Subtitle C (hazardous waste) and
Subtitle D (non-hazardous waste)
landfills, including treatment
technologies and management practices
currently in use. EPA did not propose
pretreatment standards for Subtitle D
landfill wastewaters sent to POTWs
because the Agency's information
indicated that such standards were not
required due to several factors,
including: (1) Raw leachate data was
below published biological Inhibition
levels, and (2) lack of pass-through of
toxics (including lack of showing of
adverse Impact on POTW sludge
quality). 63 FR at 6444. For example, die
EPA determined, among odier tilings,
tiiat "die majority of pollutants typically
found in raw [non-hazardous landfill]
leachate were at levels comparable to
wastewater typically found at the
headworks of a POTW." Id. EPA also
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Federal Register/Vol. 63, No. 151/Thursday. August 6. 1998/Proposed Rules
proposed effluent limitations for direct
discharges of leachate from
nonhazardous waste landfills. After
examining various pollutants of concern
(including conventional,
nonconventional, metal, and organic
pollutants), EPA proposed limitations
for nine pollutants. 63 FR at 6463. EPA
believes that the proposed rules, if
promulgated, will help ensure that
leachate is managed effectively while
any temporary exemption is in effect.
Consideration of Temporary Deferral of
Applying New Petroleum Waste Codes
to Leachate
Because EPA received this
information very late in the rulemaking
process (indeed, the information is not
even part of the administrative record
for the final rule). EPA needs more time
to evaluate the potential impacts of the
newly-listed waste codes (published in
a final rule elsewhere in today's Federal
Register) on die classification of landfill
leachate, and to carefully consider
whether or not it is appropriate to apply
the waste codes from one or more of the
four newly-listed petroleum wastes to
landfill leachate which is either sent for
treatment at POTWs under
circumstances not excluded by Section
261.4(a)(l)(ii), or is directly discharged
under Section 402 of the CWA. As
mentioned above, EPA believes it would
be appropriate to defer temporarily the
application of the new petroleum waste
codes to such leachate in order to avoid
disruption of ongoing leachate
management activities while the Agency
decides how to integrate the two
regulatory schemes, consistent with
RCRA section 1006(b)(l) (regarding
Integrating RCRA regulations with other
EPA statutes). See Edison ElectricInst.
v. EPA, 2 F. 3d 438, 451-53 (D.C. Clr.
1993) (temporary deferral of regulation
to determine how best to integrate
RCRA rules with another EPA
regulatory system is permissible); see
also Military Toxics Project v. EPA (No.
97-1342 (D.C. Cir. June 30,1998) (slip
op. pp. 18-20) (permanent deferral to
another regulatory system also may be
appropriate). As stated above, it appears
that leachate derived from these newly-
listed wastes will be adequately
regulated under the CWA. The Agency
is publishing this document In order to
make this information available, and to
receive comment on EPA temporarily
deferring, while EPA assesses the
permanent integration of the two
regulatory schemes, the application of
the new waste codes (K169, K170, K171,
and K172) to landfill leachate that is
generated and actively managed after
the effective date of the four new
petroleum listings, as long as all of the
following conditions apply.
First, die Agency is considering only
whether to temporarily defer from
RCRA regulation leachate from landfills
that received and disposed one or more
of die newly-listed petroleum wastes
prior to the effective date of die listing
(i.e., landfills dial have historically
disposed of these petroleum wastes,
which if generated today would meet
die new listing descriptions, but no
longer accept these wastes). Second, this
temporary deferral would apply to
leachate that is defined as hazardous
waste only by application of one or
more of the new petroleum waste codes,
i.e., leachate that is only defined as
hazardous waste because it is derived
from K169, K170, K171, or K172, and is
not derived frpm any other listed waste,
and does not exhibit any characteristic
of hazardous waste. Third, the Agency
would only temporarily defer from
RCRA regulation leachate that is
managed such that discharge is subject
to regulation under 3070}) or 402 of the
Clean Water Act (i.e., for indirect or
direct discharges). This temporary
deferral would apply to leachate from
point of generation (i.e., when the
leachate is first collected or "actively
managed") to when it is discharged in
compliance wldi 307 (b) or 402 of the
Clean Water Act.
EPA is also considering whedier to
add a condition that would prohibit die
placement of leachate on die land prior
to discharge to a POTW or to other
wastewater treatment systems. EPA is
concerned that the storage of untreated
leachate in land-based units, such as
surface impoundments, may be of
concern. On die other hand, die Agency
does not wish to discourage effective
treatment of the leachate in wastewater
treatment systems dial employ secure
Impoundments prior to discharge to
surface water. To resolve diis question,
die Agency is seeking comment on die
potential impact of such a condition on
die treatment of leachate at landfills and
odier treatment facilities.
Should the Agency proceed widi a
temporary deferral, such a deferral
would most likely be implemented as a
new exemption from the definition of
hazardous waste under 40 CFR 261.40)).
The duration of a temporary deferral
would probably be at least until the
Agency completes die pending
rulemaking under the Clean Water Act
described in diis document. After
completion of die Clean Water Act
rulemaking, EPA will consider whedier
to initiate a rulemaking for a permanent
deferral (i.e., exemption), or
alternatively, to remove die exemption
and subject die leachate to Subtitle C
regulation.
Information in the Docket and Request
for Comment
The EPA has placed in die docket
summary information on leachate
characterization submitted by one
company diat owns and/or operates
over sixty non-hazardous waste
landfills, and estimated costs reflecting
Subtitle C management of the leachate
(i.e., centralized waste treatment of
leachate diverted from current
management at POTWs). The EPA has
also put into die docket a copy of the
Office of Water background document
entitled Development Document for
Proposed Effluent Limitations
Guidelines and Standards for the
Landfills Point Source Category, EPA-
82 l-R-97-022, January 1998.
The Agency is interested in any
comments on the narrow issue of the
classification and management of
leachate generated from landfills that
disposed of one or more of die newly-
listed petroleum wastes (K169-K172)
prior to die effective date of diose
listings, where die leachate is not
defined as hazardous under RCRA for
any other reason, and is (in particular)
being managed pursuant to Clean Water
Act requirements. The Agency also
seeks comment on die possibility of the
temporary deferral described in diis
document. EPA will not respond to
comment regarding the general
proposition that hazardous listings
apply to previously disposed wastes
diat meet the listing description, nor
will EPA reopen comments on die
listings of diese wastes, which are
issued in a final rule elsewhere in
today's Federal Register.
Dated: July 17,1998.
Elizabeth A. Cotsworth,
Acting Director, Office of Solid Waste.
[FR Doc. 98-19930 Filed 8-5-98; 8:45 am]
BILLING CODE 6560-SO-P
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