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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              Federal Register/Vol.  63,  No. 151/Thursday, August 6, 1998/Rules and Regulations      42117
 the distance from landfill units to
 nearest drinking water well. For LTUs,
 EPA used surveys of the distance of
 residences from such disposal units.
 Where appropriate, EPA attempted to
 consider information related to the
 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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  42120
Federal Register/Vol.  63, No.  151/Thursday,  August 6,  1998/Rules and  Regulations
  health-based level used for prior
  analyses.

  (See Additional Groundwater Pathway
  Risk Analyses, 1998, in the public
                          docket for this rule for details on the
                          revised analyses.)
                            The final risk results for off-site
                          landfills, with the changes noted above,
                          are summarized in Table IV-2 for
  wastes of concern. Other wastes either
  did not have significant risk in
  bounding analyses, or were not modeled
  for landfill disposal because the practice
  was not found.
       TABLE IV-2,—SUMMARY OF REVISED GROUNDWATER  RISKS FOR PETROLEUM WASTES IN OFF-SITE LANDFILLS
Waste
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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              Federal Register/Vol.  63,  No. 151/Thursday, August 6, 1998/Rules and Regulations
                                                                      42127
 unreasonable to assume that these
 materials should either be located at the
 generating refinery, at the receiving
 refinery, or are otherwise in transit
 between the two; this is consistent with
 the underlying argument that this is
 ongoing production within the
 petroleum refining sector.
   The Agency is maintaining the
 condition that only those oil-bearing
 secondary materials that result in a coke
 product that does not exhibit a
 characteristic of hazardous waste be
 subject to the exclusion. This condition
 mirrors the statutory provision stating
 that petroleum coke produced from
 petroleum industry hazardous wastes is
 not subject to Subtitle C regulation
 provided the coke does not exhibit a
 characteristic of hazardous waste (see
 RCRA section 3004 (q) (2) (A)). This
 condition (coupled with the industry's
 own product specifications) will serve
 to ensure that the coke product does not
 degrade such that the secondary
 materials used in producing the coke
 will become a part of the waste disposal
 problem. As a result of this condition
 and the fact that this exclusion is
 limited to refinery wastes, today's
 exclusion in §261.4 (a) (12) supersedes
 the existing exemption in
 §261.6(a)(3)(v); therefore, the
 regulations are being amended to
 remove § 261.6 (a) (3) (v).
   The Agency considered, as suggested
 in several comments, setting a minimum
 oil content to define the scope of "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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42128      Federal Register/Vol. 63, No.  151/Thursday, August 6, 1998 /Rules and Regulations
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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              Federal Register/Vol. 63, No.  151/Thursday, August 6,  1998/Rules and Regulations
                                                                      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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42130      Federal Register/Vol.  63,  No. 151/Thursday, August 6,  1998/Rules and Regulations
Specifically, there are many secondary
materials that the EPA has explicitly
listed as hazardous (e.g., K-wastes at 40
CFR Part 261, Subpart D, under
"Organic Chemical Industry"). Many of
these wastes are highly-halogenated
residuals, and EPA studied each of these
waste streams at the time they were
listed and determined that their
management is easily capable of posing
significant risks unless done properly
(viz. with exceeding care, such as is
specified in the Subtitle C regulatory
standards). EPA believes that these
listed wastes are clearly distinct from
the petrochemical recovered oils
discussed here, and based on the
information EPA has received on the
recovered oils sent to refineries, these
listed wastes are not recycled in this
manner. To ensure that this
"adulteration" of the petrochemical
recovered oils (by mixing listed
hazardous wastes) would be prohibited
under today's final rule, EPA is limiting
the petrochemical recovered oil
exclusion to those recovered oils that
are hazardous only because they exhibit
the characteristic  of ignitability (as
defined in 40 CFR 261.21)  and/or
toxicity for benzene (40 CFR 261.24,
waste code 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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              Federal Register/Vol.  63, No. 151/Thursday, August 6,  1998/Rules and Regulations       42131
 associated petrochemical facilities
 whose "primary" SIC code is 2869
 (organic chemical manufacturing), but
 may also include SIC codes 2821, 2822,
 and 2865.
 B. Modeling Approaches and Risk
 Assessment
   Commenters provided extensive
 comments on various aspects of the
 modeling approaches and risk
 assessment used in the listing
 determinations. Many comments on the
 determinations were raised repeatedly
 for various wastes. Therefore, EPA
 discusses the most important risk and
 modeling issues below, and more
 specific comments important for
 individual wastes are addressed in
 Section V.C on Residual-Specific
 Comments. For complete responses to
 comments on these and other issues, see
 the Response to Comment documents
 for comments on the proposed rule and
 the NODA in the docket to today's rule.
 1. Sampling and Analysis of Refinery
 Wastes
 Use of the TCLP for Oily Wastes
   EPA characterized the wastes through
 an extensive effort of waste analysis,
 including analysis for constituents that
 leach out of the waste using the TCLP.
 In the TCLP. the waste is filtered to
 separate any liquid phase present, and
 the solids are then mixed with an
 aqueous solution in order to estimate
 the levels of the waste constituents that
 dissolve and separate into the liquid
 phase. The Agency's use of the TCLP as
 input to groundwater modeling for
 landfill disposal was challenged by
 several commenters as either
 underestimating or overestimating the
 leaching of constituents from the
 petroleum wastes studied, due to the oil
 and/or the multiple phases  present in
 the wastes. EPA has decided that the
 TCLP is appropriately used in this rule
 to characterize the amount of hazardous
 constituents potentially released from
 landfills through aqueous leaching. As
 discussed below, EPA found no need to
 change its risk assessment because of
 any failure of the TCLP due to potential
 problems that might arise from the
 presence of oil in some wastes.
  One commenter argued that the TCLP
 is very conservative because it assumes
 that the waste is disposed of in a
 municipal solid waste landfill, and
 disposal of potentially hazardous
 industrial wastes in a municipal landfill
 Is not a likely mismanagement scenario
 today. The commenter also argued that
 the TCLP is a water phase model, not a
multi-phase model (multi-phase
meaning wastes with  high oil content
  leading to release of nonaqueous as well
  as aqueous phases). The commenter
  claims that use of the TCLP to estimate
  risks from oil-bearing residuals (e.g.,
  CSO and crude oil storage tank
  sediment) would produce overestimates
  of potential risks.
   EPA does not agree that the TCLP
  overestimates leaching levels for these
  wastes. EPA did not assume in its
  quantitative risk assessment that oily
  liquids elute from the landfill to
  groundwater, because EPA's initial and
  subsequent analyses showed that oil in
  the wastes in question was unlikely to
  migrate from a landfill containing these
  wastes. Thus, EPA did not use the TCLP
  to predict movement of oily liquids.
  While the commenter is correct in
  stating that the TCLP procedure was
  designed, in part, to represent leaching
 from a municipal landfill, the industry
 reported significant volumes of
 residuals being disposed in precisely
 the type of landfill modeled by the
 TCLP. Specifically, EPA examined the
 data collected from the 3007
 Questionnaire and found that, in fact,
 petroleum refineries reported 146
 wastes that were sent to municipal
 landfills (see Additional Listing Support
 Analysis, 1998, in the docket for this
 rule).
   Other commenters felt that the TCLP
 may underestimate the leachability of
 constituents from the refinery wastes
 due to high oil content. These
 commenters pointed to an EPA report
 presented in past rulemakings (e.g., the
 listing of F037/F038 refinery wastes,
 November 2, 1990, 55 FR 46376), which
 indicated that the TCLP may
 underestimate leachate concentrations
 because of difficulties in the TCLP
 procedure associated with filtering oily
 wastes,  such that any constituents in the
 oily fraction in the waste are not
 properly evaluated. The commenters
 believed that EPA should use alternative
 procedures for oily waste, specifically
 the Oily Waste Extraction Procedure
 (OWEP) rather than the TCLP.
  EPA disagrees with these comments.
 First, the report cited by the
 commenters discusses difficulties in
 filtering multi-phasic oily wastes
 (Evaluation and Modification of Method
 1311 for Determining the Release
 Potential of Difficult-to-Filter Wastes,
 April 1990). Multi-phasic wastes are
 wastes with readily separable oil, solid,
 and possibly aqueous portions. EPA's
 lab results show that the wastes under
 study in this rule did not exhibit the
 filtration difficulties EPA has found
with other, more problematic, oily
wastes. The wastes studied were not
multiple phases,  heterogeneous, or
difficult to filter. While EPA measured
  levels of "total oil and grease" (TOG)
  that appeared high for some wastes (e.g.,
  up to 25 percent for crude oil storage
  tank sediment), the Agency stresses that
  the TOG method measures all
  extractable organic material, some of
  which are not likely to migrate out of
  the waste, such as waxes, greases, and
  other large molecular weight substances.
  The TOG method does not measure, in
  any sense, "free" oil (i.e., oil that might
  migrate from the waste as a separate
  phase). Furthermore, the EPA report
  cited by the commenter concluded that
  the TCLP method was adequate, even
  for some "oily" wastes, provided the
  wastes could be filtered. EPA did not
  encounter the types of problems
  described in previous listings during the
  present rulemaking.
   Second, the Agency does not believe
  that the use of the OWEP method is
  necessarily more appropriate for the
 wastes under consideration. The OWEP
 method was designed to measure the
 aqueous mobility of the metals (not
 organics) present in wastes, and uses a
 strong solvent to remove the organic
 phase prior to leaching with the
 aqueous leachate used in the TCLP. This
 may significantly alter the original
 sample matrix and affect the leaching
 results, and the Agency recognizes that
 this aggressive method may not be fully
 representative of possible leaching from
 a landfill. Despite these concerns, EPA
 performed additional analysis of
 archived samples using the OWEP to
 fully respond to the comment by
 examining any differences in metals
 mobility between the TCLP and the
 OWEP. The results of this analysis were
 presented in the NODA. Based on the
 results of this analysis, EPA found that
 metal leachate results were similar
 between the two tests. Therefore, EPA
 concluded that oil content (as measured
 by TOG)  does not appear to impact the
 mobility of metals in the wastes under
 study.
  Commenters on the NODA OWEP
 analysis argued that the results showed
 some increase in the mobility of several
 metals in the wastes, and argued
 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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42132      Federal Register/Vol.  63,  No. 151/Thursday, August  6,  1998/Rules and Regulations
data; only 14 out of 189 OWEP values
were greater than the original TCLP
concentrations. Moreover, 8 of the 14
higher OWEP values were associated
with residuals that contained less than
one percent oil and grease, thus
indicating oil and grease content is not
a significant factor. In fact, the
variability within each waste category is
greater than the variability between
OWEP and TCLP results. Thus, any
differences are more likely due to
sample composition variability rather
than the leaching technique.
Furthermore, if oil content were truly
interfering with the TCLP analysis, one
would expect the wastes with higher oil
content to show correspondingly greater
leaching with the OWEP, but there is no
such trend in the data (see NODA
Response to Comment Document, 1998,
Section I.C. 1, for more detailed
discussion of the OWEP data). While
there are limitations in the OWEP data,
the lack of any significant differences in
the data sets that can be compared
indicates that the use of the TCLP did
not underestimate the leaching of the
metals of concern.
  In response to the commenters'
concerns over the use of the TCLP for
measuring the mobility of organics in
these refinery wastes, EPA examined the
analytical data for the wastes under
study to see if oil content (as measured
by TOG) significantly affected the
leachability of a key organic constituent
(benzene) and presented the results in
the NODA. For the 27 samples for
which the leaching efficiency of
benzene could be calculated, the
average efficiency was 53 percent, i.e.,
53 percent of the total mass of benzene
contained in the residual was extracted
into the aqueous phase. This efficiency
is governed by the solubility of benzene
in water, as well as benzene's affinity
for the specific sample matrix. In any
case, while the leaching efficiency
varied somewhat from sample to
sample, the leaching rate was fairly
consistent regardless of whether the
waste contained higher or lower total
oil; the average leaching efficiency for
the six of the  27 samples which had
TOG above 1 percent (samples of crude
oil tank and CSO tank sediment) was
also 53 percent.
  Comments on the NODA suggested
using the average leaching efficiency (53
percent) for modeling the key
constituent benzene for all waste
samples analyzed by EPA,  regardless of
the actual TCLP results for each waste.
EPA disagrees with the suggestion to
use the simple average TCLP leaching
efficiency for all wastes studied,
because this would ignore important
waste-specific information. This
 approach would overestimate benzene
 levels for some waste and underestimate
 levels for others. Leaching results are
 dependent on the specific matrix, and
 EPA believes that the actual TCLP result
 is a better indicator of the potential
 mobility rather than an average for all
 wastes studied. The most important
 point to draw from EPA's evaluation of
 leaching efficiency for  benzene is that
 these results indicate the TCLP mobility
 of benzene is not greatly affected by the
 oil content in these particular wastes.
   Comments on the data presented in
 the NODA also argued  that EPA should
 evaluate TCLP leaching efficiency for
 constituents other than benzene, in
 particular for polycyclic aromatic
 hydrocarbons (PAHs). The commenters
 were concerned the oil content and free
 oil present in some wastes (CSO and
 crude oil storage tank sediment) would
 facilitate leaching of PAHs.
   EPA disagrees that these constituents,
 including benzene, will be more mobile
 due to free oil in the wastes under
 study, because the existing data show
 "free" oil is not present. EPA evaluated
 the leaching potential of benzene
 because this compound was found in
 various wastes and was a key
 constituent in the risk analyses due to
 its high toxicity and relative mobility.
 However, to respond to the comment,
 the Agency further evaluated the
 leaching potential of four additional
 constituents (xylenes, naphthalene,
 methyl phenol, and phenanthrene).
 These results indicate that there is no
 significant discernable  trend with
 respect to lower leaching values
 associated with higher oil and grease
 content (see data presented in Tables 5
 through 8 in the NODA Response to
 Comment Document, 1998, in the
 docket for today's notice). The
 constituents generally leached in similar
 proportions for all residual types. It is
 not possible to calculate extraction
 efficiencies for most PAHs because
 these constituents were generally not
 detected in the TCLP extract due to their
 very low solubility in water. In any case,
 EPA notes that the two  wastes with the
 higher measured TOG and PAH levels
 (CSO and crude oil storage tank
 sediments) are being listed as hazardous
waste, thus largely addressing this
 concern.
 Co-Solvency Effects
  Some commenters felt that the TCLP
 is inappropriate because it measures
only the movement of contaminants that
are dissolved in the liquid TCLP phase
into the groundwater, and thus fails to
consider the "co-solvency" effects of oil
and other compounds in the landfill.
Such effects/they argue, would facilitate
 release and transport of constituents
 beyond that predicted by the TCLP,
 because of organic phases separating
 from wastes. The commenters offered no
 way to account for this in the modeling,
 but indicated this would increase risks.
   While the commenters'  concerns are
 theoretically possible, EPA has no
 evidence that the co-solvency effect is
 significant in this case. To respond to
 the potential for co-solvency effects due
 to disposal of oily waste in landfills,
 EPA examined the only available data
 that provides any detailed
 characterization of potentially 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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              Federal Register/Vol. 63, No.  151/Thursday, August 6, 1998/Rules  and Regulations
                                                                     42133
 due to oil content of the wastes under
 study are not likely to be significant.
   One commenter also argued that other
 compounds in wastes other than those
 under study may lead to co-solvency
 effects in landfills and provided specific
 refinery examples of codisposal of
 individual waste streams in 1992 and
 Toxic Release Inventory (TRI) data to
 show potential co-solvency effects.
   EPA disagrees with the commenter's
 approach to using the TRI database to
 calculate co-solvency effects at
 refineries. First, EPA notes that the TRI
 reporting form specifies that "quantities
 reported on the form should . . . not
 reflect the total quantity of waste or
 constituents of the waste that are not
 subject to reporting requirements." In
 other words, the reported quantities are
 the mass loadings of the chemical
 components in land-disposed wastes
 and do not reflect the total quantity of
 the waste itself. Since these chemicals
 were managed in on-site Subtitle D
 landfills, they must have been
 components of wastes that did not
 exceed the TC criteria, i.e., in the part
 per billion (ppb) range. The ppb
 concentration range was confirmed by
 dividing the TRI loadings by the total
 waste quantity disposed in the on-site
 units Identified by the commenter in
 1992 as reported in the 3007
 Questionnaire. Therefore, since these
 "solvent-type" chemicals would be only
 a very small component of the waste,
 their co-solvency properties would be
 insignificant.
 Laboratory and Field Methods
  Two commenters claimed that EPA's
 lab and field methods were deficient.
 Specifically, they believed that EPA
 violated basic sampling protocols by
 allowing samples to air dry prior to
 collection. The commenter specifically
 pointed out examples of CSO sediment
 with lower volatile organic levels than
 In other samples and examples of
 unleaded tank sediment with lower
 benzene concentrations than in other
 samples. Based on these flaws, both the
 total and leachable levels of volatile
 organics (e.g., benzene) were
 underestimated by EPA, according to
 the commenter. One commenter also
 argued that, by compositing samples,
 EPA may have lost substantial amounts
 of volatile compounds and that the
 background document does not reveal
 whether careful procedures were
 followed.
  The commenter misunderstood EPA's
sampling descriptions which described
 the refineries' practices of air drying of
storage tanks generating the cited
wastes. This is a standard operating
procedure designed to comply with
 basic occupational safety practices, so
 that refinery personnel can enter tanks
 for cleaning and inspection. In no case
 did EPA allow for additional air drying.
 EPA believes that the samples are
 representative of residuals generated
 throughout the industry. In response to
 the commenter's  comparison of detected
 benzene levels among three gasoline
 tank samples, the Agency's entire
 sampling data set demonstrates a wide
 concentration range for several wastes.
 EPA maintains that this variability is
 normal, and the Agency is neither
 surprised nor concerned with the range
 of benzene levels detected in the waste
 samples mentioned by the commenter.
 Finally, concerning the low levels of
 benzene in the CSO samples, EPA
 disagrees with the commenter that
 benzene levels vary significantly across
 these samples. Data in the proposed rule
 background documents show that
 benzene was only detected  in one of
 four samples at a  level near the
 quantification limit. The levels in the
 other three samples were below the
 quantification limit. This means that the
 benzene levels were very low (at or
 below the quantification level), and thus
 the data do not in any sense show that
 there is significant variability.
   Field compositing procedures, when
 necessary, were performed for the 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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             Federal Register/Vol. 63, No.  151/Thursday, August 6. 1998/Rules and Regulations      42135
including waste volumes and the
potential environmental risks posed, are
unlikely to change significantly for the
industry as a whole. Therefore, EPA has
no reason to believe that 1992 was not
a representative year.
  The commenter also stated that waste
volumes modeled in the NODA risk
assessment were inappropriate because
the individual waste volumes modeled
for land treatment were typically much
smaller than modeled for landfilling,
even though there is no legal or
technical bar for the wastes to be
managed in either fashion during any
given year. The fact that refineries relied
upon land treatment less in 1992 is not
necessarily indicative of future
practices.
  In response to the commenter's
concern regarding the transferability of
wastes between land treatment and
landfilling. EPA notes that a refinery
may choose different disposal practices
based on a variety of considerations,
two of which are particularly important.
First, the refinery must consider the
waste's characteristics. Wastes with
higher liquid content are more likely to
be land treated due to the moisture
requirements of the land treatment
process, while dewatered wastes are
more likely to be landfilled due to cost
and waste volume constraints (e.g.,
more waste costs more), and liquid
content. This is supported by the data
collected in the 3007 Questionnaire,
which show that wastes sent to land
treatment contain on average higher
TOG and water than wastes sent to
landfills. The average oil and water
content reported for landfilled wastes
were 5.9 percent and 7.5 percent
respectively, compared to average oil
and water levels of 14 percent and 17
percent for land treated wastes. The
second Important consideration
regarding the transferability of wastes
between landfills and LTUs is
availability of the two disposal methods
for each refinery. Certainly, on-site
Subtitle D LTUs are rather limited and
may not be available to many refineries.
As described in  information EPA
provided in the NODA, EPA's database
showed only one facility with both 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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Federal  Register/Vol. 63, No.  151/Thursday, August 6,  1998/Rules and Regulations
  treated well location as one of the
  variable parameters). EPA's revised
  high-end and Monte Carlo analyses did
  not change significantly (see Table IV-
  2), even when using the larger volume
  inputs. This is consistent with the
  commenter's initial results, as noted
  above. Furthermore, EPA notes that the
  final listing decisions would tend to
  lower any codisposal risk, because of
  EPA's final listing of two other wastes
  as hazardous, crude oil, and CSO tank
  sediment. Both contributed leachable
  benzene to the codisposal analysis
  performed by EPA (and the commenter),
  thus with these wastes  removed from
  any possible codisposal with the
  remaining wastes, any risks from
  codisposal should be lower than
  estimated with them included.
   Finally, EPA questions how relevant
  such a codisposal analysis would be,
  even if it could be done to the
  commenter's satisfaction. EPA is not
  attempting to list landfills that may
  contain a variety of wastes, but rather
  the Agency is trying to determine
  whether an individual waste merits
  listing, based on the incremental risk
  posed by a specific waste. To properly
  factor in all wastes that are in each
  landfill would require extensive 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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             Federal Register/Vol. 63. No.  151/Thursday. August 6, 1998/Rules and Regulations      42137
end risks for benzene remain of concern.
To explain the second point, EPA notes
that the TC-capping has no effect on
hydrotreating catalyst because none of
the samples exceed the TC level for
arsenic. For hydrorefining catalysts,
which did have some values above the
TC level, even if the lower average
arsenic input levels assumed by the
commenters were used, the arsenic risks
would remain above 1E-4. (Note that
the risk results are not very sensitive to
the TCLP input level for arsenic under
the conditions modeled, because this
chemical moves very slowly in
groundwater, causing the maximum
receptor well concentration to be
relatively insensitive to the starting
leaching concentration.)
  Another commenter objected to
capping waste samples at the TC level,
particularly for benzene, arguing that
this Implies the toxicity characteristic
may be an appropriate alternative to
listing the wastes. The commenter
stated the TC-capped modeling and the
underlying implications are wrong
because (1) the TCLP is unreliable for
oily wastes. (2) a generator may apply
"knowledge" in lieu of testing, (3)
generators may render inaccurate
determinations, and (4) the
characteristic does not consider the high
PAH content of some wastes.
  EPA generally agrees that for the
wastes at issue, crude oil tank sediment
and spent hydrotreating/hydrorefining
catalysts, the TC does not provide
sufficient regulatory control for the
various reasons stated in the residual
specific discussions in Sections V.C. As
shown by the TC-capped modeling
analysis, the risk levels remain at levels
of concern, whether or not EPA assumes
wastes exceeding the TC levels would
be managed as hazardous. Furthermore,
as discussed later in this section on the
use of the TC as an alternative to listing.
EPA believes that listing these wastes is
supported by other factors.
   EPA does not agree with the
commenter's claim that the TCLP is
unreliable for the wastes evaluated in
today's rule (see discussion at the
beginning of Section V.B.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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 42138      Federal  Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations
 specifically with the finalized
 carbamates listing and the previous
 petroleum listing. The commenter noted
 that, for the carbamates listing rule
 (February 9,  1995; 60 FR 7825), EPA
 computed landfill waste volumes
 according to the quantity of wastes that
 could be landfilled, not just the quantity
 that happened to be landfilled in the
 reporting year. The commenter provided
 examples in the current listing proposal
 where waste volumes for land treatment
 exceeded the volumes for landfilling,
 and argued that the volumes used in the
 landfilling assessment were therefore
 too small. The commenter also-noted
 that EPA considered the codisposal of
 solvents and other oily wastes in
 petroleum refining waste management
 units as part of its 1990 listing
 determination for refinery wastewater
 treatment sludges, F037/F038
 (November 2, 1990; 55 FR 46354).
   As a general response, EPA notes that
 the commenter did not take into
 consideration the evolving nature of the
 Agency's risk assessment process and
 policies. EPA's risk methodologies have
 progressed over the years, and the
 modeling tools have been refined. The
 earlier rule cited by the commenter, the
 listing decision for treatment sludges
 (F037/38), did not, in fact, rely on
 modeling, but rather used a more
 simplistic approach based on a
 comparison of waste constituent
 concentrations to health-based levels.
 Given the modeling tools currently
 available, EPA no longer believes such
 an approach is appropriate, because it
 does  not take into account the potential
 for waste constituents to be released
 from  the waste units, their fate and
 transport in environmental media, and
 the levels to which receptors may
 ultimately be exposed. In today's rule,
 EPA has used various models to
 estimate the release and transport of the
 toxic chemicals of concern, and the
 Agency believes such an approach is
 more useful in projecting the potential
 risk to exposed individuals.
  While EPA did perform modeling as
 part of its risk assessment in the
 carbamates listing cited by the
 commenter, this was essentially the first
 time the Agency attempted to use such
 modeling to support listing decisions.
 Thus, EPA made various simplifying
 assumptions. For example, EPA created
 a hypothetical off-site landfill for
 modeling by assuming that all of the
 carbamate wastes under examination
would be placed in the same off-site
 unit. Such a simplifying assumption
would be unrealistic in the current
rulemaking, given that the petroleum
refining industry consisted of 185
facilities in 1992, and that these
 facilities were widely distributed
 throughout the country (for comparison,
 the carbamates industry comprised 23
 facilities). To use the same approach as
 was used in the carbamates rule, i.e., to
 assume disposal of all wastes in one
 landfill, does not appear reasonable in
 the current rulemaking.
   Therefore, EPA believes that the
 approach used in today's rule is a
 reasonable progression of EPA policy.
 For responses to the specific comments
 related to the use of volumes reported
 for land treatment and landfills, see the
 discussion on Waste Management
 Assumptions, which appears earlier in
 this section. Elsewhere in this rule EPA
 also responds to comments related to
 codisposal (Section V.B.3) and 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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             Federal Register/Vol.  63,  No. 151/Thursday, August 6, 1998/Rules and Regulations
                                                                     42139
of Environmental Quality, 1995, in the
docket for today's rule, which
concluded that population risks were
low because the number of people
exposed to groundwater contamination
Is small. The Agency has stated that the
key objective of the CERCLA National
Contingency Plan (NCP) is to protect
individuals at contaminated sites (see
55 FR at 8710), and rejected using
population risk as the point of departure
for setting clean-up levels (see 55 FR at
8718). In addition, the CERCLA
regulations (see 40 CFR
300.430(e)(2)(i)(A)(2). and 55 FR at
8848) direct EPA to establish
preliminary remediation goals for
carcinogens based on  "cancer risks to an
individual."
  Population risks arising from
contaminated groundwater due to waste
management are expected to be low,
because often only a limited number of
domestic wells will be near these
facilities, and groundwater moves very
slowly. EPA's Guidance for Risk
Characterization (USEPA Science Policy
Council, February, 1995) states that,
when small populations are exposed,
population risk estimates may be very
small, however, "in such situations,
individual risk estimates will usually be
a more meaningful parameter for
decision-makers." Finally, it is
Important to note that the Agency is also
concerned about the loss of the
groundwater resource for the future,
which could be of particular concern if
land use patterns were to change and
there were a future demand for the
resource. In this case, beneficial uses
would be precluded or, if the potential
users were unaware of the
contamination, risks could occur.
Additive Risks From Multiple Units
  One commenter stated that risks
posed through different groundwater
and nongroundwater pathways should
be summed when the potential for
simultaneous exposure exists, but that
EPA Instead assumed that groundwater
exposures were occurring after the
nongroundwater exposures. The
commenter noted that the time of travel
for benzene and perhaps other mobile
constituents in EPA's groundwater risk
assessment is 17 years or less,  clearly
within the period of time
nongroundwater exposures may occur.
  EPA does not agree with the
commenter's suggestion that
groundwater and nongroundwater risks
should be combined. This is because,  as
discussed previously, EPA's analysis
showed that groundwater risks are only
potentially associated  with landfills,
and nongroundwater risks are only
potentially associated with LTUs.
Therefore, the only potential for the
combination of groundwater and
nongroundwater risks to be significant,
would be for a situation in which a
landfill was located in close proximity
to a LTU. EPA examined the
information provided in the 3007
Questionnaire for any sites where
landfills and LTUs are co-located, and
presented the results in the April 1997
NODA. This analysis showed only one
facility at which a nonhazardous LTU
and landfill were both located at the
same site, and even in this one case the
units are approximately 5,000 feet apart,
making significant simultaneous
exposure unlikely.
6. Specific Groundwater Modeling
Issues
Active Life of Landfills
  Two commenters disputed EPA's
assumption of 20 years for the active life
of landfills to estimate the total volume
of a specific waste placed in a landfill,
and argued that the report and  data for
off-site landfills used by EPA to make
this assumption (National Survey of
Solid Waste (Municipal) Landfill
Facilities, EPA/530-SW88-034,
September 1988) actually demonstrate
an active life of at least 40 years. The
commenters believed that this is an
important difference, because this
would increase the total waste volume
used as input to the groundwater
models and result in increased risks.
  In response, EPA reexamined the
report cited and concluded that the
assumed active life of 20 years  may be
an underestimate. Using the data in the
report, however, the Agency calculated
that an average active life of 30 years is
more  appropriate for us in the risk
assessment, rather than the 40-year  life
suggested by the commenter. EPA
believes that the commenter simply
summed the reported average age of the
landfills (19 years) and the average
remaining life (21 years) to obtain 40
years. However, this calculation is not
appropriate, because it would
overestimate the active life for existing
units. This is because the  average age in
the report included closed units, not
only existing units, and thus does not
reflect the average life for those units
still in operation. Likewise,  the average
remaining life given in the report
included planned units, as well as
existing units, and this also  would tend
to inappropriately increase the  apparent
active life for existing units. Correcting
for this by eliminating closed and
planned units, EPA calculated a 30-year
active life, based on corrected values of
16.5 years for the average  age of active
units, and 13.3 years for the average
 remaining life of active units (see
 Additional Listing Support Analysis,
 1998, in the docket to today's rule for
 full calculations). EPA has used the
 revised active life (and correspondingly
 larger volumes) to calculate the new risk
 numbers given in Table IV-1.
  The same commenters also argued
 that EPA's use of a 20-year life for 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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Federal Register/Vol.  63,  No.  151/Thursday,  August  6,  1998/Rules  and Regulations
 sediments from storage tanks, are
 generated only intermittently, since
 facilities clean out crude oil storage
 tanks about every 5-10 years. While
 refineries may have many such tanks of
 different ages, EPA estimates that a
 typical refinery may generate such a
 clean out waste about every 1.5 3 years.
 In effect, a typical facility may not
 dispose of the tank sediments in on-site
 units every year, but approximately
 every 2 years. Therefore, even assuming
 arguendo that the on-site active life
 might be about 40 years, as the
 commenter suggested,  if tank sediment
 is only generated every two years or so,
 the total volume of a specific waste in
 the unit may more closely resemble 20
 years worth. EPA notes that, unlike 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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             Federal Register/Vol. 63, No. 151/Thursday, August 6,  1998/Rules and Regulations       42141
toluene, ethylbenzene, and xylenes, also
known as BTEX). Commenters believed
that the studies are relevant because the
levels of BTEX compounds in the
wastes' leachate are comparable to
levels measured in the studies.
Commenters argued, although the
studies do not follow the Toxic
Substances Control Act (TSCA) protocol
developed by EPA to document
biodegradation, the results should be
viewed as comparable by EPA because
they are presented in peer-reviewed
journals.
  EPA conducted an evaluation of all
submitted data and the documented
anaerobic biodegradation studies of
benzene suggest that in-situ anaerobic
biodegradation of benzene rates are
strongly dependent on site-specific
conditions (e.g., availability of
chemicals to act as electron acceptors,
availability of nutrients, temperature).
The necessary conditions for anaerobic
benzene biodegradation are poorly
understood, and the absence of
biodegradation can be caused by the
presence of competing substrates, such
as toluene, xylenes and ethylbenzene, as
well as Inadequate geochemical
conditions and lack of proper electron
acceptors (e.g., nitrate, sulfate, iron).
Therefore, because of the lack of
information to correlate site-specific
controlling factors to biodegradation,
the limited number of field data, and the
field and laboratory evidence that
benzene tends to be recalcitrant to
anaerobic biodegradation,
biodegradation of benzene was not
considered directly in the groundwater
analysis. However, EPA did complete
preliminary modeling for the proposed
rule that incorporated assumed rates
into the analysis to see what impact this
might have on receptor well
concentrations (see the Petroleum
Refining Listing Determination
Background Document for Ground
Water Pathway Analysis, 1995, in the
docket for details). When assuming
degradations rate of 0.00001 and 0.0001
per day, the well concentrations for all
wastes examined decreased by
approximately 2 percent and 44 percent,
respectively. In addition, there may be
a degradation "lag time," which is the
time period between the introduction of
a constituent into the subsurface and the
start of actual biodegradation. This time
reflects the period subsurface microbial
populations may need to acclimatize to
the organic substrate before degradation
may occur. Thus, if the lag time were 10
years, the decrease in the well
concentration due to biodegradation
assuming the higher decay rate of
0.0001 day, would be lowered to only
22 percent. These results suggest that
using a conservative degradation rate
would not significantly alter the risk
results for benzene. For example, even
assuming biodegradation of benzene
lowered the high-end risks for this
constituent by about 50 percent, the
risks would remain above 1E-5 for the
hydrotreating/hydrorefining catalysts
and crude oil storage tank sediment.
  EPA plans to study further the
modeling of anaerobic biodegradation in
the saturated zone of hazardous
constituents from hazardous wastes and
the physical conditions under which
anaerobic degradation occurs where the
Agency has  developed sufficient data to
permit such an analysis.

Location of Receptor Well
  The distance from the landfill to the
receptor well is an important parameter
in the groundwater model, because the
projected concentrations of constituents
at the well, and the corresponding risks,
increase as the well location is moved
closer. EPA received comments from six
commenters on the value used by the
Agency for the distance to the nearest
well from a landfill. One of the
commenters felt that EPA should have
used a smaller distance,  while the
remaining commenters felt EPA's value
was too small.
  One commenter believed EPA should
have used the distance to the nearest
well for off-site landfills that the Agency
used in past listings, (i.e., 48 meters
used in the dye and pigment proposed
listing determination.) This value was
less than half the value used for the
petroleum listing determination. The
commenter suggested that EPA perform
the two parameter high-end analyses
using the 48-meter distance to the
receptor well.
  In response, EPA notes that in its
Monte Carlo analysis the Agency used
the full distribution of available receptor
well distances, including wells at
smaller distances. The risk results for
wastes of concern were presented in the
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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             Federal Register/Vol. 63, No.  151/Thursday, August 6.  1998/Rules  and Regulations      42143
wells In the Monte Carlo analysis is
most obvious when comparing the
constituent concentrations at the well
calculated to be the 50th percentile
values, otherwise known as the "central
tendency." By restricting the well
location to the plume, the 50th
percentile concentrations are over
several orders of magnitude greater than
those predicted when the well location
is allowed to be outside the plume. (See
Additional Groundwater Pathway
Analysis, 1998, section 5.3.1, in the
docket for this rule for more details.)
  EPA would like to use this occasion
to make some observations about central
tendency estimates. There  is a common
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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  42146      Federal Register/Vol. 63, No. 151/Thursday. August 6, 1998/Rules and Regulations
  were not detected, the presence of these
  carcinogenic PAHs in the waste present
  some potential for additional risk,
  especially if transport is facilitated by
  existing contamination. Therefore,
  while EPA is not using the presence of
  carcinogenic PAHs as the sole or
  overriding factor in listing any waste
  (except for CSO sediment which clearly
  exhibited high risks from
  nongroundwater pathways due to
  PAHs), the presence or absence of
  carcinogenic PAHs was a contributing
  factor EPA considered in decisions to
  list or not list certain wastes (i.e., crude
  oil storage tank sediment, unleaded
  gasoline tank sediment, and HF
  alkylation sludge. However, EPA would
  not list solely on the undetermined
  potential for groundwater risks from
  PAHs given their relative insolubility,
  and because facilitated transport by
  LNAPLs is a complex hypothesis that
  EPA did not find likely for these
  particular wastes.

  7. Specific Nongroundwater Modeling
  Issues

  Uncertainty Analyses in Indirect
  Exposure Assessment
   For both the proposed rule and the
  NODA, estimates of non-groundwater
  pathway risks were derived using a
  deterministic risk assessment method,
 which produces point estimates of risk
 using single values for input parameters.
 In this method, input parameters are
 varied between the central tendency
 value (50th percentile) and the high-end
 (90th percentile)  values. The point
 estimate in which all variables are set at
 central tendency is assumed to be the
 central tendency risk estimate, and the
 highest risk estimate for any
 combination of double high-end
 variables (with all other variables set at
 central tendency) is assumed to be the
 high-end  estimate of risk. The high-end
 risk estimate is presumed by the Agency
 to be a plausible estimate of individual
 risk for those persons at the upper end
 of the risk distribution. The intent of
 these descriptors is to convey estimates
 of exposure in the upper end of the
 distribution (i.e., above the 90th
 percentile), while avoiding estimates
 that are beyond the true distribution.
 The high-end risk as estimated in the
 proposed rule and NODA is the highest
 risk estimate for any combination of
 double high-end variables defined as
 those two variables  modeled that, when
set at 90th percentile values, pose the
highest risk of all possible combinations
of any two variables. Using this
methodology, the point estimate in
which all variables are set at central
tendency (50th percentile) is assumed to
  be the central tendency risk estimate,
  and the highest risk estimate for any
  combination of double high-end
  variables is assumed to be the high-end
  estimate of risk (above the 90th
  percentile; see Agency guidance in the
  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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             Federal Register/Vol. 63, No.  151/Thursday, August 6, 1998/Rules and  Regulations      42153
entire industry could be listed based on
a single estimated concentration in one
sample.
  EPA does not agree that any
uncertainty in the analysis resulted in
an overestimation of risk. First, EPA
notes that even constituents assigned a
"J" value were reliably detected in the
waste, although the precise level has
increasing uncertainty as the
measurement approaches the detection
limit. More importantly, contrary to the
commenter's assertion, the CSO listing
determination did not hinge on a single
estimated value, but rather considered
all of the constituents that showed risk.
Several highly toxic PAHs detected in
CSO tank sediment (BaP,
benz(a)anthracene,
dibenz(a,h)anthracene, 7,12-DBMA)
were measured at levels above the
quantification limits, and these
constituents in the waste presented
substantial risks (i.e., > 1E-5) without
any consideration of "J" values.
  Commenters argued that EPA did not
follow its own guidance in applying
listing factors to CSO sediment, and that
a description as to how each of the
listing factors weighs for or against
listing should be provided.
  In response, EPA first notes that all
the factors In 40 CFR 261.11 (a) (3) are
considered in this listing decision. The
commenter has not specifically
Identified any §261.11(a)(3) factors that
were not considered. Furthermore, EPA
disagrees with the commenter and notes
that its revised risk assessment fully
supports the listing determination for
CSO sediment and is in accordance with
applicable guidance. The guidance the
commenter cites is contained in the
December 22. 1994 proposed rule for the
dye and pigment listings, in which EPA
discussed the use of risk levels in
making listing decisions (59 FR at
66075-66077). EPA's decision to list
this waste is consistent with the
guidance, i.e., the risks associated with
this residual are well above the 1E-5
listing benchmark.
  EPA received comments that the
Agency overstated the potential risks
from CSO sediment that is land treated,
and  that there are no documented
damage cases involving migration of
PAH contaminated soils from land
treatment of CSO sediments.
  In response, EPA points  out that it
attempted to identify damage cases
wherever possible to support its listing
determinations (See Assessment of
Risks from the Management of
Petroleum Refining Wastes: Background
Document. October 1995, in the docket).
While EPA has Identified damage cases
resulting from releases at petroleum
refineries, it was not possible to tie the
releases directly to CSO sediments (or
other wastes under review in this rule)
in LTUs due to (1) the management of
multiple residuals in LTUs, (2) the
infrequent generation of CSO sediments,
and (3) the lack of a marker contaminant
unique to CSO sediments that could be
linked to documented releases. The lack
of empirical evidence is not surprising,
but does not prove that releases are not
possible or even unlikely. For this
reason, EPA did not rely heavily on
damage cases that directly linked
releases to the specific residuals of
concern. Instead EPA's weight of
evidence considerations emphasized its
data collection efforts (i.e., the 3007
Questionnaire and field study) that
provided EPA with the raw material to
evaluate a wide variety of measures of
risk (e.g., modeling of numerous
pathways, groundwater modeling,
hazardous waste characteristics). By
using information beyond proven
damage cases, EPA hopes to prevent
releases that lead to environmental
damage.
  Several commenters requested that
EPA clarify the definition of the K170
listing for CSO waste. Their questions
relate to whether the listing: (1) applies
just to CSO separately stored/managed
or also to all mixtures of CSO and other
fuels, (2) includes 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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  42154       Federal Register/Vol. 63, No.  151/Thursday, August 6, 1998/Rules and  Regulations
  contain particulates that would have
  settled out as tank sediment. However,
  the Agency did not address such spills
  in the proposed rule and, in response to
  this comment, is clarifying that it does
  not currently intend to regulate CSO
  spills as K170. Spills of K170 waste, of
  course, would be regulated.
    One commenter noted that EPA
  should consider an exemption from
  designation as hazardous for CSO
  sludges that are de-oiled, and claimed
  that de-oiled solids may be managed
  similarly to FCC catalyst and fines units
  because they are very similar in
  composition (i.e., the wastes would be
  landfilled and should not present a
  risk). The commenter argued that
  providing a conditional exemption for
  de-oiled sludges, perhaps with separate
  Land Disposal Restrictions (LDR)
  treatment standards, would be
  environmentally sound, and would
  tailor treatment to the nature of the
  waste stream.
   EPA did consider whether the data
  available allow the Agency to
  distinguish between CSO sediment (as
 well as crude oil storage tank sediment)
 before and after de-oiling, especially for
 use in risk assessment. However, the
 Agency concluded that distinguishing
 between the two forms of CSO sediment
 was inappropriate based on the data
 available (see Listing Background
 Document, 1995, pages 46 and 29).
 Therefore, EPA disagrees with the
 commenter's suggestion to only list
 "non-deoiled" sediment because: (1)
 Available data do not provide a
 sufficient comparison differentiation of
 risks between oily and de-oiled CSO
 tank sludges, (2) the deoiling process
 may not remove the PAHs of concern,
 and (3) crafting a definition of de-oiled
 sludges would be difficult and may
 cause enforcement problems.
 Furthermore, as shown by the high PAH
 content in CSO sediment, the solids
 appear to be more than just spent FCC
 catalyst. EPA believes the exclusion for
 recycled oil-bearing residuals that EPA
 is promulgating in today's rule is a more
 effective approach to encouraging the
 recycling of the material.

 3. Catalyst From Hydrotreating and
 Hydrorefining
 Summary
  EPA is listing as hazardous spent
 hydrotreating and hydrorefining
 catalysts from refining operations. This
 waste stream meets the criteria set out
 at 40 CFR 261.11 (a) (3) for listing a waste
as hazardous, because it may pose a
substantial or potential hazard to human.
health or the environment. The Agency
identified substantial risks to consumers
  of groundwater associated with releases
  from on-site and off-site Subtitle D
  landfilling due to benzene and arsenic,
  which EPA has decided will not be
  adequately regulated under the TC. The
  revised groundwater risk assessment
  results are summarized in Table IV-2. In
  addition, these materials also present a
  hazard because of their pyrophoric and
  self-heating properties.
  Discussion
    The Agency proposed to list spent
  hydrotreating and hydrorefining
  catalysts from refining operations due to
  high-end cancer risks of up to 1E-5 and
  6E-5 respectively arising from releases
  of benzene and arsenic to groundwater
  from landfill disposal. (See 60 FR at
  57766-57768). In addition, as the
  Agency discussed in the proposed
  notice, these materials also present a
  hazard because of their potential to
  spontaneously ignite when removed
  from the processing unit and exposed to
  air.
   The revised groundwater risks in the
  NODA increased substantially for these
  scenarios when compared to the
  proposed rule. The high-end risks for
  hydrotreating catalyst were up to 7E-5
  for off-site landfills and up to  8E-5 for
  on-site landfills. For hydrorefining
  catalyst, the high-end risks were up to
  7E-4 for off-site landfills and 4E-4 for
 on-site landfills. The TC-capping
 assessment in the NODA resulted in
 some decrease in risks from benzene
 compared to the proposal, while the
 arsenic risks showed little or no
 decrease. Thus the maximum high-end
 risks were not materially affected. In
 addition, EPA provided a Monte Carlo
 analysis that yielded somewhat lower
 groundwater risks; however, as noted in
 an earlier section, EPA subsequently
 revised the Monte Carlo analysis.
   As a result of the revised risk analysis
 completed in response to comments on
 the NODA, the off-site landfill
 groundwater risks increased further. As
 shown in Table IV-2, the revised off-site
 risks for hydrotreating catalyst are 1E-
 4 for benzene and 8E-5 for arsenic; the
 TC-capped results for this waste showed
 lower risk for benzene (3E-5), but
 arsenic was unchanged. Similarly, the
 revised off-site risks for hydrorefining
 catalyst are 7E-5 for benzene and 6E-4
 for arsenic, and the TC-capped analyses
 for these wastes lowered 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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             Federal Register/Vol. 63, No. 151/Thursday,  August 6, 1998/Rules and Regulations      42155
better reflects the Agency's intentions,
and Is modifying the exemption
language in 40 CFR 262.3(c)(2)(ii)(E) and
the listing descriptions for K171 and
K171 to reflect this change.
  In the proposed rule EPA also noted
that the terms "hydrotreating" and
"hydrorefining" are somewhat loosely
used within the industry. Several
commenters requested a more concise
definition of the terms to clarify the
definitions of hydrotreating,
hydrorefining, and hydrocracking
processes. EPA provides further
discussion of the definitions of these
wastes in the following section on
residual-specific comments. EPA is
modifying the final regulatory language
slightly to clarify this issue, as noted in
Section IV.B.
Specific Comments
Definition of Hydrotreating and
Hydrorefining Catalysts
  EPA examined three types of
hydroprocessing catalysts identified in
the 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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 42156
Federal Register/Vol. 63,  No. 151/Thursday, August 6, 1998/Rules and Regulations
 disagreement among commenters from
 the petroleum industry and catalyst
 reclaimers regarding the classification of
 guard beds. 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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             Federal Register/Vol. 63, No. 151/Thursday, August 6, 1998/Rules and Regulations       42157
hydrotreating catalyst disposal in
landfills range from 2E-5 to 4E-6 from
exposure to benzene (See 62 FR at
16752), and that these risk levels are
within EPA's discretionary range for not
listing. One commenter stated that EPA
appropriately reported the risks from
arsenic as not applicable because spent
catalysts containing arsenic at levels
sufficient to pose such risks are already
covered by the TC Rule and regulated
under RCRA. The commenter also
argued that the risks found in the Monte
Carlo analysis for hydrotreating catalyst
were only 4E-6 at the 95th percentile,
and, thus, support a no-list decision.
  EPA disagrees with the commenters.
First, the commenters are mistaken in
suggesting that the arsenic risks are not
applicable for the TC-capped analysis.
On the contrary, the risks do not change
under this assumption because none of
the samples exceeded the TC level for
arsenic. As such, under the TC-capped
analysis the arsenic risks would remain
the same as the uncapped analysis. As
noted In the Discussion section above,
EPA continues to believe that the risks
from the high-end analysis fully support
listing this waste, and the somewhat
higher revised groundwater risks further
support EPA's decision. Even for the
TC-capped results, the revised arsenic
high-end risks (8E-5) and Monte Carlo
results (2E-5  at the 95th percentile), as
well as the high-end  risk for benzene
(3E-5) clearly exceed the listing
benchmark of 1E-5.
  Commenters also argued that for
hydrorefining wastes, TC-capped
groundwater risks from benzene range
from 2E-5 to  6E-6 (See 62 FR at 16752),
and these risk levels  are within EPA's
discretionary range for listing (See 59
FR at 66073). While the comments
conceded that the TC-capped risk for
arsenic in this waste  are in the range
EPA could consider for listing (4E-4 to
1E-4), the fact that the peak arsenic
concentrations may not reach the
receptor well until 3400 to 8400 years
after release, indicates that this is not
significant. The commenters also noted
that the risks from benzene and arsenic
cannot be added because the time for
peak concentrations at the well is much
shorter for benzene (13-50 years). The
commenters argued that EPA should
base its decision on the lower Monte
Carlo results (TC-capped risk of 6 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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             Federal Register/Vol. 63, No.  151/Thursday,  August  6,  1998/Rules and Regulations       42159
not subject to regulation under RCRA
and are therefore not subject to any
listing determination. In addition, the
proposal noted that characteristically
hazardous spent materials that are
reclaimed prior to reuse would still be
hazardous wastes subject to pertinent
management requirements. Therefore, as
noted in the proposal and confirmed in
this final decision, there is no reason to
cover this portion of the waste stream in
the listing.
  In addition, 17 percent of the spent
liquid treating caustics are used as
valuable commercial feedstocks in the
manufacture of cresylic or naphthenic
acids. Accordingly, EPA in today's final
rule, for reasons stated in the preamble
to the proposed rule at 60 FR 57769-
57770, is amending 40 CFR 261.4(a)(19)
to clarify that spent caustics used in this
manner are not solid wastes and,
therefore, should not be subject to
listing.
  For the 29 percent of the wastes sent
to wastewater treatment systems,  EPA's
analysis in the proposed rule found that
risks from this practice are unlikely. As
noted In the proposed rule, risks from
such treatment are unlikely to be  of
concern because: (1) Treatment is
already regulated under Federal water
(NPDES) and air (benzene National
Emissions Standards for Hazardous Air
Pollutants (NESHAP), Maximum Air
Control Technology (MACT) standards)
programs; (2) sludges generated from
wastewater treatment are already
regulated as hazardous waste  (i.e., K048,
K051, F037, F038); (3) volumes of the
discharged residuals under evaluation
are relatively small in comparison to the
volumes typically treated in wastewater
systems; and (4) the wastewater
treatment systems are designed to treat
refinery wastes effectively (see
discussion below).
  The Agency concluded that there
were no potential risk pathways that
needed to be modeled except air
exposure pathways from open tank
storage. For open tank storage, the
Agency's bounding risk assessment
estimates resulted  in no significant risks
(see 60 FR at 57770). In addition, this
waste consistently exhibits the
characteristic of corrosivity (and often
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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Federal Register/Vol. 63. No. 151/Thursday, August 6, 1998/Rules and Regulations
  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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             Federal Register /Vol. 63. No.  151/Thursday. August 6, 1998/Rules and Regulations
                                                                    42161
off-specification products and fines in
surface impoundments as an "interim"
management method, and therefore the
Agency should model this management.
In response, EPA finds only one
respondent, not several, that reported
managing off-specification product and
fines in a "surface impoundment" in
1992. This "surface impoundment" acts
as a drilling water clarifier. All delayed
coking units recycle their drilling water.
and to do so, any entrained fines in the
drilling water must be recovered.
Typically, the concrete coke storage pad
Is sloped so that drilling water drains to
one end and proceeds through a series
of baffles that separate out the coke
fines. This is the type of "surface
impoundment" the refinery identified.
Thus it is not a typical surface
Impoundment, but rather an integral
part of the decoking process. These are
lined (concrete) drilling water collection
and recycle systems, confined within
the coke battery, and are unlikely to
pose significant risk.
  Comments related to the aspects of
the groundwater modeling are discussed
earlier in this notice (see Section V.B.6);
however, EPA makes several points for
this specific wastes. Regarding the
commenters" criticism of EPA's use of
TCLP results as input values to the
landfill groundwater modeling for this
material because it is "oily," the Agency
points out that off-specification product
and fines are generally not oily. The
Agency conducted total oil and grease
analyses on four samples and the
average level of oil and grease
 (measured as Total Oil and Grease, i.e.,
not truly "free" oil) was two percent
 (three samples were below one percent).
Furthermore, the data from the 3007
 Questionnaire show that the typical
 material has relatively low oil content
 (90th percentile value was five percent).
 Therefore. EPA believes that the use of
 the TCLP was valid.
   With regard to commenter concern
 over free-phase flow of contaminants
 from off-specification product and fines
 due to oil content, it is particularly
 Important to note that none of the six
 off-specification product and fines from
 thermal processes samples exhibited
 multi-phase behavior, and that the
 measured oil content was low, as noted
 above.
   The commenter went on to state that
 a risk assessment EPA conducted for
 this waste as part of the 1995 proposal
 showed that risks associated with air
 releases from uncovered landfills made
 up of coke fines exceeded 1E-3 for
 home gardeners, subsistence farmers,
 and subsistence fishers, and a high risk
 to subsistence fishers from mercury
 exposure was also predicted. The
commenter also noted that the NODA
risk modeling for disposal in LTUs was
not a meaningful surrogate for
evaluating the risks posed by pile
storage, because the annual volumes
modeled were small (high-end volumes
of 21-34 MT).
  The commenter is attempting to use a
bounding analysis EPA undertook for
nongroundwater risks for coke fines
disposed in landfills as an indication
that air releases from piles containing
this material would present similar
risks. In response, EPA first notes that
bounding estimates are used as an
initial screening estimate that
overestimates the exposure or dose for
the purpose of screening out exposures
of little concern. The purpose of the
bounding analysis is simply to
determine what pathways and scenarios
require further evaluation and does not
represent an assessment of risks. The
bounding analysis included worst-case
assumptions (no cover or dust
suppression, highest constituent levels,
largest waste volumes and landfill area,
worst climate, etc). Furthermore, the
levels near 1E-3 arose from indirect
pathways (ingestion of beef, dairy, fish,
and plant products); the direct pathway
of soil ingestion, even in the bounding
analysis, was on the order of 1E-6. Most
importantly, the biotransfer factors used
in the bounding analysis for beef, dairy,
and plant indirect paths have been
determined to overestimate risks by at
least two orders of magnitude; likewise
the apparent problem from mercury also
was traced to an error in units for the
bioaccumulation factor used. Thus, EPA
believes that the bounding analysis was
flawed and grossly overestimated risks.
   EPA notes that the subsequent 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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Federal  Register/Vol. 63. No.  151/Thursday, August 6.  1998/Rules and Regulations
   points out that no refineries reported
   use of unleaded gasoline tank sediment
   as landfill cover or in road spreading.
   The Agency has no data supporting
   these management scenarios and
   therefore does not see the need to model
   this pathway.
     While the Agency already discussed
   the general issues related to the
   appropriateness of the TCLP for the
   wastes examined in this rulemaking due
   to oil content, EPA notes that  for this
   specific waste the total oil and grease
   levels in the available samples collected
   by EPA were well below 1 percent.
   Thus, the commenter's concern about
   problems with the TCLP and oily waste
   are clearly unfounded for this waste.
    One commenter criticized EPA's
   modeling of risks  from LTUs, and these
  are addressed elsewhere in today's
  notice (see Section V.B.7). However,
  EPA would like to note that
  nongroundwater risks are unlikely to be
  significant for this waste under any
  scenario because unleaded gasoline  tank
  sediment has none of the carcinogenic
  PAHs that were of concern for  other
  wastes, such as CSO.
    One commenter argued that  EPA
  should list this waste based on the
  groundwater risks calculated by the
  commenter using alternative
  groundwater modeling (8.8E-5). EPA
  disagrees with many of the commenter's
  suggested modifications to the  modeling
  (see Section V.B.6) and continues to
  believe that the risks do not justify
  listing this waste. As noted in the
  discussion above, EPA's revised 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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                                                                    42165
reiterates that the headworks exclusion
is not meant to serve as an incentive to
discharge tank sediments (or spent
catalyst) to the wastewater treatment
plant. This was not the Agency's intent,
and EPA requested comment in the
NODA on how to ensure that the
headworks exemption is not a loophole
to dump catalyst or CSO sediment in the
sewer.
  One commenter argued that the
exemption would not be a loophole for
two important reasons. First there
would be a significant economic penalty
for this action, because solid material
dumped in the sewer will emerge again
as hazardous waste sludges upstream of
biological treatment (F037, F038, K051
and K048). The commenter stated that
any wastewater sludge that these solids
generate would likely be many times the
original weight of the solids in the water
(up to 10-fold due to the oil 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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  42166      Federal Register/Vol.  63, No. 151/Thursday, August 6,  1998/Rules and Regulations
   EPA also notes that the discharge of
 aqueous wastes generated during tank
 cleaning are generated only
 infrequently. EPA's data from the 3007
 Questionnaire, shows that, on average, a
 single CSO tank is cleaned every 9 years
 and, on average, a refinery has four
 tanks containing CSO (for those that
 generate the residual). Therefore, a
 typical refinery generates CSO tank
 cleaning wastewaters less than once per
 year. Discharges of tank cleaning waters
 are infrequent and are expected to
 generate relatively small volumes of
 water in comparison with the typical
 wastewater flow through a refinery
 treatment system (see analysis noted
 below).
   Tank cleanings are used to facilitate
 tank inspections, which are critical to
 ensuring tank integrity and to avoiding
 catastrophic tank failure. Without this
 exemption, tank washing would become
. much more difficult because of the need
 to find alternative Subtitle C disposal
 methods for these wastewaters. Also,
 the tank washings are dramatically
 different in nature from the sediments
 characterized for the listing
 determination. While these washes are
 primarily water, the sediments are
 primarily solid, subject to land disposal
 methods such as the landfilling and
 land treatment evaluated in EPA's risk
 assessment.
   To respond fully to this commenter,
 EPA presented a further analysis in the
 NODA to illustrate the magnitude of
 treatment and dilution that would occur
 at the headworks of a refinery for both
 CSO tank sediment and spent
 hydrotreating/hydrorefining catalysts.
 (See Sections 8 and 9 in Supplemental
 Background Document-Listing Support
 Document, March 1997). EPA notes that
 it completed a similar analysis for crude
 oil storage tank sediment to respond to
 the commenter's concerns expressed
 about this waste also (see Additional
 Listing Support Analysis, 1998 in the
 docket). EPA concluded from these
 analyses that any impact on the
 downstream wastewater treatment
 sludge or wastewaters would be
 negligible.
   Comments on the NODA analysis for
 the headworks exemption argued that
 EPA based the assessment for CSO
 sediment on disposal of the waste itself
 in the wastewater treatment system, and
that the exemption should be limited to
dilute wastewaters. The commenter
suggested that EPA set limits on
maximum concentrations for
contaminants in discharges, and limit
the exemption to rinsate from the
cleaning of tanks or other units. The
commenter stated that these limitations
should also apply to the existing
  exemption for heat exchanger bundle
  cleaning sludge, currently listed as
  hazardous waste K050, because the
  existing exemption suffers from the
  same flaws as the proposal. The
  commenter also indicated that if EPA
  does not limit the exemption to rinsate,
  the CSO assessment is flawed because it
  was based on the waste volume of the
  one facility reporting waste discharge
  into a wastewater treatment system in
  1992. The commenter recognized that
  the facility no longer intends to employ
  the practice, but argued the potential
  exists for any generator of the waste to
  do so.
    In response, EPA notes that the
  purpose of the NODA exercise was to
  develop a "what if scenario,
  representing the extreme case of CSO
  washwater loading to wastewater
  treatment. EPA concluded that because
  its "what if scenario showed negligible
  risk, then no specific restrictions on
  washwater composition would be
  required. Furthermore, as discussed
  above in this section, EPA believes that
  there are significant disincentives for
 refineries to discharge high solids
 content waste to their wastewater
 treatment system. Finally, EPA notes
 that the existing exemption for heat
 exchanger bundle cleaning sludge
  (K050) was not explicitly reopened for
 comment, therefore the Agency is not
 considering any modification of this
 exemption in today's rule.
   Certainly, on-site wastewater
 treatment systems are available for this
 purpose throughout the refinery
 industry. EPA based its evaluations on
 the actual waste quantities used in
 particular management scenarios. EPA
 has no reason to believe, for example,
 that a quantity of waste destined for
 land treatment would be managed in a
 wastewater treatment system. EPA
 points out that a significant fraction of
 the wastes being listed must already be
 handled as hazardous, because they
 exhibit the TC or other characteristics.
 Yet despite this apparent incentive to
 avoid costly Subtitle C management, the
 disposal of tank sediment directly into
 the wastewater treatment system was
 extremely rare (i.e., only once each for
 CSO and crude oil storage tank
 sediments).
  The commenter also questioned
 whether the Agency accurately
 estimated the impact posed by the
 exemption, because EPA ignored the
 possibility that contaminants from other
 wastes and wastewaters would be
 codisposed with the potentially exempt
 waste in the wastewater treatment
system. In response, EPA notes that its
analysis was an attempt to gauge the
significance of a worst-case discharge
  into the treatment system to determine
  if any significant incremental risks
  would result from the practice. EPA
  found no such incremental risks and
  therefore concluded that the exemption
  was appropriate. In fact, EPA found that
  risks due to the exempted wastes would
  be extremely small.
   The commenter expressed concern
  that the exemption would likely be
  encouraging the generation of larger
  quantities of hazardous wastewater
  treatment sludge, which would be
  incompatible with the waste
  minimization policy and objectives
  articulated by Congress in Section 1003
  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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             Federal Register/Vol. 63, No.  151/Thursday. August 6, 1998/Rules and Regulations      42167
exempt from RCRA controls this entire
class of reclamation and regeneration
units. The information in the permit is
manifestly insufficient for such a
determination. Even if it were more
complete, EPA could likely not
extrapolate the information from this
single facility to all thermal units with
an adequate degree of confidence. For
instance, the permit contains limits only
on emission rates of CAA criteria air
pollutants carbon monoxide (CO),
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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             Federal Register/Vol. 63, No. 151 /Thursday, August 6,  1998/Rules and Regulations       42169
of their vanadium content, the K171 and
K172 wastes would contain significant
levels of vanadium in the form of toxic
vanadium pentoxide.
  Commenters claimed that the
proposed treatment standard for
vanadium is not feasible and
appropriate, based on EPA's testing. In
response, EPA evaluated additional data
from the stabilization of wastes
containing vanadium at levels below
which metals recovery is feasible and,
based on this data, calculated a standard
of 1.6 mg/L TCLP for nonwastewaters.
The Agency proposed that this higher
standard replace the 0.23 mg/L TCLP
standard originally proposed and
believes that this standard is readily
achievable (see 62 FR 26047, May 12,
1997). A facility unable to comply with
the treatment standard may apply for a
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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   42170
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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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  42172      Federal  Register/Vol.  63.  No. 151/Thursday, August 6, 1998/Rules and Regulations
  C. Section 3010 Notification
    Pursuant to RCRA section 3010, the
  Administrator may require all persons
  who handle hazardous wastes to notify
  EPA of their hazardous waste
  management activities within 90 days
  after the wastes are identified or listed
  as hazardous. This requirement may be
  applied even to those generators,
  transporters, and treatment, storage, and
  disposal facilities (TSDFs) that have
  previously notified EPA with respect to
  the management of other hazardous
  wastes. The Agency has decided to
  waive this notification requirement for
  persons who handle wastes that are
  covered by today's listings and have
  already (1) notified EPA that they
  manage other hazardous wastes, and (2)
  received an EPA identification number.
  The Agency has waived the notification
  requirement in this case because it
  believes that most, if not all, persons
  who manage these wastes have already
  notified EPA and received an EPA
  identification number. However, any
  person who generates, transports, treats,
  stores, or disposes of these wastes and
  has not previously received an EPA
  identification number must obtain an
  identification number pursuant to 40
  CFR 262.12 to generate, transport, treat,
 store, or dispose of these hazardous
 wastes by November 4, 1998.
 D. Generators and Transporters
   Persons that generate newly identified
 hazardous wastes may be required to
 obtain an EPA identification number if
 they do not already have one (as
 discussed in section VI.C, above). In
 order to be able to generate or transport
 these wastes after the effective date  of
 this rule, generators of the wastes listed
 today will be subject to the generator
 requirements set forth in 40 CFR part
 262. These requirements include
 standards for hazardous waste
 determination (40 CFR 262.11),
 compliance with the manifest (40 CFR
 262.20 to 262.23), pretransport
 procedures (40 CFR 262.30 to 262.34),
 generator accumulation (40 CFR
 262.34), record keeping and reporting
 (40 CFR 262.40 to 262.44), and import/
 export procedures (40 CFR 262.50 to
 262.60). It should be noted that the
 generator accumulation provisions of 40
 CFR 262.34 allow generators to
 accumulate hazardous wastes without
 obtaining interim status or a permit only
 in units that are container storage units
 or tank systems; the regulations also
 place a limit on_the maximum amount
 of time that wastes can be accumulated
 in these units. If these wastes are
managed in surface impoundments or
other units that are not tank systems  or
  containers, these units are subject to the
  permitting requirements of 40 CFR parts
  264 and 265, and the generator is
  required to obtain interim status and
  seek a permit (or modify interim status
  or a permit, as appropriate). Also,
  persons who transport newly identified
  hazardous wastes will be required to
  obtain an EPA identification number as
  described above and will be subject to
  the transporter requirements set forth in
  40 CFR part 263.
  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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             Federal Register/Vol.  63.  No. 151/Thursday, August 6.  1998/Rules and Regulations
                                                                   42173
certifications, authority to manage the
newly listed wastes under 40 CFR
270.42(g) will terminate on that date.

4. Units
  Units in which newly identified
hazardous wastes are generated or
managed will be subject to all
applicable requirements of 40 CFR part
264 for permitted facilities or 40 CFR
part 265 for interim status facilities,
unless the unit is excluded from such
permitting by other provisions, such as
the wastewater treatment tank
exclusions (40 CFR 264.1(g)(6) and
265.1(c)(10)) and the product storage
tank exclusion (40  CFR 261.4(c)).
Examples of units to which these
exclusions could never apply include
landfills. LTUs, waste piles,
incinerators, and any other
miscellaneous units in which these
wastes may be generated or managed.

5. Closure
  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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  42174       Federal Register/Vol. 63,  No. 151/Thursday, August 6, 1998/Rules and Regulations
  and local authorities. EPCRA section
  304 notification must be given
  immediately after the release of an RQ
  or more to the community emergency
  coordinator of the local emergency
  planning committee for any area likely
  to be affected by the release and to the
  State emergency response commission
  of any State likely to be affected by the
  release.
    Under section 102(b) of CERCLA, all
  hazardous substances (as defined by
  CERCLA section 101(14)) have a
  statutory RQ of one pound, unless and
  until the RQ is adjusted by regulation.
  In today's final rule, EPA is adding
  waste streams K169, K170, K171, and
  K172 to the CERCLA list of hazardous
  substances and adjusting the one-pound
  statutory RQs for these wastes.

  B. Standard and Alternative RQ
  Adjustment Methodology
    EPA's methodology for adjusting the
  RQs of individual hazardous substances
  begins with an evaluation of the
  intrinsic physical, chemical, and
  toxicological properties of each
  hazardous substance. The intrinsic
  properties examined-called  "primary
  criteria"-are aquatic toxicity,
  mammalian toxicity (oral, dermal, and
  inhalation), ignitability, reactivity,
 chronic toxicity, and potential
 carcinogenicity.
   Generally, for each intrinsic property,
 EPA ranks the hazardous substance on
 a five-tier scale, associating a specific
 range of values on each scale with an
 RQ value of 1, 10, 100, 1,000, or 5,000
 pounds. Based on the various primary
 criteria, the hazardous substance may
 receive several tentative RQ  values. The
 lowest of the tentative RQs becomes the
 "primary criteria RQ" for that
 substance.
  After the primary criteria RQ is
 assigned, the substance is evaluated
 further for its susceptibility to certain
 degradative processes, which are used
 as secondary RQ adjustment criteria.
 These natural degradative processes are
 biodegradation, hydrolysis, and
 photolysis (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

-------
                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

-------
42192
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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