Faxback 13669
9432.1994(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
CLARIFICATION OF THE REGULATORY STATUS OF A REFINERY DITCH SYSTEM
MAY 12, 1994
MEMORANDUM
SUBJECT: Regulatory Status of Shell Oil's Norco, Louisiana
Facility Ditch System
FROM: Michael H. Shapiro, Director
Office of Solid Waste
TO: Allyn M. Davis, Director
Hazardous Waste Management Division, Region 6
In your March 30, 1994 memorandum, you requested
clarification of the regulatory status of the Shell Oil, Norco,
Louisiana, refinery ditch system that has been used to convey
hazardous waste. In previous correspondence, Headquarters
provided a detailed interpretation regarding RCRA applicability
to the facility. That interpretation concluded that Shell Oil's
Norco facility ditch system can not be considered ancillary
equipment to a tank (or as troughs/trenches connected to sump)
within the meaning of "tank systems" in 40 CFR 260.10.
Therefore, the ditch system is not eligible for the wastewater
treatment unit exemption. (See February 1, 1994, memorandum from
Frank McAlister (OSW) to Bill Gallagher (Region 6)). Below we
have provided further explanation of this interpretation.
The RCRA regulations require that ancillary equipment, as
part of a tank system, must be designed and operated so that it
will not leak. See 40 CFR 265.191. Natural soils, such as those
at the Norco ditch system, although useful for many construction
applications, are not leak-proof materials. One of the
fundamental properties of natural soil is that it allows
transmission of liquids; no natural soil is leak-proof. The
Norco ditch system, therefore, fails to qualify as part of a tank
system under this regulatory test.
Shell maintains that it should be able to demonstrate
(pursuant to 40 CFR 265.191(a)) that its ditch system is leak
proof by using a leak test or other integrity assessment.
However, this regulatory provision is intended only to confirm
that tank systems constructed of leak-proof materials do not in
fact leak. As discussed above, the Shell ditch system is not
constructed of leak-proof material.
Furthermore, the Norco ditch system does not meet the
requirement in 40 CFR 265.191 that tank systems be constructed of
materials that provide structural strength. The tank system
regulations require that the owner/operator obtain a tank
assessment attesting to the tank system's integrity. 40 CFR
265.191(a). This assessment must determine that the tank is
adequately designed and has "sufficient structural strength and
compatibility with the waste(s) to be stored or treated to ensure
that it will not collapse, rupture or fail." 40 CFR 265.19l(b).
We interpret the term "structural strength" required of tank
systems in 40 CFR 265.191 (b) consistently with our
interpretation of the almost-identical term "structural support"
in the definition of tank in 40 CFR 260.10. Specifically, EPA
has interpreted the term "structural support" to mean that the
sides of the structure must be capable of supporting themselves,
and the wastes they contain, without the aid of adjacent soils.
These structural support qualities are what distinguish tanks,
for example, from surface impoundments.
This distinction for tanks was made in an April 8, 1983,
memorandum from Bruce R. Weddle, Acting Director, State Programs
and Resource Recovery Division to Thomas W. Devine, Director, Air
and Waste Management Division, Region IV. The Third Circuit
further articulated this distinction in Beazer East, Inc. v. U.S.
EPA Region III, 963 F.2d 603 (3rd Cir. 1992). In the Beazer
case, the Third Circuit determined that a surface impoundment
that was lined with concrete was not a tank, because the sides of
the impoundment were not capable of supporting themselves, and
the wastes they contain, without additional support from
underlying dike soils. Similarly, Shell's partially lined Norco
ditch system is not ancillary equipment that is part of a tank
system, because it is not capable of demonstrating that it can
support itself without additional support from the surrounding
soils.
You also inquired about what we meant in our February 1
memorandum by the sentence, "Alternatively, the ditch system
could be retrofitted in accordance with the tank regulations." By
this we mean that in order to convert the ditch to an exempt
wastewater treatment unit, Shell would need to reconstruct the
entire Norco ditch system using materials that are both leak-
proof and provide the structural strength required of ancillary
equipment that is part of a tank system.
I hope this memorandum clarifies our position on this issue.
If you have any further questions on this matter, please contact
Chris Rhyne of my staff at (703) 308-8658.
cc: Jim Michael
Frank McAlister
Matt Hale
Dev Barnes
Kathy Nam, OGC
Allyn Davis, Region 6
William Honker, Region 6
Mike Roulier, ORD
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Attachments
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U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 6
1445 ROSS AVENUE, SUITE 1200
DALLAS, TX 75202-2733
March 30, 1994
MEMORANDUM
SUBJECT: Regulatory Determination
Refinery Effluent Ditch System
Shell Oil Company, Norco, Louisiana
EPA I.D. No. LAD008186579
FROM: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
TO: Michael H. Shapiro, Director
Office of Solid Waste (OS-300)
Attached is a memorandum forwarded to Frank McAlister of your
staff requesting written clarification of the issues included in
his memorandum of February 1, 1994, concerning the regulatory
status of Shell Oil's (Norco, Louisiana) ditch system. A meeting
was held on March 22, 1994, at EPA regional offices which
included, among others, counsel for Shell and the Deputy Director
of the Hazardous Waste Management Division. Shell has sent a
letter requesting clarification of the February 1, 1994, Frank
McAlister memorandum (see attachments).
Shell contends that the wording of the referenced memorandum
specifies that if Shell demonstrates that the ditch system is not
leaking, then the ditch system could then be considered ancillary
equipment and thus exempt from regulation under Subtitle C of
RCRA. Shell proposes to make this demonstration under 40 CFR
265.191 (Assessment of existing tank system's integrity).
Region 6 argues that Shell's reading of the memo was not our
intent. Therefore, we are requesting written clarification of
these issues in order to respond to Shell in a timely manner.
Shell plans to request a meeting with you to present their
argument. Therefore, we are requesting that clarification come
from your office. If you have any questions or comments
concerning our request, please call Bill Honker of my staff at
(214) 655-6770.
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Attachments
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March 24, 1994
MEMORANDUM
SUBJECT: Regulatory Determination
Refinery Effluent Ditch System
Shell Oil Company, Norco, Louisiana
EPA I.D. No. LAD008186579
FROM: William K. Honker, P.E., Chief
RCRA Permits Branch (6H-P)
Hazardous Waste Management Division
TO: Frank F. McAlister, Chief
Assistance Branch (S303W)
Permits and State Programs Division
Office of Solid Waste
The purpose of this memorandum is to request written
clarification of the issues included in your letter of
February 1, 1994, concerning the regulatory status of Shell Oil's
(Norco, Louisiana) ditch system. A meeting was held on March 22,
1994, at EPA regional offices which included, among others,
counsel for Shell and the Deputy Director of the Hazardous Waste
Management Division.
Shell contends that the wording of the referenced letter
specifies that if Shell demonstrates that the ditch system is not
leaking, then the ditch system could then be considered ancillary
equipment and thus exempt from regulation under Subtitle C of
RCRA. Shell proposes to make this demonstration under 40 CFR
265.191 (Assessment of existing tank system's integrity). Shell
states that the natural clay liner (hydraulic conductivity about
1 x 10-8 cm/sec) underlying the ditch system along with the
hydraulic gradient of the groundwater towards the ditch system
will not allow contaminants to migrate into the groundwater.
Shell proposes to model groundwater under the two following
worst-case scenarios: the ditch system full of water and the
lowering of the water table to a level below the ditch system.
Region 6 argues that Shell's reading of the memo was not the
intent of EPA and that in order for the ditch system to be
designated as ancillary equipment, it must be designed according
to those specifications (e.g., leak tested, secondary
containment, etc). Additionally, EPA has not determined that the
ditch system is part of a tank system and is thus ineligible for
the demonstration specified in the regulations for tank systems.
If a demonstration were conceivable, this demonstration should
have been made one year after the date that the waste became a
hazardous waste [see 40 CFR sec 265.191(c)]. This deadline has
already passed.
Region 6 is requesting written clarification of these issues in
order to respond to Shell in a timely manner. Additionally, the
Region is requesting clarification of the term "retrofitting" as
used in the context of the referenced letter. Since Shell may
request a review from a higher authority at EPA Headquarters, the
Region is also requesting that the clarification memo be signed
by Mike Shapiro.
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Attachment
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AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
2100 FRANKLIN PLAZA
111 CONGRESS AVENUE
AUSTIN, TEXAS 78701
(512) 499-6200
FAX (512) 476-3866
March 24, 1994
Mr. Jack S. Divita
Deputy Director
Hazardous Waste Management Division
U.S. Environmental Protection Agency
1445 Ross Avenue
Dallas, Texas 75202-2733
Re: Shell Oil Company, Norco Louisiana
EPA ID No. LAD008186579
Dear Mr. Divita:
This letter is in response to issues raised at our March
22,1994, meeting with you concerning the regulatory status of the
wastewater collection and conveyance system at the Norco
Manufacturing Complex ("Norco") owned and operated by Shell Oil
Company ("Shell"). The purpose of the meeting was to determine
what action Shell may take to demonstrate that this conveyance
system meets the definition of ancillary equipment based on the
Dr. Allyn Davis' letter of March 4, 1994 and an earlier advisory
memorandum from the Office of Solid Waste. Shell disagrees with
the apparent interpretation of these two documents by the Region
as discussed at the March 22 meeting. This letter is intended to
provide you our understanding of the regulatory criteria
applicable to the conveyance system and request clarification of
the Agency's position.
In an EPA memorandum, dated February 1, 1994, from Frank
McAlister to Bill Gallagher, the Office of Solid Waste advised
the Region that a facility ditch system could be construed to be
ancillary equipment to a tank. To qualify, ancillary equipment
must be designed to prevent leakage or discharge. Shell has not
demonstrated that the conveyance system is designed to meet this
criteria. This advise was incorporated without any significant
modification or analysis by the Region in Dr. Davis' letter of
March 4.
Based on our reading of the analysis from the Office of
Solid Waste, we believe that the conveyance system would be
classified appropriately as ancillary equipment to a wastewater
treatment tank if Shell could meet the tank assessment and
certification requirements of 40 CFR 265.191. In the March 22
meeting, we were informed that we were misconstruing the EPA
documents. We were told that it was not the agency's intent that
Norco conveyance system, as it is presently designed, could
qualify as ancillary equipment. The conveyance system should be
classified as either a Subpart X (Miscellaneous Unit) or as a
surface impoundment. We believe that the Region's statements are
neither consistent with the very clear language in the EPA
documents nor with the RCRA regulations.
Shell appreciates the Region's apparent concern with what
appears to be "unlined-dirt ditches" that typically would be the
source of uncontrolled discharges and releases of hazardous waste
or hazardous constituents. This concern is misplaced because
there is no evidence that the conveyance system has resulted in
releases or discharges constituting disposal. The unique geologic
and hydrogeologic characteristics of the site provides
containment meeting or exceeding other types of engineered
devices, including underground piping considered ancillary
equipment at other facilities. Under these circumstances, Shell
should be allowed the opportunity to perform the tank system
assessment and obtain a certification.
Based on preliminary review of the substantial amount of
site-specific data on Norco's conveyance system, Shell believes
that the conveyance system could be certified after additional
analyses and groundwater modelling. The natural clay bottom of
the conveyance system exhibits low permeability. The physical
characteristics of the surrounding soil are similar to the clay
bottoms. The groundwater elevation in the soils surrounding the
conveyance system are higher than those inside the conveyance
system and is maintained through the operation of the conveyance
system. Little or no organic constituents have been detected in
chemical analyses of the underlying clays.
Shell is requesting that the Agency clarify its position on
this matter. Shell intends to meet with appropriate
representatives of the Office of Solid Waste to confirm that
Norco's conveyance system could be classified as ancillary
equipment if the conveyance system is certified by an
independent, qualified, registered professional engineer to have
integrity sufficient to contain the wastewater and prevent
leakage and discharge. Shell believes very strongly that, if its
conveyance system can be certified, Shell not be forced to incur
significant construction costs to address a non-problem.
We appreciate the opportunity to meet with you and desire
that this clarification can be made expeditiously.
Sincerely yours,
Paul Seals
PAS:rt
cc:
Dr. Allyn Davis
Frank McAlister
Bill Honker
Bill Gallagher
Elaine Taylor