Proposed Rule2022-25213
Hazardous Waste Management System; Identification and Listing of Hazardous Waste Proposed Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 23, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to grant an exclusion from the list of hazardous wastes to WRB Refining LP (Petitioner) located in Borger, Texas. This action responds to a petition to exclude (or "delist") up to 7,000 cubic yards per year of solids removed from four stormwater tanks from the list of federal hazardous wastes when disposed of in a Subtitle D Landfill. Resource Conservation Recovery Act (RCRA). The EPA is proposing to grant the petition based on an evaluation of waste-specific information provided by Petitioner.
Full Text
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<title>Federal Register, Volume 87 Issue 225 (Wednesday, November 23, 2022)</title>
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[Federal Register Volume 87, Number 225 (Wednesday, November 23, 2022)]
[Proposed Rules]
[Pages 71532-71539]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25213]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2022-0653; FRL-10104-01-R6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant an exclusion from the list of hazardous wastes to WRB Refining LP
(Petitioner) located in Borger, Texas. This action responds to a
petition to exclude (or ``delist'') up to 7,000 cubic yards per year of
solids removed from four stormwater tanks from the list of federal
hazardous wastes when disposed of in a Subtitle D Landfill. Resource
Conservation Recovery Act (RCRA). The EPA is proposing to grant the
petition based on an evaluation of waste-specific information provided
by Petitioner.
DATES: Comments on this proposed exclusion must be received by December
23, 2022.
ADDRESSES: Submit your comments by one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the on-line instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#f7849f969fd99f9685858eb7928796d9909881"><span class="__cf_email__" data-cfemail="37445f565f195f5645454e7752475619505841">[email protected]</span></a>.
Instructions: The EPA must receive your comments by December 23,
2022. Direct your comments to Docket ID Number EPA-R06-RCRA-2022-0653.
The EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI), or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or email. The Federal <a href="http://regulations.gov">regulations.gov</a> website is
an ``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through <a href="http://regulations.gov">regulations.gov</a>, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment with any CBI you
submit. If the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the EPA may not
be able to consider your comment. Electronic files should avoid the use
of special characters, any form of encryption and be free of any
defects or viruses.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy.
You can view and copy the delisting petition and associated
publicly available docket materials either through <a href="http://www.regulations.gov">www.regulations.gov</a>
or at: EPA, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270.
The EPA facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and facility closures due to COVID-
19. We recommend that you telephone Harry Shah, at (214) 665-6457,
before visiting the Region 6 office. Interested persons wanting to
examine these documents should make an appointment with the office.
FOR FURTHER INFORMATION CONTACT: Harry Shah, (214) 665-6457,
<a href="/cdn-cgi/l/email-protection#a2d1cac3ca8ccac3d0d0dbe2c7d2c38cc5cdd4"><span class="__cf_email__" data-cfemail="84f7ece5ecaaece5f6f6fdc4e1f4e5aae3ebf2">[email protected]</span></a>. Out of an abundance of caution for members of the
public and our staff, the EPA Region 6 office may be closed to the
public to reduce the risk of transmitting COVID-19. We encourage the
public to submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as there
will be a delay in processing mail and no courier or hand deliveries
will be accepted. Please call or email the contact listed above if you
need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview Information
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must the EPA consider in deciding whether to
grant a delisting petition?
D. Environmental Justice evaluation.
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
B. How did the Petitioner generate the waste?
C. How did the Petitioner sample and analyze the petitioned
waste?
D. What factors did the EPA consider in deciding whether to
grant the delisting petition?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude?
IV. Conditions for Exclusion
A. How will the Petitioner manage the waste if it is delisted?
B. What are the maximum allowable concentrations of hazardous
constituents in the waste?
C. How frequently must the Petitioner test the waste?
D. What data must the Petitioner submit?
E. What happens if the Petitioner fails to meet the conditions
of the exclusion?
F. What must the Petitioner do if the process changes?
[[Page 71533]]
V. When would the EPA Finalize the Proposed Delisting Exclusion?
VI. How would this Action Affect States?
VII. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant a May 2020 petition (``Delisting
Petition for Stormwater Solids'') request submitted by WRB Refining LP
in Borger, Texas to exclude (or ``delist'') up to 7,000 cubic yards per
year of F037 stormwater solids from the list of federal hazardous waste
set forth in 40 CFR 261.3 (hereinafter, all sectional references are to
40 CFR unless otherwise indicated). The Petitioner claims that the
petitioned wastes do not meet the criteria for which the EPA listed it,
and that there are no additional constituents or factors which could
cause the waste to be hazardous. Based on our review described in
Section III, we propose to approve the petition request, and allow the
delisted waste to be disposed in a Subtitle D landfill. A copy of the
May 2020 petition is located in the docket to this proposal action.
II. Background
A. What is the history of the delisting program?
The EPA published an amended list of hazardous wastes from non-
specific and specific sources on January 16, 1981, as part of its final
and interim final regulations implementing section 3001 of RCRA. The
EPA has amended this list several times and codifies the list in
Sec. Sec. 261.31 and 261.32.
The EPA lists the Petitioner's wastes as hazardous because: (1) the
wastes typically and frequently exhibit one or more of the
characteristics of hazardous wastes identified in Subpart C of part 261
(that is, ignitability, corrosivity, reactivity, and toxicity), (2) the
wastes meet the criteria for listing contained in Sec. 261.11(a)(2) or
(a)(3), or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules, respectively.
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these part 261 regulations or resulting from the operation
of the mixture or derived-from rules generally is hazardous, a specific
waste from an individual facility may not be hazardous.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that the EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What is a delisting petition, and what does it require of a
petitioner?
A delisting petition is a request from a facility to the EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
The facility petitions the EPA because it does not consider the waste
as hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which the EPA lists a
waste are in 40 CFR part 261 and further explained in the background
documents for the listed waste in the June 30, 1992 publication of the
``Final Best Demonstrated Available Technology (BDAT) Background
Document for Newly Listed Refinery Wastes F037 and F038'' (<a href="https://nepis.epa.gov/Exe/ZyNET.exe/P100VUGS.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1991+Thru+1994&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C91thru94%5CTxt%5C00000035%5CP100VUGS.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL">https://nepis.epa.gov/Exe/ZyNET.exe/P100VUGS.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1991+Thru+1994&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C91thru94%5CTxt%5C00000035%5CP100VUGS.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL</a>).
In addition, under 40 CFR 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and must
present sufficient information for EPA to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste.
Generators remain obligated under RCRA to confirm whether their
waste remains non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What factors must the EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in 40 CFR 260.22(a) and Sec.
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) aside from those for which EPA listed the waste, if a
reasonable basis exists that these additional factors could cause the
waste to be hazardous.
The EPA must also consider hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii and iv)
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
D. Environmental Justice Evaluation
To better meet EPA's ``responsibilities related to the protection
of public health and the environment, EPA has developed a new
environmental justice (EJ) mapping and screening tool called EJ
Screen'' that reports values as a percentile when compared to a state
or the nation. ``It is based on nationally consistent data and an
approach that combines environmental and demographic indicators in maps
and reports,'' (<a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>). EPA is providing
analysis of environmental justice associated with this action. We are
doing so for the purpose of providing information to the public, not as
a basis of our final action.
EPA utilized EJ Screen to evaluate potential environmental justice
concerns in communities at one-,& three-, and five-mile radiuses
around the Borger facility. EPA considers the potential for EJ concerns
in a community when one or more of the 12 EJ indices is at or above the
80th percentile when compared to the rest of the USA. At all three
radial measurements, none of the 12 EJ indices exceeded the 80th
percentile. However, six different individual block groups clustered
south/southwest of the facility within the one-, three-, and five-mile
radiuses exceeded the 80th percentile for one or more indices. This
information is provided in Table 1. More information on EJ Screen,
including an explanation of the 12 EJ indices can be found at
<a href="http://www.epa.gov/ejscreen/what-ejscreen">www.epa.gov/ejscreen/what-ejscreen</a>.
[[Page 71534]]
Table 1--Block Groups With EJ Indices at or Above the 80th Percentile for the USA \1\
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EJ index for
EJ index for EJ index for underground EJ index for
lead paint RMP facility storage tanks wastewater
(USA proximity (USA (USA discharge (USA
percentile) percentile) percentile) percentile)
----------------------------------------------------------------------------------------------------------------
Block Group 482339506001........................ 80 83 - -
Block Group 482339507001........................ 85 87 - -
Block Group 482339507002........................ 82 90 - -
Block Group 482339508001........................ 81 87 - -
Block Group 482339509001........................ - 84 - -
Block Group 482339509004........................ 86 94 82 80
----------------------------------------------------------------------------------------------------------------
\1\ A dash indicates the EJ index is below the 80th percentile.
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
In May 2020, WRB Refining LP petitioned the EPA to exclude from the
list of hazardous wastes contained in Sec. 261.31, stormwater tank
solids (F037) generated from its facility located in Borger, Texas. The
waste falls under the classification of listed waste pursuant to
Sec. Sec. 261.31. Specifically, in its petition, WRB Refining
requested that the EPA grant a standard exclusion for 7,000 cubic yards
per year of the stormwater tank solids.
B. How did the Petitioner generate the waste?
The principal products manufactured at the Refinery are gasoline,
diesel, aviation fuel, natural gas liquids (NGL), petroleum coke, and
solvents. The stormwater tanks are active and have been in operation
for approximately 25 years. To restore capacity in the stormwater
tanks, the Borger Refinery will be removing accumulated solids. The
solids removal process will typically occur within a calendar year and
will be an ongoing operational item for the refinery in the future.
The solids are removed from the four stormwater tanks. These tanks
are listed as the North Stormwater Tank, West Stormwater Tank, North
Dropout Basin, and West Grit Trap (hereafter collectively referred to
as ``the stormwater tanks''). The four stormwater tanks are identified
as solid waste management unit (SWMU) No. 50 on the facility's notice
of registration (NOR) with the Texas Commission on Environmental
Quality (TCEQ).
The stormwater tanks solids originated from both historical and
current operation of the wastewater treatment system at the refinery.
To the extent possible, hydrocarbons present in refinery wastewaters
have been recovered. However, historically more hydrocarbons passed
through the ``oil recovery system'' and flowed into the stormwater
tanks. Hydrocarbons in the wastewater can result from various sources
(e.g., crude oil). Over time, more of the oily streams were routed to
storage tanks from collection system piping and/or smaller tanks for
interception and recovery instead of into the stormwater tanks.
Recovered oil from the oil recovery system is stored in tanks prior to
being reintroduced into the refining process. Historically, these oily
flows occurred in conjunction with facility operations, were relatively
routine in nature, and not directly associated with precipitation. As
such, they were classified by the EPA as ``dry weather'' flows. By
contrast, wastewater directly associated with precipitation (i.e.,
stormwater) is referred to as ``wet weather'' flows. The EPA listing
criteria for F037 generally encompasses primary solids associated with
dry-weather, oily flows.
Since the stormwater tanks receive what could be classified as dry-
weather, oily flows as specified in the November 2, 1990, Federal
Register rule publication (55 FR 46354, Nov. 2, 1990), the solids
within the four tanks are believed to be classified as F037 when
generated. WRB Refining assumes that solids removed from the stormwater
tanks bear the F037 (primary oil/water/solids separation sludge)
listing when generated.
C. How did the Petitioner sample and analyze the petitioned waste?
A total of eight acceptable sample results were provided by
Petitioner to support the petition. The EPA considered all 8 samples of
the stormwater tank solids and the disposal scenario of the landfill
was modeled using the Delisting Risk Assessment Software. The worst-
case scenario of the constituents' concentrations for the F037 solids
were used as input in the model to determine if it would meet the
hazardous waste criteria for which it was listed. The maximum total and
leachate concentrations for the inorganic and organic constituents
which were found in the analytical data provided by Petitioner are
presented in Table 2.
Table 2--Maximum Total and TCLP Concentrations
------------------------------------------------------------------------
Maximum total Maximum TCLP
Chemical name concentration (mg/ concentration (mg/
kg) l)
------------------------------------------------------------------------
Acenaphthene...................... 0.04 <0.00030
Anthracene........................ 0.18 <0.00030
Antimony.......................... 6.93 0.0293
Arsenic........................... 10.5 0.0277
Barium............................ 732 3.1
Benz(a)anthracene................. 0.26 <0.00030
Benzo(a)pyrene.................... 0.19 <0.00040
Benzo(b)fluoranthene.............. 0.17 <0.00040
Benzo(k)fluoranthene.............. 0.16 <0.00070
Benzene........................... 0.19 <0.012
Beryllium......................... 0.91 <0.002
[[Page 71535]]
Bis(2-ethylhexyl)phthalate........ 1.2 <0.00080
2-Butanone........................ 0.092 <0.020
Cadmium........................... 1.03 0.00689
Carbon disulfide.................. 0.026 <0.018
Chromium.......................... 80.8 0.00495
Chrysene.......................... 0.34 <0.00080
Cobalt............................ 13.3 0.0355
Di-n-butyl-phthalate.............. 0.0057 <0.00080
Dibenz(a,h)anthracene............. 0.061 <0.00060
Dimethyl phthalate................ 0.034 <0.00050
Ethylbenzene...................... 0.0063 <0.010
Fluoranthrene..................... 0.84 <0.00040
Fluorene.......................... 0.17 <0.00050
Indeno(1,2,3-cd)pyrene............ 0.12 <0.00060
Lead.............................. 301 0.102
Mercury........................... 1.58 <0.000030
Naphthalene....................... 0.18 0.0047
Nickel............................ 439 0.142
Phenanthrene...................... 1.2 <0.00040
Pyrene............................ 0.92 <0.00030
Selenium.......................... 2.8 <0.0110
Silver............................ 0.08 <0.00200
Toluene........................... 0.036 <0.010
Vanadium.......................... 50.4 <0.00600
Xylenes, Total.................... 0.087 <0.010
Zinc.............................. 930 2.76
------------------------------------------------------------------------
D. What factors did the EPA consider in deciding whether to grant the
delisting petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the
petitioned wastes against the listing criteria and factors cited in
Sec. 261.11(a)(2) and (3).
In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and
(3), 42 U.S.C. 6921(f), and in the background documents for the listed
wastes, the EPA also considered factors (including additional
constituents) other than those for which EPA listed the waste if these
additional factors could cause the waste to be hazardous (See the
background documents).
Our proposed decision to grant the May 2020 petition to delist the
waste from Petitioner's facility in Borger, Texas is based on our
evaluation of the wastes for factors or criteria which could cause the
waste to be hazardous. These factors included: (1) Whether the waste is
considered acutely toxic; (2) the toxicity of the constituents; (3) the
concentration of the constituents in the waste; (4) the tendency of the
constituents to migrate and to bioaccumulate; (5) the persistence in
the environment of any constituents once released from the waste; (6)
plausible and specific types of management of the petitioned waste; (7)
the quantity of waste produced; and (8) waste variability.
The EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
E. How did the EPA evaluate the risk of delisting this waste?
For this proposed delisting determination, we evaluated the risk
that the waste would be disposed of as a non-hazardous waste in a
landfill. We considered transport of waste constituents through
groundwater, surface water and air. We evaluated Petitioner's analysis
of the petitioned waste using the Delisting Risk Assessment Software
(DRAS) to predict the concentration of hazardous constituents that
might be released from the petitioned waste and to determine if the
waste would pose a threat to human health and the environment. The DRAS
software and associated documentation can be found at <a href="http://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras">www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras</a>.
To predict the potential for release to groundwater from landfilled
wastes and subsequent routes of exposure to a receptor, the DRAS uses
dilution attenuation factors derived from the EPA's Composite Model for
leachate migration with transformation products. From a release to
groundwater, the DRAS considers routes of exposure to a human receptor
through ingestion of contaminated groundwater, inhalation from
groundwater while showering and dermal contact from groundwater while
bathing.
From a release to surface water by erosion of waste from an open
landfill into storm water run-off, DRAS evaluates the exposure to a
human receptor by fish ingestion and ingestion of drinking water. From
a release of waste particles and volatile emissions to air from the
surface of an open landfill, DRAS considers routes of exposure of
inhalation of volatile constituents, inhalation of particles, and air
deposition of particles on residential soil and subsequent ingestion of
the contaminated soil by a child. The technical support document and
the user's guide to DRAS are available at <a href="https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras">https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras</a>.
[[Page 71536]]
F. What did the EPA conclude?
Petitioner stated in its petition that the petitioned waste meets
the criteria of F037 for which the EPA listed it. Petitioner also
stated that no additional constituents or factors could cause the waste
to be hazardous. Petitioner also stated that disposal in a landfill
will not adversely impact human health or the environment. The EPA's
review of this petition included consideration of the original listing
criteria, and the additional factors required by the Hazardous and
Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42
U.S.C. 6921(f), and CFR 260.22 (d)(1)-(4). In making the initial
delisting determination, the EPA evaluated the petitioned waste against
the listing criteria and factors cited in Sec. 261.11(a)(2) and
(a)(3). Based on this review, the EPA agrees with the Petitioner that
the petitioned waste is nonhazardous with respect to the original
listing criteria. (If the EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste was
originally listed, the EPA would propose to deny the petition.) The EPA
evaluated the waste with respect to other factors or criteria to assess
whether there is a reasonable basis to believe that such additional
factors could cause the waste to be hazardous. The EPA considered
whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. The
EPA believes that the petitioned waste does not meet the listing
criteria and thus, should not be a listed waste. The EPA's proposed
decision to delist the waste from Petitioner's facility is based on the
information submitted in support of this rule, including descriptions
of the wastes and analytical data from the Borger, Texas facility, and
that is contained in the Petition and attachments, all of which are
included in the docket to this action.
IV. Conditions for Exclusion
A. How will the Petitioner manage the waste if it is delisted?
If the petitioned wastes are delisted as proposed, the Petitioner
must dispose of them in a Subtitle D landfill which is permitted,
licensed, or registered by a state to manage industrial waste or in the
on-site landfill.
B. What are the maximum allowable concentrations of hazardous
constituents in the waste?
The EPA notes that in some instances the maximum allowable total
constituent concentrations provided by the DRAS model exceed 100% of
the waste--these DRAS results are an artifact of the risk calculations
that do not have physical meaning. In instances where DRAS predicts a
maximum constituent greater than 100 percent of the waste (that is,
greater than 1,000,000 mg/kg or mg/L, respectively, for total and TCLP
concentrations), the EPA is not proposing to require the Petitioner to
perform sampling and analysis for that constituent and sampling type
(total or TCLP).
C. How frequently must the Petitioner test the waste?
The testing approach for this waste stream will be conducted as
generated. Prior to disposal of any future tank cleanouts, Petitioner
must conduct sampling and analysis as described in the delisting
sampling and analysis plan and ensure that the wastes do not exceed the
delisting parameters. If compliance with the delisting parameters is
demonstrated with analytical testing (TCLP analysis), the Petitioner
may dispose of the tank cleanouts. The annual amount of solids
generated from the tank clean outs may not exceed 7,000 cubic yards.
The annual sampling report shall include the volume of solids disposed
of in the landfill, as well as annual testing event data. The
petitioner should monitor and report increasing trends of constituents
which will affect the overall compliance with the stormwater discharge
permit.
D. What data must the Petitioner submit?
The Petitioner must submit the data obtained through verification
testing to U.S. EPA Region 6, Office of Land, Chemicals and
Redevelopment Division, 1201 Elm Street, Suite 500, M/C 6LCR-RP,
Dallas, Texas 75270-2102, within 30 days after receiving the final
results from the laboratory. These results may be submitted
electronically to Harry Shah, <a href="/cdn-cgi/l/email-protection#41322920296f2920333338012431206f262e37"><span class="__cf_email__" data-cfemail="37445f565f195f5645454e7752475619505841">[email protected]</span></a>. The Petitioner must
make those records available for inspection. All data must be
accompanied by a signed copy of the certification statement in 40 CFR
260.22(i)(12).
E. What happens if the Petitioner fails to meet the conditions of the
exclusion?
If this Petitioner violates the terms and conditions established in
the exclusion, the Agency may start procedures to withdraw the
exclusion. Additionally, the terms of the exclusion provide that
``[a]ny waste volume for which representative composite sampling does
not reflect full compliance with the exclusion criteria must continue
to be managed as hazardous.''
If the testing of the waste does not demonstrate compliance with
the delisting concentrations described in section IV.C above, or other
data (including but not limited to leachate data or groundwater
monitoring data from the final land disposal facility) relevant to the
delisted waste indicates that any constituent is at a concentration in
waste above specified delisting verification concentrations in Table 1,
the Petitioner must notify the Agency within 10 days, or such later
date as the EPA may agree to in writing, after receiving the final
verification testing results from the laboratory or of first possessing
or being made aware of other relevant data. The EPA may require the
Petitioner to conduct additional verification sampling to better define
the particular volume of wastes within the affected unit that does not
fully satisfy delisting criteria. For any volume of wastes for which
the corresponding representative sample(s) do not reflect full
compliance with delisting exclusion levels, the exclusion by its terms
does not apply, and the waste must be managed as hazardous.
The EPA has the authority under RCRA and the Administrative
Procedures Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting
decision if we receive new information indicating that the conditions
of this exclusion have been violated or, are otherwise not being met.
F. What must the Petitioner do if the process changes?
Any process changes or additions implemented at Petitioner's
facility which would significantly impact the constituent
concentrations of the waste must be reported to the EPA in accordance
with Condition VI. of the exclusion language.
V. When would the EPA finalize the proposed delisting exclusion?
HSWA specifically requires the EPA to provide notice and an
opportunity for public comment before granting or denying a final
exclusion. Thus, the EPA will not make a final decision or grant an
exclusion until it has addressed all timely public comments, including
any at public hearings. Upon receipt and consideration of all comments,
the EPA will publish its final determination as a final rule. Since
this rule would reduce the existing requirements for
[[Page 71537]]
persons generating hazardous wastes, the regulated community does not
need a six-month period to come into compliance in accordance with
Sec. 3010 of RCRA, as amended by HSWA.
VI. How would this action affect States?
Because the EPA is proposing to issue this exclusion under the
federal RCRA delisting regulations, only states subject to federal RCRA
delisting provisions will be affected. This exclusion may not be
effective in states which have received authorization from the EPA to
make their own delisting decisions.
RCRA allows states to impose more stringent regulatory requirements
than RCRA's under Sec. 3009 of RCRA. These more stringent requirements
may include a provision that prohibits a federally-issued exclusion
from taking effect in the state. We urge Petitioners to contact the
state regulatory authority to establish the status of its wastes under
the state law.
The EPA has also authorized some states to administer a delisting
program in place of the federal program, that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
states. If the Petitioner manages the wastes in any state with
delisting authorization, the Petitioner must obtain delisting
authorization or other determination from the receiving state before it
can manage the waste as nonhazardous in that state.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www2.epa.gov/laws-regulations/laws-and-executive-orders">https://www2.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is exempt from review by the Office of
Management and Budget because it is a rule of particular applicability,
not general applicability. The proposed action approves a delisting
petition under RCRA for the petitioned waste at a particular facility.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This proposed action is not an Executive Order 13771 regulatory
action because actions such as approval of delisting petitions under
RCRA are exempted under Executive Order 13771
C. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) because it only applies to a particular facility.
D. Regulatory Flexibility Act
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
E. Unfunded Mandates Reform Act
This proposed action does not contain any unfunded mandate as
described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and
does not significantly or uniquely affect small governments. The action
imposes no new enforceable duty on any state, local, or tribal
governments or the private sector.
F. Executive Order 13132: Federalism
This proposed action does not have federalism implications. It will
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications as specified
in Executive Order 13175. This proposed action applies only to a
particular facility on non-tribal land. Thus, Executive Order 13175
does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This proposed action is not subject to Executive Order 13045
because it is not economically significant as defined in Executive
Order 13045 and because the EPA does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This proposed action's health and
risk assessments using the Agency's Delisting Risk Assessment Software
(DRAS), which considers health and safety risks to children, are
described in section III.E above. The technical support document and
the user's guide for DRAS are included in the docket.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
13211.
J. National Technology Transfer and Advancement Act
This proposed action does not involve technical standards as
described by the National Technology Transfer and Advancement Act of
1995 (15 U.S.C. 272 note).
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs federal
agencies to identify and address ``disproportionately high and adverse
human health or environmental effects'' of their actions on minority
populations and low-income populations to the greatest extent
practicable and permitted by law. The EPA defines environmental justice
(EJ) as ``the fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect to
the development, implementation, and enforcement of environmental laws,
regulations, and policies.'' The EPA further defines the term fair
treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies,'' (<a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>).
The EPA believes that this proposed action does not have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations, and/or
indigenous peoples. The EPA has determined that this proposed action
will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
does not affect the level of protection provided to human health or the
environment. The Agency's risk assessment, as described in section
III.E above, did not identify risks from management of this material in
an authorized, solid waste landfill (e.g., RCRA Subtitle D landfill,
commercial/industrial solid waste landfill, etc.) or the on-site
landfill. Therefore, the EPA believes that any populations in proximity
of the landfills used by the Borger facility should not be adversely
affected by common waste management practices for this delisted waste.
[[Page 71538]]
L. Congressional Review Act
This proposed action is exempt from the Congressional Review Act (5
U.S.C. 801 et seq.) because it is a rule of particular applicability.
List of Subjects in 40 CFR part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Dated: November 14, 2022.
Ronald Crossland,
Director, Land, Chemicals and Redevelopment Division.
For the reasons set out in the preamble, the EPA proposes to amend
40 CFR part 261 as follows:
PART 261 IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. 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.
0
2. Amend table 1 of Appendix IX to part 261, by adding an entry for
``WRB Refining LP'' at the end of the table to read as follows:
Appendix IX to Part 261 Wastes Excluded Under Sec. Sec. 260.20 and
260.22.
* * * * *
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
WRB Refining LP...................... Borger, Texas.......... Stormwater Solids (the EPA Hazardous Waste No.
F037) generated at a maximum generation of
7,000 cubic yards per calendar year after (date
rule finalized) and disposed in a landfill. WRB
Refining must implement a verification program
that meets the following Paragraphs:
(1) Delisting Levels: All leachable constituent
concentrations must not exceed the following
levels. The petitioner must use the method
specified in 40 CFR 261.24 to measure
constituents in the waste leachate (mg/L).
Stormwater Solids Leachate: Acenaphthene-10.6;
Anthracene-25.9; Antimony-0.109; Arsenic-0.01;
Barium-36.0; Benz(a) anthracene-0.07;
Benzo(a)pyrene-26.3; Benzo(b)fluoranthene-224;
Benzene-0.077; 2-Butanone-200; Cadmium--0.0911;
Carbon disulfide-56.4; Chromium-2.27; Chrysene-
7.01; Cobalt--587; Di-n-butyl-phthalate-24.6;
Ethylbenzene-10.8; Fluoranthrene-2.46; Fluorene-
4.91; Indeno(1,2,3-cd)pyrene-129; Lead-5.0;
Mercury-0.068; Naphthalene-0.0327; Nickel-13.5;
Pyrene-4.45; Selenium-1.0; Silver-5.0; Toluene-
15.1; Vanadium-3.77; Xylenes, Total-9.56; Zinc-
197.
(2) Waste Holding and Handling:
(A) All stormwater solids from tank clean outs
must be tested to assure they have met the
concentrations described in Paragraph (1).
Solids that do not meet the concentrations must
be disposed of as hazardous waste.
(B) Levels of constituents measured in the
samples of the solids that do not exceed the
levels set forth in Paragraph (1) are non-
hazardous. WRB Refining can manage and dispose
the non-hazardous stormwater solids according
to all applicable solid waste regulations.
(C) WRB Refining must maintain a record of the
actual volume of the stormwater solids to be
disposed in the Subtitle D or on-site landfill
according to the requirements in Paragraph (4).
(3) Changes in Operating Conditions: If WRB
Refining significantly changes the process
described in its petition or starts any
processes that may or could affect the
composition or type of waste generated as
established under Paragraph (1) (by
illustration, but not limitation, changes in
equipment or operating conditions of the
treatment process), they must notify the EPA in
writing; they may no longer handle the wastes
generated from the new process as nonhazardous
until the test results of the wastes meet the
delisting levels set in Paragraph (1) and they
have received written approval to do so from
the EPA.
(4) Data Submittals: WRB Refining must submit
the information described below. If WRB
Refining fails to submit the required data
within the specified time or maintain the
required records on-site for the specified
time, the EPA, at its discretion, will consider
this sufficient basis to reopen the exclusion
as described in Paragraph 5. WRB Refining must:
(A) Submit the data obtained through Paragraph 3
to the Chief, RCRA Permits & Solid Waste
Section, Mail Code, (6LCR-RP) US EPA Region 6,
1201 Elm Street, Suite 500, Dallas, TX 75270
within the time specified. Data may be
submitted via email to the technical contact
for the delisting program.
(B) Compile records of operating conditions and
analytical data from Paragraph (3), summarized,
and maintained on-site for a minimum of five
years.
(C) Furnish these records and data when the EPA
or the State of Texas request them for
inspection.
(D) Send along with all data, a signed copy of
the following certification statement, to
attest to the truth and accuracy of the data
submitted: ``Under civil and criminal penalty
of law for the making or submission of false or
fraudulent statements or representations
(pursuant to the applicable provisions of the
Federal Code, which include, but may not be
limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928),
I certify that the information contained in or
accompanying this document is true, accurate
and complete. As to the (those) identified
section(s) of this document for which I cannot
personally verify its (their) truth and
accuracy, I certify as the company official
having supervisory responsibility for the
persons who, acting under my direct
instructions, made the verification that this
information is true, accurate and complete. If
any of this information is determined by the
EPA in its sole discretion to be false,
inaccurate or incomplete, and upon conveyance
of this fact to the company, I recognize and
agree that this exclusion of waste will be void
as if it never had effect or to the extent
directed by the EPA and that the company will
be liable for any actions taken in
contravention of the company's RCRA and CERCLA
obligations premised upon the company's
reliance on the void exclusion.''
(5) Reopener:
[[Page 71539]]
(A) If, any time after disposal of the delisted
waste, WRB Refining possesses or is otherwise
made aware of any environmental data (including
but not limited to leachate data or ground
water monitoring data) or any other data
relevant to the delisted waste indicating that
any constituent identified for the delisting
verification testing is at level higher than
the delisting level allowed by the Division
Director in granting the petition, then the
facility must report the data, in writing, to
the Division Director within 10 days of first
possessing or being made aware of that data.
(B) If the verification testing of the waste
does not meet the delisting requirements in
Paragraph 1, WRB Refining must report the data,
in writing, to the Division Director within 10
days of first possessing or being made aware of
that data.
(C) If WRB Refining fails to submit the
information described in paragraphs (4), (5)(A)
or (5)(B) or if any other information is
received from any source, the Division Director
will make a preliminary determination as to
whether the reported information requires
Agency action to protect human health or the
environment. Further action may include
suspending, or revoking the exclusion, or other
appropriate response necessary to protect human
health and the environment.
(D) If the Division Director determines that the
reported information does require Agency
action, the Division Director will notify the
facility, in writing, of the actions the
Division Director believes are necessary to
protect human health and the environment. The
notice shall include a statement of the
proposed action and a statement providing the
facility with an opportunity to present
information as to why the proposed Agency
action is not necessary. The facility shall
have 10 days from the date of the Division
Director's notice to present such information.
(E) Following the receipt of information from
the facility described in paragraph (5)(D) or
(if no information is presented under paragraph
(5)(D)) the initial receipt of information
described in paragraphs (4), (5)(A) or (5)(B),
the Division Director will issue a final
written determination describing the Agency
actions that are necessary to protect human
health or the environment. Any required action
described in the Division Director's
determination shall become effective
immediately, unless the Division Director
provides otherwise.
(6) Notification Requirements: WRB Refining must
do the following before transporting the
delisted waste: Failure to provide this
notification will result in a violation of the
delisting petition and a possible revocation of
the decision.
(A) Provide a written notification to any State
Regulatory Agency to which, or through which
they will transport the delisted waste
described above for disposal, 60 days before
beginning such activities. If WRB Refining
transports the excluded waste to or manages the
waste in any state with delisting
authorization, WRB Refining must obtain
delisting authorization from that state before
it can manage the waste as nonhazardous in the
state.
(B) Update the one-time written notification if
they ship the delisted waste to a different
disposal facility.
(C) Failure to provide the notification will
result in a violation of the delisting variance
and a possible revocation of the exclusion.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2022-25213 Filed 11-22-22; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.