Proposed Rule2023-00835
Hazardous Waste Management System; Identification and Listing of Hazardous Waste Proposed Rule
Primary source
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Published
January 24, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to grant an exclusion from the list of hazardous wastes to ExxonMobil Baytown Refinery (EMBR or Petitioner) located in Baytown, Texas. This action responds to a petition to exclude (or "delist") up to 730 cubic yards per year of sludges removed from the wastewater treatment plant (WWTP) from the list of federal hazardous wastes when disposed of in a Subtitle D landfill under the 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 88 Issue 15 (Tuesday, January 24, 2023)</title>
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[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Proposed Rules]
[Pages 4120-4128]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00835]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2022-0780; FRL-10237-01-Region 6]
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 ExxonMobil
Baytown Refinery (EMBR or Petitioner) located in Baytown, Texas. This
action responds to
[[Page 4121]]
a petition to exclude (or ``delist'') up to 730 cubic yards per year of
sludges removed from the wastewater treatment plant (WWTP) from the
list of federal hazardous wastes when disposed of in a Subtitle D
landfill under the 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 February
23, 2023.
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#e5968d848dcb8d8497979ca5809584cb828a93"><span class="__cf_email__" data-cfemail="ea99828b82c4828b989893aa8f9a8bc48d859c">[email protected]</span></a>.
Instructions: The EPA must receive your comments by February 23,
2023. Direct your comments to Docket ID Number EPA-R06-RCRA-2022-0780.
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. The EPA 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#60130801084e0801121219200510014e070f16"><span class="__cf_email__" data-cfemail="75061d141d5b1d1407070c351005145b121a03">[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. The EPA encourages
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
propose 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?
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 2021 petition (``F037 Delisting
Petition'') request submitted by EMBR in Baytown, Texas to exclude (or
``delist'') up to 730 cubic yards per year of F037 WWTP sludge 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) for
offsite disposal. 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, the EPA
propose to approve the petition request, and allow the delisted waste
to be disposed in a Subtitle D landfill. A copy of the May 2021
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
(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
[[Page 4122]]
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 the 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 the 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 3001(f) of
RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed
wastes, the EPA must consider any factors (including additional
constituents) aside from those for which the 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 the EPA's ``responsibilities related to the
protection of public health and the environment, the 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>). The EPA is providing
analysis of environmental justice associated with this action. The EPA
are doing so for the purpose of providing information to the public,
not as a basis of our final action.
The EPA utilized EJ Screen to evaluate potential environmental
justice concerns in communities at one-, three-, and five-mile radiuses
around the Baytown facility. The 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 the
one-mile radial measurement, all 12 EJ indices exceeded the 80th
percentile, at the three-mile measurement, 11 out of the 12 EJ indices
exceeded the 80th percentile, and at the five-mile radial measurement,
four EJ indices exceeded the 80th percentile. 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>.
Table 1--EJ Indices at One-, Three-, and Five-Mile Radiuses Around the Facility
----------------------------------------------------------------------------------------------------------------
1 Mile radius 3 Mile radius 5 Mile radius
EJ index (USA percentile) around the around the around the
facility facility facility
----------------------------------------------------------------------------------------------------------------
EJ Index for Particulate Matter 2.5............................. 86 81 74
EJ Index for Ozone.............................................. 82 77 72
EJ Index for 2017 Diesel Particulate Matter..................... 86 82 77
EJ Index for 2017 Air Toxics Cancer Risk........................ 95 89 79
EJ Index for 2017 Air Toxics Respiratory HI..................... 88 82 75
EJ Index for Traffic Proximity.................................. 83 81 78
EJ Index for Lead Paint......................................... 84 82 79
EJ Index for Superfund Proximity................................ 87 87 84
EJ Index for RMP Facility Proximity............................. 97 94 88
EJ Index for Hazardous Waste Proximity.......................... 86 81 74
EJ Index for Underground Storage Tanks.......................... 86 85 81
EJ Index for Wastewater Discharge............................... 90 87 85
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[[Page 4123]]
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
In May 2021, EMBR petitioned the EPA to exclude from the list of
hazardous wastes contained in Sec. 261.31, WWTP solids (F037)
generated from its facility located in Baytown, Texas. The waste falls
under the classification of listed waste pursuant to Sec. 261.31.
Specifically, in its petition, EMBR requested that the EPA grant a
standard exclusion for 730 cubic yards per year of the WWTP solids for
offsite disposal.
B. How did the Petitioner generate the waste?
Per the definition provide in 40 CFR 261.31, an F037 listed
hazardous waste is any sludge generated from the gravitational
separation of oil/water/solids during the storage or treatment of
process wastewaters and oily cooling wastewaters from petroleum
refineries. Such sludges also include sludge generated from
gravitational separation in stormwater units receiving dry weather
flow. The preseparators receive industrial wastewater generated at the
ExxonMobil Baytown Complex, comprised of the Baytown Olefins Plant,
Baytown Chemical Plant, and the Baytown Refinery, as part of the WWTP.
The sludge separates from the process wastewaters in the primary
treatment/storage systems, making it an F037 waste stream by
definition. Under routine operating conditions, the primary separation
sludge is generated at the preseparators; however, during infrequent
and isolated times of non-routine elevated wastewater flows, temporary
storage/conveyance of dry weather industrial wastewater may occur in
the stormwater impoundments (e.g. Upper Outfall Canal or Stormwater
Retention Basin) where primary separation will occur. The sludge is
collected in the units for removal and disposal.
C. How did the Petitioner sample and analyze the petitioned waste?
A total of twelve (3 samples per month for 4 months) acceptable
sample results were provided by Petitioner to support the petition. The
EPA considered all 12 samples of the WWTP 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 sludge 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.................... 3.6 0.0037
Acenapthylene................... 2.3 0.0003
Acetone (2-propanone)........... 0.12 0.046
Aniline (benzeneamine).......... 4.5 0.0014
Anthracene...................... 0.14 0.0008
Antimony........................ 3.17 0.0362
Arsenic......................... 11.9 0.0486
Barium.......................... 221 0.862
Benz(a)anthracene............... 8.1 0.0003
Benzene......................... 0.54 0.012
Benzo(a)pyrene.................. 6.9 0.0004
Benzo(b)fluoranthene............ 9.9 0.0004
Benzo(ghi)perylene.............. 4.1 0.0003
Benzo(k)fluoranthene............ 5.8 0.0007
Beryllium....................... 1.12 0.0002
Bis(2-ethylhexyl)phthalate...... 0.45 0.0008
Cadmium......................... 0.494 0.002
Chromium (III) (Chromic Ion).... 62.4 0.151
Chrysene........................ 11 0.0008
Cobalt.......................... 5.61 0.0236
Copper.......................... 127 0.308
Cresol m-....................... 6.1 0.026
Cresol o-....................... 16 0.055
Cresol p-....................... 16 0.055
DDD............................. 0.013 2.00E-05
DDE............................. 0.013 2.00E-05
DDT p,p'-....................... 0.031 2.50E-05
Dibenz(a,h)anthracene........... 1.1 0.0006
Dibenzofuran.................... 21 0.0015
Dieldrin........................ 0.0085 3.00E-05
Dimethylphenol, 2,4-............ 3.6 0.016
Diphenylamine................... 0.47 0.01
Endosulfan (Endosulfan I and 0.03664 1.10E-05
II,mixture)....................
Endrin.......................... 0.025 3.00E-05
Ethyl methacrylate.............. 0.11 0.02
Ethylbenzene.................... 2.2 0.013
Fluoranthene.................... 35 0.0004
Fluorene........................ 27 0.0036
HCH, alpha- 0.0022 4.90E-05
(Hexachlorocyclohexane alpha-
BHC)...........................
HCH, beta- 0.32 1.00E-05
(Hexachlorocyclohexane beta-
BHC)...........................
Heptachlor...................... 0.00068 1.10E-05
Heptachlor epoxide.............. 0.033 1.00E-05
[[Page 4124]]
Indeno (1,2,3-cd) pyrene........ 3.8 0.0006
Lead............................ 94.3 0.0747
Mercury (Fish Pathway Only)..... 1.95 0.000642
Mercury (Total)................. 1.95 0.000642
Methoxychlor.................... 0.0035 0.00015
Methylnapthalene 2-............. 55 0.042
Naphthalene..................... 63 0.023
Nickel.......................... 464 3.38
Nitrosodiphenylamine N-......... 0.47 0.01
Phenanthrene.................... 72 0.0051
Phenol.......................... 20 0.029
Pyrene.......................... 30 0.0003
Pyridine........................ 0.43 0.0003
Selenium........................ 1.86 0.0254
Silver.......................... 0.0688 0.002
Styrene......................... 0.39 0.01
Tetrachlorodibenzo-p-dioxin 2.00E-07 4.10E-06
(TCDD) 2,3,7,8-................
Tin............................. 15.1 0.0289
Toluene......................... 9.7 0.093
Trinitrobenzene (Trinitrobenzene 0.5 0.0006
1,3,5-) sym-...................
Vanadium........................ 1110 36.1
Xylenes (total)................. 21 0.096
Zinc............................ 871 1.61
------------------------------------------------------------------------
D. What factors did the EPA consider in deciding whether to propose to
grant the delisting petition?
In reviewing this petition, the EPA considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2) through (4). The EPA 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 the EPA listed the waste to
determine if these additional factors could cause the waste to be
hazardous (See the background documents).
Our proposed decision to grant the May 2021 petition to delist the
waste from the Petitioner's facility in Baytown, 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, the EPA evaluated the
risk that the waste would be disposed of as a non-hazardous waste in a
landfill. The EPA considered transport of waste constituents through
groundwater, surface water and air. The EPA evaluated the 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>.
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 and the environment. The EPA's
review of this
[[Page 4125]]
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 Sec. 260.22 (d)(1) through (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 (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 the Petitioner's facility is based on
the information submitted in support of this proposed rule, including
descriptions of the wastes and analytical data from the Baytown, 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.
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
annually during the second calendar quarter. Petitioner must conduct
annual sampling and analysis as described in the delisting sampling and
analysis plan and ensure that the wastes do not exceed the delisting
parameters. If any measured constituent concentration exceeds the
delisting levels set forth in Table 2, ExxonMobil must collect an
additional representative sample within 10 business days of being made
aware of the exceedance and test it expeditiously for the
constituent(s) which exceeded delisting levels in the original annual
sample. If compliance with the delisting parameters is demonstrated
with analytical testing (TCLP analysis), the Petitioner may dispose of
the WWTP sludge as a non-hazardous waste. The annual amount of sludge
disposed as delisted waste may not exceed 730 cubic yards. The annual
sampling report shall include the volume of sludge 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 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 business 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#88fbe0e9e0a6e0e9fafaf1c8edf8e9a6efe7fe"><span class="__cf_email__" data-cfemail="85f6ede4edabede4f7f7fcc5e0f5e4abe2eaf3">[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 EPA 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 2,
the Petitioner must notify the EPA within 10 business 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 the EPA 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 proposed rule would reduce the existing requirements for persons
generating hazardous
[[Page 4126]]
wastes, the regulated community does not need a six-month period to
come into compliance in accordance with section 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 3009 of RCRA. These more stringent requirements may
include a provision that prohibits a federally-issued exclusion from
taking effect in the state. The EPA 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 proposed 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 EPA'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 the
petitioned wastes do not meet the criteria that determines what
constitutes a hazardous waste and there are no additional constituents
or factors which could cause the waste to be hazardous. The EPA'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
[[Page 4127]]
(e.g., RCRA Subtitle D landfill, commercial/industrial solid waste
landfill, etc.). Therefore, the EPA believes that any populations in
proximity of the landfill(s) used by the Baytown facility should not be
adversely affected by common waste management practices for this
delisted waste.
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, Reporting and
recordkeeping requirements.
Dated: January 9, 2023.
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 the entry
``ExxonMobil Baytown Refinery'' in alphabetical order to read as
follows:
Appendix IX to Part 261 Wastes Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
ExxonMobil Baytown Refinery...... Baytown, Texas............. Wastewater Treatment Plant Sludge (the EPA
Hazardous Waste No. F037) maximum delisted
amount of 730 cubic yards per calendar year
after (date rule finalized) and disposed in a
Subtitle D landfill. ExxonMobil 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).
Wastewater Treatment Plant Solids Leachate:
Acenaphthene-107; Acetone-5220; Aniline-19.8;
Anthracene-260; Antimony-1.23; Arsenic-0.129;
Barium-100; Benz(a) anthracene-5.13; Benzene-
0.5; Benzo(a)pyrene-1930; Beryllium-1.43;
Cadmium-1.0; Chromium (III)-5.0; Chrysene-513;
Cobalt-2.71; Copper-88.1; Cresol (total)-200;
Dibenzofuran-5.91; 2,4-Dimethylphenol-114;
Diphenylamine-387; Endosulfan-35.9; Endrin-
0.05; Ethyl Methacrylate-2030; Ethylbenzene-
7.88; Fluoranthrene-24.7; Fluorene-49.2; Beta
HCH-0.0636; Heptachlor-0.008; Heptachlor
epoxide-0.008; Lead-5.0; Mercury-0.2; 2-
Methylnapthalene-7.29; Naphthalene-0.947;
Nickel-136; N-Nitrosodiphenylamine-11.5; Phenol-
1740; Pyrene-44.6; Pyridine-5; Selenium-1.0;
Silver-5.0; Styrene-15.2; TCDD-467; Toluene-
152; 1,3,5-Trinitrobenzene-174; Vanadium-41.7;
Xylenes (total)-86.1; Zinc-1980.
(2) Waste Holding and Handling:
(A) Wastewater treatment plant sludge must be
tested annually to assure they have met the
concentrations described in Paragraph (1).
Solids that do not meet the concentrations in
the original and retest representative sample
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. ExxonMobil can manage and dispose
the non-hazardous WWTP solids according to all
applicable solid waste regulations.
(C) ExxonMobil must maintain a record of the
actual volume of the WWTP solids to be disposed
in the Subtitle D landfill according to the
requirements in Paragraph (4).
(3) Testing Requirements:
(A) ExxonMobil must test a representative sample
of the WWTP sludge for all constituents listed
in paragraph (1) at least once per calendar
year. If any measured constituent concentration
exceeds the delisting levels set forth in
paragraph (1), ExxonMobil must collect an
additional representative sample within 10
business days of being made aware of the
exceedance and test it expeditiously for the
constituent(s) which exceeded delisting levels
in the original annual sample.
(B) The annual testing report should include the
total amount of delisted waste in cubic yards
disposed during the calendar year.
(4) Changes in Operating Conditions: If
ExxonMobil 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 during the annual report; 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).
(5) Data Submittals: ExxonMobil must submit the
information described below. If ExxonMobil
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. ExxonMobil 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.''
(6) Reopener:
[[Page 4128]]
(A) If, any time after disposal of the delisted
waste, ExxonMobil 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, ExxonMobil 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 ExxonMobil fails to submit the
information described in paragraphs (5), (6)(A)
or (6)(B) or if any other information is
received from any source, the Division Director
will make a preliminary determination as to
whether the reported information requires EPA
action to protect human health 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 EPA action,
the Division Director will notify the facility,
in writing, of the actions the Division
Director believes are necessary to protect
human health and the environment. The notice
shall include a statement of the proposed
action and a statement providing the facility
with an opportunity to present information as
to why the proposed EPA action is not
necessary. The facility shall have 10 business
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 (6)(D) or
(if no information is presented under paragraph
(6)(D)) the initial receipt of information
described in paragraphs (5), (6)(A) or (6)(B),
the Division Director will issue a final
written determination describing the EPA
actions that are necessary to protect human
health or the environment. Any required action
described in the Division Director's
determination shall become effective
immediately, unless the Division Director
provides otherwise.
(6) Notification Requirements: ExxonMobil must
do the following before transporting the
delisted waste: Failure to provide this
notification will result in a violation of the
delisting petition and a possible revocation of
the decision.
(A) Provide a one-time written notification to
any State Regulatory Agency to which, or
through which they will transport the delisted
waste described above for disposal, 60 days
before beginning such activities. If ExxonMobil
transports the excluded waste to or manages the
waste in any state with delisting
authorization, ExxonMobil 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. 2023-00835 Filed 1-23-23; 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.