Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Direct Final Rule, 38109-38114 [E9-18389]
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Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This
action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
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J. 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)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this final
rule 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. This rule applies to one
facility and withdraws a rule that was
not implemented.
K. The Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 804
exempts from section 801 the following
types of rules (1) rules of particular
applicability; (2) rules relating to agency
management or personnel; and (3) rules
of agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
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parties. 5 U.S.C. 804(3). EPA is not
required to submit a rule report
regarding today’s action under section
801 because it is a rule of particular
applicability and does not impose any
new requirements.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Waste treatment and
disposal.
Dated: July 24, 2009.
Lisa P. Jackson,
Administrator.
For the reasons set forth in the
preamble, part 261 of chapter I of title
40 of the Code of Federal Regulations is
amended as follows:
■
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
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.
2. Section 261.4 paragraph (b)(18) is
removed.
■
[FR Doc. E9–18390 Filed 7–30–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2008–0418; SW–FRL–
8933–3]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Direct Final Rule
AGENCY: Environmental Protection
Agency.
ACTION: Direct final rule.
SUMMARY: Environmental Protection
Agency (EPA) is granting a petition
submitted by WRB Refining, LLC
Company to exclude (or delist) the
sludge from its wastewater treatment
plant generated by WRB Refining, LLC
Company in Borger, Texas from the lists
of hazardous wastes. This direct final
rule responds to the petition submitted
by WRB Refining, LLC Company to
delist the thermal desorber residual
solids with Hazardous Waste Numbers:
F037, F038, K048, K049, K050, and
K051.
After careful analysis and use of the
Delisting Risk Assessment Software
(DRAS), EPA has concluded the
petitioned waste is not hazardous waste.
This exclusion applies to 5,000 cubic
yards per year of the thermal desorber
residual solids with Hazardous Waste
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38109
Numbers: F037, F038, K048, K049,
K050, and K051. Accordingly, this final
rule excludes the petitioned waste from
the requirements of hazardous waste
regulations under the Resource
Conservation and Recovery Act (RCRA)
when it is disposed in a Subtitle D
Landfill.
DATES: This direct final rule will be
effective September 29, 2009 without
further notice, unless EPA receives
relevant adverse comments by August
31, 2009. If EPA receives such comment,
EPA will publish a timely withdrawal of
the direct final rule in the Federal
Register informing the public that this
rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
RCRA–2008–0418 by one of the
following methods:
1. Federal eRulemaking Portal: https://
www.regulations.gov: Follow the online
instructions for submitting comments.
2. E-mail: peace.michelle@epa.gov.
3. Mail: Michelle Peace,
Environmental Protection Agency,
Multimedia Planning and Permitting
Division, RCRA Branch, Mail Code:
6PD–C, 1445 Ross Avenue, Dallas, TX
75202.
4. Hand Delivery or Courier. Deliver
your comments to: Michelle Peace,
Environmental Protection Agency,
Multimedia Planning and Permitting
Division, RCRA Branch, Mail Code:
6PD–C, 1445 Ross Avenue, Dallas, TX
75202.
Instructions: Direct your comments to
Docket ID No. EPA–R06–RCRA–2008–
0418. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, 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 https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
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, EPA
recommends that you include your
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name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, 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. All documents in the
electronic docket are listed in the https://
www.regulations.gov index. 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. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
RCRA Branch, 1445 Ross Avenue,
Dallas, TX 75202. The hard copy RCRA
regulatory docket for this rule, EPA–
R06–RCRA–2008–0418, is available for
viewing from 8 a.m. to 5 p.m., Monday
through Friday, excluding Federal
holidays. The public may copy material
from the regulatory docket at $0.15 per
page. EPA requests that you contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
schedule your inspection. The
interested persons wanting to examine
these documents should make an
appointment with the office at least 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Ben
Banipal, Section Chief of the Corrective
Action and Waste Minimization
Section, Multimedia Planning and
Permitting Division (6PD–C),
Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas,
Texas 75202 at (214) 665–7324. For
technical information concerning this
rule, contact Young Moo Kim,
Environmental Protection Agency
Region 6, 1445 Ross Avenue, (6PD–C),
Dallas, Texas 75202, at (214) 665–6788,
or kim.youngmoo@epa.gov.
SUPPLEMENTARY INFORMATION:
The information in this section is
organized as follows:
I. Overview Information
A. What action is EPA taking?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will WRB Refining, LLC Company
manage the waste if it is delisted?
E. When is the final delisting exclusion
effective?
F. How does this direct final rule affect
states?
II. Background
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A. What is a delisting?
B. What regulations allow facilities to
delist a waste?
C. What information must the generator
supply?
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did WRB Refining, LLC
Company petition EPA to delist?
B. How much waste did WRB Refining,
LLC Company propose to delist?
C. How did WRB Refining, LLC Company
sample and analyze the waste data in
this petition?
IV. Public comments received on the
proposed exclusion
A. Who submitted comments on the
proposed rule?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA taking?
After evaluating the petition, EPA
proposed, on May 19, 2008, to exclude
the thermal desorber residual solids
from the lists of hazardous waste under
40 CFR 261.31 and 261.32 (see 73 FR
28768). After the comment period ended
for the proposed rule, EPA received a
request from WRB Refining to increase
the volume of waste that may be
disposed of by the facility. The original
petition requested that 1,500 cubic
yards of the residual solids be delisted.
On September 19, 2008, a request was
made to increase this volume to 5,000
cubic yards. The risk assessment has
been run to insure that the waste does
not exceed any delisting limits. The
waste meets the criteria for 5,000 cubic
yards. Therefore, EPA conditionally
grants WRB Refining, LLC Company’s
delisting petition to have its thermal
desorber residual solids managed and
disposed as non-hazardous waste. EPA
is opening a 30-day comment period to
allow comment on the decision to grant
the change in waste volume. If there are
no adverse comments regarding this
change, EPA’s decision will become
effective in 60 days.
B. Why is EPA approving this action?
WRB Refining, LLC Company’s
petition requests a delisting from the
F019 waste listing under 40 CFR 260.20
and 260.22. WRB Refining, LLC
Company does not believe that the
petitioned waste meets the criteria for
which EPA listed it. WRB Refining, LLC
Company also believes no additional
constituents or factors could cause the
waste to be hazardous. 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. See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and
40 CFR 260.22(d)(1)–(4) (hereinafter all
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sectional references are to 40 CFR
unless otherwise indicated). In making
the final delisting determination, EPA
evaluated the petitioned waste against
the listing criteria and factors cited in
§ 261.11(a)(2) and (a)(3). Based on this
review, EPA agrees with the petitioner
that the waste is non-hazardous with
respect to the original listing criteria. If
EPA had found, based on this review,
that the waste remained hazardous
based on the factors for which the waste
was originally listed, EPA would have
proposed to deny the petition. 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.
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. EPA
believes that the petitioned waste does
not meet the listing criteria and thus
should not be a listed waste. EPA’s final
decision to delist waste from WRB
Refining, LLC Company’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.
C. What are the limits of this exclusion?
This exclusion applies to the waste
described in the petition only if the
requirements described in 40 CFR part
261, Appendix IX, Table 1 and the
conditions contained herein are
satisfied.
D. How will WRB Refining, LLC
Company manage the waste if it is
delisted?
The sludge from WRB Refining, LLC
Company will be disposed of in a RCRA
Subtitle D landfill.
E. When is the final delisting exclusion
effective?
This direct final rule will be effective
September 29, 2009 without further
notice, unless EPA receives relevant
adverse comments by August 31, 2009.
F. How does this direct final rule affect
states?
Because EPA is issuing this exclusion
under the Federal RCRA delisting
program, only states subject to Federal
RCRA delisting provisions would be
affected. This would exclude states
which have received authorization from
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EPA to make their own delisting
decisions.
EPA allows states to impose their own
non-RCRA regulatory requirements that
are more stringent than EPA’s, under
section 3009 of RCRA, 42 U.S.C. 6929.
These more stringent requirements may
include a provision that prohibits a
Federally issued exclusion from taking
effect in the state. Because a dual system
(that is, both Federal (RCRA) and State
(non-RCRA) programs) may regulate a
petitioner’s waste, EPA urges petitioners
to contact the State regulatory authority
to establish the status of their wastes
under the State law.
EPA has also authorized some states
(for example, Louisiana, Oklahoma,
Georgia, and Illinois) to administer a
RCRA delisting program in place of the
Federal program; that is, to make state
delisting decisions. Therefore, this
exclusion does not apply in those
authorized states unless that state makes
the rule part of its authorized program.
If WRB Refining, LLC Company
transports the petitioned waste to or
manages the waste in any state with
delisting authorization, WRB Refining,
LLC Company must obtain delisting
authorization from that state before it
can manage the waste as non-hazardous
in the state.
II. Background
A. What is a delisting petition?
A delisting petition is a request from
a generator to EPA, or another agency
with jurisdiction, to exclude or delist
from the RCRA list of hazardous waste,
certain wastes the generator believes
should not be considered hazardous
under RCRA.
B. What regulations allow facilities to
delist a waste?
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Under §§ 260.20 and 260.22, facilities
may petition EPA to remove their
wastes from hazardous waste regulation
by excluding them from the lists of
hazardous wastes contained in
§§ 261.31 and 261.32. Specifically,
§ 260.20 allows any person to petition
the Administrator to modify or revoke
any provision of 40 CFR parts 260
through 265 and 268. Section 260.22
provides generators the opportunity to
petition the Administrator to exclude a
waste from a particular generating
facility from the hazardous waste lists.
C. What information must the generator
supply?
Petitioners must provide sufficient
information to EPA to allow EPA to
determine that the waste to be excluded
does not meet any of the criteria under
which the waste was listed as a
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hazardous waste. Based on the
information supplied by the generator,
the Administrator must determine
whether factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be a hazardous waste. The
generator must also supply information
to demonstrate that the waste does not
exhibit any of the characteristics
defined in § 261.21–§ 261.24.
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did WRB Refining, LLC
Company petition EPA to delist?
On August 26, 2005, WRB Refining
LLC(formerly ConocoPhillips Company)
petitioned EPA to exclude from the lists
of hazardous wastes contained in
§§ 261.31 and 261.32, thermal desorber
residual solids from processing oilbearing hazardous secondary materials
including F037, F038, K048, K049, K050
and K051 generated by its facility
located in Borger, Texas. The waste falls
under the classification of listed waste
pursuant to §§ 261.31 and 261.32.
B. How much waste did WRB Refining,
LLC Company propose to delist?
Specifically, in its petition, WRB
Refining LLC requested that EPA grant
a conditional exclusion for 1500 cubic
yards per year of thermal desorber
residual solids for a period of 10 years.
On September 19, 2008, the facility
requested that the amount of waste
delisted be increased from 1,500 to
5,000 cubic yards of waste a year.
C. How did WRB Refining, LLC
Company sample and analyze the waste
data in this petition?
To support its petition, WRB Refining,
LLC Company submitted:
• Historical information on waste
generation and management practices;
• Results of the total constituents list
for 40 CFR part 264, Appendix IX
volatile and semi-volatile organic
compounds and metals. These wastes
are also analyzed for cyanide, and
sulfide.
• Results of the constituent list for
appendix IX on Toxicity Characteristic
Leaching Procedure (TCLP) extract for
volatiles, semevolatiles, and metals.
• Results from total oil and grease
analyses and multiple pH
measurements, and
• Results from a total of ten
composite samples including two
duplicates, representing 60 discrete
thermal desorber residual solid samples.
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38111
IV. Public Comments Received on the
Proposed Exclusion
A. Who submitted comments on the
proposed rule?
No comments were received on the
Proposed Rule during the comment
period. However after the comment
period closed, the facility requested an
increase in the volume of waste
excluded by the delisting petition.
Based on the application of the DRAS
model with the requested increase, the
Agency has decided to allow the
increase in volume requested by WRB
Refining. The sample results provided
by the petitioner meet the maximum
allowable waste concentrations at 1,500
cubic yards and at the increased volume
of 5,000 cubic yards. The delisting
limits in the final exclusion will be
revised to cover the additional waste
volume. The delisting concentration
limits are lower than the values
originally proposed in the May 19, 2008
proposed rule.
V. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review ’’ (58
FR 51735, October 4, 1993), this rule is
not of general applicability and
therefore is not a regulatory action
subject to review by the Office of
Management and Budget (OMB). This
rule 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
applies to a particular facility only.
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4). Because this
rule will affect only a particular facility,
it will not significantly or uniquely
affect small governments, as specified in
section 203 of UMRA. Because this rule
will affect only a particular facility, this
final rule 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, as specified in
Executive Order 13132, ‘‘Federalism’’,
(64 FR 43255, August 10, 1999). Thus,
Executive Order 13132 does not apply
to this rule.
Similarly, because this rule will affect
only a particular facility, this final rule
does not have tribal implications, as
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specified in Executive Order 13175,
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000). Thus,
Executive Order 13175 does not apply
to this rule. This rule also is not subject
to Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant as defined in
Executive Order 12866, and because the
Agency does not have reason to believe
the environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
basis for this belief is that the Agency
used the DRAS program, which
considers health and safety risks to
infants and children, to calculate the
maximum allowable concentrations for
this rule. This rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)), because it is not a significant
regulatory action under Executive Order
12866. This rule does not involve
technical standards; thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988,
‘‘Civil Justice Reform’’, (61 FR 4729,
February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to
eliminate drafting errors and ambiguity,
minimize potential litigation, and
provide a clear legal standard for
affected conduct.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report which includes a
copy of the rule to each House of the
Congress and to the Comptroller General
of the United States. Section 804
exempts from section 801 the following
types of rules: (1) Rules of particular
applicability; (2) rules relating to agency
management or personnel; and (3) rules
of agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report
regarding today’s action under section
801 because this is a rule of particular
applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C.
6921(f).
Dated: July 9, 2009.
William N. Rhea,
Acting Division Director, Multimedia
Planning and Permitting Division, Region 6.
For the reasons set out in the
preamble, 40 CFR part 261 is amended
as follows:
■
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
■
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6938.
2. In Table 1 of Appendix IX of Part
261 add the following waste stream in
alphabetical order by facility to read as
follows:
■
Appendix IX to Part 261—Waste
Excluded Under §§ 260.20 and 260.22
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Address
Waste description
*
WRB Refining, LLC ............
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Facility
*
Borger, TX ........
*
*
*
*
*
Thermal desorber residual solids (Hazardous Waste Nos. F037, F038, K048, K049, K050, and
K051) generated at a maximum annual rate of 5,000 cubic yards per calendar year after
September 29, 2009 and disposed in Subtitle D Landfill.
For the exclusion to be valid, WRB Refining LLC must implement a verification testing program
that meets the following Paragraphs:
(1) Delisting Levels: All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph.
Thermal Desorber Residual Solid Leachable Concentrations (mg/l): Antimony–0.165; Arsenic–
0.0129; Barium–54.8; Beryllium–0.119; Cadmium–0.139; Chromium–3.23; Chromium,
Hexavalent–3.23; Cobalt–20.7; Copper–38.6; Cyanide–4.69; Lead–1.07; Mercury–0.104;
Nickel–20.6; Selenium–1.0; Silver–5.0; Tin–3790.00; Vanadium–1.46; Zinc–320.0;
Acenapthene–16.2; Anthracene–39.5; Benzene–0.117; Carbon Disulfide–86.0; 2chlorophenol–4.41; Dibenzofuran–0.0226; 1,4-Dichlororbenzene–0.518; Ethylbenzene–16.5;
Fluoranthene–3.75; Methylene Chloride–0.077; Naphthalene–0.0498; Phenol–264.0; Pyrene–
6.78; Toluene–23.0; 1,2,4-Trichlorobenzene–1.51; Trichlorofluoromethane–23.5; Xylenes–
14.6.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous can not begin until compliance with the limits set in
paragraph (1) for thermal desorber residual solids has occurred for two consecutive quarterly
sampling events.
(B) If constituent levels in any sample taken by WRB Refining LLC exceed any of the delisting
levels set in paragraph (1) for the thermal desorber residual solids, WRB Refining LLC must
do the following:
(i) Notify EPA in accordance with paragraph (6) and
(ii) Manage and dispose the thermal desorber residual solids as hazardous waste generated
under Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, WRB Refining LLC may perform quarterly analytical testing
by sampling and analyzing the desorber residual solids as follows:
(A) Quarterly Testing:
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38113
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
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Facility
Address
Waste description
(i) Collect two representative composite samples of the sludge at quarterly intervals after EPA
grants the final exclusion. The first composite samples may be taken at any time after EPA
grants the final approval. Sampling should be performed in accordance with the sampling
plan approved by EPA in support of the exclusion.
(ii) Analyze the samples for all constituents listed in paragraph (1). Any composite sample
taken that exceeds the delisting levels listed in paragraph (1) for the sludge must be disposed as hazardous waste in accordance with the applicable hazardous waste requirements.
(iii) Within thirty (30) days after taking its first quarterly sample, WRB Refining LLC will report its
first quarterly analytical test data to EPA. If levels of constituents measured in the samples of
the sludge do not exceed the levels set forth in paragraph (1) of this exclusion for two consecutive quarters, WRB Refining LLC can manage and dispose the non-hazardous thermal
desorber residual solids according to all applicable solid waste regulations.
(B) Annual Testing: (i) If WRB Refining LLC completes the quarterly testing specified in paragraph (3) above and no sample contains a constituent at a level which exceeds the limits set
forth in paragraph (1), WRB Refining LLC may begin annual testing as follows: WRB Refining
LLC must test two representative composite samples of the thermal desorber residual solids
for all constituents listed in paragraph (1) at least once per calendar year.
(ii) The samples for the annual testing shall be a representative composite sample according to
appropriate methods. As applicable to the method-defined parameters of concern, analyses
requiring the use of SW–846 methods incorporated by reference in 40 CFR 260.11 must be
used without substitution. As applicable, the SW–846 methods might include Methods 0010,
0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B,1110A,
1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA
Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the WRB Refining thermal desorber residual solids are representative for all constituents listed in paragraph (1).
(iii) The samples for the annual testing taken for the second and subsequent annual testing
events shall be taken within the same calendar month as the first annual sample taken.
(iv) The annual testing report should include the total amount of delisted waste in cubic yards
disposed as non-hazardous waste during the calendar year.
(4) Changes in Operating Conditions: If WRB Refining LLC significantly changes the process
described in its petition or starts any processes that generate(s) the waste that may or could
affect the composition or type of waste generated (by illustration, but not limitation, changes
in equipment or operating conditions of the treatment process), it must notify EPA in writing
and it may no longer handle the wastes generated from the new process as non-hazardous
until the wastes meet the delisting levels set in paragraph (1) and it has received written approval to do so from EPA.
WRB Refining LLC must submit a modification to the petition, complete with full sampling and
analysis, for circumstances where the waste volume changes and/or additional waste codes
are added to the waste stream, if it wishes to dispose of the material as non-hazardous.
(5) Data Submittals:
WRB Refining LLC must submit the information described below. If WRB Refining LLC fails to
submit the required data within the specified time or maintain the required records on-site for
the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph (6). WRB Refining LLC must:
(A) Submit the data obtained through paragraph (3) to the Chief, Corrective Action and Waste
Minimization Section, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas, 75202, within the time specified. All
supporting data can be submitted on CD–ROM or comparable electronic media.
(B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site
for a minimum of five years.
(C) Furnish these records and data when either EPA or the State of Texas requests 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 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 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) Re-opener
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Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
(A) If, anytime after disposal of the delisted waste WRB Refining LLC 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 either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph 1, WRB Refining LLC 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 LLC 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 and/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 requires action by EPA, 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 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 EPA actions that are necessary to protect human health and/or the environment.
Any required action described in the Division Director’s determination shall become effective
immediately, unless the Division Director provides otherwise.
(7) Notification Requirements
WRB Refining LLC 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 it will transport the delisted waste described above for disposal, 60 days before beginning such activities.
(B) Update the one-time written notification if it ships the delisted waste into a different disposal
facility.
(C) Failure to provide this notification will result in a violation of the delisting variance and a
possible revocation of the decision.
*
*
*
[FR Doc. E9–18389 Filed 7–30–09; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL MARITIME COMMISSION
46 CFR Part 506
[Docket No. 09–04]
RIN 3072–AC36
Inflation Adjustment of Civil Monetary
Penalties
July 28, 2009.
Federal Maritime Commission.
Final rule.
AGENCY:
rmajette on DSK29S0YB1PROD with RULES
ACTION:
SUMMARY: This rule implements the
Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by
the Debt Collection Improvement Act of
1996. The rule adjusts for inflation the
maximum amount of each statutory civil
penalty subject to Federal Maritime
Commission (‘‘Commission’’)
VerDate Nov<24>2008
15:21 Jul 30, 2009
Jkt 217001
*
*
jurisdiction in accordance with the
requirements of that Act.
DATES: Effective Date: July 31, 2009.
FOR FURTHER INFORMATION CONTACT:
Vern W. Hill, Director, Bureau of
Enforcement, Federal Maritime
Commission, 800 North Capitol Street,
NW., Room 900, Washington, DC 20573,
(202) 523–5783.
SUPPLEMENTARY INFORMATION: This rule
implements the Debt Collection
Improvement Act of 1996 (‘‘DCIA’’),
Public Law 104–134, Title III, section
31001(s)(1), April 26, 1996, 110 Stat.
1321–373. The DCIA amended the
Federal Civil Penalties Inflation
Adjustment Act of 1990 (‘‘FCPIAA’’),
Public Law 101–410, Oct. 5, 1990, 104
Stat. 890, 28 U.S.C. 2461 note, to require
the head of each executive agency to
adopt regulations that adjust the
maximum civil monetary penalties
(‘‘CMPs’’) assessable under its agency’s
jurisdiction at least every four years to
ensure that they continue to maintain
PO 00000
Frm 00024
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*
*
their deterrent value.1 The Commission
last adjusted each CMP subject to its
jurisdiction effective August 15, 2000.
(65 FR 49741).
The inflation adjustment under the
FCPIAA is to be determined by
increasing the maximum CMP by the
cost-of-living, rounded off as set forth in
section 5(a) of that Act. The cost-ofliving adjustment is the percentage (if
any) for each CMP by which the
Consumer Price Index (‘‘CPI’’) 2 for the
month of June of the calendar year
preceding the adjustment, exceeds the
CPI for the month of June of the
calendar year in which the amount of
such CMP was last set or adjusted
pursuant to law.
1 Increased CMPS are applicable only to
violations occurring after the increase takes effect.
2 The CPI defined in the FCPIAA is the U.S.
Department of Labor’s Consumer Price Index for allurban consumers (‘‘CPI–U’’). 28 U.S.C. 2461 note
(3)(3).
E:\FR\FM\31JYR1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 146 (Friday, July 31, 2009)]
[Rules and Regulations]
[Pages 38109-38114]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18389]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0418; SW-FRL-8933-3]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Direct Final Rule
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Environmental Protection Agency (EPA) is granting a petition
submitted by WRB Refining, LLC Company to exclude (or delist) the
sludge from its wastewater treatment plant generated by WRB Refining,
LLC Company in Borger, Texas from the lists of hazardous wastes. This
direct final rule responds to the petition submitted by WRB Refining,
LLC Company to delist the thermal desorber residual solids with
Hazardous Waste Numbers: F037, F038, K048, K049, K050, and K051.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS), EPA has concluded the petitioned waste is not
hazardous waste. This exclusion applies to 5,000 cubic yards per year
of the thermal desorber residual solids with Hazardous Waste Numbers:
F037, F038, K048, K049, K050, and K051. Accordingly, this final rule
excludes the petitioned waste from the requirements of hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA)
when it is disposed in a Subtitle D Landfill.
DATES: This direct final rule will be effective September 29, 2009
without further notice, unless EPA receives relevant adverse comments
by August 31, 2009. If EPA receives such comment, EPA will publish a
timely withdrawal of the direct final rule in the Federal Register
informing the public that this rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0418 by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov: Follow
the online instructions for submitting comments.
2. E-mail: peace.michelle@epa.gov.
3. Mail: Michelle Peace, Environmental Protection Agency,
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code:
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier. Deliver your comments to: Michelle
Peace, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0418. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, 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 https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail 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, EPA recommends that you include your
[[Page 38110]]
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, 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. All documents in the electronic docket are listed in the
https://www.regulations.gov index. 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.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Environmental
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for this rule, EPA-R06-RCRA-2008-0418,
is available for viewing from 8 a.m. to 5 p.m., Monday through Friday,
excluding Federal holidays. The public may copy material from the
regulatory docket at $0.15 per page. EPA requests that you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The interested persons wanting to examine
these documents should make an appointment with the office at least 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the
Corrective Action and Waste Minimization Section, Multimedia Planning
and Permitting Division (6PD-C), Environmental Protection Agency Region
6, 1445 Ross Avenue, Dallas, Texas 75202 at (214) 665-7324. For
technical information concerning this rule, contact Young Moo Kim,
Environmental Protection Agency Region 6, 1445 Ross Avenue, (6PD-C),
Dallas, Texas 75202, at (214) 665-6788, or kim.youngmoo@epa.gov.
SUPPLEMENTARY INFORMATION:
The information in this section is organized as follows:
I. Overview Information
A. What action is EPA taking?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will WRB Refining, LLC Company manage the waste if it is
delisted?
E. When is the final delisting exclusion effective?
F. How does this direct final rule affect states?
II. Background
A. What is a delisting?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did WRB Refining, LLC Company petition EPA to
delist?
B. How much waste did WRB Refining, LLC Company propose to
delist?
C. How did WRB Refining, LLC Company sample and analyze the
waste data in this petition?
IV. Public comments received on the proposed exclusion
A. Who submitted comments on the proposed rule?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA taking?
After evaluating the petition, EPA proposed, on May 19, 2008, to
exclude the thermal desorber residual solids from the lists of
hazardous waste under 40 CFR 261.31 and 261.32 (see 73 FR 28768). After
the comment period ended for the proposed rule, EPA received a request
from WRB Refining to increase the volume of waste that may be disposed
of by the facility. The original petition requested that 1,500 cubic
yards of the residual solids be delisted. On September 19, 2008, a
request was made to increase this volume to 5,000 cubic yards. The risk
assessment has been run to insure that the waste does not exceed any
delisting limits. The waste meets the criteria for 5,000 cubic yards.
Therefore, EPA conditionally grants WRB Refining, LLC Company's
delisting petition to have its thermal desorber residual solids managed
and disposed as non-hazardous waste. EPA is opening a 30-day comment
period to allow comment on the decision to grant the change in waste
volume. If there are no adverse comments regarding this change, EPA's
decision will become effective in 60 days.
B. Why is EPA approving this action?
WRB Refining, LLC Company's petition requests a delisting from the
F019 waste listing under 40 CFR 260.20 and 260.22. WRB Refining, LLC
Company does not believe that the petitioned waste meets the criteria
for which EPA listed it. WRB Refining, LLC Company also believes no
additional constituents or factors could cause the waste to be
hazardous. 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. See section 3001(f) of
RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all
sectional references are to 40 CFR unless otherwise indicated). In
making the final delisting determination, 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, EPA agrees with the
petitioner that the waste is non-hazardous with respect to the original
listing criteria. If EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste was
originally listed, EPA would have proposed to deny the petition. 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. 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. EPA believes that
the petitioned waste does not meet the listing criteria and thus should
not be a listed waste. EPA's final decision to delist waste from WRB
Refining, LLC Company'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.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in 40 CFR part 261, Appendix IX, Table 1
and the conditions contained herein are satisfied.
D. How will WRB Refining, LLC Company manage the waste if it is
delisted?
The sludge from WRB Refining, LLC Company will be disposed of in a
RCRA Subtitle D landfill.
E. When is the final delisting exclusion effective?
This direct final rule will be effective September 29, 2009 without
further notice, unless EPA receives relevant adverse comments by August
31, 2009.
F. How does this direct final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from
[[Page 38111]]
EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program
in place of the Federal program; that is, to make state delisting
decisions. Therefore, this exclusion does not apply in those authorized
states unless that state makes the rule part of its authorized program.
If WRB Refining, LLC Company transports the petitioned waste to or
manages the waste in any state with delisting authorization, WRB
Refining, LLC Company must obtain delisting authorization from that
state before it can manage the waste as non-hazardous in the state.
II. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to EPA, or
another agency with jurisdiction, to exclude or delist from the RCRA
list of hazardous waste, certain wastes the generator believes should
not be considered hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under Sec. Sec. 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of 40 CFR parts 260
through 265 and 268. Section 260.22 provides generators the opportunity
to petition the Administrator to exclude a waste from a particular
generating facility from the hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA to allow EPA
to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. Based
on the information supplied by the generator, the Administrator must
determine whether factors (including additional constituents) other
than those for which the waste was listed could cause the waste to be a
hazardous waste. The generator must also supply information to
demonstrate that the waste does not exhibit any of the characteristics
defined in Sec. 261.21-Sec. 261.24.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did WRB Refining, LLC Company petition EPA to delist?
On August 26, 2005, WRB Refining LLC(formerly ConocoPhillips
Company) petitioned EPA to exclude from the lists of hazardous wastes
contained in Sec. Sec. 261.31 and 261.32, thermal desorber residual
solids from processing oil-bearing hazardous secondary materials
including F037, F038, K048, K049, K050 and K051 generated by its
facility located in Borger, Texas. The waste falls under the
classification of listed waste pursuant to Sec. Sec. 261.31 and
261.32.
B. How much waste did WRB Refining, LLC Company propose to delist?
Specifically, in its petition, WRB Refining LLC requested that EPA
grant a conditional exclusion for 1500 cubic yards per year of thermal
desorber residual solids for a period of 10 years. On September 19,
2008, the facility requested that the amount of waste delisted be
increased from 1,500 to 5,000 cubic yards of waste a year.
C. How did WRB Refining, LLC Company sample and analyze the waste data
in this petition?
To support its petition, WRB Refining, LLC Company submitted:
Historical information on waste generation and management
practices;
Results of the total constituents list for 40 CFR part
264, Appendix IX volatile and semi-volatile organic compounds and
metals. These wastes are also analyzed for cyanide, and sulfide.
Results of the constituent list for appendix IX on
Toxicity Characteristic Leaching Procedure (TCLP) extract for
volatiles, semevolatiles, and metals.
Results from total oil and grease analyses and multiple pH
measurements, and
Results from a total of ten composite samples including
two duplicates, representing 60 discrete thermal desorber residual
solid samples.
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
No comments were received on the Proposed Rule during the comment
period. However after the comment period closed, the facility requested
an increase in the volume of waste excluded by the delisting petition.
Based on the application of the DRAS model with the requested increase,
the Agency has decided to allow the increase in volume requested by WRB
Refining. The sample results provided by the petitioner meet the
maximum allowable waste concentrations at 1,500 cubic yards and at the
increased volume of 5,000 cubic yards. The delisting limits in the
final exclusion will be revised to cover the additional waste volume.
The delisting concentration limits are lower than the values originally
proposed in the May 19, 2008 proposed rule.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review ''
(58 FR 51735, October 4, 1993), this rule is not of general
applicability and therefore is not a regulatory action subject to
review by the Office of Management and Budget (OMB). This rule 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
applies to a particular facility only. Because this rule is of
particular applicability relating to a particular facility, it is not
subject to the regulatory flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and
205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
Because this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this final rule 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, as specified in Executive Order 13132, ``Federalism'', (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule.
Similarly, because this rule will affect only a particular
facility, this final rule does not have tribal implications, as
[[Page 38112]]
specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus,
Executive Order 13175 does not apply to this rule. This rule also is
not subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant as defined in
Executive Order 12866, and because the Agency does not have reason to
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children. The basis for this
belief is that the Agency used the DRAS program, which considers health
and safety risks to infants and children, to calculate the maximum
allowable concentrations for this rule. This rule is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform'', (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report which includes a copy of the rule to
each House of the Congress and to the Comptroller General of the United
States. Section 804 exempts from section 801 the following types of
rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report regarding today's action under section
801 because this is a rule of particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: July 9, 2009.
William N. Rhea,
Acting Division Director, Multimedia Planning and Permitting Division,
Region 6.
0
For the reasons set out in the preamble, 40 CFR part 261 is amended 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, and 6938.
0
2. In Table 1 of Appendix IX of Part 261 add the following waste stream
in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
WRB Refining, LLC..................... Borger, TX............... Thermal desorber residual solids (Hazardous
Waste Nos. F037, F038, K048, K049, K050, and
K051) generated at a maximum annual rate of
5,000 cubic yards per calendar year after
September 29, 2009 and disposed in Subtitle
D Landfill.
For the exclusion to be valid, WRB Refining
LLC must implement a verification testing
program that meets the following Paragraphs:
(1) Delisting Levels: All concentrations for
those constituents must not exceed the
maximum allowable concentrations in mg/l
specified in this paragraph.
Thermal Desorber Residual Solid Leachable
Concentrations (mg/l): Antimony-0.165;
Arsenic-0.0129; Barium-54.8; Beryllium-
0.119; Cadmium-0.139; Chromium-3.23;
Chromium, Hexavalent-3.23; Cobalt-20.7;
Copper-38.6; Cyanide-4.69; Lead-1.07;
Mercury-0.104; Nickel-20.6; Selenium-1.0;
Silver-5.0; Tin-3790.00; Vanadium-1.46; Zinc-
320.0; Acenapthene-16.2; Anthracene-39.5;
Benzene-0.117; Carbon Disulfide-86.0; 2-
chlorophenol-4.41; Dibenzofuran-0.0226; 1,4-
Dichlororbenzene-0.518; Ethylbenzene-16.5;
Fluoranthene-3.75; Methylene Chloride-0.077;
Naphthalene-0.0498; Phenol-264.0; Pyrene-
6.78; Toluene-23.0; 1,2,4-Trichlorobenzene-
1.51; Trichlorofluoromethane-23.5; Xylenes-
14.6.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous can
not begin until compliance with the limits
set in paragraph (1) for thermal desorber
residual solids has occurred for two
consecutive quarterly sampling events.
(B) If constituent levels in any sample taken
by WRB Refining LLC exceed any of the
delisting levels set in paragraph (1) for
the thermal desorber residual solids, WRB
Refining LLC must do the following:
(i) Notify EPA in accordance with paragraph
(6) and
(ii) Manage and dispose the thermal desorber
residual solids as hazardous waste generated
under Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, WRB
Refining LLC may perform quarterly
analytical testing by sampling and analyzing
the desorber residual solids as follows:
(A) Quarterly Testing:
[[Page 38113]]
(i) Collect two representative composite
samples of the sludge at quarterly intervals
after EPA grants the final exclusion. The
first composite samples may be taken at any
time after EPA grants the final approval.
Sampling should be performed in accordance
with the sampling plan approved by EPA in
support of the exclusion.
(ii) Analyze the samples for all constituents
listed in paragraph (1). Any composite
sample taken that exceeds the delisting
levels listed in paragraph (1) for the
sludge must be disposed as hazardous waste
in accordance with the applicable hazardous
waste requirements.
(iii) Within thirty (30) days after taking
its first quarterly sample, WRB Refining LLC
will report its first quarterly analytical
test data to EPA. If levels of constituents
measured in the samples of the sludge do not
exceed the levels set forth in paragraph (1)
of this exclusion for two consecutive
quarters, WRB Refining LLC can manage and
dispose the non-hazardous thermal desorber
residual solids according to all applicable
solid waste regulations.
(B) Annual Testing: (i) If WRB Refining LLC
completes the quarterly testing specified in
paragraph (3) above and no sample contains a
constituent at a level which exceeds the
limits set forth in paragraph (1), WRB
Refining LLC may begin annual testing as
follows: WRB Refining LLC must test two
representative composite samples of the
thermal desorber residual solids for all
constituents listed in paragraph (1) at
least once per calendar year.
(ii) The samples for the annual testing shall
be a representative composite sample
according to appropriate methods. As
applicable to the method-defined parameters
of concern, analyses requiring the use of SW-
846 methods incorporated by reference in 40
CFR 260.11 must be used without
substitution. As applicable, the SW-846
methods might include Methods 0010, 0011,
0020, 0023A, 0030, 0031, 0040, 0050, 0051,
0060, 0061, 1010A, 1020B,1110A, 1310B, 1311,
1312, 1320, 1330A, 9010C, 9012B, 9040C,
9045D, 9060A, 9070A (uses EPA Method 1664,
Rev. A), 9071B, and 9095B. Methods must meet
Performance Based Measurement System
Criteria in which the Data Quality
Objectives are to demonstrate that samples
of the WRB Refining thermal desorber
residual solids are representative for all
constituents listed in paragraph (1).
(iii) The samples for the annual testing
taken for the second and subsequent annual
testing events shall be taken within the
same calendar month as the first annual
sample taken.
(iv) The annual testing report should include
the total amount of delisted waste in cubic
yards disposed as non-hazardous waste during
the calendar year.
(4) Changes in Operating Conditions: If WRB
Refining LLC significantly changes the
process described in its petition or starts
any processes that generate(s) the waste
that may or could affect the composition or
type of waste generated (by illustration,
but not limitation, changes in equipment or
operating conditions of the treatment
process), it must notify EPA in writing and
it may no longer handle the wastes generated
from the new process as non-hazardous until
the wastes meet the delisting levels set in
paragraph (1) and it has received written
approval to do so from EPA.
WRB Refining LLC must submit a modification
to the petition, complete with full sampling
and analysis, for circumstances where the
waste volume changes and/or additional waste
codes are added to the waste stream, if it
wishes to dispose of the material as non-
hazardous.
(5) Data Submittals:
WRB Refining LLC must submit the information
described below. If WRB Refining LLC fails
to submit the required data within the
specified time or maintain the required
records on-site for the specified time, EPA,
at its discretion, will consider this
sufficient basis to reopen the exclusion as
described in paragraph (6). WRB Refining LLC
must:
(A) Submit the data obtained through
paragraph (3) to the Chief, Corrective
Action and Waste Minimization Section,
Multimedia Planning and Permitting Division,
U.S. Environmental Protection Agency Region
6, 1445 Ross Ave., Dallas, Texas, 75202,
within the time specified. All supporting
data can be submitted on CD-ROM or
comparable electronic media.
(B) Compile records of analytical data from
paragraph (3), summarized, and maintained on-
site for a minimum of five years.
(C) Furnish these records and data when
either EPA or the State of Texas requests
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. Sec. 1001 and 42
U.S.C. Sec. 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
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 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) Re-opener
[[Page 38114]]
(A) If, anytime after disposal of the
delisted waste WRB Refining LLC 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 either the quarterly or annual testing
of the waste does not meet the delisting
requirements in paragraph 1, WRB Refining
LLC 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 LLC 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 and/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 requires action by
EPA, 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 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 EPA actions that are necessary to
protect human health and/or the environment.
Any required action described in the
Division Director's determination shall
become effective immediately, unless the
Division Director provides otherwise.
(7) Notification Requirements
WRB Refining LLC 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 it will transport the delisted
waste described above for disposal, 60 days
before beginning such activities.
(B) Update the one-time written notification
if it ships the delisted waste into a
different disposal facility.
(C) Failure to provide this notification will
result in a violation of the delisting
variance and a possible revocation of the
decision.
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[FR Doc. E9-18389 Filed 7-30-09; 8:45 am]
BILLING CODE 6560-50-P
