Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 74709-74717 [2011-30152]
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Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / Rules and Regulations
Bonded product means mineral wool
to which a hazardous air pollutantbased binder (containing such
hazardous air pollutants as phenol or
formaldehyde) has been applied.
CO means, for the purposes of this
subpart, emissions of carbon monoxide
that serve as a surrogate for emissions of
carbonyl sulfide, a compound included
on the list of hazardous air pollutants in
section 112 of the Act.
Cupola means a large, water-cooled
metal vessel to which is charged a
mixture of fuel, rock and/or slag, and
additives. As the fuel is burned, the
charged mixture is heated to a molten
state for later processing to form mineral
wool.
Curing oven means a chamber in
which heat is used to thermoset a binder
on the mineral wool fiber used to make
bonded products.
Fabric filter means an air pollution
control device used to capture
particulate matter by filtering gas
streams through fabric bags. It also is
known as a baghouse.
Formaldehyde means, for the
purposes of this subpart, emissions of
formaldehyde that, in addition to being
a HAP itself, serve as a surrogate for
organic compounds included on the list
of hazardous air pollutants in section
112 of the Act, including but not limited
to phenol.
Hazardous air pollutant means any
air pollutant listed in or pursuant to
section 112(b) of the Act.
I means the owner or operator of a
mineral wool production facility.
Incinerator means an enclosed air
pollution control device that uses
controlled flame combustion to convert
combustible materials to
noncombustible gases.
Melt means raw materials, excluding
coke, that are charged into the cupola,
heated to a molten state, and discharged
to the fiber forming and collection
process.
Melt rate means the mass of molten
material discharged from a single cupola
over a specified time period.
Mineral wool means a fibrous glassy
substance made from natural rock (such
as basalt), blast furnace slag or other
slag, or a mixture of rock and slag. It
may be used as a thermal or acoustical
insulation material or in the making of
other products to provide structural
strength, sound absorbency, fire
resistance, or other required properties.
New source means any affected source
the construction or reconstruction of
which is commenced after May 8, 1997.
PM means, for the purposes of this
subpart, emissions of particulate matter
that serve as a surrogate for metals (in
particulate or volatile form) on the list
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of hazardous air pollutants in section
112 of the Act, including but not limited
to: antimony, arsenic, beryllium,
cadmium, chromium, lead, manganese,
nickel, and selenium.
You means the owner or operator of
a mineral wool production facility.
[FR Doc. 2011–30998 Filed 11–30–11; 8:45 am]
BILLING CODE 1505–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2010–0066; SW FRL–
9490–8]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Final Exclusion
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is granting a petition
submitted by ExxonMobil Refining and
Supply Company—Beaumont Refinery
(Beaumont Refinery) to exclude from
hazardous waste control (or delist) a
certain solid waste. This final rule
responds to the petition submitted by
Beaumont Refinery to delist to have
centrifuge solids generated from
treatment of Tank Bottoms from its
Lower Park Tank Farm excluded, or
delisted, from the definition of a
hazardous waste. The centrifuge solids
are derived from the management and
treatment of several F- and K-waste
codes. These waste codes are F037,
F038, K048, K049, K051, K052, K169,
and K170.
After careful analysis and evaluation
of comments submitted by the public,
the EPA has concluded that the
petitioned wastes are not hazardous
waste when disposed of in Subtitle D
landfills. This exclusion applies to the
centrifuge solids generated at Beaumont
Refinery’s Beaumont, Texas facility.
Accordingly, this final rule excludes the
petitioned waste from the requirements
of hazardous waste regulations under
the Resource Conservation and
Recovery Act (RCRA) when disposed of
in Subtitle D landfills but imposes
testing conditions to ensure that the
future-generated wastes remain
qualified for delisting.
DATES: Effective Date: December 1, 2011.
ADDRESSES: The public docket for this
final rule is located at the U.S.
Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for
viewing in the EPA Freedom of
SUMMARY:
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74709
Information Act review room on the 7th
floor from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal
holidays. Call (214) 665–6444 for
appointments. The reference number for
this docket is ‘‘EPA–R06–RCRA–2010–
0066’’. The public may copy material
from any regulatory docket at no cost for
the first 100 pages and at a cost of $0.15
per page for additional copies.
FOR FURTHER INFORMATION CONTACT: For
general information, contact Ben
Banipal, at (214) 665–7324. For
technical information concerning this
notice, contact Michelle Peace, U.S.
Environmental Protection Agency, 1445
Ross Avenue, Dallas, Texas, (214) 665–
7430.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this delisting?
C. What are the limits of this exclusion?
D. How will Beaumont Refinery manage
the waste if it is delisted?
E. When is the final delisting exclusion
effective?
F. How does this 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 Data
A. What wastes did Beaumont Refinery
petition EPA to delist?
B. How much waste did Beaumont
Refinery propose to delist?
C. How did Beaumont Refinery 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?
B. Comments and Responses
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
The EPA is finalizing:
(1) The decision to grant Beaumont
Refinery’s petition to have its centrifuge
solids excluded, or delisted, from the
definition of a hazardous waste, subject
to certain continued verification and
monitoring conditions; and
(2) To use the Delisting Risk
Assessment Software to evaluate the
potential impact of the petitioned waste
on human health and the environment.
The Agency used this model to predict
the concentration of hazardous
constituents released from the
petitioned waste, once it is disposed.
After evaluating the petition, EPA
proposed and issued a direct final rule,
on October 1, 2010 to exclude the
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Beaumont Refinery waste from the lists
of hazardous wastes under §§ 261.31
and 261.32. The direct final rule
received adverse comments and was
subsequently withdrawn on November
16, 2010. This decision is based on the
proposed rule issued on October 1,
2010. The comments received on this
rulemaking will be addressed as part of
this decision.
B. Why is EPA approving this delisting?
Beaumont Refinery’s petition requests
a delisting for the centrifuge solids
listed as F037, F038, K048, K049, K051,
K052, K169, and K170. Beaumont
Refinery does not believe that the
petitioned wastes meet the criteria for
which EPA listed them. Beaumont
Refinery also believes no additional
constituents or factors could cause the
wastes 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 (HSWA). See
section 3001(f) of RCRA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(1)–(4). In
making the initial 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 wastes do
not meet the listing criteria and thus
should not be a listed waste. EPA’s
decision to delist wastes from the
facility is based on the information
submitted in support of this rule,
including descriptions of the waste and
analytical data from the Beaumont
Refinery, Beaumont, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste
described in the petition only if the
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requirements described in Table 1 and
2 of part 261, Appendix IX and the
conditions contained herein are
satisfied. The one-time exclusion
applies to 8,300 cubic yards of
centrifuge solids waste resulting from
the treatment of tank bottoms from five
tanks in the Lower Park Tank Farm.
D. How will Beaumont Refinery manage
the waste if it is delisted?
Beaumont Refinery will dispose of the
storage containers of the centrifuge
solids. The centrifuge solids will be
transported and disposed of at a
permitted municipal solid waste landfill
or a commercial industrial waste
landfill regulated by the Texas
Commission on Environmental Quality
(TCEQ).
E. When is the final delisting exclusion
effective?
This rule is effective December 1,
2011. The Hazardous and Solid Waste
Amendments of 1984 amended Section
3010 of RCRA to allow rules to become
effective in less than six months when
the regulated community does not need
the six-month period to come into
compliance. That is the case here
because this rule reduces, rather than
increases, the existing requirements for
persons generating hazardous wastes.
These reasons also provide a basis for
making this rule effective immediately,
upon publication, under the
Administrative Procedure Act, pursuant
to 5 U.S.C. 553(d).
F. How does this 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 two
categories of States: States having a dual
system that includes Federal RCRA
requirements and their own
requirements, and States who have
received our authorization to make their
own delisting decisions.
Here are the details: We allow states
to impose their own non-RCRA
regulatory requirements that are more
stringent than EPA’s, under section
3009 of RCRA. 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, we urge 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, Georgia,
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Illinois) 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 authorized
States. If Beaumont Refinery transports
the petitioned waste to or manages the
waste in any State with delisting
authorization, Beaumont Refinery must
obtain delisting authorization from that
State before they can manage the waste
as nonhazardous 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 from the list
of hazardous wastes, wastes the
generator does not consider hazardous
under RCRA.
B. What regulations allow facilities to
delist a waste?
Under 40 CFR 260.20 and 260.22,
facilities may petition the EPA to
remove their wastes from hazardous
waste control 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 Parts 260 through 266,
268 and 273 of Title 40 of the Code of
Federal Regulations. Section 260.22
provides generators the opportunity to
petition the Administrator to exclude a
waste on a ‘‘generator-specific’’ basis
from the hazardous waste lists.
C. What information must the generator
supply?
Petitioners must provide sufficient
information to EPA to allow the 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. In addition, the
Administrator must determine, where
he/she has a reasonable basis to believe
that factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be a hazardous waste, that such
factors do not warrant retaining the
waste as a hazardous waste.
III. EPA’s Evaluation of the Waste Data
A. What waste did Beaumont Refinery
petition EPA to delist?
Beaumont Refinery petitioned EPA on
September 9, 2009, to exclude from the
lists of hazardous wastes contained in
§§ 261.31, and 261.32, from its
centrifuge solids from the treatment of
tank bottoms from five tanks in the
Lower Park Tank Farm.
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The waste stream was generated from
the Beaumont Refinery facility located
in Beaumont, Texas. The centrifuge
solids are listed under EPA Hazardous
Waste No. F037, F038, K048, K049,
K051, K052, K169, and K170.
Specifically, in its petition, Beaumont
Refinery requested that EPA grant an
one time exclusion for 8,300 cubic yards
of the centrifuge solids.
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The 40 CFR Part 261 Appendix VII
hazardous constituents which are the
basis for listing can be found in Table
1.
TABLE 1—EPA WASTE CODES FOR CENTRIFUGE SOLIDS AND THE BASIS FOR LISTING
Waste code
F037
F038
K048
K049
K051
K052
K169
K170
............................
............................
............................
............................
............................
............................
............................
............................
Basis for listing
Benzene, benzo(a)pyrene, chrysene, lead, chromium.
Benzene, benzo(a)pyrene, chrysene, lead, chromium.
Hexavalent chromium, lead.
Hexavalent chromium, lead.
Hexavalent chromium, lead.
Lead.
Benzene.
Benzo(a)pyrene, dibenzo(a,h)anthracene, benzo(a)anthracene,
methylcholanthrene, 7,12-dimethylbenzo(a)anthracene.
B. How much waste did Beaumont
Refinery propose to delist?
Specifically, in its petition, Beaumont
Refinery requested that EPA grant an
one time exclusion for 8,300 cubic yards
of the centrifuge solids.
C. How did Beaumont Refinery sample
and analyze the waste data in this
petition?
To support its petition, Beaumont
Refinery submitted:
1. Analytical results of the toxicity
characteristic leaching procedure
(TCLP) analysis for volatile and
semivolatile organics, and metals for ten
benzo(b)fluoranthene,
samples and one duplicate of the
centrifuge solids;
2. Analytical results of the total
constituent analysis for volatile and
semivolatile organics, and metals for
three samples of the centrifuge solids;
3. Analytical results for Appendix IX
volatile and semivolatile organics,
pesticides, herbicides, dioxins/furans,
PCBs, and metals for one sample of the
centrifuge solids;
4. Analytical results for the EPA
Region 6 TCLP analysis for Appendix IX
metals for one sample of the centrifuge
solids;
5. Analytical results for the oily waste
extraction procedure (OWEP) for
benzo(k)fluoranthene,
3-
Beaumont Refinery metals for one
sample of the centrifuge solids;
6. Analytical results for total reactive
cyanides for three samples of the
centrifuge solids;
7. Analytical results for total reactive
sulfides for three samples of the
centrifuge solids;
8. Analytical results for total oil and
grease for ten samples of the centrifuge
solids; and
9. Descriptions of the operations and
waste generated from the centrifuging of
tank bottoms at the Lower Park Tank
Farm.
TABLE 2—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE CENTRIFUGE SOLIDS 1
Maximum
total
(mg/kg)
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Constituent
Antimony ......................................................................................................................................
Arsenic .........................................................................................................................................
Acetone ........................................................................................................................................
Acenaphthene ..............................................................................................................................
Anthracene ...................................................................................................................................
Beryllium ......................................................................................................................................
Butyl benzene phthalate ..............................................................................................................
Barium ..........................................................................................................................................
Benzene .......................................................................................................................................
Bis(2-ethylhexyl)phthalate ............................................................................................................
Benzo(a) anthracene ...................................................................................................................
Benzo(a) pyrene ..........................................................................................................................
Benzo(b) flouranthene .................................................................................................................
Benzo(k) flouranthene .................................................................................................................
m,p cresol ....................................................................................................................................
Cadmium ......................................................................................................................................
Chromium ....................................................................................................................................
Cobalt ...........................................................................................................................................
Copper .........................................................................................................................................
o-cresol ........................................................................................................................................
Chrysene ......................................................................................................................................
2,4 Dimethyl phenol .....................................................................................................................
Di-n-butyl phthalate ......................................................................................................................
7,12 dimethylbenz(a)anthracene .................................................................................................
Dibenz(a,h)anthracene ................................................................................................................
Ethylbenzene ...............................................................................................................................
Fluorene .......................................................................................................................................
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5.38
26.9
< 0.5
26
32
0.289
3.7
823
0.8
< 0.5
72
67
28
10
6
0.837
608
20.5
302
1.5
120
9.8
< 0.5
53
1.7
< 0.5
54
01DER1
Maximum
TCLP
(mg/l)
0.0224
0.0353
0.65
0.009
0.006
< 0.001
0.00026
1.94
0.046
0.0058
< 0.001
< 0.001
< 0.001
< 0.001
0.16
< 0.001
0.122
0.0735
< 0.001
0.0091
0.00014
0.066
0.0012
< 0.001
< 0.001
0.073
0.0033
Maximum
allowable
TCLP
delisting level
(mg/L)
1.87
5.0
9080
185
452
20.44
698
100
0.5
0.0522
1.22
461.44
3916.8
11.6
200
1.0
5.0
3.64
417.3
200
122
198
429
0.08176
4.41
189
85.6
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TABLE 2—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE CENTRIFUGE SOLIDS 1—
Continued
Maximum
total
(mg/kg)
Constituent
Fluoranthrene ...............................................................................................................................
Lead .............................................................................................................................................
Mercury ........................................................................................................................................
Methyl Isobutyl ketone .................................................................................................................
2-Methylnaphthalene ...................................................................................................................
Naphthalene .................................................................................................................................
Nickel ...........................................................................................................................................
Phenanthrene ..............................................................................................................................
Phenol ..........................................................................................................................................
Pyrene ..........................................................................................................................................
Selenium ......................................................................................................................................
Silver ............................................................................................................................................
Thallium .......................................................................................................................................
Tin ................................................................................................................................................
Toluene ........................................................................................................................................
Vanadium .....................................................................................................................................
Xylenes ........................................................................................................................................
Zinc ..............................................................................................................................................
17
1290
2.65
< 0.5
570
180
195
170
< 0.5
100
20.6
0.194
0.842
3.46
0.5
< 0.5
3.3
1160
Maximum
TCLP
(mg/l)
< 0.001
1.44
0.000065
0.02
< 0.001
0.15
0.556
0.0041
0.0033
0.0057
< 0.001
< 0.001
< 0.001
< 0.001
0.032
0.138
0.16
8.41
Maximum
allowable
TCLP
delisting level
(mg/L)
42.96
5.0
0.2
807
12.70
0.571
231
(*)
3030
77.6
1.0
5.0
0.639
22.5
263
57.5
167
3530
* Not applicable.
1 These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
< # Denotes that the constituent was below the detection limit.
IV. Public Comments Received on the
Proposed Exclusion
A. Who submitted comments on the
proposed rule?
The EPA received public comments
on October of 2010, proposed rule from
three interested parties, the
Environmental Technology Council
(ETC), and Heritage Environmental and
one citizen. Heritage Environmental
submitted comments objecting to the
absence of the full administrative record
not appearing electronically on the
regulations.gov site on October 28, 2010.
ETC submitted three rounds of
comments dated October 28, 2010,
February 7, 2011, and March 7, 2011.
The comments and responses are
addressed below. Some responses to the
October 28, 2010 items are not included
because the actual records were sent to
the commenter for verification purposes
and no further comment is warranted.
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B. What comments were submitted on
the Beaumont Refinery delisting
petition?
Comment 1. These materials are listed
hazardous wastes. The centrifuged
solids fail to meet the treatment
standards for placement in a fully
permitted hazardous waste landfill that
is designed to contain and manage toxic
hazardous waste. It is completely
inconsistent with EPA land disposal
restrictions to grant even a variance to
the LDR for these materials based on
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their exceeding the LDR treatment
standards by a factor of 100 times
greater concentration of the hazardous
waste constituents. It is therefore
unacceptable to delist these solids from
hazardous waste regulation and allow
their placement in a substantially less
restrictive municipal solid waste
landfill. The entire petition should be
rejected.
Response 1. The Delisting Program
and the LDR program serve different
purposes. Different standards of
compliance apply. ‘‘A waste is eligible
for delisting only if that waste as
generated at a particular facility does
not meet any of the criteria under which
the waste was listed as a hazardous
waste. In addition, the waste may not
contain any other Appendix VIII
constituents that would cause the waste
to be hazardous.’’ RCRA § 3001(f) and
40 CFR 260.22.
The derived-from rule states that any
solid waste generated from the
treatment, storage, or disposal of a listed
hazardous waste, including any sludge,
spill residue, ash, emission control dust,
or leachate, remains a hazardous waste
unless and until delisted
(§ 261.3(c)(2)(i)).
EPA’s regulations establish two ways
of identifying solid wastes as hazardous
under RCRA. A waste may be
considered hazardous if it exhibits
certain hazardous properties
(‘‘characteristics’’) or if it is included on
a specific list of wastes EPA has
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determined are hazardous (‘‘listing’’ a
waste as hazardous) because we found
them to pose substantial present or
potential hazards to human health or
the environment. EPA’s regulations in
the Code of Federal Regulations (40
CFR) define four hazardous waste
characteristic properties: Ignitability,
corrosivity, reactivity, or toxicity (see 40
CFR 261.21–261.24).
In order to list wastes EPA conducts
a more specific assessment of a
particular waste or category of wastes.
The Agency will ‘‘list’’ them if they
meet criteria set out in 40 CFR 261.11.
As described in § 261.11, EPA may
list a waste as hazardous if the waste:
—Exhibits any of the characteristics,
i.e., ignitability, corrosivity, reactivity,
or toxicity (§ 261.11(a)(1));
—Is ‘‘acutely’’ hazardous (e.g., if it is
fatal to humans or animals at low
doses, (§ 261.11(a)(2)); or
—It contains any of the toxic
constituents listed in 40 CFR part 261,
Appendix VIII and, after
consideration of various factors
described in the regulation, is capable
of posing a ‘‘substantial present or
potential hazard to human health or
the environment when improperly
treated, stored, transported, or
disposed of, or otherwise managed’’
(§ 261.11(a)(3)).
EPA places a substance on the list of
hazardous constituents in Appendix
VIII if scientific studies have shown the
substance has toxic effects on humans
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or other life forms. Generally, listing of
wastes is not driven by threshold limits
except in the case of the toxicity
characteristic determination. Several of
the limits cited by the commenter are
the TC limit for the constituents stated.
If the waste is characteristic, then it
can’t be delisted. The delisting limit is
constrained by the TC limit.
In 1984, Congress created EPA’s Land
Disposal Restrictions (LDR) program.
The LDR program ensures that toxic
constituents present in hazardous waste
are properly treated before hazardous
waste is land disposed. Since then, the
LDR team has developed mandatory
technology-based treatment standards
that must be met before hazardous waste
is placed in a landfill. These standards
help minimize short and long-term
threats to human health and the
environment, which directly benefits
local communities where hazardous
waste landfills are located. The LDR
Program does not determine if a waste
is hazardous, it regulates how hazardous
wastes are to be managed at the time of
disposal.
We do believe that the concentrations
specified as delisting levels do
minimize short term and long term
threats to human health and the
environment. Whereas, some LDR
treatment standards are based on the
best demonstrated technology, the
delisting exit levels are risk based
standards. We have not stated that
ExxonMobil’s waste is not subject to the
LDR standards, because the waste was
not delisted at the point of generation,
ExxonMobil may submit a variance to
the treatment standards as described in
268.42(b) or 268.44 in order to ensure
compliance with the LDR standards, but
the Delisting decision may still be made.
However, wastes destined for disposal
in Subtitle C landfills are subject to the
LDR limits. Wastes when delisted must
comply with all applicable Subtitle D
landfill requirements.
Comment 2. EPA has given specific
guidance for the generation of sampling
plans for the delisting of hazardous
waste. This guidance is presented in the
document SW846, Chapter 9, Sampling
Plans. The variability of the waste must
be established as part of a delisting
petition. No such statistical analysis is
presented for either the original wastes,
or the centrifuged solids. The petitioner
simply states without justification that
the studied solids were thought to be
representative of the highest
concentration materials. However, no
laboratory analysis data are presented to
show the variability of the
concentrations of the hazardous
constituents in the subject waste
materials. Also, EPA’s own guidance
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states that the minimum number of
samples required for a delisting petition
shall ‘‘in no case be less than four
samples,’’ even when the variability has
been determined and the 90% upper
confidence limit has been shown to be
below the regulatory threshold for a
specific analytical parameter. The
petitioner consistently presents one to
three sample data results, with no
statistical analysis of the data. The
entire petition should be rejected for
failure to properly characterize both the
original waste material and the
centrifuged solids with a sampling plan
that meets USEPA guidance for this type
of delisting request.
Response 2. Eleven samples of waste
were analyzed to support this delisting
petition. In prediction of the worst case
scenario, EPA selects the maximum
waste concentration of the data
provided for the waste. The Sampling
and Analysis Plan for the Centrifuge
Solids was reviewed and approved by
EPA. The Sampling and Analysis of this
material is acceptable for demonstration
that the waste sampled is representative
of the waste to be disposed.
Comment 3. Uncontrolled disposal of
these materials could result in the
creation of a Federal Superfund site.
The constituent concentrations of
carcinogenic PAH compounds at over
350 mg/kg PAH in the centrifuged solids
exceed the cleanup standards for
numerous Federal Superfund sites. It is
unimaginable that EPA would grant
permission for non-hazardous disposal
of a toxic waste that would require a
large scale remediation at a Superfund
site. The purpose of RCRA is to prevent
the creation of Superfund sites, not
promote them. The entire petition
should be denied so that additional
Superfund sites are not created as a
result of the uncontrolled nonhazardous disposal of these materials.
Response 3. Since the Risk
Assessment Guidance for Superfund
was published, the risk-based cleanup
levels should be established from the
toxicity of an individual compound of
concerns (COC) in PAHs. The equations
and exposure parameter inputs for
carcinogen risk calculations are mainly
in Part A & B of the Guidance. 10E–6 is
the departure risk for a carcinogen with
standardized exposure default values.
The total risk in PAHs is the sum from
the risk of each compound in PAHs.
However, site-specific cleanup levels
can be established by site-specific
exposure parameter inputs through sitespecific risk assessment.
Therefore, the cleanup levels are
different from one chemical to another
in PAHs. The screening levels of COCs
with a risk level, 10E–6 are in Regional
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Screening Level Summary Table. The
web address for the Table is https://
www.epa.gov/reg3hwmd/risk/human/
rb-concentration_table/index.htm.
Comment 4: A listed hazardous waste
is prohibited from land disposal under
RCRA, unless the hazardous waste is
first treated to the level or by a method
of treatment which substantially
diminishes the toxicity of the waste or
substantially reduces the likelihood of
migration of hazardous constituents
from the waste so that short-term and
long-term threats to human health and
the environment are minimized. RCRA
& 3004(d), (g) & (m). No other form or
method of treatment is allowed by law,
except treatment that complies with
RCRA § 3004(m). In addition, no
generator may ‘‘in any way dilute a
restricted waste or the residual from
treatment of a restricted waste as a
substitute for adequate treatment’’ that
achieves the mandatory treatment
standards. 40 CFR § 268.3 (emphasis
added).
For the F037, F038, K048, K049,
K051, K052, K169 and K170 hazardous
wastes generated from the slop oil tanks
in the Beaumont Refiner Lower Park
Tank Farm, the mandatory treatment
standards require treatment to
concentration-based levels for a plethora
of regulated constituents ranging
alphabetically from acenaphthene to
xylenes. 40 CFR 268.40. These treatment
levels are based on the best
demonstrated available treatment
achieved through high-temperature
incineration.
Contrary to these basic principles and
applicable law, EPA has proposed to
delist and allow land disposal of the
slop oil solids generated at the
Beaumont tank farm at concentration
levels greatly in excess of the mandatory
treatment standards. In doing so, EPA
attempts to perpetrate a sham by
delisting the slop oil solids from
ineffective treatment that is nothing
more than prohibited dilution of the
hazardous waste. In the preamble EPA
claims that Exxon has petitioned to
delist the ‘‘centrifuge solids from the
treatment of tank bottoms from the five
tanks from the Lower Park Tank Farm.’’
75 Fed. Reg. at 60634 (emphasis added).
Specifically, EPA asserts that Exxon’s
subcontractor will use ‘‘a proprietary
chemical (Superall 38), which acts as a
chemical agent for treating wastes from
oil-related clean-up activities that, when
coupled with centrifuging, reduces the
volume and toxicity’’ of the slop oil tank
wastes. Id. (emphasis added).
There is not a scintilla of evidence in
the administrative record that Superall
38 effectively treats the slop oil waste to
reduce toxicity, or that the product
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functions in any way other than as a
cleaning agent. The record does not
contain any information supporting
EPA’s claim that Superall 38 is a
chemical agent for effective treatment of
the slop oil waste. Indeed, Superall
Products LLP makes no such claims
itself in its Web site advertisements for
its product. Most importantly, the
Superall cleaning agent clearly does not
reduce ‘‘the volume and toxicity’’ of the
waste to the mandatory treatment levels
required by RCRA and the regulations.
Most importantly, the Superall
product is mixed with large volumes of
water for use as a cleaning agent. The
slop oil waste is thereby diluted and
hazardous constituents are transferred
to the water so that the concentrations
are reduced in the solids after
centrifuging. This process of dilution
and centrifuging is clearly not the
mandatory treatment required by the
regulations, and is in fact a way of
diluting the restricted waste in express
violation of the dilution prohibition in
40 CFR 268.3. The analytical data on the
slop oil solids on which the entire
DRAS modeling was based are useless,
since there is no way of determining
how much water and cleaning solution
was mixed with the slop oil, and there
are no restrictions in EPA’s delisting on
diluting the waste as much as necessary
to ‘‘pass’’ the DRAS modeling. All the
DRAS modeling proves is that
hazardous waste can be diluted with
water to reduce constituent
concentrations, something that Congress
specifically prohibited in the land
disposal prohibitions of RCRA. The slop
oil waste generated by Exxon in the
Beaumont Refinery’s Lower Park Tank
Farm is listed as F037 and F038 because
it contains petroleum refinery oil/water/
solids separation sludges that are listed
as hazardous wastes due to benzene,
benzo(a)pyrene, chrysene, lead and
chromium. 40 CFR Part 261, App. VII.
In addition, the slop oil waste is listed
as K048, K049, K051, K052, K169 and
K170 because it contains dissolved air
flotation (DAF) float, slop oil emulsion
solids, API separator sludge, crude oil
storage tank sediment, clarified slurry
oil tank sediment and in-line filter
separation solids that are listed as
hazardous wastes due to hexavalent
chromium, lead, benzene,
benzo(a)pyrene, dibenz(a,h)anthracene,
benzo(a)anthracene,
benzo(b)fluoranthene,
benzo(k)fluoranthene, 3methylcholanthrene, and 7,12dimethylbenz(a)anthracene. Id.
This slop oil waste indisputably
meets the criteria for which the
ingredient wastes were listed as
hazardous wastes. There is no basis
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whatsoever in the Exxon delisting
petition for determining that the slop oil
waste is not a hazardous waste, or as
generated can legitimately be delisted.
Now that EPA Region 6 has finally
provided the administrative record for
the Exxon delisting petition, it is
apparent that the proposed delisting of
the F- and K-listed slop oil tank bottoms
would be arbitrary, capricious, and
contrary to law. These slop oil wastes
meet the criteria for listing as hazardous
waste and undoubtedly contain high
concentrations of Appendix VIII
hazardous constituents, although the
record contains scant information or
analytical data on the actual waste.
Instead, Exxon has applied for delisting
of the waste solids after mixing with
high volumes of water and centrifuging,
which would clearly violate the
delisting requirements of RCRA, the
land disposal prohibitions, and the
dilution prohibition in 40 CFR 268.3.
Response 4. The Delisting Program
and the LDR program serve different
purposes and because they serve
different purposes, different standards
of compliance apply. As the commenter
states ‘‘A waste is eligible for delisting
only if that waste as generated at a
particular facility does not meet any of
the criteria under which the waste was
listed as a hazardous waste. In addition,
the waste may not contain any other
Appendix VIII constituents that would
cause the waste to be hazardous. RCRA
§ 3001(f) and 40 CFR 260.22.’’
The derived-from rule states that any
solid waste generated from the
treatment, storage, or disposal of a listed
hazardous waste, including any sludge,
spill residue, ash, emission control dust,
or leachate, remains a hazardous waste
unless and until delisted.
(§ 261.3(c)(2)(i)).
EPA’s regulations establish two ways
of identifying solid wastes as hazardous
under RCRA. A waste may be
considered hazardous if it exhibits
certain hazardous properties
(‘‘characteristics’’) or if it is included on
a specific list of wastes EPA has
determined are hazardous (‘‘listing’’ a
waste as hazardous) because we found
them to pose substantial present or
potential hazards to human health or
the environment. EPA’s regulations in
the Code of Federal Regulations (40
CFR) define four hazardous waste
characteristic properties: ignitability,
corrosivity, reactivity, or toxicity (see 40
CFR 261.21–261.24).
In order to list wastes EPA conducts
a more specific assessment of a
particular waste or category of wastes.
The Agency will ‘‘list’’ them if they
meet criteria set out in 40 CFR 261.11.
As described in § 261.11, EPA may list
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a waste as hazardous if the waste:
exhibits any of the characteristics, i.e.,
ignitability, corrosivity, reactivity, or
toxicity (§ 261.11(a)(1)); is ‘‘acutely’’
hazardous (e.g., if it is fatal to humans
or animals at low doses, § 261.11(a)(2));
or it contains any of the toxic
constituents listed in 40 CFR part 261,
Appendix VIII and, after consideration
of various factors described in the
regulation, is capable of posing a
‘‘substantial present or potential hazard
to human health or the environment
when improperly treated, stored,
transported, or disposed of, or otherwise
managed’’ (§ 261.11(a)(3)).
EPA placed a substance on the list of
hazardous constituents in Appendix
VIII if scientific studies have shown the
substance has toxic effects on humans
or other life forms.
Generally, listing of wastes are not
driven by threshold limits except in the
case of the toxicity characteristic (TC)
determination. Several of the limits
cited by the commenter are the TC limit
for the constituents stated. If the waste
is characteristic, then it can’t be
delisted. The delisting limit is bound by
the TC limit.
In 1984, Congress created EPA’s Land
Disposal Restrictions (LDR) program.
The LDR program ensures that toxic
constituents present in hazardous waste
are properly treated before hazardous
waste is land disposed. Since then, the
LDR team has developed mandatory
technology-based treatment standards
that must be met before hazardous waste
is placed in a landfill. These standards
help minimize short and long-term
threats to human health and the
environment, which directly benefits
local communities where hazardous
waste landfills are located. The LDR
Program does not determine if a waste
is hazardous it is how hazardous wastes
are to be managed at the time of
disposal.
We do believe that the concentrations
specified as delisting levels do
minimize short term and long term
threats to human health and the
environment. Whereas, some LDR
treatment standards are based on the
best demonstrated technology, the
delisting exit levels are risk based
standards. We have not stated that
Beaumont Refinery is not subject to the
LDR standards, because the waste was
not delisted at the point of generation,
Beaumont Refinery may submit a
variance to the treatment standards as
described in § 268.42(b) or 268.44 in
order to ensure compliance with the
LDR standards, but the Delisting
decision may still be made. However,
wastes destined for disposal in Subtitle
C landfills are subject to the LDR limits.
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Therefore, wastes when delisted must
comply with all applicable Subtitle D
landfill requirements.
The primary function of Superall 38
is to facilitate recovery of as much oil
(and associated COCs) as possible for
subsequent reintroduction into the
refinery process. And after introduction
of this cleaning agent and centrifuging
there was a reduction in volume of the
residuals. The centrifuge solids, the
petitioned waste, are separated from the
liquid portion of the mixture. The
recovered oil is returned to the process,
and any remaining liquid portion is
treated in the wastewater treatment
system to standards which meet the
facility’s NPDES permit and the
centrifuge solids will be disposed of in
a Subtitle D Landfill when this
exclusion is finalized. ExxonMobil’s
centrifuge residuals do indicate a
reduction of hazardous waste
concentrations. Thus, because the
remaining liquid portion is taken out of
the RCRA jurisdiction and put under
Clean Water Act jurisdiction and the
remaining RCRA waste is reduced, the
EPA does not consider this process to
constitute dilution under RCRA
regulations. The EPA believes that the
delisting concentrations met by this
residuals to be delisted fall within the
acceptable lifetime risk range of 10–4 to
10–6 and that for the non-carcinogenic
constituents that an individual could be
exposed to on a daily basis are without
appreciable risk of deleterious effects
during a lifetime.
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
proposed 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
proposed rule does not have Tribal
implications, as 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,
74715
‘‘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 this
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: November 19, 2011.
Carl E. Edlund,
P.E., Director, Multimedia Planning and
Permitting Division.
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 Tables 1 and 2 of Appendix IX
to 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
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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Facility
Address
Waste description
*
*
*
ExxonMobil Refining and Supply Company—Beaumont Refinery.
*
Beaumont, TX ....
*
*
*
Centrifuge Solids (EPA Hazardous Waste Numbers F037,
F038, K048, K049, K051, K052, K169, and K170.) generated at a maximum rate of 8,300 cubic yards after December 1, 2011.
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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
(1) Reopener.
(A) If, anytime after disposal of the delisted waste Beaumont
Refinery 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 testing data (and retest, if applicable) of the waste
does not meet the delisting requirements in paragraph 1,
Beaumont Refinery 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 Beaumont Refinery fails to submit the information described in paragraphs (1)(A) or (1)(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 receipt of the Division Director’s notice
to present such information.
(E) Following the receipt of information from the facility described in paragraph (1)(D) or (if no information is presented under paragraph (1)(D)) the initial receipt of information described in paragraphs (1)(A) or (1)(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.
(2) Notification Requirements: Beaumont Refinery 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 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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TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES
Facility
Address
Waste description
*
*
*
ExxonMobil Refining and Supply Company—Beaumont Refinery.
*
Beaumont, TX ....
*
*
*
Centrifuge Solids (EPA Hazardous Waste Numbers F037,
F038, K048, K049, K051, K052, K169, and K170.) generated at a maximum rate of 8,300 cubic yards after December 1, 2011.
Beaumont Refinery must implement the requirements in
Table 1. Wastes Excluded from Non-Specific Sources for
the petition to be valid.
*
*
*
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 64
[Docket ID FEMA–2011–0002; Internal
Agency Docket No. FEMA–8207]
Suspension of Community Eligibility
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This rule identifies
communities where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP) that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur and
a notice of this will be provided by
publication in the Federal Register on a
subsequent date.
DATES: Effective Dates: The effective
date of each community’s scheduled
suspension is the third date (‘‘Susp.’’)
listed in the third column of the
following tables.
FOR FURTHER INFORMATION CONTACT: If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact David Stearrett,
Mitigation Directorate, Federal
Emergency Management Agency, 500 C
Street SW., Washington, DC 20472,
(202) 646–2953.
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*
The NFIP
enables property owners to purchase
Federal flood insurance that is not
otherwise generally available from
private insurers. In return, communities
agree to adopt and administer local
floodplain management aimed at
protecting lives and new construction
from future flooding. Section 1315 of
the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4022,
prohibits the sale of NFIP flood
insurance unless an appropriate public
body adopts adequate floodplain
management measures with effective
enforcement measures. The
communities listed in this document no
longer meet that statutory requirement
for compliance with program
regulations, 44 CFR part 59.
Accordingly, the communities will be
suspended on the effective date in the
third column. As of that date, flood
insurance will no longer be available in
the community. We recognize that some
of these communities may adopt and
submit the required documentation of
legally enforceable floodplain
management measures after this rule is
published but prior to the actual
suspension date. These communities
will not be suspended and will continue
their eligibility for the sale of insurance.
A notice withdrawing the suspension of
the communities will be published in
the Federal Register.
In addition, FEMA publishes a Flood
Insurance Rate Map (FIRM) that
identifies the Special Flood Hazard
Areas (SFHAs) in these communities.
The date of the FIRM, if one has been
published, is indicated in the fourth
column of the table. No direct Federal
financial assistance (except assistance
pursuant to the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act not in connection with a
flood) may be provided for construction
or acquisition of buildings in identified
SFHAs for communities not
participating in the NFIP and identified
for more than a year on FEMA’s initial
FIRM for the community as having
SUPPLEMENTARY INFORMATION:
[FR Doc. 2011–30152 Filed 11–30–11; 8:45 am]
SUMMARY:
*
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*
*
flood-prone areas (section 202(a) of the
Flood Disaster Protection Act of 1973,
42 U.S.C. 4106(a), as amended). This
prohibition against certain types of
Federal assistance becomes effective for
the communities listed on the date
shown in the last column. The
Administrator finds that notice and
public comment under 5 U.S.C. 553(b)
are impracticable and unnecessary
because communities listed in this final
rule have been adequately notified.
Each community receives 6-month,
90-day, and 30-day notification letters
addressed to the Chief Executive Officer
stating that the community will be
suspended unless the required
floodplain management measures are
met prior to the effective suspension
date. Since these notifications were
made, this final rule may take effect
within less than 30 days.
National Environmental Policy Act.
This rule is categorically excluded from
the requirements of 44 CFR part 10,
Environmental Considerations. No
environmental impact assessment has
been prepared.
Regulatory Flexibility Act. The
Administrator has determined that this
rule is exempt from the requirements of
the Regulatory Flexibility Act because
the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4022,
prohibits flood insurance coverage
unless an appropriate public body
adopts adequate floodplain management
measures with effective enforcement
measures. The communities listed no
longer comply with the statutory
requirements, and after the effective
date, flood insurance will no longer be
available in the communities unless
remedial action takes place.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866 of September 30,
1993, Regulatory Planning and Review,
58 FR 51735.
Executive Order 13132, Federalism.
This rule involves no policies that have
E:\FR\FM\01DER1.SGM
01DER1
]]>Agencies
[Federal Register Volume 76, Number 231 (Thursday, December 1, 2011)]
[Rules and Regulations]
[Pages 74709-74717]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30152]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2010-0066; SW FRL-9490-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is granting a
petition submitted by ExxonMobil Refining and Supply Company--Beaumont
Refinery (Beaumont Refinery) to exclude from hazardous waste control
(or delist) a certain solid waste. This final rule responds to the
petition submitted by Beaumont Refinery to delist to have centrifuge
solids generated from treatment of Tank Bottoms from its Lower Park
Tank Farm excluded, or delisted, from the definition of a hazardous
waste. The centrifuge solids are derived from the management and
treatment of several F- and K-waste codes. These waste codes are F037,
F038, K048, K049, K051, K052, K169, and K170.
After careful analysis and evaluation of comments submitted by the
public, the EPA has concluded that the petitioned wastes are not
hazardous waste when disposed of in Subtitle D landfills. This
exclusion applies to the centrifuge solids generated at Beaumont
Refinery's Beaumont, Texas facility. Accordingly, this final rule
excludes the petitioned waste from the requirements of hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA)
when disposed of in Subtitle D landfills but imposes testing conditions
to ensure that the future-generated wastes remain qualified for
delisting.
DATES: Effective Date: December 1, 2011.
ADDRESSES: The public docket for this final rule is located at the U.S.
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in the EPA Freedom of
Information Act review room on the 7th floor from 9 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. Call (214) 665-6444
for appointments. The reference number for this docket is ``EPA-R06-
RCRA-2010-0066''. The public may copy material from any regulatory
docket at no cost for the first 100 pages and at a cost of $0.15 per
page for additional copies.
FOR FURTHER INFORMATION CONTACT: For general information, contact Ben
Banipal, at (214) 665-7324. For technical information concerning this
notice, contact Michelle Peace, U.S. Environmental Protection Agency,
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this delisting?
C. What are the limits of this exclusion?
D. How will Beaumont Refinery manage the waste if it is
delisted?
E. When is the final delisting exclusion effective?
F. How does this 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 Data
A. What wastes did Beaumont Refinery petition EPA to delist?
B. How much waste did Beaumont Refinery propose to delist?
C. How did Beaumont Refinery 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?
B. Comments and Responses
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
The EPA is finalizing:
(1) The decision to grant Beaumont Refinery's petition to have its
centrifuge solids excluded, or delisted, from the definition of a
hazardous waste, subject to certain continued verification and
monitoring conditions; and
(2) To use the Delisting Risk Assessment Software to evaluate the
potential impact of the petitioned waste on human health and the
environment. The Agency used this model to predict the concentration of
hazardous constituents released from the petitioned waste, once it is
disposed. After evaluating the petition, EPA proposed and issued a
direct final rule, on October 1, 2010 to exclude the
[[Page 74710]]
Beaumont Refinery waste from the lists of hazardous wastes under
Sec. Sec. 261.31 and 261.32. The direct final rule received adverse
comments and was subsequently withdrawn on November 16, 2010. This
decision is based on the proposed rule issued on October 1, 2010. The
comments received on this rulemaking will be addressed as part of this
decision.
B. Why is EPA approving this delisting?
Beaumont Refinery's petition requests a delisting for the
centrifuge solids listed as F037, F038, K048, K049, K051, K052, K169,
and K170. Beaumont Refinery does not believe that the petitioned wastes
meet the criteria for which EPA listed them. Beaumont Refinery also
believes no additional constituents or factors could cause the wastes
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 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In
making the initial 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 wastes do not meet the listing criteria
and thus should not be a listed waste. EPA's decision to delist wastes
from the facility is based on the information submitted in support of
this rule, including descriptions of the waste and analytical data from
the Beaumont Refinery, Beaumont, 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 Table 1 and 2 of part 261, Appendix IX
and the conditions contained herein are satisfied. The one-time
exclusion applies to 8,300 cubic yards of centrifuge solids waste
resulting from the treatment of tank bottoms from five tanks in the
Lower Park Tank Farm.
D. How will Beaumont Refinery manage the waste if it is delisted?
Beaumont Refinery will dispose of the storage containers of the
centrifuge solids. The centrifuge solids will be transported and
disposed of at a permitted municipal solid waste landfill or a
commercial industrial waste landfill regulated by the Texas Commission
on Environmental Quality (TCEQ).
E. When is the final delisting exclusion effective?
This rule is effective December 1, 2011. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here because this rule reduces, rather than increases, the
existing requirements for persons generating hazardous wastes. These
reasons also provide a basis for making this rule effective
immediately, upon publication, under the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(d).
F. How does this 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 two categories of
States: States having a dual system that includes Federal RCRA
requirements and their own requirements, and States who have received
our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA
regulatory requirements that are more stringent than EPA's, under
section 3009 of RCRA. 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, we urge 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,
Georgia, Illinois) 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 authorized States. If Beaumont
Refinery transports the petitioned waste to or manages the waste in any
State with delisting authorization, Beaumont Refinery must obtain
delisting authorization from that State before they can manage the
waste as nonhazardous 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 from the list of hazardous
wastes, wastes the generator does not consider hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control 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 Parts 260 through
266, 268 and 273 of Title 40 of the Code of Federal Regulations.
Section 260.22 provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA to allow the
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. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste, that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Data
A. What waste did Beaumont Refinery petition EPA to delist?
Beaumont Refinery petitioned EPA on September 9, 2009, to exclude
from the lists of hazardous wastes contained in Sec. Sec. 261.31, and
261.32, from its centrifuge solids from the treatment of tank bottoms
from five tanks in the Lower Park Tank Farm.
[[Page 74711]]
The waste stream was generated from the Beaumont Refinery facility
located in Beaumont, Texas. The centrifuge solids are listed under EPA
Hazardous Waste No. F037, F038, K048, K049, K051, K052, K169, and K170.
Specifically, in its petition, Beaumont Refinery requested that EPA
grant an one time exclusion for 8,300 cubic yards of the centrifuge
solids.
The 40 CFR Part 261 Appendix VII hazardous constituents which are
the basis for listing can be found in Table 1.
Table 1--EPA Waste Codes for Centrifuge Solids and the Basis for Listing
------------------------------------------------------------------------
Waste code Basis for listing
------------------------------------------------------------------------
F037................................... Benzene, benzo(a)pyrene,
chrysene, lead, chromium.
F038................................... Benzene, benzo(a)pyrene,
chrysene, lead, chromium.
K048................................... Hexavalent chromium, lead.
K049................................... Hexavalent chromium, lead.
K051................................... Hexavalent chromium, lead.
K052................................... Lead.
K169................................... Benzene.
K170................................... Benzo(a)pyrene,
dibenzo(a,h)anthracene,
benzo(a)anthracene,
benzo(b)fluoranthene,
benzo(k)fluoranthene, 3-
methylcholanthrene, 7,12-
dimethylbenzo(a)anthracene.
------------------------------------------------------------------------
B. How much waste did Beaumont Refinery propose to delist?
Specifically, in its petition, Beaumont Refinery requested that EPA
grant an one time exclusion for 8,300 cubic yards of the centrifuge
solids.
C. How did Beaumont Refinery sample and analyze the waste data in this
petition?
To support its petition, Beaumont Refinery submitted:
1. Analytical results of the toxicity characteristic leaching
procedure (TCLP) analysis for volatile and semivolatile organics, and
metals for ten samples and one duplicate of the centrifuge solids;
2. Analytical results of the total constituent analysis for
volatile and semivolatile organics, and metals for three samples of the
centrifuge solids;
3. Analytical results for Appendix IX volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs, and metals for
one sample of the centrifuge solids;
4. Analytical results for the EPA Region 6 TCLP analysis for
Appendix IX metals for one sample of the centrifuge solids;
5. Analytical results for the oily waste extraction procedure
(OWEP) for Beaumont Refinery metals for one sample of the centrifuge
solids;
6. Analytical results for total reactive cyanides for three samples
of the centrifuge solids;
7. Analytical results for total reactive sulfides for three samples
of the centrifuge solids;
8. Analytical results for total oil and grease for ten samples of
the centrifuge solids; and
9. Descriptions of the operations and waste generated from the
centrifuging of tank bottoms at the Lower Park Tank Farm.
Table 2--Analytical Results and Maximum Allowable Delisting Concentrations of the Centrifuge Solids 1
----------------------------------------------------------------------------------------------------------------
Maximum
Maximum total Maximum TCLP allowable TCLP
Constituent (mg/kg) (mg/l) delisting
level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony........................................................ 5.38 0.0224 1.87
Arsenic......................................................... 26.9 0.0353 5.0
Acetone......................................................... < 0.5 0.65 9080
Acenaphthene.................................................... 26 0.009 185
Anthracene...................................................... 32 0.006 452
Beryllium....................................................... 0.289 < 0.001 20.44
Butyl benzene phthalate......................................... 3.7 0.00026 698
Barium.......................................................... 823 1.94 100
Benzene......................................................... 0.8 0.046 0.5
Bis(2-ethylhexyl)phthalate...................................... < 0.5 0.0058 0.0522
Benzo(a) anthracene............................................. 72 < 0.001 1.22
Benzo(a) pyrene................................................. 67 < 0.001 461.44
Benzo(b) flouranthene........................................... 28 < 0.001 3916.8
Benzo(k) flouranthene........................................... 10 < 0.001 11.6
m,p cresol...................................................... 6 0.16 200
Cadmium......................................................... 0.837 < 0.001 1.0
Chromium........................................................ 608 0.122 5.0
Cobalt.......................................................... 20.5 0.0735 3.64
Copper.......................................................... 302 < 0.001 417.3
o-cresol........................................................ 1.5 0.0091 200
Chrysene........................................................ 120 0.00014 122
2,4 Dimethyl phenol............................................. 9.8 0.066 198
Di-n-butyl phthalate............................................ < 0.5 0.0012 429
7,12 dimethylbenz(a)anthracene.................................. 53 < 0.001 0.08176
Dibenz(a,h)anthracene........................................... 1.7 < 0.001 4.41
Ethylbenzene.................................................... < 0.5 0.073 189
Fluorene........................................................ 54 0.0033 85.6
[[Page 74712]]
Fluoranthrene................................................... 17 < 0.001 42.96
Lead............................................................ 1290 1.44 5.0
Mercury......................................................... 2.65 0.000065 0.2
Methyl Isobutyl ketone.......................................... < 0.5 0.02 807
2-Methylnaphthalene............................................. 570 < 0.001 12.70
Naphthalene..................................................... 180 0.15 0.571
Nickel.......................................................... 195 0.556 231
Phenanthrene.................................................... 170 0.0041 (*)
Phenol.......................................................... < 0.5 0.0033 3030
Pyrene.......................................................... 100 0.0057 77.6
Selenium........................................................ 20.6 < 0.001 1.0
Silver.......................................................... 0.194 < 0.001 5.0
Thallium........................................................ 0.842 < 0.001 0.639
Tin............................................................. 3.46 < 0.001 22.5
Toluene......................................................... 0.5 0.032 263
Vanadium........................................................ < 0.5 0.138 57.5
Xylenes......................................................... 3.3 0.16 167
Zinc............................................................ 1160 8.41 3530
----------------------------------------------------------------------------------------------------------------
* Not applicable.
1 These levels represent the highest concentration of each constituent found in any one sample. These levels do
not necessarily represent the specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
The EPA received public comments on October of 2010, proposed rule
from three interested parties, the Environmental Technology Council
(ETC), and Heritage Environmental and one citizen. Heritage
Environmental submitted comments objecting to the absence of the full
administrative record not appearing electronically on the
regulations.gov site on October 28, 2010. ETC submitted three rounds of
comments dated October 28, 2010, February 7, 2011, and March 7, 2011.
The comments and responses are addressed below. Some responses to the
October 28, 2010 items are not included because the actual records were
sent to the commenter for verification purposes and no further comment
is warranted.
B. What comments were submitted on the Beaumont Refinery delisting
petition?
Comment 1. These materials are listed hazardous wastes. The
centrifuged solids fail to meet the treatment standards for placement
in a fully permitted hazardous waste landfill that is designed to
contain and manage toxic hazardous waste. It is completely inconsistent
with EPA land disposal restrictions to grant even a variance to the LDR
for these materials based on their exceeding the LDR treatment
standards by a factor of 100 times greater concentration of the
hazardous waste constituents. It is therefore unacceptable to delist
these solids from hazardous waste regulation and allow their placement
in a substantially less restrictive municipal solid waste landfill. The
entire petition should be rejected.
Response 1. The Delisting Program and the LDR program serve
different purposes. Different standards of compliance apply. ``A waste
is eligible for delisting only if that waste as generated at a
particular facility does not meet any of the criteria under which the
waste was listed as a hazardous waste. In addition, the waste may not
contain any other Appendix VIII constituents that would cause the waste
to be hazardous.'' RCRA Sec. 3001(f) and 40 CFR 260.22.
The derived-from rule states that any solid waste generated from
the treatment, storage, or disposal of a listed hazardous waste,
including any sludge, spill residue, ash, emission control dust, or
leachate, remains a hazardous waste unless and until delisted (Sec.
261.3(c)(2)(i)).
EPA's regulations establish two ways of identifying solid wastes as
hazardous under RCRA. A waste may be considered hazardous if it
exhibits certain hazardous properties (``characteristics'') or if it is
included on a specific list of wastes EPA has determined are hazardous
(``listing'' a waste as hazardous) because we found them to pose
substantial present or potential hazards to human health or the
environment. EPA's regulations in the Code of Federal Regulations (40
CFR) define four hazardous waste characteristic properties:
Ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24).
In order to list wastes EPA conducts a more specific assessment of
a particular waste or category of wastes. The Agency will ``list'' them
if they meet criteria set out in 40 CFR 261.11.
As described in Sec. 261.11, EPA may list a waste as hazardous if
the waste:
--Exhibits any of the characteristics, i.e., ignitability, corrosivity,
reactivity, or toxicity (Sec. 261.11(a)(1));
--Is ``acutely'' hazardous (e.g., if it is fatal to humans or animals
at low doses, (Sec. 261.11(a)(2)); or
--It contains any of the toxic constituents listed in 40 CFR part 261,
Appendix VIII and, after consideration of various factors described in
the regulation, is capable of posing a ``substantial present or
potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise managed''
(Sec. 261.11(a)(3)).
EPA places a substance on the list of hazardous constituents in
Appendix VIII if scientific studies have shown the substance has toxic
effects on humans
[[Page 74713]]
or other life forms. Generally, listing of wastes is not driven by
threshold limits except in the case of the toxicity characteristic
determination. Several of the limits cited by the commenter are the TC
limit for the constituents stated. If the waste is characteristic, then
it can't be delisted. The delisting limit is constrained by the TC
limit.
In 1984, Congress created EPA's Land Disposal Restrictions (LDR)
program. The LDR program ensures that toxic constituents present in
hazardous waste are properly treated before hazardous waste is land
disposed. Since then, the LDR team has developed mandatory technology-
based treatment standards that must be met before hazardous waste is
placed in a landfill. These standards help minimize short and long-term
threats to human health and the environment, which directly benefits
local communities where hazardous waste landfills are located. The LDR
Program does not determine if a waste is hazardous, it regulates how
hazardous wastes are to be managed at the time of disposal.
We do believe that the concentrations specified as delisting levels
do minimize short term and long term threats to human health and the
environment. Whereas, some LDR treatment standards are based on the
best demonstrated technology, the delisting exit levels are risk based
standards. We have not stated that ExxonMobil's waste is not subject to
the LDR standards, because the waste was not delisted at the point of
generation, ExxonMobil may submit a variance to the treatment standards
as described in 268.42(b) or 268.44 in order to ensure compliance with
the LDR standards, but the Delisting decision may still be made.
However, wastes destined for disposal in Subtitle C landfills are
subject to the LDR limits. Wastes when delisted must comply with all
applicable Subtitle D landfill requirements.
Comment 2. EPA has given specific guidance for the generation of
sampling plans for the delisting of hazardous waste. This guidance is
presented in the document SW846, Chapter 9, Sampling Plans. The
variability of the waste must be established as part of a delisting
petition. No such statistical analysis is presented for either the
original wastes, or the centrifuged solids. The petitioner simply
states without justification that the studied solids were thought to be
representative of the highest concentration materials. However, no
laboratory analysis data are presented to show the variability of the
concentrations of the hazardous constituents in the subject waste
materials. Also, EPA's own guidance states that the minimum number of
samples required for a delisting petition shall ``in no case be less
than four samples,'' even when the variability has been determined and
the 90% upper confidence limit has been shown to be below the
regulatory threshold for a specific analytical parameter. The
petitioner consistently presents one to three sample data results, with
no statistical analysis of the data. The entire petition should be
rejected for failure to properly characterize both the original waste
material and the centrifuged solids with a sampling plan that meets
USEPA guidance for this type of delisting request.
Response 2. Eleven samples of waste were analyzed to support this
delisting petition. In prediction of the worst case scenario, EPA
selects the maximum waste concentration of the data provided for the
waste. The Sampling and Analysis Plan for the Centrifuge Solids was
reviewed and approved by EPA. The Sampling and Analysis of this
material is acceptable for demonstration that the waste sampled is
representative of the waste to be disposed.
Comment 3. Uncontrolled disposal of these materials could result in
the creation of a Federal Superfund site. The constituent
concentrations of carcinogenic PAH compounds at over 350 mg/kg PAH in
the centrifuged solids exceed the cleanup standards for numerous
Federal Superfund sites. It is unimaginable that EPA would grant
permission for non-hazardous disposal of a toxic waste that would
require a large scale remediation at a Superfund site. The purpose of
RCRA is to prevent the creation of Superfund sites, not promote them.
The entire petition should be denied so that additional Superfund sites
are not created as a result of the uncontrolled non-hazardous disposal
of these materials.
Response 3. Since the Risk Assessment Guidance for Superfund was
published, the risk-based cleanup levels should be established from the
toxicity of an individual compound of concerns (COC) in PAHs. The
equations and exposure parameter inputs for carcinogen risk
calculations are mainly in Part A & B of the Guidance. 10E-6 is the
departure risk for a carcinogen with standardized exposure default
values. The total risk in PAHs is the sum from the risk of each
compound in PAHs. However, site-specific cleanup levels can be
established by site-specific exposure parameter inputs through site-
specific risk assessment.
Therefore, the cleanup levels are different from one chemical to
another in PAHs. The screening levels of COCs with a risk level, 10E-6
are in Regional Screening Level Summary Table. The web address for the
Table is https://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/index.htm.
Comment 4: A listed hazardous waste is prohibited from land
disposal under RCRA, unless the hazardous waste is first treated to the
level or by a method of treatment which substantially diminishes the
toxicity of the waste or substantially reduces the likelihood of
migration of hazardous constituents from the waste so that short-term
and long-term threats to human health and the environment are
minimized. RCRA & 3004(d), (g) & (m). No other form or method of
treatment is allowed by law, except treatment that complies with RCRA
Sec. 3004(m). In addition, no generator may ``in any way dilute a
restricted waste or the residual from treatment of a restricted waste
as a substitute for adequate treatment'' that achieves the mandatory
treatment standards. 40 CFR Sec. 268.3 (emphasis added).
For the F037, F038, K048, K049, K051, K052, K169 and K170 hazardous
wastes generated from the slop oil tanks in the Beaumont Refiner Lower
Park Tank Farm, the mandatory treatment standards require treatment to
concentration-based levels for a plethora of regulated constituents
ranging alphabetically from acenaphthene to xylenes. 40 CFR 268.40.
These treatment levels are based on the best demonstrated available
treatment achieved through high-temperature incineration.
Contrary to these basic principles and applicable law, EPA has
proposed to delist and allow land disposal of the slop oil solids
generated at the Beaumont tank farm at concentration levels greatly in
excess of the mandatory treatment standards. In doing so, EPA attempts
to perpetrate a sham by delisting the slop oil solids from ineffective
treatment that is nothing more than prohibited dilution of the
hazardous waste. In the preamble EPA claims that Exxon has petitioned
to delist the ``centrifuge solids from the treatment of tank bottoms
from the five tanks from the Lower Park Tank Farm.'' 75 Fed. Reg. at
60634 (emphasis added). Specifically, EPA asserts that Exxon's
subcontractor will use ``a proprietary chemical (Superall 38), which
acts as a chemical agent for treating wastes from oil-related clean-up
activities that, when coupled with centrifuging, reduces the volume and
toxicity'' of the slop oil tank wastes. Id. (emphasis added).
There is not a scintilla of evidence in the administrative record
that Superall 38 effectively treats the slop oil waste to reduce
toxicity, or that the product
[[Page 74714]]
functions in any way other than as a cleaning agent. The record does
not contain any information supporting EPA's claim that Superall 38 is
a chemical agent for effective treatment of the slop oil waste. Indeed,
Superall Products LLP makes no such claims itself in its Web site
advertisements for its product. Most importantly, the Superall cleaning
agent clearly does not reduce ``the volume and toxicity'' of the waste
to the mandatory treatment levels required by RCRA and the regulations.
Most importantly, the Superall product is mixed with large volumes
of water for use as a cleaning agent. The slop oil waste is thereby
diluted and hazardous constituents are transferred to the water so that
the concentrations are reduced in the solids after centrifuging. This
process of dilution and centrifuging is clearly not the mandatory
treatment required by the regulations, and is in fact a way of diluting
the restricted waste in express violation of the dilution prohibition
in 40 CFR 268.3. The analytical data on the slop oil solids on which
the entire DRAS modeling was based are useless, since there is no way
of determining how much water and cleaning solution was mixed with the
slop oil, and there are no restrictions in EPA's delisting on diluting
the waste as much as necessary to ``pass'' the DRAS modeling. All the
DRAS modeling proves is that hazardous waste can be diluted with water
to reduce constituent concentrations, something that Congress
specifically prohibited in the land disposal prohibitions of RCRA. The
slop oil waste generated by Exxon in the Beaumont Refinery's Lower Park
Tank Farm is listed as F037 and F038 because it contains petroleum
refinery oil/water/solids separation sludges that are listed as
hazardous wastes due to benzene, benzo(a)pyrene, chrysene, lead and
chromium. 40 CFR Part 261, App. VII. In addition, the slop oil waste is
listed as K048, K049, K051, K052, K169 and K170 because it contains
dissolved air flotation (DAF) float, slop oil emulsion solids, API
separator sludge, crude oil storage tank sediment, clarified slurry oil
tank sediment and in-line filter separation solids that are listed as
hazardous wastes due to hexavalent chromium, lead, benzene,
benzo(a)pyrene, dibenz(a,h)anthracene, benzo(a)anthracene,
benzo(b)fluoranthene, benzo(k)fluoranthene, 3-methylcholanthrene, and
7,12-dimethylbenz(a)anthracene. Id.
This slop oil waste indisputably meets the criteria for which the
ingredient wastes were listed as hazardous wastes. There is no basis
whatsoever in the Exxon delisting petition for determining that the
slop oil waste is not a hazardous waste, or as generated can
legitimately be delisted.
Now that EPA Region 6 has finally provided the administrative
record for the Exxon delisting petition, it is apparent that the
proposed delisting of the F- and K-listed slop oil tank bottoms would
be arbitrary, capricious, and contrary to law. These slop oil wastes
meet the criteria for listing as hazardous waste and undoubtedly
contain high concentrations of Appendix VIII hazardous constituents,
although the record contains scant information or analytical data on
the actual waste. Instead, Exxon has applied for delisting of the waste
solids after mixing with high volumes of water and centrifuging, which
would clearly violate the delisting requirements of RCRA, the land
disposal prohibitions, and the dilution prohibition in 40 CFR 268.3.
Response 4. The Delisting Program and the LDR program serve
different purposes and because they serve different purposes, different
standards of compliance apply. As the commenter states ``A waste is
eligible for delisting only if that waste as generated at a particular
facility does not meet any of the criteria under which the waste was
listed as a hazardous waste. In addition, the waste may not contain any
other Appendix VIII constituents that would cause the waste to be
hazardous. RCRA Sec. 3001(f) and 40 CFR 260.22.''
The derived-from rule states that any solid waste generated from
the treatment, storage, or disposal of a listed hazardous waste,
including any sludge, spill residue, ash, emission control dust, or
leachate, remains a hazardous waste unless and until delisted. (Sec.
261.3(c)(2)(i)).
EPA's regulations establish two ways of identifying solid wastes as
hazardous under RCRA. A waste may be considered hazardous if it
exhibits certain hazardous properties (``characteristics'') or if it is
included on a specific list of wastes EPA has determined are hazardous
(``listing'' a waste as hazardous) because we found them to pose
substantial present or potential hazards to human health or the
environment. EPA's regulations in the Code of Federal Regulations (40
CFR) define four hazardous waste characteristic properties:
ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24).
In order to list wastes EPA conducts a more specific assessment of
a particular waste or category of wastes. The Agency will ``list'' them
if they meet criteria set out in 40 CFR 261.11. As described in Sec.
261.11, EPA may list a waste as hazardous if the waste: exhibits any of
the characteristics, i.e., ignitability, corrosivity, reactivity, or
toxicity (Sec. 261.11(a)(1)); is ``acutely'' hazardous (e.g., if it is
fatal to humans or animals at low doses, Sec. 261.11(a)(2)); or it
contains any of the toxic constituents listed in 40 CFR part 261,
Appendix VIII and, after consideration of various factors described in
the regulation, is capable of posing a ``substantial present or
potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise managed''
(Sec. 261.11(a)(3)).
EPA placed a substance on the list of hazardous constituents in
Appendix VIII if scientific studies have shown the substance has toxic
effects on humans or other life forms.
Generally, listing of wastes are not driven by threshold limits
except in the case of the toxicity characteristic (TC) determination.
Several of the limits cited by the commenter are the TC limit for the
constituents stated. If the waste is characteristic, then it can't be
delisted. The delisting limit is bound by the TC limit.
In 1984, Congress created EPA's Land Disposal Restrictions (LDR)
program. The LDR program ensures that toxic constituents present in
hazardous waste are properly treated before hazardous waste is land
disposed. Since then, the LDR team has developed mandatory technology-
based treatment standards that must be met before hazardous waste is
placed in a landfill. These standards help minimize short and long-term
threats to human health and the environment, which directly benefits
local communities where hazardous waste landfills are located. The LDR
Program does not determine if a waste is hazardous it is how hazardous
wastes are to be managed at the time of disposal.
We do believe that the concentrations specified as delisting levels
do minimize short term and long term threats to human health and the
environment. Whereas, some LDR treatment standards are based on the
best demonstrated technology, the delisting exit levels are risk based
standards. We have not stated that Beaumont Refinery is not subject to
the LDR standards, because the waste was not delisted at the point of
generation, Beaumont Refinery may submit a variance to the treatment
standards as described in Sec. 268.42(b) or 268.44 in order to ensure
compliance with the LDR standards, but the Delisting decision may still
be made. However, wastes destined for disposal in Subtitle C landfills
are subject to the LDR limits.
[[Page 74715]]
Therefore, wastes when delisted must comply with all applicable
Subtitle D landfill requirements.
The primary function of Superall 38 is to facilitate recovery of as
much oil (and associated COCs) as possible for subsequent
reintroduction into the refinery process. And after introduction of
this cleaning agent and centrifuging there was a reduction in volume of
the residuals. The centrifuge solids, the petitioned waste, are
separated from the liquid portion of the mixture. The recovered oil is
returned to the process, and any remaining liquid portion is treated in
the wastewater treatment system to standards which meet the facility's
NPDES permit and the centrifuge solids will be disposed of in a
Subtitle D Landfill when this exclusion is finalized. ExxonMobil's
centrifuge residuals do indicate a reduction of hazardous waste
concentrations. Thus, because the remaining liquid portion is taken out
of the RCRA jurisdiction and put under Clean Water Act jurisdiction and
the remaining RCRA waste is reduced, the EPA does not consider this
process to constitute dilution under RCRA regulations. The EPA believes
that the delisting concentrations met by this residuals to be delisted
fall within the acceptable lifetime risk range of 10-4 to 10-6 and that
for the non-carcinogenic constituents that an individual could be
exposed to on a daily basis are without appreciable risk of deleterious
effects during a lifetime.
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 proposed 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 proposed rule does not have Tribal
implications, as 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 this 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: November 19, 2011.
Carl E. Edlund,
P.E., Director, Multimedia Planning and Permitting Division.
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 Tables 1 and 2 of Appendix IX to 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
----------------------------------------------------------------------------------------------------------------
* * * * * * *
ExxonMobil Refining and Supply Company-- Beaumont, TX...................... Centrifuge Solids (EPA Hazardous
Beaumont Refinery. Waste Numbers F037, F038, K048,
K049, K051, K052, K169, and
K170.) generated at a maximum
rate of 8,300 cubic yards after
December 1, 2011.
[[Page 74716]]
(1) Reopener.
(A) If, anytime after disposal of
the delisted waste Beaumont
Refinery 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 testing data (and retest,
if applicable) of the waste does
not meet the delisting
requirements in paragraph 1,
Beaumont Refinery 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 Beaumont Refinery fails to
submit the information described
in paragraphs (1)(A) or (1)(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 receipt of the
Division Director's notice to
present such information.
(E) Following the receipt of
information from the facility
described in paragraph (1)(D) or
(if no information is presented
under paragraph (1)(D)) the
initial receipt of information
described in paragraphs (1)(A)
or (1)(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.
(2) Notification Requirements:
Beaumont Refinery 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 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.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 74717]]
Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
ExxonMobil Refining and Supply Company-- Beaumont, TX...................... Centrifuge Solids (EPA Hazardous
Beaumont Refinery. Waste Numbers F037, F038, K048,
K049, K051, K052, K169, and
K170.) generated at a maximum
rate of 8,300 cubic yards after
December 1, 2011.
Beaumont Refinery must implement
the requirements in Table 1.
Wastes Excluded from Non-
Specific Sources for the
petition to be valid.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2011-30152 Filed 11-30-11; 8:45 am]
BILLING CODE 6560-50-P
