Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 76677-76684 [2011-31533]
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Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules
180.940(a) for residues of didecyl
dimethyl ammonium carbonate and
didecyl ammonium bicarbonate
(hereinafter cited jointly as DDACB), in
or on food-contact surfaces when
applied/used in public eating places,
dairy processing equipment, and/or
food processing equipment, and utensils
at 400 ppm. The petitioner believes no
analytical method is needed because the
subject quaternary ammonium
compounds are exempt from the
requirements of a tolerance. Contact:
Drusilla Copeland, (703) 308–6224,
email address:
copeland.drusilla@epa.gov.
List of Subjects in 40 CFR Part 180
Environmental protection,
Agricultural commodities, Feed
additives, Food additives, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: November 30, 2011.
Daniel J. Rosenblatt,
Acting Director, Registration Division, Office
of Pesticide Programs.
[FR Doc. 2011–31560 Filed 12–7–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[FDMS Docket No.: EPA–R08–RCRA–2011–
0823; FRL–9502–4]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
Environmental Protection
Agency (EPA).
ACTION: Proposed rule and request for
comment.
AGENCY:
The Environmental Protection
Agency (‘‘EPA,’’ ‘‘the Agency’’ or ‘‘we’’
in this preamble) is proposing to grant
a petition submitted by the
ConocoPhillips Billings, Montana
Refinery (‘‘ConocoPhillips’’ or
‘‘Petitioner’’) to exclude or ‘‘delist,’’
from the list of hazardous wastes,
residual solids from sludge removed
from two storm water tanks at its
Billings, Montana refinery and
processed in accordance with the
petition. The EPA used the Delisting
Risk Assessment Software (DRAS) in the
evaluation of the potential impact of the
petitioned waste on human health and
the environment.
The EPA’s proposed decision to grant
the petition is based on an evaluation of
waste-specific information provided by
ConocoPhillips. This proposed decision,
if finalized, would conditionally
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SUMMARY:
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exclude the petitioned waste from the
requirements of the hazardous waste
regulations under the Resource
Conservation and Recovery Act (RCRA).
This exclusion would be valid only
when sludge from the two storm water
tanks is dewatered and de-oiled using a
filter press and/or portable centrifuge,
and the resulting residual solids are
disposed of in a RCRA Subtitle D
landfill that is permitted, licensed, or
registered by a state to manage
industrial solid waste. If finalized, the
EPA would conclude that
ConocoPhillips’ petitioned waste is
nonhazardous with respect to the
original listing criteria and that there are
no other factors that would cause the
waste to be hazardous.
DATES: The EPA will accept public
comments on this proposed decision
until January 9, 2012 the EPA will
stamp comments received after the close
of the comment period as late. These
late comments may not be considered in
formulating a final decision. Any person
may request an informal hearing on this
proposed decision by filing a request to
the EPA by December 22, 2011. The
request must contain the information
prescribed in 40 CFR 260.20(d).
ADDRESSES: Submit your comments,
identified by Docket ID No.: EPA–R08–
RCRA–2011–0823, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. Email: cosentini.christina@epa.gov.
3. Fax: (303) 312–6341.
4. Mail, Hand Delivery or Courier:
Deliver your comments to Christina
Cosentini, Solid and Hazardous Waste
Program, EPA Region 8, Mailcode 8P–
HW, 1595 Wynkoop Street, Denver,
Colorado 80202–1129. Courier or hand
deliveries are only accepted during the
EPA Region 8’s normal hours of
operation from 8 a.m. to 4 p.m. The
public is advised to call in advance to
verify the business hours. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No.: EPA–R08–RCRA–2011–
0823. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at http:
//www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through https://
www.regulations.gov or email,
information that you consider to be CBI
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76677
or otherwise protected. The https://
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means the EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to the EPA without
going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet.
If you submit an electronic comment,
the EPA recommends that you include
your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If the EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
the EPA may not be able to consider
your comment. Electronic files should
not include special characters, any form
of encryption, and be free of any defects
or viruses. For additional information
about the EPA’s public docket visit the
EPA Docket Center home page at
https://www.epa.gov/epahome/
dockets.htm.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at: EPA Region 8, from 8 a.m. to
4 p.m., 1595 Wynkoop Street, Denver,
Colorado, contact: Christina Cosentini,
phone number (303) 312–6231.
FOR FURTHER INFORMATION CONTACT:
Christina Cosentini, Solid and
Hazardous Waste Program, EPA Region
8, 1595 Wynkoop Street, Mail Code 8P–
HW, Denver, Colorado 80202, (303)
312–6231, cosentini.christina@epa.gov.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
I. Overview Information
A. What action is the EPA approving?
B. Why is the EPA approving this
delisting?
C. How will ConocoPhillips Billings
Refinery manage the waste, if it is
delisted?
II. Background
A. What is a listed waste?
B. What is a delisting petition?
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C. What factors must the EPA consider in
deciding whether to grant a delisting
petition?
III. The EPA’s Evaluation of the Waste
Information and Data
A. What waste did ConocoPhillips petition
the EPA to delist?
B. How does ConocoPhillips generate the
waste?
C. How did ConocoPhillips sample and
analyze the waste?
D. What were the results of the
ConocoPhillips waste analysis?
E. How did the EPA evaluate the risk of
delisting this waste?
F. What did the EPA conclude about the
ConocoPhillips waste?
IV. Conditions for Exclusion
A. When would the EPA finalize the
proposed delisting exclusion?
B. How will ConocoPhillips manage the
waste if it is delisted?
C. What are the maximum allowable
concentrations of hazardous constituents
in the waste?
D. How frequently must ConocoPhillips
test the waste?
E. What data must ConocoPhillips submit?
F. What happens if ConocoPhillips waste
fails to meet the conditions of the
exclusion?
G. What must ConocoPhillips do if the
process changes?
V. How would this action affect states?
VI. Statutory and Executive Order Reviews
I. Overview Information
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A. What action is the EPA approving?
The EPA is proposing to grant a
petition submitted by the
ConocoPhillips Billings Refinery to have
residual solids from processing sludge
removed from two storm water tanks at
its Billings, Montana Refinery excluded
or delisted from the RCRA definition of
a hazardous waste, contingent upon
such waste being dewatered and deoiled using a filter press and/or portable
centrifuge and the resulting solids
disposed in a RCRA Subtitle D Landfill.
B. Why is the EPA approving this
delisting?
The ConocoPhillips petition
requested the residual solids from
processed storm water tank sludge be
excluded from the F037 waste listing.
F037 wastes are wastes that are
generated in the separation of oil/water/
solids from petroleum refinery process
wastewaters and oily cooling
wastewaters. This exclusion will apply
to an annual maximum of 200 cubic
yards of residual solids. ConocoPhillips
claims that the petitioned waste does
not meet the criteria for which the EPA
listed it, and that there are no additional
constituents or factors which could
cause the waste to be hazardous.
Based on our review described in
section III, we agree with the petitioner
that the waste is nonhazardous. The
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EPA reviewed the description of the
process which generates the waste and
the analytical data submitted by
ConocoPhillips. We believe that the
petitioned waste does not meet the
criteria for the F037 waste listing, and
that there are no other factors which
might cause the residual solids to be
hazardous.
C. How will ConocoPhillips Billings
Refinery manage the waste if it is
delisted?
ConocoPhillips will dispose of the
residual solids from the processed storm
water tank sludge in a RCRA Subtitle D
landfill which is regulated by the State
of Montana, or other state subject to
Federal RCRA delisting, to manage
industrial waste.
II. Background
A. What is a listed waste?
The EPA published an amended list
of hazardous wastes from nonspecific
and specific sources on January 16,
1981, as part of its final and interim
final regulations implementing section
3001 of RCRA. The EPA has amended
this list several times and published it
at 40 CFR 261.31 and 261.32. The EPA
lists these wastes as hazardous because:
(1) They typically and frequently exhibit
one or more of the characteristics of
hazardous wastes identified in subpart
C of part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity); (2)
they meet the criteria for listing
contained in 40 CFR 261.11(a)(2) or
(a)(3); or (3) the wastes are mixed with
or derived from the treatment, storage or
disposal of such characteristic and
listed wastes and which therefore
become hazardous under 40 CFR
261.3(a)(2)(iv) or (c)(2)(i), known as the
‘‘mixture’’ or ‘‘derived-from’’ rules
respectively.
B. What is a delisting petition?
Individual waste streams may vary
depending on raw materials, industrial
processes, and other factors. Thus,
while a waste described in the
regulations generally is hazardous, a
specific waste from an individual
facility meeting the listing description
may not be. A procedure to exclude or
delist a waste is provided in 40 CFR
260.20 and 260.22, which allows a
person, or a facility, to submit a petition
to the EPA, or an authorized state,
demonstrating that a specific waste from
a particular generating facility is not
hazardous.
In a delisting petition, the petitioner
must show that a waste does not meet
any of the criteria for listed wastes in 40
CFR 261.11 and that the waste does not
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exhibit any of the hazardous waste
characteristics of ignitability, reactivity,
corrosivity, or toxicity. The petitioner
must present sufficient information for
the EPA to decide whether any factors,
in addition to those for which the waste
was listed, warrant retaining it as a
hazardous waste. (See 40 CFR 260.22;
42 U.S.C. 6921(f).)
If a delisting petition is granted, the
generator remains obligated under
RCRA to confirm that the waste remains
nonhazardous.
C. What factors must the EPA consider
in deciding whether to grant a delisting
petition?
In reviewing this petition, we
considered the original listing criteria
and the additional factors required by
the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See
HSWA § 222, 42 U.S.C. 6921(f); 40 CFR
260.22(d)(1)–(4). We evaluated the
petitioned waste against the listing
criteria and factors cited in
§§ 261.11(a)(2) and (3).
In addition to considering the criteria
in 40 CFR 260.22(a) and 261.11(a)(2)
and (3), 42 U.S.C. 6921(f), and
information in the background
documents for the listed waste, the EPA
must consider any factors (including
additional constituents) other than those
for which the EPA listed the waste, if
these additional factors could cause the
waste to be hazardous.
The EPA’s tentative decision to delist
waste from the ConocoPhillips Billings
Refinery is based on our evaluation of
the waste for factors or criteria that
could cause the waste to be hazardous.
These factors include: (1) Whether the
waste is considered acutely toxic; (2) the
toxicity of the constituents; (3) the
concentration of the constituents in the
waste; (4) the tendency of the
constituents to migrate and to
bioaccumulate; (5) the persistence in the
environment of any constituents once
released from the waste; (6) plausible
and specific types of management of the
petitioned waste; (7) the quantity of
waste produced; and (8) waste
variability.
The EPA must also consider as
hazardous wastes mixtures containing
listed hazardous wastes and wastes
derived from treating, storing, or
disposing of listed hazardous waste. See
40 CFR 261.3(a)(2)(iv) and (c)(2)(i)
(referred to as the ‘‘mixture’’ and
‘‘derived-from’’ rules, respectively).
Mixture and derived-from wastes are
also eligible for exclusion but remain
hazardous until excluded.
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III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did ConocoPhillips
petition the EPA to delist?
On December 3, 2010, ConocoPhillips
petitioned the EPA to exclude a
maximum annual volume of 200 cubic
yards of F037 residual solids from
processing (for oil recovery) the sludge
removed from the two storm water tanks
at the Billings, Montana refinery from
the lists of hazardous waste contained
in 40 CFR 261.31 and 261.32. The F037
listing includes residuals from the
processing of oil-bearing hazardous
secondary materials (i.e., the sludge in
the storm water tanks) excluded under
40 CFR 261.4(a)(12)(i). Sediment in the
storm water tanks accumulates from
storm water runoff from the Refinery’s
process area, as well as some dryweather flow consisting of water from
wash-down, maintenance, and cleaning
activities, steam condensate and heat
exchanger back-flushing. This sediment
is processed by the refinery for the
recovery of oil and the residual solids
are classified as hazardous waste due a
conservative interpretation for the
assignment of hazardous waste code
F037. The waste conservatively falls
under the classification of listed waste
under 40 CFR 261.3.
B. How does ConocoPhillips generate
the waste?
ConocoPhillips generates the waste
through periodically removing and
processing sludge accumulated in two
storm water tanks through oil recovery
and dewatering. The sludge in the storm
water tanks is accumulated storm water
runoff from the Refinery’s process area,
and some dry-weather flow consisting of
water from wash-down, maintenance,
and cleaning activities as well as steam
condensate and heat exchanger backflushing. The sludge in not accumulated
at a constant rate and is currently
removed from the tanks at
approximately 18 month intervals and
processed via centrifuge and/or filter
press for oil recovery and dewatering.
Recovered oil is reinserted into the
refining process and water from
dewatering is routed to the Refinery’s
on-site wastewater treatment plant.
C. How did ConocoPhillips sample and
analyze the waste?
ConocoPhillips collected sample
sludge from 16 locations in each tank,
the sludge was composited and
processed for oil recovery and
dewatering through a filter press, and
submission of the filter pressed residual
solid material for analysis. A total of
eight composite samples, one duplicate
and one matrix spike/matrix duplicate
were analyzed for both total and
Toxicity Characteristic Leaching
76679
Procedure (TCLP) analyses of
constituents of concern (COC). The COC
list was comprised of a subset of the
Appendix IX constituent list in 40 CFR
264, and was based on: (1) Knowledge
of the refinery processes and wastes; (2)
the evaluation of available references,
including Exhibit 3 of the March 23,
2000 USEPA RCRA Delisting Program
Guidance manual for the Petitioner
entitled Constituents of Concern for
Wastes from Petroleum Processes; (3)
the U.S. EPA Region 5 ‘‘Skinner List’’
constituents and (4) the basis for the
F037 listing per 40 CFR 261 Appendix
VII. Each sample was also analyzed for
pH, oil & grease, total cyanide and total
sulfide. Two samples of the filter
pressed material (one from each tank)
were analyzed using both neutral and
alkaline pH TCLP extraction fluids as
presented in the delisting guidance.
D. What were the results of the
ConocoPhillips waste analysis?
The table below presents the
maximum observed total concentrations
and the TCLP concentrations for all the
COC. Total concentrations are expressed
in milligrams per kilogram (mg/kg) and
leachate concentrations are expressed in
milligrams per liter (mg/L).
ConocoPhillips submitted a signed
statement certifying accuracy and
responsibility of the results. See 40 CFR
260.22(i)(12)).
TABLE I—MAXIMUM TOTAL AND TCLP CONCENTRATIONS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATION LEVELS
[Storm Water Tank—Filter Press residual solids, ConocoPhillips Billings Refinery, Billings, Montana]
Maximum total
constituent analysis
(mg/kg)
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Constituent
Acenaphthene ..............................................................................................
Antimony ......................................................................................................
Anthracene ...................................................................................................
Arsenic .........................................................................................................
Barium ..........................................................................................................
Benz(a)anthracene ......................................................................................
Benzene .......................................................................................................
Benzo(a)pyrene ...........................................................................................
Benzo(b)fluoranthene ..................................................................................
Benzo(k)fluoranthene ...................................................................................
Beryllium ......................................................................................................
Bis(2-ethylhexyl)phthalate ............................................................................
2-Butanone ..................................................................................................
Butyl Benzyl phthalate .................................................................................
Cadmium ......................................................................................................
Carbon disulfide ...........................................................................................
Chromium ....................................................................................................
Chrysene ......................................................................................................
Chlorobenzene .............................................................................................
Chloroform ...................................................................................................
Cobalt ...........................................................................................................
Cyanide(total) ...............................................................................................
Dibenz(a,h)anthrancene ..............................................................................
1,2-Dichlorobenzene ....................................................................................
1,3-Dichlorobenzene ....................................................................................
1,4-Dichlorobenzene ....................................................................................
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Maximum TCLP
constituent analysis
(mg/L)
Maximum allowable
TCLP delisting
concentration level
(mg/L)
<.0051
.0074
.0017
.157
1.12
<.005
<.01
<.006
<.008
<.008
<.003
<.0033
<.02
<.0007
<.006
<.02
<.006
<.008
<.01
<.01
.0074
<.003
<0.008
<.01
<.01
<.01
37.9
.97
50
.301
100
.25
.5
1.1
8.7
50
2.78
50
50
46.5
1.0
36
5.0
25.0
16.4
.286
.763
41.2
1.16
50
18.5
1.69
8.0
1.89
18.0
60.1
196
3.6
.031
1.5
.6
.66
<.13
1.8
.12
<.11
1.46
.0083J
152
4.2
<0.13
<.013
24.4
7.72
.17
<.0013
<.0013
<.0011
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TABLE I—MAXIMUM TOTAL AND TCLP CONCENTRATIONS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATION
LEVELS—Continued
[Storm Water Tank—Filter Press residual solids, ConocoPhillips Billings Refinery, Billings, Montana]
Maximum total
constituent analysis
(mg/kg)
Constituent
Maximum TCLP
constituent analysis
(mg/L)
<.0013
<.0013
<.0013
<.11
<.11
<.13
<.11
<.23
<.22
.19
<.43
.660
<.0013
3.8
19.0
.440
43.1
1.46
<.013
1.60
90.0
212
<.12
<.22
.170
62.0
.320J
9.7
<.11
<.11
100
.16J
<.013
145
.073
.630
<.0013
.0076
114
7.60
1140
<.01
<.01
<.01
<.0005
<.0005
<.0019
<.0005
<.0014
<.001
<.0006
<2
<.01
<.01
<0.0035J
<0.0085
<0.0013
0.0053
0.00005
<.01
.024
0.086
0.173
<.0008
<.0019
<.001
<.180
.0032
<0.0026J
<.002
<.0006
.18
<0.007
<.01
N/A
<.012
.02J
<.01
<.01
.13
.071
.227
1, 2-Dichloroethane .....................................................................................
1,1-Dichloroethane .......................................................................................
1,1-Dichloroethylene ....................................................................................
Diethyl phthalate ..........................................................................................
Dimethyl phthalate .......................................................................................
2, 4-Dimethylphenol .....................................................................................
Di-n-butyl phthalate ......................................................................................
2, 4-Dintrophenol .........................................................................................
2, 4-Dinitrotoluene .......................................................................................
Di-n-octyl phthalate ......................................................................................
1,4-Dioxane ..................................................................................................
Ethylbenzene ...............................................................................................
Ethylene Dibromide .....................................................................................
Fluoranthene ................................................................................................
Fluorene .......................................................................................................
Indeno(1,2,3-cd)pyrene ................................................................................
Lead .............................................................................................................
Mercury ........................................................................................................
MTBE ...........................................................................................................
m&p -Cresol .................................................................................................
Naphthalene .................................................................................................
Nickel ...........................................................................................................
Nitrobenzene ................................................................................................
4-Nitrophenol ...............................................................................................
o-Cresol .......................................................................................................
Phenanthrene ..............................................................................................
Phenol ..........................................................................................................
Pyrene ..........................................................................................................
Pyridine ........................................................................................................
Quinoline ......................................................................................................
Selenium ......................................................................................................
Silver ............................................................................................................
Styrene .........................................................................................................
Sulfide (total) ................................................................................................
Tetrachloroethene ........................................................................................
Toluene ........................................................................................................
1,1,1-Trichloroethane ...................................................................................
Trichloroethene ............................................................................................
Vanadium .....................................................................................................
Xylenes, Total ..............................................................................................
Zinc ..............................................................................................................
Maximum allowable
TCLP delisting
concentration level
(mg/L)
.375
50
.7
50
50
40.4
50
4.12
.059
50
36.5
12
2.74
8.78
17.5
27.3
5.0
0.2
50
10.3
1.17
48.2
1.03
50
50
50
50
15.9
2.06
50
1.0
5.0
50
500
.7
26
50
.403
12.3
22
500
Notes:
(A) 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.
(B) Based on lowest level of: nominal upper limit, land disposal restriction limit, RCRA hazardous level; or DRAS modeling with a target risk of
10–6 and a target HI of 0.1 with the exception of: arsenic, naphthalene and 1,4-Dioxane TCLP set at 10–5 and HI of 1.0.
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E. How did the EPA evaluate the risk of
delisting this waste?
For this delisting determination, the
EPA applied the Delisting Risk
Assessment Software (DRAS) described
in various EPA rulemakings. See, e.g.,
65 FR 58,015 (Sept. 27, 2000); 65 FR
75,637 (Dec. 4, 2000) and 73 FR 28,768
(May 19, 2008). We used the most recent
version of DRAS, v.3.0.34 updated in
September 2010. DRAS calculates the
potential risks associated with disposing
a given waste stream to a landfill or
surface impoundment. For a given waste
stream, DRAS calculates both the
waste’s aggregate risks and also back-
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calculates each waste constituent’s
maximum allowable concentration
permissible for delisting. DRAS requires
the user to assign a target cancer risk
and hazard index.
For this analysis, DRAS was used to
predict the maximum allowable
concentrations of hazardous
constituents that may be released from
ConocoPhillips’s storm water tank filter
press solids after landfill disposal, and
determined the potential impact of
disposal on human health and the
environment. In assessing potential
risks to ground water, the EPA used the
maximum estimated waste volumes and
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the maximum reported extract
concentrations as inputs to the DRAS
program to estimate the constituent
concentrations in ground water at a
hypothetical receptor well down
gradient from the disposal site. The EPA
used two risk levels to evaluate the
ConocoPhillips waste: carcinogenic risk
of 10–6 and non-cancer hazard index of
0.1 and; carcinogenic risk of 10–5 and
non-cancer hazard index of 1.0. The
DRAS program can back-calculate the
acceptable receptor well concentrations
(referred to as compliance-point
concentrations) using standard risk
assessment algorithms and the EPA
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health-based numbers. Using the
maximum compliance-point
concentrations and the EPA Composite
Model for Leachate Migration with
Transformation Products (EPACMTP)
fate and transport modeling factors,
DRAS further back-calculates the
maximum permissible waste constituent
concentrations not expected to exceed
the compliance-point concentrations in
ground water.
The EPA believes the EPACMTP fate
and transport model represents a
reasonable worst-case scenario for
possible ground water contamination
resulting from disposal of the petitioned
waste in a landfill, and that a reasonable
worst-case scenario is appropriate when
evaluating whether a waste should be
relieved of the protective management
constraints of RCRA Subtitle C. The use
of some reasonable worst-case scenarios
resulted in conservative values for the
compliance-point concentrations and
ensures that the waste, once removed
from hazardous waste regulation, will
not pose a significant threat to human
health or the environment.
DRAS also uses the maximum
estimated waste volumes and the
maximum reported total concentrations
to predict possible risks associated with
releases of waste constituents through
surface pathways (e.g., volatilization or
wind-blown particulate from the
landfill). As in the above ground water
analyses, DRAS uses the risk level, the
health-based data and standard risk
assessment and exposure algorithms to
predict maximum compliance-point
concentrations of waste constituents at
a hypothetical point of exposure. Using
fate and transport equations, DRAS uses
the maximum compliance-point
concentrations and back-calculates the
maximum allowable waste constituent
concentrations, also known as delisting
levels. In most cases, because a delisted
waste is no longer subject to hazardous
waste control, the EPA is generally
unable to predict, and does not
presently control, how a petitioner will
manage a waste after delisting.
Therefore, the EPA currently believes
that it is inappropriate to consider
extensive site specific factors when
applying the fate and transport model.
DRAS results, which calculate the
maximum allowable concentration of
chemical constituents in the waste, are
presented in Table I. Based on the
comparison of DRAS results and the
maximum TCLP and Totals
concentrations found in Table I, the
petitioned waste should be delisted
because no constituents of concern
tested are likely to be present or formed
as reaction products or by-products
above the delisting levels.
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F. What did the EPA conclude about the
ConocoPhillips waste?
ConocoPhillips’s petition requests a
delisting of the residual solids from
processed sludge from the two storm
water tanks from being considered a
F037 waste. ConocoPhillips believes
that the storm water tank sludge does
not meet the original criteria for the
hazardous waste listing. ConocoPhillips
also believes no additional constituents
or factors could cause the waste to be
hazardous. The EPA’s review of this
petition included consideration of the
original listing criteria, and the
additional factors required by the
Hazardous and Solid Waste
Amendments of 1984 (HSWA). See
RCRA 3001(f), 42 U.S.C. 6921(f); 40 CFR
260.22(d)(1)–(4). In making the initial
delisting determination, the EPA
evaluated the petitioned waste against
the listing criteria and factors cited in 40
CFR 261.11(a)(2) and (a)(3). Based on
this review, the EPA agrees with the
petitioner that the waste is
nonhazardous with respect to the
original listing criteria. If the EPA, based
on this review, had found that the waste
remained hazardous based on the
factors for which the waste was
originally listed, the EPA would have
proposed to deny the petition. The EPA
evaluated the waste with respect to
other factors or criteria to assess
whether there is a reasonable basis to
believe that such additional factors
could cause the waste to be hazardous.
The EPA considered whether the waste
is acutely toxic, the concentration of the
constituents in the waste, their tendency
to migrate and to bioaccumulate, their
persistence in the environment once
released from the waste, plausible and
specific types of management of the
petitioned waste, the quantities of waste
generated, and waste variability. The
EPA believes that the petitioned waste
does not meet the listing criteria and
thus should not be a listed waste. The
EPA’s proposed decision to delist waste
from the ConocoPhillips Billings
Refinery is based on the information
submitted in support of this rule,
including descriptions of the wastes and
analytical chemistry data of the residual
solids from the storm water tank cleanout.
The maximum reported
concentrations of hazardous
constituents found in the filter press
solids and the filter press solids TCLP
extracts are presented in Table I above.
The table also presents the maximum
allowable concentrations in a TCLP
extract of the residual solids from storm
water tank sludge processing, calculated
by the DRAS program. The
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concentrations of all constituents in
leachate from the filter press solids are
below the allowable concentrations. We,
therefore, conclude that the
ConocoPhillips waste does not pose a
potential substantial hazard to human
health and the environment when
disposed of in a RCRA Subtitle D
landfill.
We, therefore, propose to grant
exclusion for this waste. If this
exclusion is finalized, ConocoPhillips
must dispose of the residual solids from
the processed storm water tank sludge
in a RCRA Subtitle D landfill regulated
by the State of Montana, or other state
subject to Federal RCRA delisting, to
manage industrial waste. Prior to
disposal ConocoPhillips must verify
that the concentrations of the
constituents of concern in the residual
solids do not exceed the allowable
levels set forth in this exclusion. The
list of constituents for verification is
based on the concentration and
frequency of occurrence, as presented in
the ConocoPhillips petition.
IV. Conditions for Exclusion
A. When would the EPA finalize the
proposed delisting exclusion?
RCRA 3001(f) specifically requires the
EPA to provide notice and an
opportunity for comment before
granting or denying a final exclusion.
Thus, the EPA will not grant the
exclusion unless and until it addresses
all timely public comments on this
proposal, including any at public
hearings.
RCRA 3010(b)(1), 42 U.S.C.
6930(b)(1), allows 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, if finalized, would
reduce the existing requirements for
persons generating hazardous wastes.
The EPA believes that this exclusion
should be effective immediately upon
publication of the final rule because a
six-month deadline is not necessary to
achieve the purpose of RCRA 3010(b),
and a later effective date would impose
unnecessary hardship and expense on
this petitioner. These reasons also
provide good cause for making this rule
effective immediately, upon final
publication, under the Administrative
Procedure Act, 5 U.S.C. 553(d).
B. How will ConocoPhillips manage the
waste if it is delisted?
ConocoPhillips must dispose of the
residual solids from the processed storm
water tank sludge in a RCRA Subtitle D
landfill that is regulated by the State of
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Montana, or other state subject to
Federal RCRA delisting, to manage
industrial waste. ConocoPhillips must
verify prior to disposal that the
concentrations of the COC in the
residual solids do not exceed the
allowable levels set forth in this
exclusion.
C. What are the maximum allowable
concentrations of hazardous
constituents in the waste?
Concentrations measured in the TCLP
extract of the waste must not exceed the
values given in Table I.
D. How frequently must ConocoPhillips
test the waste?
During the period of cleanout,
ConocoPhillips must collect two
composite samples of the residual solids
from the filter pressed sludge to account
for potential variability in each tank.
Composite samples from the storm
water tanks processed residuals must be
collected each time cleanout occurs and
residuals are generated. TCLP analyses
for the standard acid extraction for trace
elements and organic COC listed in
Table I must be conducted.
Concentrations of all constituents must
be below the delisting limits in Table I
above.
E. What data must ConocoPhillips
submit?
Whenever tank cleanout is conducted,
ConocoPhillips must verify that the
filter press solids meet the delisting
levels in 40 CFR 261, Appendix IX,
Table 1, as amended by this notice.
ConocoPhillips must submit the
verification data to U.S. EPA Region 8,
1595 Wynkoop Street, RCRA Delisting
Program, Mail code 8P–HW, Denver, CO
80202. ConocoPhillips must compile,
summarize and maintain, onsite,
records of operating conditions and
analytical data for a period of five years.
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F. What happens if ConocoPhillips
waste fails to meet the conditions of the
exclusion?
If ConocoPhillips violates the terms
and conditions established in this
exclusion, the EPA will initiate
procedures to withdraw the exclusion.
Where there is an immediate threat to
human health and the environment, the
EPA will evaluate the need for
enforcement activities on a case-by-case
basis. The EPA expects ConocoPhillips
to conduct the appropriate waste
analysis and comply with the criteria
detailed in 40 CFR 261, Appendix IX,
Table 1, as amended by this notice.
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G. What must ConocoPhillips do if the
process changes?
ConocoPhillips must notify the EPA
in writing if the manufacturing process,
the chemicals used in the
manufacturing process, the treatment
process, or the chemicals used in the
treatment process significantly change.
ConocoPhillips must handle wastes
generated after the process change as
hazardous until it has: demonstrated
that the wastes continue to meet the
delisting concentrations in paragraph
(1); Demonstrated that no new
hazardous constituents listed in
Appendix VIII of 40 CFR 261 have been
introduced; and it has received written
approval from the EPA.
V. How would this action affect states?
Because the EPA is issuing this
exclusion under the Federal RCRA
delisting program, only states subject to
Federal RCRA delisting provisions
would be affected. This would exclude
states who have received authorization
from the EPA to make their own
delisting decisions.
The EPA allows states to impose their
own non-RCRA regulatory requirements
that are more stringent than the EPA’s,
under RCRA 3009, 42 U.S.C. 6929.
These more stringent requirements may
include a provision that prohibits a
federally-issued exclusion from taking
effect in the state. Because a dual system
(that is, both federal (RCRA) and state
(non-RCRA) programs) may regulate a
petitioner’s waste, the EPA urges
petitioners to contact the state
regulatory authority to establish the
status of their wastes under applicable
state law. Delisting petitions approved
by the EPA Administrator or his
delegate pursuant to 40 CFR 260.22 are
effective in the State of Montana after
the final rule has been published in the
Federal Register.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review,’’ (58
FR 51735, Oct. 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
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202, 204, and 205 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104–4). Because this rule will
affect only a particular facility, it will
not significantly or uniquely affect small
governments, as specified in section 203
of UMRA. Because this rule will affect
only a particular facility, this final rule
does not have federalism implications.
It will not have substantial direct effects
on the states, on the relationship
between the national government and
the states, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132,
‘‘Federalism’’, (64 FR 43255, Aug. 10,
1999). Thus, Executive Order 13132
does not apply to this rule. Similarly,
because this rule will apply to a
particular facility, this final rule does
not have tribal implications, as specified
in Executive Order 13175,
‘‘Consultation and Coordination with
Indian Tribal Governments,’’ (65 FR
67249, Nov. 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, Apr. 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 DRAS, which considers health and
safety risks to 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,
the EPA has taken the necessary steps
to eliminate drafting errors and
ambiguity, minimize potential litigation,
and provide a clear legal standard for
affected conduct.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
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Dated: November 18, 2011.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
James B. Martin,
Regional Administrator, Region 8.
1. The authority citation for part 261
continues to read as follows:
For the reasons set out in the
preamble, the EPA proposes to amend
40 CFR part 261 as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
76683
2. In Table 1 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 40 CFR 260.20 and
260.22
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Address
Waste description
ConocoPhillips Billings
Refinery.
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Facility
Billings, Montana .......
Residual solids from centrifuge and/or filter press processing of storm water tank sludge (F037)
generated at a maximum annual rate of 200 cubic yards per year must be disposed in a
lined Subtitle D landfill, licensed, permitted or otherwise authorized by a state to accept the
delisted processed storm water tank sludge. The exclusion becomes effective December 8,
2011.
For the exclusion to be valid, the ConocoPhillips Billings Refinery must implement a verification
testing program that meets the following Paragraphs:
1. Delisting levels: The constituent concentrations in a leachate extract of the waste measured
in any sample must not exceed the following concentrations (mg/L TCLP): Acenaphthene37.9; Antimony-.97; Anthracene-50; Arsenic-.301; Barium-100; Benz(a)anthracene-.25; Benzene-.5; Benzo(a)pyrene-1.1; Benzo(b)fluoranthene-8.7; Benzo(k) fluoranthene-50; Bis(2ethylhexyl)phthalate-50; 2-Butanone-50; Cadmium-1.0; Carbon disulfide-36; Chromium-5.0;
Chrysene-25.0; Cobalt-.763; Cyanide(total)-41.2; Dibenz(a,h)anthrancene-1.16; Di-n-octyl
phthalate-50; 1,4–Dioxane-36.5; Ethylbenzene-12; Fluoranthene-8.78; Fluorene-17.5;
Indeno(1,2,3-cd)pyrene-27.3; Lead-5.0; Mercury-.2; m&p-Cresol-10.3; Naphthalene-1.17;
Nickel-48.2; o-Cresol-50; Phenanthrene-50; Phenol-50; Pyrene-15.9; Selenium-1.0; Silver5.0; Tetrachloroethene-0.7; Toluene-26;Trichloroethene-.403; Vanadium-12.3; Xylenes (total)22; Zinc-500.
2. Verification Testing: To verify that the waste does not exceed the specified delisting levels,
ConocoPhillips must collect and analyze two composite samples of the residual solids from
the processed sludge to account for potential variability in each tank. Composite samples
must be collected each time cleanout occurs and residuals are generated. Sample collection
and analyses, including quality control procedures, must be performed using appropriate
methods. If oil and grease comprise less than 1 percent of the waste, SW–846 Method 1311
must be used for generation of the leachate extract used in the testing for constituents of
concern listed above. SW–846 Method 1330A must be used for generation of the leaching
extract if oil and grease comprise 1 percent or more of the waste. SW–846 Method 9071B
must be used for determination of oil and grease. SW–846 Methods 1311, 1330A, and
9071B are incorporated by reference in 40 CFR 260.11. As applicable, the SW–846 methods
might include Methods 1311, 3010, 3510, 6010, 6020, 7470, 7471, 8260, 8270, 9014, 9034,
9213, and 9215. If leachate concentrations measured in samples do not exceed the levels
set forth in paragraph 1, ConocoPhillips can dispose of the filter pressed sludge in a lined
Subtitle D landfill which is permitted, licensed, or registered by the state of Montana or other
state which is subject to Federal RCRA delisting. If constituent levels in any sample and any
retest sample for any constituent exceed the delisting levels set in paragraph (1)
ConocoPhillips must do the following: (A) notify the EPA in accordance with paragraph (5)
and; (B) manage and dispose of the process residual solids as F037 hazardous waste generated under Subtitle C of RCRA.
3. Changes in Operating Conditions: ConocoPhillips must notify the EPA in writing if the manufacturing process, the chemicals used in the manufacturing process, the treatment process,
or the chemicals used in the treatment process significantly change. ConocoPhillips must
handle wastes generated after the process change as hazardous until it has: demonstrated
that the wastes continue to meet the delisting concentrations in paragraph (1); demonstrated
that no new hazardous constituents listed in appendix VIII of part 261 have been introduced;
and it has received written approval from the EPA.
4. Data Submittal: Whenever tank cleanout is conducted ConocoPhillips must verify that the residual solids from the processed storm water tank sludge meet the delisting levels in 40 CFR
261 Appendix IX Table 1, as amended by this notice. ConocoPhillips must submit the
verification data to U.S. EPA Region 8, 1595 Wynkoop Street, RCRA Delisting Program, Mail
code 8P–HW, Denver, CO 80202. ConocoPhillips must compile, summarize and maintain
onsite records of operating conditions and analytical data for a period of five years.
5. Reopener Language: (A) If, anytime after final approval of this exclusion, ConocoPhillips
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 EPA in granting the petition, then the facility
must report the data, in writing to the EPA at the address above, within 10 days of first possessing or being made aware of that data.
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Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
(B) If ConocoPhillips fails to submit the information described in paragraph (A) or if any other
information is received from any source, the EPA will make a preliminary determination as to
whether the reported information requires EPA action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate
response necessary to protect human health and the environment.
(C) If the EPA determines that the reported information requires the EPA action, the EPA will
notify the facility in writing of the actions the agency 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 the EPA action is not necessary. The facility shall have 30 days from the
date of the notice to present such information.
(D) If after 30 days ConocoPhillips presents no further information or after a review of any submitted information, the EPA will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the EPAs determination shall become effective immediately, unless the EPA provides otherwise.
(E) Notification Requirements: ConocoPhillips 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. (1) 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. (2) Update the onetime written notification, if it ships the delisted waste to a different disposal facility. (3) Failure
to provide this notification will result in a violation of the delisting variance and a possible
revocation of the decision.
[FR Doc. 2011–31533 Filed 12–7–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 281
[EPA–R10–UST–2011–0896; FRL–9502–6]
Idaho: Tentative Approval of State
Underground Storage Tank Program
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The State of Idaho has
applied for final approval of its
Underground Storage Tank (UST)
Program under Subtitle I of the Resource
Conservation and Recovery Act (RCRA).
EPA has reviewed Idaho’s application
and made the tentative decision that the
State’s UST program satisfies all
requirements necessary to qualify for
final approval.
DATES: A public hearing will be held on
December 19, 2011 from 9 a.m.–12 p.m.
at the Idaho Department of
Environmental Quality, Conference
Room B, 1410 North Hilton, Boise,
Idaho 83706. The State of Idaho will be
invited to participate in any public
hearing held by EPA on this subject.
Please see SUPPLEMENTARY INFORMATION,
Item C, for details.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
UST–2011–0896, by one of the
following methods:
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SUMMARY:
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• https://www.regulations.gov Follow
the online instructions for submitting
comments.
• Email: sirs.erik@epa.gov.
• Mail: Erik Sirs, U.S. Environmental
Protection Agency, Region 10, 1435
North Orchard, Boise, ID 83706.
Instructions: Direct your comments to
Docket ID No. EPA–R10–UST–2011–
0896. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identify
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through https://
www.regulations.gov your email address
will be automatically captured and
included as part of the comment that is
placed in the public docket and made
available on the Internet. If you submit
an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
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cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters or any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy.
Please see SUPPLEMENTARY
INFORMATION, Item D, for details on the
location of the documents in hard copy
form.
FOR FURTHER INFORMATION CONTACT: Erik
Sirs, U.S. Environmental Protection
Agency, Idaho Operations Office, 1435
North Orchard, Boise, ID 83706.
SUPPLEMENTARY INFORMATION:
A. Background
Section 9004 of RCRA enables EPA to
approve implementation of State UST
programs in lieu of the Federal UST
program. Approval is granted when it
has been determined that the State
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]]>Agencies
[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Proposed Rules]
[Pages 76677-76684]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31533]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FDMS Docket No.: EPA-R08-RCRA-2011-0823; FRL-9502-4]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (``EPA,'' ``the Agency''
or ``we'' in this preamble) is proposing to grant a petition submitted
by the ConocoPhillips Billings, Montana Refinery (``ConocoPhillips'' or
``Petitioner'') to exclude or ``delist,'' from the list of hazardous
wastes, residual solids from sludge removed from two storm water tanks
at its Billings, Montana refinery and processed in accordance with the
petition. The EPA used the Delisting Risk Assessment Software (DRAS) in
the evaluation of the potential impact of the petitioned waste on human
health and the environment.
The EPA's proposed decision to grant the petition is based on an
evaluation of waste-specific information provided by ConocoPhillips.
This proposed decision, if finalized, would conditionally exclude the
petitioned waste from the requirements of the hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA).
This exclusion would be valid only when sludge from the two storm
water tanks is dewatered and de-oiled using a filter press and/or
portable centrifuge, and the resulting residual solids are disposed of
in a RCRA Subtitle D landfill that is permitted, licensed, or
registered by a state to manage industrial solid waste. If finalized,
the EPA would conclude that ConocoPhillips' petitioned waste is
nonhazardous with respect to the original listing criteria and that
there are no other factors that would cause the waste to be hazardous.
DATES: The EPA will accept public comments on this proposed decision
until January 9, 2012 the EPA will stamp comments received after the
close of the comment period as late. These late comments may not be
considered in formulating a final decision. Any person may request an
informal hearing on this proposed decision by filing a request to the
EPA by December 22, 2011. The request must contain the information
prescribed in 40 CFR 260.20(d).
ADDRESSES: Submit your comments, identified by Docket ID No.: EPA-R08-
RCRA-2011-0823, by one of the following methods:
1. https://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: cosentini.christina@epa.gov.
3. Fax: (303) 312-6341.
4. Mail, Hand Delivery or Courier: Deliver your comments to
Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8,
Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
Courier or hand deliveries are only accepted during the EPA Region 8's
normal hours of operation from 8 a.m. to 4 p.m. The public is advised
to call in advance to verify the business hours. Special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No.: EPA-R08-RCRA-
2011-0823. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
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Cosentini, phone number (303) 312-6231.
FOR FURTHER INFORMATION CONTACT: Christina Cosentini, Solid and
Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Mail Code
8P-HW, Denver, Colorado 80202, (303) 312-6231,
cosentini.christina@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is the EPA approving?
B. Why is the EPA approving this delisting?
C. How will ConocoPhillips Billings Refinery manage the waste,
if it is delisted?
II. Background
A. What is a listed waste?
B. What is a delisting petition?
[[Page 76678]]
C. What factors must the EPA consider in deciding whether to
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did ConocoPhillips petition the EPA to delist?
B. How does ConocoPhillips generate the waste?
C. How did ConocoPhillips sample and analyze the waste?
D. What were the results of the ConocoPhillips waste analysis?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude about the ConocoPhillips waste?
IV. Conditions for Exclusion
A. When would the EPA finalize the proposed delisting exclusion?
B. How will ConocoPhillips manage the waste if it is delisted?
C. What are the maximum allowable concentrations of hazardous
constituents in the waste?
D. How frequently must ConocoPhillips test the waste?
E. What data must ConocoPhillips submit?
F. What happens if ConocoPhillips waste fails to meet the
conditions of the exclusion?
G. What must ConocoPhillips do if the process changes?
V. How would this action affect states?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is the EPA approving?
The EPA is proposing to grant a petition submitted by the
ConocoPhillips Billings Refinery to have residual solids from
processing sludge removed from two storm water tanks at its Billings,
Montana Refinery excluded or delisted from the RCRA definition of a
hazardous waste, contingent upon such waste being dewatered and de-
oiled using a filter press and/or portable centrifuge and the resulting
solids disposed in a RCRA Subtitle D Landfill.
B. Why is the EPA approving this delisting?
The ConocoPhillips petition requested the residual solids from
processed storm water tank sludge be excluded from the F037 waste
listing. F037 wastes are wastes that are generated in the separation of
oil/water/solids from petroleum refinery process wastewaters and oily
cooling wastewaters. This exclusion will apply to an annual maximum of
200 cubic yards of residual solids. ConocoPhillips claims that the
petitioned waste does not meet the criteria for which the EPA listed
it, and that there are no additional constituents or factors which
could cause the waste to be hazardous.
Based on our review described in section III, we agree with the
petitioner that the waste is nonhazardous. The EPA reviewed the
description of the process which generates the waste and the analytical
data submitted by ConocoPhillips. We believe that the petitioned waste
does not meet the criteria for the F037 waste listing, and that there
are no other factors which might cause the residual solids to be
hazardous.
C. How will ConocoPhillips Billings Refinery manage the waste if it is
delisted?
ConocoPhillips will dispose of the residual solids from the
processed storm water tank sludge in a RCRA Subtitle D landfill which
is regulated by the State of Montana, or other state subject to Federal
RCRA delisting, to manage industrial waste.
II. Background
A. What is a listed waste?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing section 3001 of RCRA.
The EPA has amended this list several times and published it at 40 CFR
261.31 and 261.32. The EPA lists these wastes as hazardous because: (1)
They typically and frequently exhibit one or more of the
characteristics of hazardous wastes identified in subpart C of part 261
(that is, ignitability, corrosivity, reactivity, and toxicity); (2)
they meet the criteria for listing contained in 40 CFR 261.11(a)(2) or
(a)(3); or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under 40 CFR 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules respectively.
B. What is a delisting petition?
Individual waste streams may vary depending on raw materials,
industrial processes, and other factors. Thus, while a waste described
in the regulations generally is hazardous, a specific waste from an
individual facility meeting the listing description may not be. A
procedure to exclude or delist a waste is provided in 40 CFR 260.20 and
260.22, which allows a person, or a facility, to submit a petition to
the EPA, or an authorized state, demonstrating that a specific waste
from a particular generating facility is not hazardous.
In a delisting petition, the petitioner must show that a waste does
not meet any of the criteria for listed wastes in 40 CFR 261.11 and
that the waste does not exhibit any of the hazardous waste
characteristics of ignitability, reactivity, corrosivity, or toxicity.
The petitioner must present sufficient information for the EPA to
decide whether any factors, in addition to those for which the waste
was listed, warrant retaining it as a hazardous waste. (See 40 CFR
260.22; 42 U.S.C. 6921(f).)
If a delisting petition is granted, the generator remains obligated
under RCRA to confirm that the waste remains nonhazardous.
C. What factors must the EPA consider in deciding whether to grant a
delisting petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See HSWA Sec. 222, 42 U.S.C. 6921(f);
40 CFR 260.22(d)(1)-(4). We evaluated the petitioned waste against the
listing criteria and factors cited in Sec. Sec. 261.11(a)(2) and (3).
In addition to considering the criteria in 40 CFR 260.22(a) and
261.11(a)(2) and (3), 42 U.S.C. 6921(f), and information in the
background documents for the listed waste, the EPA must consider any
factors (including additional constituents) other than those for which
the EPA listed the waste, if these additional factors could cause the
waste to be hazardous.
The EPA's tentative decision to delist waste from the
ConocoPhillips Billings Refinery is based on our evaluation of the
waste for factors or criteria that could cause the waste to be
hazardous. These factors include: (1) Whether the waste is considered
acutely toxic; (2) the toxicity of the constituents; (3) the
concentration of the constituents in the waste; (4) the tendency of the
constituents to migrate and to bioaccumulate; (5) the persistence in
the environment of any constituents once released from the waste; (6)
plausible and specific types of management of the petitioned waste; (7)
the quantity of waste produced; and (8) waste variability.
The EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i) (referred to as the ``mixture'' and ``derived-from'' rules,
respectively). Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
[[Page 76679]]
III. EPA's Evaluation of the Waste Information and Data
A. What waste did ConocoPhillips petition the EPA to delist?
On December 3, 2010, ConocoPhillips petitioned the EPA to exclude a
maximum annual volume of 200 cubic yards of F037 residual solids from
processing (for oil recovery) the sludge removed from the two storm
water tanks at the Billings, Montana refinery from the lists of
hazardous waste contained in 40 CFR 261.31 and 261.32. The F037 listing
includes residuals from the processing of oil-bearing hazardous
secondary materials (i.e., the sludge in the storm water tanks)
excluded under 40 CFR 261.4(a)(12)(i). Sediment in the storm water
tanks accumulates from storm water runoff from the Refinery's process
area, as well as some dry-weather flow consisting of water from wash-
down, maintenance, and cleaning activities, steam condensate and heat
exchanger back-flushing. This sediment is processed by the refinery for
the recovery of oil and the residual solids are classified as hazardous
waste due a conservative interpretation for the assignment of hazardous
waste code F037. The waste conservatively falls under the
classification of listed waste under 40 CFR 261.3.
B. How does ConocoPhillips generate the waste?
ConocoPhillips generates the waste through periodically removing
and processing sludge accumulated in two storm water tanks through oil
recovery and dewatering. The sludge in the storm water tanks is
accumulated storm water runoff from the Refinery's process area, and
some dry-weather flow consisting of water from wash-down, maintenance,
and cleaning activities as well as steam condensate and heat exchanger
back-flushing. The sludge in not accumulated at a constant rate and is
currently removed from the tanks at approximately 18 month intervals
and processed via centrifuge and/or filter press for oil recovery and
dewatering. Recovered oil is reinserted into the refining process and
water from dewatering is routed to the Refinery's on-site wastewater
treatment plant.
C. How did ConocoPhillips sample and analyze the waste?
ConocoPhillips collected sample sludge from 16 locations in each
tank, the sludge was composited and processed for oil recovery and
dewatering through a filter press, and submission of the filter pressed
residual solid material for analysis. A total of eight composite
samples, one duplicate and one matrix spike/matrix duplicate were
analyzed for both total and Toxicity Characteristic Leaching Procedure
(TCLP) analyses of constituents of concern (COC). The COC list was
comprised of a subset of the Appendix IX constituent list in 40 CFR
264, and was based on: (1) Knowledge of the refinery processes and
wastes; (2) the evaluation of available references, including Exhibit 3
of the March 23, 2000 USEPA RCRA Delisting Program Guidance manual for
the Petitioner entitled Constituents of Concern for Wastes from
Petroleum Processes; (3) the U.S. EPA Region 5 ``Skinner List''
constituents and (4) the basis for the F037 listing per 40 CFR 261
Appendix VII. Each sample was also analyzed for pH, oil & grease, total
cyanide and total sulfide. Two samples of the filter pressed material
(one from each tank) were analyzed using both neutral and alkaline pH
TCLP extraction fluids as presented in the delisting guidance.
D. What were the results of the ConocoPhillips waste analysis?
The table below presents the maximum observed total concentrations
and the TCLP concentrations for all the COC. Total concentrations are
expressed in milligrams per kilogram (mg/kg) and leachate
concentrations are expressed in milligrams per liter (mg/L).
ConocoPhillips submitted a signed statement certifying accuracy and
responsibility of the results. See 40 CFR 260.22(i)(12)).
Table I--Maximum Total and TCLP Concentrations and Maximum Allowable Delisting Concentration Levels
[Storm Water Tank--Filter Press residual solids, ConocoPhillips Billings Refinery, Billings, Montana]
----------------------------------------------------------------------------------------------------------------
Maximum allowable
Maximum total Maximum TCLP TCLP delisting
Constituent constituent analysis constituent concentration level
(mg/kg) analysis (mg/L) (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene.................................... 8.0 <.0051 37.9
Antimony........................................ 1.89 .0074 .97
Anthracene...................................... 18.0 .0017 50
Arsenic......................................... 60.1 .157 .301
Barium.......................................... 196 1.12 100
Benz(a)anthracene............................... 3.6 <.005 .25
Benzene......................................... .031 <.01 .5
Benzo(a)pyrene.................................. 1.5 <.006 1.1
Benzo(b)fluoranthene............................ .6 <.008 8.7
Benzo(k)fluoranthene............................ .66 <.008 50
Beryllium....................................... <.13 <.003 2.78
Bis(2-ethylhexyl)phthalate...................... 1.8 <.0033 50
2-Butanone...................................... .12 <.02 50
Butyl Benzyl phthalate.......................... <.11 <.0007 46.5
Cadmium......................................... 1.46 <.006 1.0
Carbon disulfide................................ .0083J <.02 36
Chromium........................................ 152 <.006 5.0
Chrysene........................................ 4.2 <.008 25.0
Chlorobenzene................................... <0.13 <.01 16.4
Chloroform...................................... <.013 <.01 .286
Cobalt.......................................... 24.4 .0074 .763
Cyanide(total).................................. 7.72 <.003 41.2
Dibenz(a,h)anthrancene.......................... .17 <0.008 1.16
1,2-Dichlorobenzene............................. <.0013 <.01 50
1,3-Dichlorobenzene............................. <.0013 <.01 18.5
1,4-Dichlorobenzene............................. <.0011 <.01 1.69
[[Page 76680]]
1, 2-Dichloroethane............................. <.0013 <.01 .375
1,1-Dichloroethane.............................. <.0013 <.01 50
1,1-Dichloroethylene............................ <.0013 <.01 .7
Diethyl phthalate............................... <.11 <.0005 50
Dimethyl phthalate.............................. <.11 <.0005 50
2, 4-Dimethylphenol............................. <.13 <.0019 40.4
Di-n-butyl phthalate............................ <.11 <.0005 50
2, 4-Dintrophenol............................... <.23 <.0014 4.12
2, 4-Dinitrotoluene............................. <.22 <.001 .059
Di-n-octyl phthalate............................ .19 <.0006 50
1,4-Dioxane..................................... <.43 <2 36.5
Ethylbenzene.................................... .660 <.01 12
Ethylene Dibromide.............................. <.0013 <.01 2.74
Fluoranthene.................................... 3.8 <0.0035J 8.78
Fluorene........................................ 19.0 <0.0085 17.5
Indeno(1,2,3-cd)pyrene.......................... .440 <0.0013 27.3
Lead............................................ 43.1 0.0053 5.0
Mercury......................................... 1.46 0.00005 0.2
MTBE............................................ <.013 <.01 50
m&p -Cresol..................................... 1.60 .024 10.3
Naphthalene..................................... 90.0 0.086 1.17
Nickel.......................................... 212 0.173 48.2
Nitrobenzene.................................... <.12 <.0008 1.03
4-Nitrophenol................................... <.22 <.0019 50
o-Cresol........................................ .170 <.001 50
Phenanthrene.................................... 62.0 <.180 50
Phenol.......................................... .320J .0032 50
Pyrene.......................................... 9.7 <0.0026J 15.9
Pyridine........................................ <.11 <.002 2.06
Quinoline....................................... <.11 <.0006 50
Selenium........................................ 100 .18 1.0
Silver.......................................... .16J <0.007 5.0
Styrene......................................... <.013 <.01 50
Sulfide (total)................................. 145 N/A 500
Tetrachloroethene............................... .073 <.012 .7
Toluene......................................... .630 .02J 26
1,1,1-Trichloroethane........................... <.0013 <.01 50
Trichloroethene................................. .0076 <.01 .403
Vanadium........................................ 114 .13 12.3
Xylenes, Total.................................. 7.60 .071 22
Zinc............................................ 1140 .227 500
----------------------------------------------------------------------------------------------------------------
Notes:
(A) 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.
(B) Based on lowest level of: nominal upper limit, land disposal restriction limit, RCRA hazardous level; or
DRAS modeling with a target risk of 10-6 and a target HI of 0.1 with the exception of: arsenic, naphthalene
and 1,4-Dioxane TCLP set at 10-5 and HI of 1.0.
E. How did the EPA evaluate the risk of delisting this waste?
For this delisting determination, the EPA applied the Delisting
Risk Assessment Software (DRAS) described in various EPA rulemakings.
See, e.g., 65 FR 58,015 (Sept. 27, 2000); 65 FR 75,637 (Dec. 4, 2000)
and 73 FR 28,768 (May 19, 2008). We used the most recent version of
DRAS, v.3.0.34 updated in September 2010. DRAS calculates the potential
risks associated with disposing a given waste stream to a landfill or
surface impoundment. For a given waste stream, DRAS calculates both the
waste's aggregate risks and also back-calculates each waste
constituent's maximum allowable concentration permissible for
delisting. DRAS requires the user to assign a target cancer risk and
hazard index.
For this analysis, DRAS was used to predict the maximum allowable
concentrations of hazardous constituents that may be released from
ConocoPhillips's storm water tank filter press solids after landfill
disposal, and determined the potential impact of disposal on human
health and the environment. In assessing potential risks to ground
water, the EPA used the maximum estimated waste volumes and the maximum
reported extract concentrations as inputs to the DRAS program to
estimate the constituent concentrations in ground water at a
hypothetical receptor well down gradient from the disposal site. The
EPA used two risk levels to evaluate the ConocoPhillips waste:
carcinogenic risk of 10-6 and non-cancer hazard index of 0.1 and;
carcinogenic risk of 10-5 and non-cancer hazard index of 1.0. The DRAS
program can back-calculate the acceptable receptor well concentrations
(referred to as compliance-point concentrations) using standard risk
assessment algorithms and the EPA
[[Page 76681]]
health-based numbers. Using the maximum compliance-point concentrations
and the EPA Composite Model for Leachate Migration with Transformation
Products (EPACMTP) fate and transport modeling factors, DRAS further
back-calculates the maximum permissible waste constituent
concentrations not expected to exceed the compliance-point
concentrations in ground water.
The EPA believes the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensures that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health or the
environment.
DRAS also uses the maximum estimated waste volumes and the maximum
reported total concentrations to predict possible risks associated with
releases of waste constituents through surface pathways (e.g.,
volatilization or wind-blown particulate from the landfill). As in the
above ground water analyses, DRAS uses the risk level, the health-based
data and standard risk assessment and exposure algorithms to predict
maximum compliance-point concentrations of waste constituents at a
hypothetical point of exposure. Using fate and transport equations,
DRAS uses the maximum compliance-point concentrations and back-
calculates the maximum allowable waste constituent concentrations, also
known as delisting levels. In most cases, because a delisted waste is
no longer subject to hazardous waste control, the EPA is generally
unable to predict, and does not presently control, how a petitioner
will manage a waste after delisting. Therefore, the EPA currently
believes that it is inappropriate to consider extensive site specific
factors when applying the fate and transport model.
DRAS results, which calculate the maximum allowable concentration
of chemical constituents in the waste, are presented in Table I. Based
on the comparison of DRAS results and the maximum TCLP and Totals
concentrations found in Table I, the petitioned waste should be
delisted because no constituents of concern tested are likely to be
present or formed as reaction products or by-products above the
delisting levels.
F. What did the EPA conclude about the ConocoPhillips waste?
ConocoPhillips's petition requests a delisting of the residual
solids from processed sludge from the two storm water tanks from being
considered a F037 waste. ConocoPhillips believes that the storm water
tank sludge does not meet the original criteria for the hazardous waste
listing. ConocoPhillips also believes no additional constituents or
factors could cause the waste to be hazardous. The EPA's review of this
petition included consideration of the original listing criteria, and
the additional factors required by the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See RCRA 3001(f), 42 U.S.C. 6921(f); 40 CFR
260.22(d)(1)-(4). In making the initial delisting determination, the
EPA evaluated the petitioned waste against the listing criteria and
factors cited in 40 CFR 261.11(a)(2) and (a)(3). Based on this review,
the EPA agrees with the petitioner that the waste is nonhazardous with
respect to the original listing criteria. If the EPA, based on this
review, had found that the waste remained hazardous based on the
factors for which the waste was originally listed, the EPA would have
proposed to deny the petition. The EPA evaluated the waste with respect
to other factors or criteria to assess whether there is a reasonable
basis to believe that such additional factors could cause the waste to
be hazardous. The EPA considered whether the waste is acutely toxic,
the concentration of the constituents in the waste, their tendency to
migrate and to bioaccumulate, their persistence in the environment once
released from the waste, plausible and specific types of management of
the petitioned waste, the quantities of waste generated, and waste
variability. The EPA believes that the petitioned waste does not meet
the listing criteria and thus should not be a listed waste. The EPA's
proposed decision to delist waste from the ConocoPhillips Billings
Refinery is based on the information submitted in support of this rule,
including descriptions of the wastes and analytical chemistry data of
the residual solids from the storm water tank clean-out.
The maximum reported concentrations of hazardous constituents found
in the filter press solids and the filter press solids TCLP extracts
are presented in Table I above. The table also presents the maximum
allowable concentrations in a TCLP extract of the residual solids from
storm water tank sludge processing, calculated by the DRAS program. The
concentrations of all constituents in leachate from the filter press
solids are below the allowable concentrations. We, therefore, conclude
that the ConocoPhillips waste does not pose a potential substantial
hazard to human health and the environment when disposed of in a RCRA
Subtitle D landfill.
We, therefore, propose to grant exclusion for this waste. If this
exclusion is finalized, ConocoPhillips must dispose of the residual
solids from the processed storm water tank sludge in a RCRA Subtitle D
landfill regulated by the State of Montana, or other state subject to
Federal RCRA delisting, to manage industrial waste. Prior to disposal
ConocoPhillips must verify that the concentrations of the constituents
of concern in the residual solids do not exceed the allowable levels
set forth in this exclusion. The list of constituents for verification
is based on the concentration and frequency of occurrence, as presented
in the ConocoPhillips petition.
IV. Conditions for Exclusion
A. When would the EPA finalize the proposed delisting exclusion?
RCRA 3001(f) specifically requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, the EPA will not grant the exclusion unless and until it
addresses all timely public comments on this proposal, including any at
public hearings.
RCRA 3010(b)(1), 42 U.S.C. 6930(b)(1), allows 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, if finalized, would reduce the existing
requirements for persons generating hazardous wastes.
The EPA believes that this exclusion should be effective
immediately upon publication of the final rule because a six-month
deadline is not necessary to achieve the purpose of RCRA 3010(b), and a
later effective date would impose unnecessary hardship and expense on
this petitioner. These reasons also provide good cause for making this
rule effective immediately, upon final publication, under the
Administrative Procedure Act, 5 U.S.C. 553(d).
B. How will ConocoPhillips manage the waste if it is delisted?
ConocoPhillips must dispose of the residual solids from the
processed storm water tank sludge in a RCRA Subtitle D landfill that is
regulated by the State of
[[Page 76682]]
Montana, or other state subject to Federal RCRA delisting, to manage
industrial waste. ConocoPhillips must verify prior to disposal that the
concentrations of the COC in the residual solids do not exceed the
allowable levels set forth in this exclusion.
C. What are the maximum allowable concentrations of hazardous
constituents in the waste?
Concentrations measured in the TCLP extract of the waste must not
exceed the values given in Table I.
D. How frequently must ConocoPhillips test the waste?
During the period of cleanout, ConocoPhillips must collect two
composite samples of the residual solids from the filter pressed sludge
to account for potential variability in each tank. Composite samples
from the storm water tanks processed residuals must be collected each
time cleanout occurs and residuals are generated. TCLP analyses for the
standard acid extraction for trace elements and organic COC listed in
Table I must be conducted. Concentrations of all constituents must be
below the delisting limits in Table I above.
E. What data must ConocoPhillips submit?
Whenever tank cleanout is conducted, ConocoPhillips must verify
that the filter press solids meet the delisting levels in 40 CFR 261,
Appendix IX, Table 1, as amended by this notice. ConocoPhillips must
submit the verification data to U.S. EPA Region 8, 1595 Wynkoop Street,
RCRA Delisting Program, Mail code 8P-HW, Denver, CO 80202.
ConocoPhillips must compile, summarize and maintain, onsite, records of
operating conditions and analytical data for a period of five years.
F. What happens if ConocoPhillips waste fails to meet the conditions of
the exclusion?
If ConocoPhillips violates the terms and conditions established in
this exclusion, the EPA will initiate procedures to withdraw the
exclusion. Where there is an immediate threat to human health and the
environment, the EPA will evaluate the need for enforcement activities
on a case-by-case basis. The EPA expects ConocoPhillips to conduct the
appropriate waste analysis and comply with the criteria detailed in 40
CFR 261, Appendix IX, Table 1, as amended by this notice.
G. What must ConocoPhillips do if the process changes?
ConocoPhillips must notify the EPA in writing if the manufacturing
process, the chemicals used in the manufacturing process, the treatment
process, or the chemicals used in the treatment process significantly
change. ConocoPhillips must handle wastes generated after the process
change as hazardous until it has: demonstrated that the wastes continue
to meet the delisting concentrations in paragraph (1); Demonstrated
that no new hazardous constituents listed in Appendix VIII of 40 CFR
261 have been introduced; and it has received written approval from the
EPA.
V. How would this action affect states?
Because the EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states who have
received authorization from the EPA to make their own delisting
decisions.
The EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than the EPA's, under RCRA 3009,
42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a federally-issued exclusion from taking
effect in the state. Because a dual system (that is, both federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, the EPA urges petitioners to contact the state regulatory
authority to establish the status of their wastes under applicable
state law. Delisting petitions approved by the EPA Administrator or his
delegate pursuant to 40 CFR 260.22 are effective in the State of
Montana after the final rule has been published in the Federal
Register.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review,''
(58 FR 51735, Oct. 4, 1993) this rule is not of general applicability
and, therefore, is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this final rule does not have federalism implications. It
will not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism'', (64
FR 43255, Aug. 10, 1999). Thus, Executive Order 13132 does not apply to
this rule. Similarly, because this rule will apply to a particular
facility, this final rule does not have tribal implications, as
specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments,'' (65 FR 67249, Nov. 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, Apr. 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 DRAS, which considers health and safety
risks to 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, the EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
[[Page 76683]]
Dated: November 18, 2011.
James B. Martin,
Regional Administrator, Region 8.
For the reasons set out in the preamble, the EPA proposes to amend
40 CFR part 261 as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
2. In Table 1 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 40 CFR 260.20 and 260.22
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
ConocoPhillips Billings Refinery...... Billings, Montana..................... Residual solids from centrifuge
and/or filter press processing
of storm water tank sludge
(F037) generated at a maximum
annual rate of 200 cubic yards
per year must be disposed in a
lined Subtitle D landfill,
licensed, permitted or
otherwise authorized by a state
to accept the delisted
processed storm water tank
sludge. The exclusion becomes
effective December 8, 2011.
For the exclusion to be valid,
the ConocoPhillips Billings
Refinery must implement a
verification testing program
that meets the following
Paragraphs:
1. Delisting levels: The
constituent concentrations in a
leachate extract of the waste
measured in any sample must not
exceed the following
concentrations (mg/L TCLP):
Acenaphthene-37.9; Antimony-
.97; Anthracene-50; Arsenic-
.301; Barium-100;
Benz(a)anthracene-.25; Benzene-
.5; Benzo(a)pyrene-1.1;
Benzo(b)fluoranthene-8.7;
Benzo(k) fluoranthene-50; Bis(2-
ethylhexyl)phthalate-50; 2-
Butanone-50; Cadmium-1.0;
Carbon disulfide-36; Chromium-
5.0; Chrysene-25.0; Cobalt-
.763; Cyanide(total)-41.2;
Dibenz(a,h)anthrancene-1.16; Di-
n-octyl phthalate-50; 1,4-
Dioxane-36.5; Ethylbenzene-12;
Fluoranthene-8.78; Fluorene-
17.5; Indeno(1,2,3-cd)pyrene-
27.3; Lead-5.0; Mercury-.2; m&p-
Cresol-10.3; Naphthalene-1.17;
Nickel-48.2; o-Cresol-50;
Phenanthrene-50; Phenol-50;
Pyrene-15.9; Selenium-1.0;
Silver-5.0; Tetrachloroethene-
0.7; Toluene-26;Trichloroethene-
.403; Vanadium-12.3; Xylenes
(total)-22; Zinc-500.
2. Verification Testing: To
verify that the waste does not
exceed the specified delisting
levels, ConocoPhillips must
collect and analyze two
composite samples of the
residual solids from the
processed sludge to account for
potential variability in each
tank. Composite samples must be
collected each time cleanout
occurs and residuals are
generated. Sample collection
and analyses, including quality
control procedures, must be
performed using appropriate
methods. If oil and grease
comprise less than 1 percent of
the waste, SW-846 Method 1311
must be used for generation of
the leachate extract used in
the testing for constituents of
concern listed above. SW-846
Method 1330A must be used for
generation of the leaching
extract if oil and grease
comprise 1 percent or more of
the waste. SW-846 Method 9071B
must be used for determination
of oil and grease. SW-846
Methods 1311, 1330A, and 9071B
are incorporated by reference
in 40 CFR 260.11. As
applicable, the SW-846 methods
might include Methods 1311,
3010, 3510, 6010, 6020, 7470,
7471, 8260, 8270, 9014, 9034,
9213, and 9215. If leachate
concentrations measured in
samples do not exceed the
levels set forth in paragraph
1, ConocoPhillips can dispose
of the filter pressed sludge in
a lined Subtitle D landfill
which is permitted, licensed,
or registered by the state of
Montana or other state which is
subject to Federal RCRA
delisting. If constituent
levels in any sample and any
retest sample for any
constituent exceed the
delisting levels set in
paragraph (1) ConocoPhillips
must do the following: (A)
notify the EPA in accordance
with paragraph (5) and; (B)
manage and dispose of the
process residual solids as F037
hazardous waste generated under
Subtitle C of RCRA.
3. Changes in Operating
Conditions: ConocoPhillips must
notify the EPA in writing if
the manufacturing process, the
chemicals used in the
manufacturing process, the
treatment process, or the
chemicals used in the treatment
process significantly change.
ConocoPhillips must handle
wastes generated after the
process change as hazardous
until it has: demonstrated that
the wastes continue to meet the
delisting concentrations in
paragraph (1); demonstrated
that no new hazardous
constituents listed in appendix
VIII of part 261 have been
introduced; and it has received
written approval from the EPA.
4. Data Submittal: Whenever tank
cleanout is conducted
ConocoPhillips must verify that
the residual solids from the
processed storm water tank
sludge meet the delisting
levels in 40 CFR 261 Appendix
IX Table 1, as amended by this
notice. ConocoPhillips must
submit the verification data to
U.S. EPA Region 8, 1595 Wynkoop
Street, RCRA Delisting Program,
Mail code 8P-HW, Denver, CO
80202. ConocoPhillips must
compile, summarize and maintain
onsite records of operating
conditions and analytical data
for a period of five years.
5. Reopener Language: (A) If,
anytime after final approval of
this exclusion, ConocoPhillips
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
EPA in granting the petition,
then the facility must report
the data, in writing to the EPA
at the address above, within 10
days of first possessing or
being made aware of that data.
[[Page 76684]]
(B) If ConocoPhillips fails to
submit the information
described in paragraph (A) or
if any other information is
received from any source, the
EPA will make a preliminary
determination as to whether the
reported information requires
EPA action to protect human
health or the environment.
Further action may include
suspending, or revoking the
exclusion, or other appropriate
response necessary to protect
human health and the
environment.
(C) If the EPA determines that
the reported information
requires the EPA action, the
EPA will notify the facility in
writing of the actions the
agency believes are necessary
to protect human health and the
environment. The notice shall
include a statement of the
