Hazardous Waste Management System; Identification and Listing of Hazardous Waste, 36447-36456 [2012-14780]
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regulation. To comply with NTTAA,
EPA must consider and use ‘‘voluntary
consensus standards’’ (VCS) if available
and applicable when developing
programs and policies unless doing so
would be inconsistent with applicable
law or otherwise impractical.
The EPA believes that VCS are
inapplicable to this action. Today’s
action does not require the public to
perform activities conducive to the use
of VCS.
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J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994), establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
We have determined that this
proposed rule, if finalized, will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it disapproves a possible
relaxation of Utah’s rule where
increases in emissions are possible.
In addition, this proposed action does
not have tribal implications as specified
by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP
being disapproved would not apply in
Indian country located in the state, and
it would not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
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the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
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Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by August 20, 2012.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2) of the CAA.)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 6, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012–14943 Filed 6–18–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2012–0138; FRL–9685–6]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to grant a
petition submitted by ExxonMobil
Refining and Supply Company
(ExxonMobil) Baytown Refinery (BTRF)
to exclude (or delist) the underflow
water generated at the North Landfarm
(NLF) in Baytown, Texas from the lists
of hazardous wastes. EPA used the
Delisting Risk Assessment Software
(DRAS) Version 3.0 in the evaluation of
the impact of the petitioned waste on
human health and the environment.
DATES: We will accept comments until
July 19, 2012. Your requests for a
hearing must reach EPA by July 5, 2012.
See the FOR FURTHER INFORMATION
CONTACT section for details.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
RCRA–2012–0138 by one of the
following methods:
SUMMARY:
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1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
2. Email: jacques.wendy@epa.gov.
3. Mail: Wendy Jacques,
Environmental Protection Agency,
Multimedia Planning and Permitting
Division, RCRA Branch, Mail Code:
6PD–F, 1445 Ross Avenue, Dallas, TX
75202.
4. Hand Delivery or Courier: Deliver
your comments to: Wendy Jacques,
Environmental Protection Agency,
Multimedia Planning and Permitting
Division, RCRA Branch, Mail Code:
6PD–F, 1445 Ross Avenue, Dallas, TX
75202.
Instructions: Direct your comments to
Docket ID No. EPA–R06–RCRA–2012–
0138. 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 identity
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
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
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
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available docket materials may be
available either electronically in https://
www.regulations.gov or in electronic or
hard copy at the Environmental
Protection Agency, RCRA Branch, 1445
Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for
this proposed rule, EPA–R06–RCRA–
2012–0138, is available for viewing from
8 a.m. to 5 p.m., Monday through
Friday, excluding Federal holidays. The
public may copy material from any
regulatory docket at no cost for the first
100 pages, and at fifteen cents per page
for additional copies. EPA requests that
you contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The
interested persons wanting to examine
these documents should make an
appointment with the office at least 24
hours in advance.
For
technical information regarding the
ExxonMobil Baytown Refinery petition,
contact Wendy Jacques at 214–665–7395
or by email at jacques.wendy@epa.gov.
Comments are due by the date
specified in the DATES section. We will
stamp comments received after the close
of the comment period as late. These
comments may or may not be
considered in formulating a final
decision. Your requests for a hearing
must reach EPA by July 5, 2012. The
request must contain the information
described in 40 CFR 260.20(d).
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FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
ExxonMobil submitted a petition under
40 CFR 260.20 and 260.22(a). Section
260.20 allows any person to petition the
EPA Administrator to modify or revoke
any provision of parts 260 through 266,
268 and 273. Section 260.22(a)
specifically provides generators the
opportunity to petition the
Administrator to exclude a waste on a
‘‘generator specific’’ basis from the
hazardous waste lists.
EPA bases its proposed decision to
grant the petition on an evaluation of
waste-specific information provided by
the petitioner. This decision, if
finalized, would conditionally exclude
the petitioned waste from the
requirements of hazardous waste
regulations under the Resource
Conservation and Recovery Act (RCRA).
If finalized, EPA would conclude that
ExxonMobil’s petitioned waste is nonhazardous with respect to the original
listing criteria. EPA would also
conclude that ExxonMobil’s process
minimizes short-term and long-term
threats from the petitioned waste to
human health and the environment.
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Table of Contents
The information in this section is
organized as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this
delisting?
C. How will ExxonMobil manage the
waste, if it is delisted?
D. When would the proposed delisting
exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting
program?
B. What is a delisting petition, and what
does it require of a petitioner?
C. What factors must EPA consider in
deciding whether to grant a delisting
petition?
III. EPA’s Evaluation of the Waste
Information and Data
A. What wastes did ExxonMobil petition
EPA to delist?
B. Who is ExxonMobil and what process
does it use to generate the petitioned
waste?
C. How did ExxonMobil sample and
analyze the data in this petition?
D. What were the results of ExxonMobil’s
sample analysis?
E. How did EPA evaluate the risk of
delisting this waste?
F. What did EPA conclude about
ExxonMobil’s analysis?
G. What other factors did EPA consider in
its evaluation?
H. What is EPA’s evaluation of this
delisting petition?
IV. Next Steps
A. With what conditions must the
petitioner comply?
B. What happens if ExxonMobil violates
the terms and conditions?
V. Public Comments
A. How may I as an interested party submit
comments?
B. How may I review the docket or obtain
copies of the proposed exclusions?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to approve the
delisting petition submitted by
ExxonMobil to have the underflow
water excluded, or delisted from the
definition of a hazardous waste upon
issuance of notification to the Texas
Commission of Environmental Quality
(TCEQ) that ExxonMobil will initiate
closure activities of the North Landfarm.
The underflow water is an aqueous
solution which seeps through the
treatment zone (soils) of the North
Landfarm, making it an F039 waste.
B. Why is EPA proposing to approve this
delisting?
ExxonMobil’s petition requests an
exclusion from the F039 waste listings
pursuant to 40 CFR 260.20 and 260.22.
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ExxonMobil does not believe that the
petitioned waste meets the criteria for
which EPA listed it. ExxonMobil also
believes no additional constituents or
factors could cause the waste to be
hazardous. EPA’s review of this petition
included consideration of the original
listing criteria and the additional factors
required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA).
See section 3001(f) of RCRA, 42 U.S.C.
6921(f), and 40 CFR 260.22 (d)(1)–(4)
(hereinafter all sectional references are
to 40 CFR unless otherwise indicated).
In making the initial delisting
determination, EPA evaluated the
petitioned waste against the listing
criteria and factors cited in
§§ 261.11(a)(2) and (a)(3). Based on this
review, EPA agrees with the petitioner
that the waste is non-hazardous with
respect to the original listing criteria. If
EPA had found, based on this review,
that the waste remained hazardous
based on the factors for which the waste
was originally listed, EPA would have
proposed to deny the petition. EPA
evaluated the waste with respect to
other factors or criteria to assess
whether there is a reasonable basis to
believe that such additional factors
could cause the waste to be hazardous.
EPA considered whether the waste is
acutely toxic, the concentration of the
constituents in the waste, their tendency
to migrate and to bioaccumulate, their
persistence in the environment once
released from the waste, plausible and
specific types of management of the
petitioned waste, the quantities of waste
generated, and waste variability. EPA
believes that the petitioned waste does
not meet the listing criteria and thus
should not be a listed waste. EPA’s
proposed decision to delist waste from
ExxonMobil is based on the information
submitted in support of this rule,
including descriptions of the wastes and
analytical data from the Baytown, Texas
facility.
C. How will Exxonmobil manage the
waste, if it is delisted?
If the underflow water is delisted,
ExxonMobil will either: (1) Continue to
accumulate the underflow water in a
holding tank, sample the water once
each calendar year, analyze the annual
sample for target constituents and
submit the results to the EPA for review;
or (2) route the underflow to the
underflow collection system and then to
the series of ditches to the underground
Baytown Refinery East sewer. In the
latter case, samples of the underflow
water would be collected from the
underflow sump once each calendar
year, analyzed for target constituents
and the results submitted to the EPA for
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review. Ultimately, the underflow will
enter the waste water treatment system
where it is commingled with other
wastewaters from the Baytown
Chemical Plant and Baytown Olefins
Plant.
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D. When would the proposed delisting
exclusion be finalized?
RCRA section 3001(f) specifically
requires EPA to provide a notice and an
opportunity for comment before
granting or denying a final exclusion.
Thus, EPA will not grant the exclusion
until it addresses all timely public
comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 U.S.C.
6930(b)(1), allows rules to become
effective in less than six months when
the regulated facility 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.
EPA believes that this exclusion
should be effective immediately upon
final publication because a six-month
deadline is not necessary to achieve the
purpose of section 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).
E. How would this action affect the
states?
Because EPA is issuing this exclusion
under the Federal RCRA delisting
program, only states subject to Federal
RCRA delisting provisions would be
affected. This would exclude states
which have received authorization from
EPA to make their own delisting
decisions.
EPA allows states to impose their own
non-RCRA regulatory requirements that
are more stringent than EPA’s, under
section 3009 of RCRA, 42 U.S.C. 6929.
These more stringent requirements may
include a provision that prohibits a
Federally issued exclusion from taking
effect in the state. Because a dual system
(that is, both Federal (RCRA) and state
(non-RCRA) programs) may regulate a
petitioner’s waste, EPA urges petitioners
to contact the state regulatory authority
to establish the status of their wastes
under the state law.
EPA has also authorized some states
(for example, Louisiana, Oklahoma,
Georgia, Illinois) to administer a RCRA
delisting program in place of the Federal
program, that is, to make state delisting
decisions. Therefore, this exclusion
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does not apply in those authorized
states unless that state makes the rule
part of its authorized program. If
ExxonMobil transports the petitioned
waste to or manages the waste in any
state with delisting authorization,
ExxonMobil must obtain delisting
authorization from that state before it
can manage the waste as non-hazardous
in the state.
II. Background
A. What is the history of the delisting
program?
EPA published an amended list of
hazardous wastes from non-specific and
specific sources on January 16, 1981, as
part of its final and interim final
regulations implementing section 3001
of RCRA. EPA has amended this list
several times and published it in 40 CFR
261.31 and 261.32.
EPA lists these wastes as hazardous
because: (1) The wastes typically and
frequently exhibit one or more of the
characteristics of hazardous wastes
identified in Subpart C of Part 261 (that
is, ignitability, corrosivity, reactivity,
and toxicity), (2) the wastes meet the
criteria for listing contained in
§ 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 § 261.3(a)(2)(iv) or (c)(2)(i),
known as the ‘‘mixture’’ or ‘‘derivedfrom’’ rules, respectively.
Individual waste streams may vary,
however, depending on raw materials,
industrial processes, and other factors.
Thus, while a waste described in these
regulations or resulting from the
operation of the mixture or derived-from
rules generally is hazardous, a specific
waste from an individual facility may
not be hazardous.
For this reason, 40 CFR 260.20 and
260.22 provide an exclusion procedure,
called delisting, which allows persons
to prove that EPA should not regulate a
specific waste from a particular
generating facility as a hazardous waste.
B. What is a delisting petition, and what
does it require of a petitioner?
A delisting petition is a request from
a facility to EPA or an authorized state
to exclude wastes from the list of
hazardous wastes. The facility petitions
EPA because it does not consider the
wastes hazardous under RCRA
regulations.
In a delisting petition, the petitioner
must show that wastes generated at a
particular facility do not meet any of the
criteria for which the waste was listed.
The criteria for which EPA lists a waste
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are in part 261 and further explained in
the background documents for the listed
waste.
In addition, under 40 CFR 260.22, a
petitioner must prove that the waste
does not exhibit any of the hazardous
waste characteristics (that is,
ignitability, reactivity, corrosivity, and
toxicity) and present sufficient
information for EPA to decide whether
factors other than those for which the
waste was listed warrant retaining it as
a hazardous waste. (See part 261 and the
background documents for the listed
waste.)
Generators remain obligated under
RCRA to confirm whether their waste
remains non-hazardous based on the
hazardous waste characteristics even if
EPA has ‘‘delisted’’ the waste.
C. What factors must EPA consider in
deciding whether to grant a delisting
petition?
Besides considering the criteria in 40
CFR 260.22(a) and § 3001(f) of RCRA, 42
U.S.C. 6921(f), and in the background
documents for the listed wastes, EPA
must consider any factors (including
additional constituents) other than those
for which EPA listed the waste, if a
reasonable basis exists that these
additional factors could cause the waste
to be hazardous.
EPA must also consider as hazardous
waste mixtures containing listed
hazardous wastes and wastes derived
from treating, storing, or disposing of
listed hazardous waste. See
§ 261.3(a)(2)(iii and iv) and (c)(2)(i),
called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. These wastes
are also eligible for exclusion and
remain hazardous wastes until
excluded. See 66 FR 27266 (May 16,
2001).
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did ExxonMobil petition
EPA to delist?
In August 2010, ExxonMobil
petitioned EPA to exclude from the lists
of hazardous wastes contained in
§§ 261.31 and 261.32, underflow water
(F039) generated from its facility located
in Baytown, Texas. The waste falls
under the classification of listed waste
pursuant to §§ 261.31 and 261.32.
Specifically, in its petition, ExxonMobil
requested that EPA grant a standard
exclusion for 7,427 cubic yards
(1,500,000 gallons) per year of the
underflow water.
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B. Who is ExxonMobil and what process
does it use to generate the petitioned
waste?
ExxonMobil Baytown Refinery
processes crude oil in the production of
a number of petroleum products,
including fuels, solvents and chemical
feedstocks. The petitioned waste is
generated by downward vertical
migration of liquid through the North
Landfarm. The North Landfarm does not
prepare or process materials. The
underflow is transported by the
collection system to the North Landfarm
underflow sump which is the point of
waste generation.
C. How did ExxonMobil sample and
analyze the data in this petition?
To support its petition, ExxonMobil
submitted:
(1) Historical information on waste
generation and management practices;
and
(2) analytical results from five
samples for total concentrations of
compounds of concern (COC)s;
D. What were the results of
ExxonMobil’s analyses?
EPA believes that the descriptions of
the ExxonMobil analytical
characterization provide a reasonable
basis to grant ExxonMobil’s petition for
an exclusion of the North Landfarm
underflow water. EPA believes the data
submitted in support of the petition
show the North Landfarm underflow
water is non-hazardous. Analytical data
for the North Landfarm underflow water
samples were used in the DRAS to
develop delisting levels. The data
summaries for COCs are presented in
Table I. EPA has reviewed the sampling
procedures used by ExxonMobil and has
determined that it satisfies EPA criteria
for collecting representative samples of
the variations in constituent
concentrations in the landfill underflow
water. In addition, the data submitted in
support of the petition show that
constituents in ExxonMobil’s waste are
presently below health-based levels
used in the delisting decision-making.
EPA believes that ExxonMobil has
successfully demonstrated that the
landfill underflow water is nonhazardous.
TABLE 1—ANALYTICAL RESULTS/MAXIMUM ALLOWABLE DELISTING CONCENTRATION
[North Landfarm Underflow Water ExxonMobil Baytown Refinery, Baytown, Texas]
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Constituent
Maximum total
concentration
(mg/L)
Arsenic ...............................................................................................................................................................
Barium ................................................................................................................................................................
Benzene .............................................................................................................................................................
Benzo(a)anthracene ..........................................................................................................................................
Benzo(b)fluoranthene ........................................................................................................................................
Benzo(k)fluoranthene .........................................................................................................................................
Benzo(a)pyrene .................................................................................................................................................
Cadmium ............................................................................................................................................................
Carbon tetrachloride ..........................................................................................................................................
Chlorobenzene ...................................................................................................................................................
Chloroform .........................................................................................................................................................
Chromium ..........................................................................................................................................................
Chrysene ............................................................................................................................................................
Cobalt .................................................................................................................................................................
Copper ...............................................................................................................................................................
o-Cresol .............................................................................................................................................................
m-Cresol ............................................................................................................................................................
p-Cresol .............................................................................................................................................................
1,2-Dichloroethane .............................................................................................................................................
1,1-Dichloroethylene ..........................................................................................................................................
2,4-Dinitrotoluene ...............................................................................................................................................
Fluoride ..............................................................................................................................................................
Hexachlorobenzene ...........................................................................................................................................
Hexachloroethane ..............................................................................................................................................
Lead ...................................................................................................................................................................
Manganese ........................................................................................................................................................
Mercury ..............................................................................................................................................................
Methyl ethyl ketone ............................................................................................................................................
Molybdenum ......................................................................................................................................................
Nitrobenzene ......................................................................................................................................................
Pentachlorophenol .............................................................................................................................................
Pyridine ..............................................................................................................................................................
Selenium ............................................................................................................................................................
Silver ..................................................................................................................................................................
Total-TCDD ........................................................................................................................................................
Tetrachloroethylene ...........................................................................................................................................
Trichloroethylene ...............................................................................................................................................
2,4,6-Trichlorophenol .........................................................................................................................................
Vinyl chloride .....................................................................................................................................................
Zinc ....................................................................................................................................................................
ND ....................
2.99E–02 ..........
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
9.53E–04 ..........
2.23E–03 ..........
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
ND ....................
7.20E–01 ..........
ND ....................
ND ....................
9.47E–04 ..........
6.66E–01 ..........
ND ....................
ND ....................
1.66E–02 ..........
ND ....................
ND ....................
ND ....................
5.16E–03 ..........
ND ....................
2.14E–09 ..........
ND ....................
ND ....................
ND ....................
ND ....................
6.05E–02 ..........
Maximum allowable TCLP
delisting level
(mg/L)
1.64E–01
1.00E+02
5.00E–01
1.36E+00
1.03E+03
1.22E+04
1.03E+02
5.00E+00
5.00E–01
2.94E+01
1.56E+00
5.00E+00
1.36E+02
4.05E+00
4.60E+02
2.00E+02
2.00E+02
2.00E+02
5.00E–01
7.00E–01
1.30E–01
7.65E+02
1.30E–01
3.00E+00
1.04E+01
3.11E+02
2.00E–01
2.00E+00
6.38E+01
2.00E+00
3.03E–01
5.00E+00
1.00E+00
5.00E+00
3.74E–05
3.98E–01
5.00E–01
2.00E+00
1.56E–01
3.93E+03
Notes: These levels represent the highest constituent concentration found in any one sample and does not necessarily represent the specific
level found in one sample.
ND—Constituent was not detected in any of the delisting samples collected for the petition but was in waste(s) historically applied to the North
Landfarm and could reasonably be expected to be present in underflow water.
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E. How did EPA evaluate the risk of
delisting the waste?
For this delisting determination, EPA
used such information gathered to
identify plausible exposure routes (i.e.,
groundwater, surface water, air) for
hazardous constituents present in the
petitioned waste. EPA determined that
disposal in a surface impoundment is
the most reasonable, worst-case disposal
scenario for ExxonMobil’s petitioned
waste. EPA applied the Delisting Risk
Assessment Software (DRAS) described
in 65 FR 58015 (September 27, 2000)
and 65 FR 75637 (December 4, 2000), to
predict the maximum allowable
concentrations of hazardous
constituents that may be released from
the petitioned waste after disposal and
determined the potential impact of the
disposal of ExxonMobil’s petitioned
waste on human health and the
environment. A copy of this software
can be found on the world wide web at
https://www.epa.gov/reg5rcra/wptdiv/
hazardous/delisting/dras-software.html.
In assessing potential risks to
groundwater, EPA used the maximum
waste volumes and the maximum
reported extract concentrations as
inputs to the DRAS program to estimate
the constituent concentrations in the
groundwater at a hypothetical receptor
well down gradient from the disposal
site. Using the risk level (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
EPA health-based numbers. Using the
maximum compliance-point
concentrations and EPA’s Composite
Model for Underflow water Migration
with Transformation Products
(EPACMTP) fate and transport modeling
factors, the DRAS further backcalculates the maximum permissible
waste constituent concentrations not
expected to exceed the compliancepoint concentrations in groundwater.
EPA believes that the EPACMTP fate
and transport model represents a
reasonable worst-case scenario for
possible groundwater contamination
resulting from disposal of the petitioned
waste in a surface impoundment, 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
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not pose a significant threat to human
health or the environment.
The 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
from the impoundment). As in the
above groundwater analyses, the 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, the DRAS
uses the maximum compliance-point
concentrations and back-calculates the
maximum allowable waste constituent
concentrations (or ‘‘delisting levels’’).
In most cases, because a delisted
waste is no longer subject to hazardous
waste control, EPA is generally unable
to predict, and does not presently
control, how a petitioner will manage a
waste after delisting. Therefore, EPA
currently believes that it is
inappropriate to consider extensive sitespecific factors when applying the fate
and transport model. EPA does control
the type of unit where the waste is
disposed. The waste must be disposed
in the type of unit the fate and transport
model evaluates.
The DRAS results which calculate the
maximum allowable concentration of
chemical constituents in the waste are
presented in Table I. Based on the
comparison of the DRAS and TCLP
Analyses results 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 in
ExxonMobil waste.
F. What did EPA conclude about
ExxonMobil’s waste analysis?
EPA concluded, after reviewing
ExxonMobil’s processes that no other
hazardous constituents of concern, other
than those for which tested, are likely to
be present or formed as reaction
products or by-products in the waste. In
addition, on the basis of explanations
and analytical data provided by
ExxonMobil, pursuant to § 260.22, EPA
concludes that the petitioned waste do
not exhibit any of the characteristics of
ignitability, corrosivity, reactivity or
toxicity. See §§ 261.21, 261.22 and
261.23, respectively.
G. What other factors did EPA consider
in its evaluation?
During the evaluation of
ExxonMobil’s petition, EPA also
considered the potential impact of the
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petitioned waste via non-groundwater
routes (i.e., air emission and surface
runoff). With regard to airborne
dispersion in particular, EPA believes
that exposure to airborne contaminants
from ExxonMobil’s petitioned waste is
unlikely. Therefore, no appreciable air
releases are likely from ExxonMobil’s
waste under any likely disposal
conditions. EPA evaluated the potential
hazards resulting from the unlikely
scenario of airborne exposure to
hazardous constituents released from
ExxonMobil’s waste in an open
impoundment. The results of this worstcase analysis indicated that there is no
substantial present or potential hazard
to human health and the environment
from airborne exposure to constituents
from ExxonMobil’s North Landfarm
underflow water.
H. What is EPA’s evaluation of this
delisting petition?
The descriptions of ExxonMobil’s
hazardous waste process and analytical
characterization provide a reasonable
basis for EPA to grant the exclusion. The
data submitted in support of the petition
show that constituents in the waste are
below the leachable concentrations (see
Table I). EPA believes that
ExxonMobil’s North Landfarm
underflow water will not impose any
threat to human health and the
environment.
Thus, EPA believes ExxonMobil
should be granted an exclusion for the
North Landfarm underflow water. EPA
believes the data submitted in support
of the petition show ExxonMobil’s
North Landfarm underflow water is
non-hazardous. The data submitted in
support of the petition show that
constituents in ExxonMobil’s waste are
presently below the compliance point
concentrations used in the delisting
decision and would not pose a
substantial hazard to the environment.
EPA believes that ExxonMobil has
successfully demonstrated that the
North Landfarm underflow water is
non-hazardous.
EPA therefore, proposes to grant an
exclusion to ExxonMobil in Baytown,
Texas, for the North Landfarm
underflow water described in its
petition. EPA’s decision to exclude this
waste is based on descriptions of the
treatment activities associated with the
petitioned waste and characterization of
the North Landfarm underflow water.
If EPA finalizes the proposed rule,
EPA will no longer regulate the
petitioned waste under Parts 262
through 268 and the permitting
standards of Part 270.
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IV. Next Steps
A. With what conditions must the
petitioner comply?
The petitioner, ExxonMobil, must
comply with the requirements in 40
CFR Part 261, Appendix IX, Table 1.
The text below gives the rationale and
details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of
constituents for which ExxonMobil
must test the North Landfarm underflow
water, below which these wastes would
be considered non-hazardous. EPA
selected the set of inorganic and organic
constituents specified in paragraph (1)
of 40 CFR Part 261, Appendix IX, Table
1, (the exclusion language) based on
information in the petition. EPA
compiled the inorganic and organic
constituents list from the composition of
the waste, descriptions of ExxonMobil’s
treatment process, previous test data
provided for the waste, and the
respective health-based levels used in
delisting decision-making. These
delisting levels correspond to the
allowable levels measured in the TCLP
concentrations.
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(2) Waste Holding and Handling
The purpose of this paragraph is to
ensure that ExxonMobil manages and
disposes of any North Landfarm
underflow water that contains
hazardous levels of inorganic and
organic constituents according to
Subtitle C of RCRA. Managing the North
Landfarm underflow water as a
hazardous waste until initial
verification testing is performed will
protect against improper handling of
hazardous material. If EPA determines
that the data collected under this
paragraph do not support the data
provided for in the petition, the
exclusion will not cover the petitioned
waste. The exclusion is effective upon
publication in the Federal Register but
the disposal as non-hazardous cannot
begin until the verification sampling is
completed.
(3) Verification Testing Requirements
ExxonMobil must complete a rigorous
verification testing program on the
North Landfarm underflow water to
assure that the water does not exceed
the maximum levels specified in
paragraph (1) of the exclusion language.
This verification program operates on
two levels. The first part of the
verification testing program consists of
testing the North Landfarm underflow
water for specified indicator parameters
as per paragraph (1) of the exclusion
language. ExxonMobil will test
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underflow water within the first 30 days
after notifying the TCEQ of its intention
to initiate closure activities for the
North Landfarm. Once ExxonMobil
notifies TCEQ that it will begin closure
activities, wastes (including underflow
water) will no longer be applied to the
North Landfarm.
If EPA determines that the data
collected under this paragraph do not
support the data provided for the
petition, the exclusion will not cover
the generated wastes. If the data from
the initial verification testing program
demonstrate that the North Landfarm
underflow water meets the delisting
levels, ExxonMobil may commence
verification testing. EPA will notify
ExxonMobil in writing, if and when it
may replace the testing conditions in
paragraph (3)(A) with the testing
conditions in (3)(B) of the exclusion
language.
The second part of the verification
testing program is the testing of
representative samples of North
Landfarm underflow water for all
constituents specified in paragraph (1)
of the exclusion language. EPA believes
that the concentrations of the
constituents of concern in the North
Landfarm underflow water may vary
over time. Consequently, this program
will ensure that the North Landfarm
underflow water is evaluated in terms of
variation in constituent concentrations
in the waste over time.
The proposed subsequent testing
would verify that the constituent
concentrations of the North Landfarm
underflow water do not exhibit
unacceptable temporal and spatial
levels of toxic constituents. EPA is
proposing to require ExxonMobil to
analyze representative samples of the
North Landfarm underflow water twice
during the first six months of waste
generation. ExxonMobil would begin
sampling after confirmation that the
results from the initial verification
sampling are less than the Maximum
Allowable Delisting Concentrations for
the indicator parameters included in
paragraph (1) of the exclusion language
as described in paragraph (3)(A) of the
exclusion language.
EPA, per paragraph 3(B) of the
exclusion language, is proposing to end
the subsequent testing conditions after
the first six months, if ExxonMobil has
demonstrated that the waste
consistently meets the delisting levels.
To confirm that the characteristics of the
waste do not change significantly over
time, ExxonMobil must continue to
analyze a representative sample of the
waste on an annual basis. Annual
testing requires analyzing the full list of
components in paragraph (1) of the
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exclusion language. If operating
conditions change as described in
paragraph (4) of the exclusion language;
ExxonMobil must reinstate all testing in
paragraph (1) of the exclusion language.
ExxonMobil must prove through a
new demonstration that their waste
meets the conditions of the exclusion. If
the annual testing of the waste does not
meet the delisting requirements in
paragraph (1), ExxonMobil must notify
EPA according to the requirements in
paragraph (6) of the exclusion language.
The facility must provide sampling
results that support the rationale that
the delisting exclusion should not be
withdrawn.
(4) Changes in Operating Conditions
Paragraph (4) of the exclusion
language would allow ExxonMobil the
flexibility of modifying its processes (for
example, changes in equipment or
change in operating conditions).
However, ExxonMobil must prove the
effectiveness of the modified process
and request approval from EPA.
ExxonMobil must manage wastes
generated during the new process
demonstration as hazardous waste until
it has obtained written approval and
paragraph (3) of the exclusion language
is satisfied.
(5) Data Submittals
To provide appropriate
documentation that ExxonMobil’s North
Landfarm underflow water is meeting
the delisting levels, ExxonMobil must
compile, summarize, and keep delisting
records on-site for a minimum of five
years. It should keep all analytical data
obtained through paragraph (3) of the
exclusion language including quality
control information for five years.
Paragraph (5) of the exclusion language
requires that ExxonMobil furnish these
data upon request for inspection by any
employee or representative of EPA or
the State of Texas.
If the proposed exclusion is made
final, it will apply only to 7,427 cubic
yards per year of North Landfarm
underflow water generated at the
ExxonMobil Baytown Refinery after
successful verification testing. EPA
would require ExxonMobil to file a new
delisting petition under any of the
following circumstances and treat the
underflow water as hazardous waste:
(a) If it significantly alters the process
or treatment system except as described
in paragraph (4) of the exclusion
language;
(b) If it significantly changes from the
current process(es) described in their
petition; or
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(c) If it makes any changes that could
affect the composition or type of waste
generated.
ExxonMobil must manage waste
volumes greater than 7,427 cubic yards
per year of North Landfarm underflow
water as hazardous until EPA grants a
new exclusion.
When this exclusion becomes final,
ExxonMobil’s management of the wastes
covered by this petition would be
relieved from Subtitle C jurisdiction, the
North Landfarm underflow water from
ExxonMobil will be treated and
discharged to the Houston Ship
Channel.
(6) Reopener
The purpose of paragraph (6) of the
exclusion language is to require
ExxonMobil to disclose new or different
information related to a condition at the
facility or disposal of the waste, if it is
pertinent to the delisting. ExxonMobil
must also use this procedure, if the
waste sample in the annual testing fails
to meet the levels found in paragraph
(1). This provision will allow EPA to
reevaluate the exclusion, if a source
provides new or additional information
to EPA. EPA will evaluate the
information on which EPA based the
decision to see if it is still correct, or if
circumstances have changed so that the
information is no longer correct or
would cause EPA to deny the petition,
if presented. This provision expressly
requires ExxonMobil to report differing
site conditions or assumptions used in
the petition in addition to failure to
meet the annual testing conditions
within 10 days of discovery. If EPA
discovers such information itself or
from a third party, it can act on it as
appropriate. The language being
proposed is similar to those provisions
found in RCRA regulations governing
no-migration petitions at § 268.6.
EPA believes that it has the authority
under RCRA and the Administrative
Procedures Act (APA), 5 U.S.C. 551
(1978) et seq., to reopen a delisting
decision. EPA may reopen a delisting
decision when it receives new
information that calls into question the
assumptions underlying the delisting.
EPA believes a clear statement of its
authority in delistings is merited in light
of EPA’s experience. See Reynolds
Metals Company at 62 FR 37694 (July
14, 1997) and 62 FR 63458 (December
1, 1997) where the delisted waste
leached at greater concentrations in the
environment than the concentrations
predicted when conducting the TCLP,
thus leading EPA to repeal the delisting.
If an immediate threat to human health
and the environment presents itself,
EPA will continue to address these
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situations on a case-by-case basis.
Where necessary, EPA will make a good
cause finding to justify emergency
rulemaking. See APA § 553 (b).
(7) Notification Requirements
In order to adequately track wastes
that have been delisted, EPA is
requiring that ExxonMobil provide a
one-time notification to any state
regulatory agency through which or to
which the delisted waste is being
carried. ExxonMobil must provide this
notification 60 days before commencing
this activity.
B. What happens if ExxonMobil violates
the terms and conditions?
If ExxonMobil violates the terms and
conditions established in the exclusion,
EPA will start procedures to withdraw
the exclusion. Where there is an
immediate threat to human health and
the environment, EPA will evaluate the
need for enforcement activities on a
case-by-case basis. EPA expects
ExxonMobil to conduct the appropriate
waste analysis and comply with the
criteria explained above in paragraph (1)
of the exclusion.
V. Public Comments
A. How can I as an interested party
submit comments?
EPA is requesting public comments
on this proposed decision. Please send
three copies of your comments. Send
two copies to Section Chief of the
Corrective Action and Waste
Minimization Section (6PD–C),
Multimedia Planning and Permitting
Division, Environmental Protection
Agency (EPA), 1445 Ross Avenue,
Dallas, Texas 75202. Identify your
comments at the top with this regulatory
docket number: ‘‘EPA–R6–RCRA–2012–
0138 ExxonMobil Baytown Refinery,
North Landfarm underflow water
delisting.’’ You may submit your
comments electronically to Wendy
Jacques at jacques.wendy@epa.gov.
You should submit requests for a
hearing to Section Chief of the
Corrective Action and Waste
Minimization Section (6PD–C),
Multimedia Planning and Permitting
Division, U.S. Environmental Protection
Agency, 1445 Ross Avenue, Dallas,
Texas 75202.
B. How may I review the docket or
obtain copies of the proposed
exclusion?
You may review the RCRA regulatory
docket for this proposed rule at the
Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing
in EPA Freedom of Information Act
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Review Room from 9:00 a.m. to 4:00
p.m., Monday through Friday, excluding
Federal holidays. Call (214) 665–6444
for appointments. The public may copy
material from any regulatory docket at
no cost for the first 100 pages, and at
fifteen cents per page for additional
copies. Docket materials may be
available both electronically in https://
www.regulations.gov and you may also
request the electronic files of the docket
which do not appear on regulations.gov.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review’’ (58
FR 51735, October 4, 1993), this rule is
not of general applicability and
therefore is not a regulatory action
subject to review by the Office of
Management and Budget (OMB). This
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) because it
applies to a particular facility only.
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4). Because this
rule will affect only a particular facility,
it will not significantly or uniquely
affect small governments, as specified in
section 203 of UMRA.
Because this rule will affect only a
particular facility, this proposed rule
does not have federalism implications.
It will not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132,
‘‘Federalism,’’ (64 FR 43255, August 10,
1999). Thus, Executive Order 13132
does not apply to this rule.
Similarly, because this rule will affect
only a particular facility, this proposed
rule does not have tribal implications,
as specified in Executive Order 13175,
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000). Thus,
Executive Order 13175 does not apply
to this rule.
This rule also is not subject to
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant as defined in
Executive Order 12866, and because the
Agency does not have reason to believe
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the environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
basis for this belief is that the Agency
used the DRAS program, which
considers health and safety risks to
infants and children, to calculate the
maximum allowable concentrations for
this rule.
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355 (May 22, 2001)), because it is
not a significant regulatory action under
Executive Order 12866.
This rule does not involve technical
standards; thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply.
As required by section 3 of Executive
Order 12988, ‘‘Civil Justice Reform,’’ (61
FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary
steps to eliminate drafting errors and
ambiguity, minimize potential litigation,
and provide a clear legal standard for
affected conduct.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report which includes a
copy of the rule to each House of the
Congress and to the Comptroller General
of the United States. Section 804
exempts from section 801 the following
types of rules (1) rules of particular
applicability; (2) rules relating to agency
management or personnel; and (3) rules
of agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not
required to submit a rule report
regarding this action under section 801
because this is a rule of particular
applicability.
Authority: Sec. 3001(f) RCRA, 42 U.S.C.
6921(f)
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
Waste, Recycling, Reporting and
recordkeeping requirements.
Appendix IX to Part 261—Waste
Excluded Under §§ 260.20 and 260.22
Dated: May 24, 2012.
Carl E. Edlund,
Director Multimedia Planning and Permitting
Division, Region 6.
For the reasons set out in the
preamble, 40 CFR part 261 is proposed
to be amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
2. In Tables 1 and 2 of Appendix IX
to Part 261 add the following entries in
alphabetical order by facility to read as
follows:
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Facility
Address
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*
ExxonMobil North
Landfarm.
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Waste description
*
Baytown, TX .........
*
*
*
*
*
North Landfarm underflow water (EPA Hazardous Waste Numbers F039 generated at a maximum
rate of 1,500,000 gallons (7,427 cubic yards) per calendar year after issuing notice that
ExxonMobil will initiate closure of the North Landfarm.
For the exclusion to be valid, ExxonMobil must implement a verification testing program for each of
the waste streams that meets the following Paragraphs:
(1) Delisting Levels: All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph.
North Landfarm underflow water. Leachable Concentrations (mg/l): Arsenic—0.164; Barium—100;
Benzene—0.5; Benzo(a)anthracene—1.36; Benzo(b)fluoranthene—1030; Benzo(k)fluoranthene—
12200; Benzo(a)pyrene—103; Cadmium—5; Carbon tetrachloride—0.50; Chlorobenzene—29.4;
Chloroform—1.56; Chromium—5; Chrysene—136; Cobalt—4.05; Copper—460; o-Cresol—200; mCresol—200; p-Cresol—200; 1,2-Dichloroethane—0.50; 1,1-Dichloroethylene—0.7; 2,4-Dinitrotoluene—0.13; Fluoride—765; Hexachlorobenzene—0.13; Hexachloroethane—3; Lead—10.4; Manganese—311; Mercury—0.2; Methyl ethyl ketone—2; Molybdenum—63.8; Nitrobenzene—2;
Pentachlorophenol—0.303; Pyridine—5; Selenium—1; Silver—5; Total-TCDD—.0000374;
Tetrachloroethylene—0.398; Trichloroethylene—0.5; 2,4,6–Trichlorophenol—2; Vinyl Chloride—
0.156; Zinc-3930.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous can not begin until compliance with the limits set in paragraph (1) for the North Landfarm underflow water has occurred for two consecutive sampling
events.
(B) If constituent levels in any annual sample and retest sample taken by ExxonMobil exceed any of
the delisting levels set in paragraph (1) for the North Landfarm underflow water, ExxonMobil must
do the following:
(i) notify EPA in accordance with paragraph (6) and
(ii) manage and dispose the North Landfarm underflow water as hazardous waste generated under
Subtitle C of RCRA.
(3) Testing Requirements:
Upon notification that it will initiate closure of the North Landfarm, ExxonMobil must perform analytical testing by sampling and analyzing the North Landfarm underflow water as follows:
(A) Initial Verification Testing:
(i) Collect one representative sample of the North Landfarm underflow water for analysis of all constituents listed in paragraph (1) within the first 30 days after notifying the TCEQ of the intention to
initiate closure activities for the North Landfarm. Sampling must be performed in accordance with
the sampling plan approved by EPA in support of the exclusion.
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Facility
Address
Waste description
(ii) If the data from the initial verification testing program demonstrate that the North Landfarm
underflow water meets the Maximum Allowable Delisting Concentrations for the indicator parameters included in paragraph (1), collect two representative samples of the North Landfarm
underflow water twice during the first six months of waste generation. Analyze the samples for all
constituents listed in paragraph (1). Any representative sample taken that exceeds the delisting
levels listed in paragraph (1) indicates that the North Landfarm underflow water must continue to
be disposed as hazardous waste in accordance with the applicable hazardous waste requirements
until such time that two consecutive representative samples indicate compliance with delisting levels listed in paragraph (1).
(iii) Within sixty (60) days after taking its last representative sample, ExxonMobil will report its analytical test data to EPA. If levels of constituents measured in the samples of the North Landfarm
underflow water do not exceed the levels set forth in paragraph (1) of this exclusion for six consecutive months, ExxonMobil can manage and dispose the non-hazardous North Landfarm
underflow water according to all applicable solid waste regulations.
(B) Annual Testing:
(i) If ExxonMobil completes the testing specified in paragraph (3) above and no sample contains a
constituent at a level which exceeds the limits set forth in paragraph (1), ExxonMobil must begin
annual testing as follows: ExxonMobil must test a representative grab sample of the North
Landfarm underflow water for all constituents listed in paragraph (1) at least once per calendar
year. If any measured constituent concentration exceeds the delisting levels set forth in paragraph
(1), ExxonMobil must collect an additional representative sample within 10 days of being made
aware of the exceedence and test it expeditiously for the constituent(s) which exceeded delisting
levels in the original annual sample.
(ii) The samples for the annual testing shall be a representative grab sample according to appropriate methods. As applicable to the method-defined parameters of concern, analyses requiring the
use of SW–846 methods incorporated by reference in 40 CFR 260.11 must be used without substitution. As applicable, the SW–846 methods might include Methods 0010, 0011, 0020, 0023A,
0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B,1110A, 1310B, 1311, 1312, 1320,
1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B,
and 9095B. Methods must meet Performance Based Measurement System Criteria in which the
Data Quality Objectives are to demonstrate that samples of the ExxonMobil North Landfarm
underflow water are representative for all constituents listed in paragraph (1).
(iii) The samples for the annual testing taken for the second and subsequent annual testing events
shall be taken within the same calendar month as the first annual sample taken.
(iv) The annual testing report should include the total amount of delisted waste in cubic yards disposed during the calendar year.
(4) Changes in Operating Conditions: If ExxonMobil significantly changes the process described in its
petition or starts any processes that generate(s) the waste that may or could affect the composition
or type of waste generated (by illustration, but not limitation, changes in equipment or operating
conditions of the treatment process), it must notify EPA in writing and it may no longer handle the
waste generated from the new process as non-hazardous until the waste meet the delisting levels
set in paragraph (1) and it has received written approval to do so from EPA.
ExxonMobil must submit a modification to the petition complete with full sampling and analysis for
circumstances where the waste volume changes and/or additional waste codes are added to the
waste stream.
(5) Data Submittals:
ExxonMobil must submit the information described below. If ExxonMobil fails to submit the required
data within the specified time or maintain the required records on-site for the specified time, EPA,
at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph(6). ExxonMobil must:
(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division, U. S. Environmental Protection
Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the time specified. All supporting
data can be submitted on CD–ROM or comparable electronic media.
(B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site for a
minimum of five years.
(C) Furnish these records and data when either EPA or the State of Texas requests them for inspection.
(D) Send along with all data a signed copy of the following certification statement, to attest to the
truth and accuracy of the data submitted:
‘‘Under civil and criminal penalty of law for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. § 1001 and 42 U.S.C. § 6928), I certify that the information contained in or accompanying this document is true, accurate and complete.
As to the (those) identified section(s) of this document for which I cannot personally verify its (their)
truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete.
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Federal Register / Vol. 77, No. 118 / Tuesday, June 19, 2012 / Proposed Rules
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion
of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company’s RCRA and CERCLA obligations premised upon the company’s reliance on the void exclusion.’’
(6) Reopener
(A) If, anytime after disposal of the delisted waste ExxonMobil possesses or is otherwise made
aware of any environmental data (including but not limited to underflow water 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 a level higher than the delisting level allowed by
the Division Director in granting the petition, then the facility must report the data, in writing, to the
Division Director within 10 days of first possessing or being made aware of that data.
(B) If either the annual testing (and retest, if applicable) of the waste does not meet the delisting requirements in paragraph 1, ExxonMobil must report the data, in writing, to the Division Director
within 10 days of first possessing or being made aware of that data.
(C) If ExxonMobil fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if any
other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health and/
or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
(D) If the Division Director determines that the reported information requires action by EPA, the Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a statement of the
proposed action and a statement providing the facility with an opportunity to present information as
to why the proposed EPA action is not necessary. The facility shall have 10 days from receipt of
the Division Director’s notice to present such information.
(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination describing
EPA actions that are necessary to protect human health and/or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless
the Division Director provides otherwise.
(7) Notification Requirements:
ExxonMobil must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision.
(A) Provide a one-time written notification to any state Regulatory Agency to which or through which
it will transport the delisted waste described above for disposal, 60 days before beginning such activities.
(B) For onsite disposal a notice should be submitted to the State to notify the State that disposal of
the delisted materials has begun.
(C) Update one-time written notification, if it ships the delisted waste into a different disposal facility.
(D) Failure to provide this notification will result in a violation of the delisting exclusion and a possible
revocation of the decision.
*
*
*
*
*
*
*
TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES
Facility
Address
*
ExxonMobil North
Landfarm.
*
Waste description
*
Baytown, TX .........
*
*
*
*
*
North Landfarm underflow water (EPA Hazardous Waste Numbers F039 generated at a maximum
rate of 1,500,000 gallons (7,427 cubic yards) per calendar year after notification that ExxonMobil
will initiate closure of the North Landfarm.
*
*
*
*
*
erowe on DSK2VPTVN1PROD with PROPOSALS-1
[FR Doc. 2012–14780 Filed 6–18–12; 8:45 am]
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]]>Agencies
[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36447-36456]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14780]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2012-0138; FRL-9685-6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to grant a petition submitted by ExxonMobil
Refining and Supply Company (ExxonMobil) Baytown Refinery (BTRF) to
exclude (or delist) the underflow water generated at the North Landfarm
(NLF) in Baytown, Texas from the lists of hazardous wastes. EPA used
the Delisting Risk Assessment Software (DRAS) Version 3.0 in the
evaluation of the impact of the petitioned waste on human health and
the environment.
DATES: We will accept comments until July 19, 2012. Your requests for a
hearing must reach EPA by July 5, 2012. See the FOR FURTHER INFORMATION
CONTACT section for details.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2012-0138 by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Email: jacques.wendy@epa.gov.
3. Mail: Wendy Jacques, Environmental Protection Agency, Multimedia
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445
Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier: Deliver your comments to: Wendy
Jacques, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2012-0138. 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
identity 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 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 cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly
[[Page 36448]]
available docket materials may be available either electronically in
https://www.regulations.gov or in electronic or hard copy at the
Environmental Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas,
TX 75202. The hard copy RCRA regulatory docket for this proposed rule,
EPA-R06-RCRA-2012-0138, is available for viewing from 8 a.m. to 5 p.m.,
Monday through Friday, excluding Federal holidays. The public may copy
material from any regulatory docket at no cost for the first 100 pages,
and at fifteen cents per page for additional copies. EPA requests that
you contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The interested persons wanting to
examine these documents should make an appointment with the office at
least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: For technical information regarding
the ExxonMobil Baytown Refinery petition, contact Wendy Jacques at 214-
665-7395 or by email at jacques.wendy@epa.gov.
Comments are due by the date specified in the DATES section. We
will stamp comments received after the close of the comment period as
late. These comments may or may not be considered in formulating a
final decision. Your requests for a hearing must reach EPA by July 5,
2012. The request must contain the information described in 40 CFR
260.20(d).
SUPPLEMENTARY INFORMATION: ExxonMobil submitted a petition under 40 CFR
260.20 and 260.22(a). Section 260.20 allows any person to petition the
EPA Administrator to modify or revoke any provision of parts 260
through 266, 268 and 273. Section 260.22(a) specifically provides
generators the opportunity to petition the Administrator to exclude a
waste on a ``generator specific'' basis from the hazardous waste lists.
EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This decision, if finalized, would conditionally exclude the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
If finalized, EPA would conclude that ExxonMobil's petitioned waste
is non-hazardous with respect to the original listing criteria. EPA
would also conclude that ExxonMobil's process minimizes short-term and
long-term threats from the petitioned waste to human health and the
environment.
Table of Contents
The information in this section is organized as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will ExxonMobil manage the waste, if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What wastes did ExxonMobil petition EPA to delist?
B. Who is ExxonMobil and what process does it use to generate
the petitioned waste?
C. How did ExxonMobil sample and analyze the data in this
petition?
D. What were the results of ExxonMobil's sample analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about ExxonMobil's analysis?
G. What other factors did EPA consider in its evaluation?
H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if ExxonMobil violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusions?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to approve the delisting petition submitted by
ExxonMobil to have the underflow water excluded, or delisted from the
definition of a hazardous waste upon issuance of notification to the
Texas Commission of Environmental Quality (TCEQ) that ExxonMobil will
initiate closure activities of the North Landfarm. The underflow water
is an aqueous solution which seeps through the treatment zone (soils)
of the North Landfarm, making it an F039 waste.
B. Why is EPA proposing to approve this delisting?
ExxonMobil's petition requests an exclusion from the F039 waste
listings pursuant to 40 CFR 260.20 and 260.22. ExxonMobil does not
believe that the petitioned waste meets the criteria for which EPA
listed it. ExxonMobil also believes no additional constituents or
factors could cause the waste to be hazardous. EPA's review of this
petition included consideration of the original listing criteria and
the additional factors required by the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C.
6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all sectional
references are to 40 CFR unless otherwise indicated). In making the
initial delisting determination, EPA evaluated the petitioned waste
against the listing criteria and factors cited in Sec. Sec.
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the
petitioner that the waste is non-hazardous with respect to the original
listing criteria. If EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste was
originally listed, EPA would have proposed to deny the petition. EPA
evaluated the waste with respect to other factors or criteria to assess
whether there is a reasonable basis to believe that such additional
factors could cause the waste to be hazardous. EPA considered whether
the waste is acutely toxic, the concentration of the constituents in
the waste, their tendency to migrate and to bioaccumulate, their
persistence in the environment once released from the waste, plausible
and specific types of management of the petitioned waste, the
quantities of waste generated, and waste variability. EPA believes that
the petitioned waste does not meet the listing criteria and thus should
not be a listed waste. EPA's proposed decision to delist waste from
ExxonMobil is based on the information submitted in support of this
rule, including descriptions of the wastes and analytical data from the
Baytown, Texas facility.
C. How will Exxonmobil manage the waste, if it is delisted?
If the underflow water is delisted, ExxonMobil will either: (1)
Continue to accumulate the underflow water in a holding tank, sample
the water once each calendar year, analyze the annual sample for target
constituents and submit the results to the EPA for review; or (2) route
the underflow to the underflow collection system and then to the series
of ditches to the underground Baytown Refinery East sewer. In the
latter case, samples of the underflow water would be collected from the
underflow sump once each calendar year, analyzed for target
constituents and the results submitted to the EPA for
[[Page 36449]]
review. Ultimately, the underflow will enter the waste water treatment
system where it is commingled with other wastewaters from the Baytown
Chemical Plant and Baytown Olefins Plant.
D. When would the proposed delisting exclusion be finalized?
RCRA section 3001(f) specifically requires EPA to provide a notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion until it addresses
all timely public comments (including those at public hearings, if any)
on this proposal.
RCRA section 3010(b)(1) at 42 U.S.C. 6930(b)(1), allows rules to
become effective in less than six months when the regulated facility
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.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 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).
E. How would this action affect the states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the state regulatory authority
to establish the status of their wastes under the state law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in
place of the Federal program, that is, to make state delisting
decisions. Therefore, this exclusion does not apply in those authorized
states unless that state makes the rule part of its authorized program.
If ExxonMobil transports the petitioned waste to or manages the waste
in any state with delisting authorization, ExxonMobil must obtain
delisting authorization from that state before it can manage the waste
as non-hazardous in the state.
II. Background
A. What is the history of the delisting program?
EPA published an amended list of hazardous wastes from non-specific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing section 3001 of RCRA. EPA has
amended this list several times and published it in 40 CFR 261.31 and
261.32.
EPA lists these wastes as hazardous because: (1) The wastes
typically and frequently exhibit one or more of the characteristics of
hazardous wastes identified in Subpart C of Part 261 (that is,
ignitability, corrosivity, reactivity, and toxicity), (2) the wastes
meet the criteria for listing contained in Sec. 261.11(a)(2) or
(a)(3), or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules, respectively.
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations or resulting from the operation of the
mixture or derived-from rules generally is hazardous, a specific waste
from an individual facility may not be hazardous.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What is a delisting petition, and what does it require of a
petitioner?
A delisting petition is a request from a facility to EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
The facility petitions EPA because it does not consider the wastes
hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
In addition, under 40 CFR 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. (See part 261 and the background documents for the
listed waste.)
Generators remain obligated under RCRA to confirm whether their
waste remains non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in 40 CFR 260.22(a) and Sec.
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those for which EPA listed the waste, if a
reasonable basis exists that these additional factors could cause the
waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii and iv)
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
III. EPA's Evaluation of the Waste Information and Data
A. What waste did ExxonMobil petition EPA to delist?
In August 2010, ExxonMobil petitioned EPA to exclude from the lists
of hazardous wastes contained in Sec. Sec. 261.31 and 261.32,
underflow water (F039) generated from its facility located in Baytown,
Texas. The waste falls under the classification of listed waste
pursuant to Sec. Sec. 261.31 and 261.32. Specifically, in its
petition, ExxonMobil requested that EPA grant a standard exclusion for
7,427 cubic yards (1,500,000 gallons) per year of the underflow water.
[[Page 36450]]
B. Who is ExxonMobil and what process does it use to generate the
petitioned waste?
ExxonMobil Baytown Refinery processes crude oil in the production
of a number of petroleum products, including fuels, solvents and
chemical feedstocks. The petitioned waste is generated by downward
vertical migration of liquid through the North Landfarm. The North
Landfarm does not prepare or process materials. The underflow is
transported by the collection system to the North Landfarm underflow
sump which is the point of waste generation.
C. How did ExxonMobil sample and analyze the data in this petition?
To support its petition, ExxonMobil submitted:
(1) Historical information on waste generation and management
practices; and
(2) analytical results from five samples for total concentrations
of compounds of concern (COC)s;
D. What were the results of ExxonMobil's analyses?
EPA believes that the descriptions of the ExxonMobil analytical
characterization provide a reasonable basis to grant ExxonMobil's
petition for an exclusion of the North Landfarm underflow water. EPA
believes the data submitted in support of the petition show the North
Landfarm underflow water is non-hazardous. Analytical data for the
North Landfarm underflow water samples were used in the DRAS to develop
delisting levels. The data summaries for COCs are presented in Table I.
EPA has reviewed the sampling procedures used by ExxonMobil and has
determined that it satisfies EPA criteria for collecting representative
samples of the variations in constituent concentrations in the landfill
underflow water. In addition, the data submitted in support of the
petition show that constituents in ExxonMobil's waste are presently
below health-based levels used in the delisting decision-making. EPA
believes that ExxonMobil has successfully demonstrated that the
landfill underflow water is non-hazardous.
Table 1--Analytical Results/Maximum Allowable Delisting Concentration
[North Landfarm Underflow Water ExxonMobil Baytown Refinery, Baytown,
Texas]
------------------------------------------------------------------------
Maximum total Maximum allowable
Constituent concentration (mg/ TCLP delisting level
L) (mg/L)
------------------------------------------------------------------------
Arsenic..................... ND.................. 1.64E-01
Barium...................... 2.99E-02............ 1.00E+02
Benzene..................... ND.................. 5.00E-01
Benzo(a)anthracene.......... ND.................. 1.36E+00
Benzo(b)fluoranthene........ ND.................. 1.03E+03
Benzo(k)fluoranthene........ ND.................. 1.22E+04
Benzo(a)pyrene.............. ND.................. 1.03E+02
Cadmium..................... ND.................. 5.00E+00
Carbon tetrachloride........ ND.................. 5.00E-01
Chlorobenzene............... ND.................. 2.94E+01
Chloroform.................. ND.................. 1.56E+00
Chromium.................... ND.................. 5.00E+00
Chrysene.................... ND.................. 1.36E+02
Cobalt...................... 9.53E-04............ 4.05E+00
Copper...................... 2.23E-03............ 4.60E+02
o-Cresol.................... ND.................. 2.00E+02
m-Cresol.................... ND.................. 2.00E+02
p-Cresol.................... ND.................. 2.00E+02
1,2-Dichloroethane.......... ND.................. 5.00E-01
1,1-Dichloroethylene........ ND.................. 7.00E-01
2,4-Dinitrotoluene.......... ND.................. 1.30E-01
Fluoride.................... 7.20E-01............ 7.65E+02
Hexachlorobenzene........... ND.................. 1.30E-01
Hexachloroethane............ ND.................. 3.00E+00
Lead........................ 9.47E-04............ 1.04E+01
Manganese................... 6.66E-01............ 3.11E+02
Mercury..................... ND.................. 2.00E-01
Methyl ethyl ketone......... ND.................. 2.00E+00
Molybdenum.................. 1.66E-02............ 6.38E+01
Nitrobenzene................ ND.................. 2.00E+00
Pentachlorophenol........... ND.................. 3.03E-01
Pyridine.................... ND.................. 5.00E+00
Selenium.................... 5.16E-03............ 1.00E+00
Silver...................... ND.................. 5.00E+00
Total-TCDD.................. 2.14E-09............ 3.74E-05
Tetrachloroethylene......... ND.................. 3.98E-01
Trichloroethylene........... ND.................. 5.00E-01
2,4,6-Trichlorophenol....... ND.................. 2.00E+00
Vinyl chloride.............. ND.................. 1.56E-01
Zinc........................ 6.05E-02............ 3.93E+03
------------------------------------------------------------------------
Notes: These levels represent the highest constituent concentration
found in any one sample and does not necessarily represent the
specific level found in one sample.
ND--Constituent was not detected in any of the delisting samples
collected for the petition but was in waste(s) historically applied to
the North Landfarm and could reasonably be expected to be present in
underflow water.
[[Page 36451]]
E. How did EPA evaluate the risk of delisting the waste?
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., groundwater,
surface water, air) for hazardous constituents present in the
petitioned waste. EPA determined that disposal in a surface impoundment
is the most reasonable, worst-case disposal scenario for ExxonMobil's
petitioned waste. EPA applied the Delisting Risk Assessment Software
(DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 75637
(December 4, 2000), to predict the maximum allowable concentrations of
hazardous constituents that may be released from the petitioned waste
after disposal and determined the potential impact of the disposal of
ExxonMobil's petitioned waste on human health and the environment. A
copy of this software can be found on the world wide web at https://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html. In
assessing potential risks to groundwater, EPA used the maximum waste
volumes and the maximum reported extract concentrations as inputs to
the DRAS program to estimate the constituent concentrations in the
groundwater at a hypothetical receptor well down gradient from the
disposal site. Using the risk level (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 EPA health-based numbers. Using the maximum
compliance-point concentrations and EPA's Composite Model for Underflow
water Migration with Transformation Products (EPACMTP) fate and
transport modeling factors, the DRAS further back-calculates the
maximum permissible waste constituent concentrations not expected to
exceed the compliance-point concentrations in groundwater.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible groundwater contamination
resulting from disposal of the petitioned waste in a surface
impoundment, 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.
The 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 from the impoundment). As in the above
groundwater analyses, the 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, the
DRAS uses the maximum compliance-point concentrations and back-
calculates the maximum allowable waste constituent concentrations (or
``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed. The waste must be disposed in the type of unit the fate and
transport model evaluates.
The DRAS results which calculate the maximum allowable
concentration of chemical constituents in the waste are presented in
Table I. Based on the comparison of the DRAS and TCLP Analyses results
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 in ExxonMobil waste.
F. What did EPA conclude about ExxonMobil's waste analysis?
EPA concluded, after reviewing ExxonMobil's processes that no other
hazardous constituents of concern, other than those for which tested,
are likely to be present or formed as reaction products or by-products
in the waste. In addition, on the basis of explanations and analytical
data provided by ExxonMobil, pursuant to Sec. 260.22, EPA concludes
that the petitioned waste do not exhibit any of the characteristics of
ignitability, corrosivity, reactivity or toxicity. See Sec. Sec.
261.21, 261.22 and 261.23, respectively.
G. What other factors did EPA consider in its evaluation?
During the evaluation of ExxonMobil's petition, EPA also considered
the potential impact of the petitioned waste via non-groundwater routes
(i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, EPA believes that exposure to airborne
contaminants from ExxonMobil's petitioned waste is unlikely. Therefore,
no appreciable air releases are likely from ExxonMobil's waste under
any likely disposal conditions. EPA evaluated the potential hazards
resulting from the unlikely scenario of airborne exposure to hazardous
constituents released from ExxonMobil's waste in an open impoundment.
The results of this worst-case analysis indicated that there is no
substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from ExxonMobil's
North Landfarm underflow water.
H. What is EPA's evaluation of this delisting petition?
The descriptions of ExxonMobil's hazardous waste process and
analytical characterization provide a reasonable basis for EPA to grant
the exclusion. The data submitted in support of the petition show that
constituents in the waste are below the leachable concentrations (see
Table I). EPA believes that ExxonMobil's North Landfarm underflow water
will not impose any threat to human health and the environment.
Thus, EPA believes ExxonMobil should be granted an exclusion for
the North Landfarm underflow water. EPA believes the data submitted in
support of the petition show ExxonMobil's North Landfarm underflow
water is non-hazardous. The data submitted in support of the petition
show that constituents in ExxonMobil's waste are presently below the
compliance point concentrations used in the delisting decision and
would not pose a substantial hazard to the environment. EPA believes
that ExxonMobil has successfully demonstrated that the North Landfarm
underflow water is non-hazardous.
EPA therefore, proposes to grant an exclusion to ExxonMobil in
Baytown, Texas, for the North Landfarm underflow water described in its
petition. EPA's decision to exclude this waste is based on descriptions
of the treatment activities associated with the petitioned waste and
characterization of the North Landfarm underflow water.
If EPA finalizes the proposed rule, EPA will no longer regulate the
petitioned waste under Parts 262 through 268 and the permitting
standards of Part 270.
[[Page 36452]]
IV. Next Steps
A. With what conditions must the petitioner comply?
The petitioner, ExxonMobil, must comply with the requirements in 40
CFR Part 261, Appendix IX, Table 1. The text below gives the rationale
and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituents for which
ExxonMobil must test the North Landfarm underflow water, below which
these wastes would be considered non-hazardous. EPA selected the set of
inorganic and organic constituents specified in paragraph (1) of 40 CFR
Part 261, Appendix IX, Table 1, (the exclusion language) based on
information in the petition. EPA compiled the inorganic and organic
constituents list from the composition of the waste, descriptions of
ExxonMobil's treatment process, previous test data provided for the
waste, and the respective health-based levels used in delisting
decision-making. These delisting levels correspond to the allowable
levels measured in the TCLP concentrations.
(2) Waste Holding and Handling
The purpose of this paragraph is to ensure that ExxonMobil manages
and disposes of any North Landfarm underflow water that contains
hazardous levels of inorganic and organic constituents according to
Subtitle C of RCRA. Managing the North Landfarm underflow water as a
hazardous waste until initial verification testing is performed will
protect against improper handling of hazardous material. If EPA
determines that the data collected under this paragraph do not support
the data provided for in the petition, the exclusion will not cover the
petitioned waste. The exclusion is effective upon publication in the
Federal Register but the disposal as non-hazardous cannot begin until
the verification sampling is completed.
(3) Verification Testing Requirements
ExxonMobil must complete a rigorous verification testing program on
the North Landfarm underflow water to assure that the water does not
exceed the maximum levels specified in paragraph (1) of the exclusion
language. This verification program operates on two levels. The first
part of the verification testing program consists of testing the North
Landfarm underflow water for specified indicator parameters as per
paragraph (1) of the exclusion language. ExxonMobil will test underflow
water within the first 30 days after notifying the TCEQ of its
intention to initiate closure activities for the North Landfarm. Once
ExxonMobil notifies TCEQ that it will begin closure activities, wastes
(including underflow water) will no longer be applied to the North
Landfarm.
If EPA determines that the data collected under this paragraph do
not support the data provided for the petition, the exclusion will not
cover the generated wastes. If the data from the initial verification
testing program demonstrate that the North Landfarm underflow water
meets the delisting levels, ExxonMobil may commence verification
testing. EPA will notify ExxonMobil in writing, if and when it may
replace the testing conditions in paragraph (3)(A) with the testing
conditions in (3)(B) of the exclusion language.
The second part of the verification testing program is the testing
of representative samples of North Landfarm underflow water for all
constituents specified in paragraph (1) of the exclusion language. EPA
believes that the concentrations of the constituents of concern in the
North Landfarm underflow water may vary over time. Consequently, this
program will ensure that the North Landfarm underflow water is
evaluated in terms of variation in constituent concentrations in the
waste over time.
The proposed subsequent testing would verify that the constituent
concentrations of the North Landfarm underflow water do not exhibit
unacceptable temporal and spatial levels of toxic constituents. EPA is
proposing to require ExxonMobil to analyze representative samples of
the North Landfarm underflow water twice during the first six months of
waste generation. ExxonMobil would begin sampling after confirmation
that the results from the initial verification sampling are less than
the Maximum Allowable Delisting Concentrations for the indicator
parameters included in paragraph (1) of the exclusion language as
described in paragraph (3)(A) of the exclusion language.
EPA, per paragraph 3(B) of the exclusion language, is proposing to
end the subsequent testing conditions after the first six months, if
ExxonMobil has demonstrated that the waste consistently meets the
delisting levels. To confirm that the characteristics of the waste do
not change significantly over time, ExxonMobil must continue to analyze
a representative sample of the waste on an annual basis. Annual testing
requires analyzing the full list of components in paragraph (1) of the
exclusion language. If operating conditions change as described in
paragraph (4) of the exclusion language; ExxonMobil must reinstate all
testing in paragraph (1) of the exclusion language.
ExxonMobil must prove through a new demonstration that their waste
meets the conditions of the exclusion. If the annual testing of the
waste does not meet the delisting requirements in paragraph (1),
ExxonMobil must notify EPA according to the requirements in paragraph
(6) of the exclusion language. The facility must provide sampling
results that support the rationale that the delisting exclusion should
not be withdrawn.
(4) Changes in Operating Conditions
Paragraph (4) of the exclusion language would allow ExxonMobil the
flexibility of modifying its processes (for example, changes in
equipment or change in operating conditions). However, ExxonMobil must
prove the effectiveness of the modified process and request approval
from EPA. ExxonMobil must manage wastes generated during the new
process demonstration as hazardous waste until it has obtained written
approval and paragraph (3) of the exclusion language is satisfied.
(5) Data Submittals
To provide appropriate documentation that ExxonMobil's North
Landfarm underflow water is meeting the delisting levels, ExxonMobil
must compile, summarize, and keep delisting records on-site for a
minimum of five years. It should keep all analytical data obtained
through paragraph (3) of the exclusion language including quality
control information for five years. Paragraph (5) of the exclusion
language requires that ExxonMobil furnish these data upon request for
inspection by any employee or representative of EPA or the State of
Texas.
If the proposed exclusion is made final, it will apply only to
7,427 cubic yards per year of North Landfarm underflow water generated
at the ExxonMobil Baytown Refinery after successful verification
testing. EPA would require ExxonMobil to file a new delisting petition
under any of the following circumstances and treat the underflow water
as hazardous waste:
(a) If it significantly alters the process or treatment system
except as described in paragraph (4) of the exclusion language;
(b) If it significantly changes from the current process(es)
described in their petition; or
[[Page 36453]]
(c) If it makes any changes that could affect the composition or
type of waste generated.
ExxonMobil must manage waste volumes greater than 7,427 cubic yards
per year of North Landfarm underflow water as hazardous until EPA
grants a new exclusion.
When this exclusion becomes final, ExxonMobil's management of the
wastes covered by this petition would be relieved from Subtitle C
jurisdiction, the North Landfarm underflow water from ExxonMobil will
be treated and discharged to the Houston Ship Channel.
(6) Reopener
The purpose of paragraph (6) of the exclusion language is to
require ExxonMobil to disclose new or different information related to
a condition at the facility or disposal of the waste, if it is
pertinent to the delisting. ExxonMobil must also use this procedure, if
the waste sample in the annual testing fails to meet the levels found
in paragraph (1). This provision will allow EPA to reevaluate the
exclusion, if a source provides new or additional information to EPA.
EPA will evaluate the information on which EPA based the decision to
see if it is still correct, or if circumstances have changed so that
the information is no longer correct or would cause EPA to deny the
petition, if presented. This provision expressly requires ExxonMobil to
report differing site conditions or assumptions used in the petition in
addition to failure to meet the annual testing conditions within 10
days of discovery. If EPA discovers such information itself or from a
third party, it can act on it as appropriate. The language being
proposed is similar to those provisions found in RCRA regulations
governing no-migration petitions at Sec. 268.6.
EPA believes that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. EPA may reopen a delisting decision when
it receives new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delistings is
merited in light of EPA's experience. See Reynolds Metals Company at 62
FR 37694 (July 14, 1997) and 62 FR 63458 (December 1, 1997) where the
delisted waste leached at greater concentrations in the environment
than the concentrations predicted when conducting the TCLP, thus
leading EPA to repeal the delisting. If an immediate threat to human
health and the environment presents itself, EPA will continue to
address these situations on a case-by-case basis. Where necessary, EPA
will make a good cause finding to justify emergency rulemaking. See APA
Sec. 553 (b).
(7) Notification Requirements
In order to adequately track wastes that have been delisted, EPA is
requiring that ExxonMobil provide a one-time notification to any state
regulatory agency through which or to which the delisted waste is being
carried. ExxonMobil must provide this notification 60 days before
commencing this activity.
B. What happens if ExxonMobil violates the terms and conditions?
If ExxonMobil violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects ExxonMobil to conduct the appropriate waste analysis
and comply with the criteria explained above in paragraph (1) of the
exclusion.
V. Public Comments
A. How can I as an interested party submit comments?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to Section Chief of
the Corrective Action and Waste Minimization Section (6PD-C),
Multimedia Planning and Permitting Division, Environmental Protection
Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Identify your
comments at the top with this regulatory docket number: ``EPA-R6-RCRA-
2012-0138 ExxonMobil Baytown Refinery, North Landfarm underflow water
delisting.'' You may submit your comments electronically to Wendy
Jacques at jacques.wendy@epa.gov.
You should submit requests for a hearing to Section Chief of the
Corrective Action and Waste Minimization Section (6PD-C), Multimedia
Planning and Permitting Division, U.S. Environmental Protection Agency,
1445 Ross Avenue, Dallas, Texas 75202.
B. How may I review the docket or obtain copies of the proposed
exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing in EPA Freedom of Information
Act Review Room from 9:00 a.m. to 4:00 p.m., Monday through Friday,
excluding Federal holidays. Call (214) 665-6444 for appointments. The
public may copy material from any regulatory docket at no cost for the
first 100 pages, and at fifteen cents per page for additional copies.
Docket materials may be available both electronically in https://www.regulations.gov and you may also request the electronic files of
the docket which do not appear on regulations.gov.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only.
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a
particular facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA.
Because this rule will affect only a particular facility, this
proposed rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, ``Federalism,'' (64 FR 43255,
August 10, 1999). Thus, Executive Order 13132 does not apply to this
rule.
Similarly, because this rule will affect only a particular
facility, this proposed rule does not have tribal implications, as
specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus,
Executive Order 13175 does not apply to this rule.
This rule also is not subject to Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe
[[Page 36454]]
the environmental health or safety risks addressed by this action
present a disproportionate risk to children. The basis for this belief
is that the Agency used the DRAS program, which considers health and
safety risks to infants and children, to calculate the maximum
allowable concentrations for this rule.
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it is not
a significant regulatory action under Executive Order 12866.
This rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
As required by section 3 of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report which includes a copy of the rule to
each House of the Congress and to the Comptroller General of the United
States. Section 804 exempts from section 801 the following types of
rules (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding this action under section 801 because
this is a rule of particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous Waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f)
Dated: May 24, 2012.
Carl E. Edlund,
Director Multimedia Planning and Permitting Division, Region 6.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
2. In Tables 1 and 2 of Appendix IX to Part 261 add the following
entries in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * * * * *
ExxonMobil North Landfarm. Baytown, TX.............. North Landfarm
underflow water
(EPA Hazardous
Waste Numbers
F039 generated
at a maximum
rate of
1,500,000
gallons (7,427
cubic yards) per
calendar year
after issuing
notice that
ExxonMobil will
initiate closure
of the North
Landfarm.
For the exclusion
to be valid,
ExxonMobil must
implement a
verification
testing program
for each of the
waste streams
that meets the
following
Paragraphs:
(1) Delisting
Levels: All
concentrations
for those
constituents
must not exceed
the maximum
allowable
concentrations
in mg/l
specified in
this paragraph.
North Landfarm
underflow water.
Leachable
Concentrations
(mg/l): Arsenic--
0.164; Barium--
100; Benzene--
0.5;
Benzo(a)anthrace
ne--1.36;
Benzo(b)fluorant
hene--1030;
Benzo(k)fluorant
hene--12200;
Benzo(a)pyrene--
103; Cadmium--5;
Carbon
tetrachloride--0
.50;
Chlorobenzene--2
9.4; Chloroform--
1.56; Chromium--
5; Chrysene--
136; Cobalt--
4.05; Copper--
460; o-Cresol--
200; m-Cresol--
200; p-Cresol--
200; 1,2-
Dichloroethane--
0.50; 1,1-
Dichloroethylene
-0.7; 2,4-
Dinitrotoluene--
0.13; Fluoride--
765;
Hexachlorobenzen
e--0.13;
Hexachloroethane
-3; Lead--10.4;
Manganese--311;
Mercury--0.2;
Methyl ethyl
ketone--2;
Molybdenum--63.8
; Nitrobenzene--
2;
Pentachloropheno
l--0.303;
Pyridine--5;
Selenium--1;
Silver--5; Total-
TCDD--.0000374;
Tetrachloroethyl
ene--0.398;
Trichloroethylen
e--0.5; 2,4,6-
Trichlorophenol-
-2; Vinyl
Chloride--0.156;
Zinc-3930.
(2) Waste Holding
and Handling:
(A) Waste
classification
as non-hazardous
can not begin
until compliance
with the limits
set in paragraph
(1) for the
North Landfarm
underflow water
has occurred for
two consecutive
sampling events.
(B) If
constituent
levels in any
annual sample
and retest
sample taken by
ExxonMobil
exceed any of
the delisting
levels set in
paragraph (1)
for the North
Landfarm
underflow water,
ExxonMobil must
do the
following:
(i) notify EPA in
accordance with
paragraph (6)
and
(ii) manage and
dispose the
North Landfarm
underflow water
as hazardous
waste generated
under Subtitle C
of RCRA.
(3) Testing
Requirements:
Upon notification
that it will
initiate closure
of the North
Landfarm,
ExxonMobil must
perform
analytical
testing by
sampling and
analyzing the
North Landfarm
underflow water
as follows:
(A) Initial
Verification
Testing:
(i) Collect one
representative
sample of the
North Landfarm
underflow water
for analysis of
all constituents
listed in
paragraph (1)
within the first
30 days after
notifying the
TCEQ of the
intention to
initiate closure
activities for
the North
Landfarm.
Sampling must be
performed in
accordance with
the sampling
plan approved by
EPA in support
of the
exclusion.
[[Page 36455]]
(ii) If the data
from the initial
verification
testing program
demonstrate that
the North
Landfarm
underflow water
meets the
Maximum
Allowable
Delisting
Concentrations
for the
indicator
parameters
included in
paragraph (1),
collect two
representative
samples of the
North Landfarm
underflow water
twice during the
first six months
of waste
generation.
Analyze the
samples for all
constituents
listed in
paragraph (1).
Any
representative
sample taken
that exceeds the
delisting levels
listed in
paragraph (1)
indicates that
the North
Landfarm
underflow water
must continue to
be disposed as
hazardous waste
in accordance
with the
applicable
hazardous waste
requirements
until such time
that two
consecutive
representative
samples indicate
compliance with
delisting levels
listed in
paragraph (1).
(iii) Within
sixty (60) days
after taking its
last
representative
sample,
ExxonMobil will
report its
analytical test
data to EPA. If
levels of
constituents
measured in the
samples of the
North Landfarm
underflow water
do not exceed
the levels set
forth in
paragraph (1) of
this exclusion
for six
consecutive
months,
ExxonMobil can
manage and
dispose the non-
hazardous North
Landfarm
underflow water
according to all
applicable solid
waste
regulations.
(B) Annual
Testing:
(i) If ExxonMobil
completes the
testing
specified in
paragraph (3)
above and no
sample contains
a constituent at
a level which
exceeds the
limits set forth
in paragraph
(1), ExxonMobil
must begin
annual testing
as follows:
ExxonMobil must
test a
representative
grab sample of
the North
Landfarm
underflow water
for all
constituents
listed in
paragraph (1) at
least once per
calendar year.
If any measured
constituent
concentration
exceeds the
delisting levels
set forth in
paragraph (1),
ExxonMobil must
collect an
additional
representative
sample within 10
days of being
made aware of
the exceedence
and test it
expeditiously
for the
constituent(s)
which exceeded
delisting levels
in the original
annual sample.
(ii) The samples
for the annual
testing shall be
a representative
grab sample
according to
appropriate
methods. As
applicable to
the method-
defined
parameters of
concern,
analyses
requiring the
use of SW-846
methods
incorporated by
reference in 40
CFR 260.11 must
be used without
substitution. As
applicable, the
SW-846 methods
might include
Methods 0010,
0011, 0020,
0023A, 0030,
0031, 0040,
0050, 0051,
0060, 0061,
1010A,
1020B,1110A,
1310B, 1311,
1312, 1320,
1330A, 9010C,
9012B, 9040C,
9045D, 9060A,
9070A (uses EPA
Method 1664,
Rev. A), 9071B,
and 9095B.
Methods must
meet Performance
Based
Measurement
System Criteria
in which the
Data Quality
Objectives are
to demonstrate
that samples of
the ExxonMobil
North Landfarm
underflow water
are
representative
for all
constituents
listed in
paragraph (1).
(iii) The samples
for the annual
testing taken
for the second
and subsequent
annual testing
events shall be
taken within the
same calendar
month as the
first annual
sample taken.
(iv) The annual
testing report
should include
the total amount
of delisted
waste in cubic
yards disposed
during the
calendar year.
(4) Changes in
Operating
Conditions: If
ExxonMobil
significantly
changes the
process
described in its
petition or
starts any
processes that
generate(s) the
waste that may
or could affect
the composition
or type of waste
generated (by
illustration,
but not
limitation,
changes in
equipment or
operating
conditions of
the treatment
process), it
must notify EPA
in writing and
it may no longer
handle the waste
generated from
the new process
as non-hazardous
until the waste
meet the
delisting levels
set in paragraph
(1) and it has
received written
approval to do
so from EPA.
ExxonMobil must
submit a
modification to
the petition
complete with
full sampling
and analysis for
circumstances
where the waste
volume changes
and/or
additional waste
codes are added
to the waste
stream.
(5) Data
Submittals:
ExxonMobil must
submit the
information
described below.
If ExxonMobil
fails to submit
the required
data within the
specified time
or maintain the
required records
on-site for the
specified time,
EPA, at its
discretion, will
consider this
sufficient basis
to reopen the
exclusion as
described in
paragraph(6).
ExxonMobil must:
(A) Submit the
data obtained
through
paragraph 3 to
the Chief,
Corrective
Action and Waste
Minimization
Section,
Multimedia
Planning and
Permitting
Division, U. S.
Environmental
Protection
Agency Region 6,
1445 Ross Ave.,
Dallas, Texas
75202, within
the time
specified. All
supporting data
can be submitted
on CD-ROM or
comparable
electronic
media.
(B) Compile
records of
analytical data
from paragraph
(3), summarized,
and maintained
on-site for a
minimum of five
years.
(C) Furnish these
records and data
when either EPA
or the State of
Texas requests
them for
inspection.
(D) Send along
with all data a
signed copy of
the following
certification
statement, to
attest to the
truth and
accuracy of the
data submitted:
``Under civil and
criminal penalty
of law for the
making or
submission of
false or
fraudulent
statements or
representations
(pursuant to the
applicable
provisions of
the Federal
Code, which
include, but may
not be limited
to, 18 U.S.C.
Sec. 1001 and
42 U.S.C. Sec.
6928), I certify
that the
information
contained in or
accompanying
this document is
true, accurate
and complete.
As to the (those)
identified
section(s) of
this document
for which I
cannot
personally
verify its
(their) truth
and accuracy, I
certify as the
company official
having
supervisory
responsibility
for the persons
who, acting
under my direct
instructions,
made the
verification
that this
information is
true, accurate
and complete.
[[Page 36456]]
If any of this
information is
determined by
EPA in its sole
discretion to be
false,
inaccurate or
incomplete, and
upon conveyance
of this fact to
the company, I
recognize and
agree that this
exclusion of
waste will be
void as if it
never had effect
or to the extent
directed by EPA
and that the
company will be
liable for any
actions taken in
contravention of
the company's
RCRA and CERCLA
obligations
premised upon
the company's
reliance on the
void
exclusion.''
(6) Reopener
(A) If, anytime
after disposal
of the delisted
waste ExxonMobil
possesses or is
otherwise made
aware of any
environmental
data (including
but not limited
to underflow
water 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 a
level higher
than the
delisting level
allowed by the
Division
Director in
granting the
petition, then
the facility
must report the
data, in
writing, to the
Division
Director within
10 days of first
possessing or
being made aware
of that data.
(B) If either the
annual testing
(and retest, if
applicable) of
the waste does
not meet the
delisting
requirements in
paragraph 1,
ExxonMobil must
report the data,
in writing, to
the Division
Director within
10 days of first
possessing or
being made aware
of that data.
(C) If ExxonMobil
fails to submit
the information
described in
paragraphs (5),
(6)(A) or (6)(B)
or if any other
information is
received from
any source, the
Division
Director will
make a
preliminary
determination as
to whether the
reported
information
requires EPA
action to
protect human
health and/or
the environment.
Further action
may include
suspending, or
revoking the
exclusion, or
other
appropriate
response
necessary to
protect human
health and the
environment.
(D) If the
Division
Director
determines that
the reported
information
requires action
by EPA, the
Division
Director will
notify the
facility in
writing of the
actions the
Division
Director
believes are
necessary to
protect human
health and the
environment. The
notice shall
include a
statement of the
proposed action
and a statement
providing the
facility with an
opportunity to
present
information as
to why the
proposed EPA
action is not
necessary. The
facility shall
have 10 days
from receipt of
the Division
Director's
notice to
present such
information.
(E) Following the
receipt of
information from
the facility
described in
paragraph (6)(D)
or (if no
information is
presented under
paragraph
(6)(D)) the
initial receipt
of information
described in
paragraphs (5),
(6)(A) or
(6)(B), the
Division
Director will
issue a final
written
determination
describing EPA
actions that are
necessary to
protect human
health and/or
the environment.
Any required
action described
in the Division
Director's
determination
shall become
effective
immediately,
unless the
Division
Director
provides
otherwise.
(7) Notification
Requirements:
ExxonMobil must
do the following
before
transporting the
delisted waste.
Failure to
provide this
notification
will result in a
violation of the
delisting
petition and a
possible
revocation of
the decision.
(A) Provide a one-
time written
notification to
any state
Regulatory
Agency to which
or through which
it will
transport the
delisted waste
described above
for disposal, 60
days before
beginning such
activities.
(B) For onsite
disposal a
notice should be
submitted to the
State to notify
the State that
disposal of the
delisted
materials has
begun.
(C) Update one-
time written
notification, if
it ships the
delisted waste
into a different
disposal
facility.
(D) Failure to
provide this
notification
will result in a
violation of the
delisting
exclusion and a
possible
revocation of
the decision.
* * * * * * *
------------------------------------------------------------------------
Table 2--Waste Excluded From Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * * * * *
ExxonMobil North Landfarm. Baytown, TX.............. North Landfarm
underflow water
(EPA Hazardous
Waste Numbers
F039 generated
at a maximum
rate of
1,500,000
gallons (7,427
cubic yards) per
calendar year
after
notification
that ExxonMobil
will initiate
closure of the
North Landfarm.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 2012-14780 Filed 6-18-12; 8:45 am]
BILLING CODE 6560-50-P
