Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 58315-58321 [2012-23091]
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Federal Register / Vol. 77, No. 183 / Thursday, September 20, 2012 / Rules and Regulations
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address
disproportionate human health or
environmental effects with practical,
appropriate, and legally permissible
methods under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will 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
States prior to publication of the rule in
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).
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 November 19,
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
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within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. Parties with objections to this
direct final rule are encouraged to file a
comment in response to the parallel
notice of proposed rulemaking for this
action published in the Proposed Rules
section of today’s Federal Register,
rather than file an immediate petition
for judicial review of this direct final
rule, so that EPA can withdraw this
direct final rule and address the
comment in the proposed rulemaking.
This action may not be challenged later
in proceedings to enforce its
requirements (see section 307(b)(2)).
58315
(1) Rule 1168, ‘‘Adhesive and Sealant
Applications,’’ amended on September
20, 2011.
[FR Doc. 2012–21221 Filed 9–19–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2010–0066; SW FRL–
9730–5]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Final Exclusion
List of Subjects in 40 CFR Part 52
AGENCY:
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
SUMMARY:
Dated: August 3, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code
of Federal Regulations is amended as
follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart F—California
2. Section 52.220 is amended by
adding paragraphs (c)(282)(i)(C) and
(411)(i)(C) and (D) to read as follows:
■
§ 52.220
Identification of plan.
*
*
*
*
*
(c) * * *
(282) * * *
(i) * * *
(C) Monterey Bay Unified Air
Pollution Control District
(1) Rule 205, ‘‘Provision of Sampling
and Testing Facilities,’’ revised on
March 21, 2001.
*
*
*
*
*
(411) * * *
(i) * * *
(C) San Diego County Air Pollution
Control District
(1) Rule 67.4, ‘‘Metal Container, Metal
Closure and Metal Coil Coating
Operations,’’ adopted and effective on
November 9, 2011.
(2) Rule 67.16, ‘‘Graphic Arts
Operations,’’ adopted on November 9,
2011 and effective on May 9, 2012.
(D) Antelope Valley Air Quality
Management District
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Environmental Protection
Agency.
ACTION: Final rule.
The Environmental Protection
Agency (EPA) is granting a petition
submitted by ExxonMobil Refining and
Supply Company (ExxonMobil)
Baytown Refinery to exclude from
hazardous waste control (or delist) a
certain solid waste. This final rule
responds to the petition submitted by
ExxonMobil to have the F039 underflow
water generated at the North Landfarm
(NLF) in Baytown, Texas excluded, or
delisted, from the definition of a
hazardous waste.
After careful analysis and evaluation
of comments submitted by the public,
the EPA has concluded that the
petitioned wastes are not hazardous
waste when disposed of in Subtitle D
landfills. This exclusion applies to
7,427 cubic yards per year of the F039
underflow water. Accordingly, this final
rule excludes the petitioned waste from
the requirements of hazardous waste
regulations under the Resource
Conservation and Recovery Act (RCRA)
when disposed of in Subtitle D landfills
but imposes testing conditions to ensure
that the future-generated wastes remain
qualified for delisting.
DATES: Effective Date: September 20,
2012.
The public docket for this
final rule is located at the U.S.
Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for
viewing in the EPA Freedom of
Information Act review room on the 7th
floor from 9:00 a.m. to 4:00 p.m.,
Monday through Friday, excluding
Federal holidays. Call (214) 665–6444
for appointments. The reference number
for this docket is EPA–R06–RCRA–
2012–0138. The public may copy
material from any regulatory docket at
no cost for the first 100 pages and at a
ADDRESSES:
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cost of $0.15 per page for additional
copies.
FOR FURTHER INFORMATION CONTACT: For
general information, contact Melissa
Smith, at (214) 665–7357. For technical
information concerning this notice,
contact Wendy Jacques, U. S.
Environmental Protection Agency, 1445
Ross Avenue, Dallas, Texas, (214) 665–
7395, or jacques.wendy@epa.gov.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this delisting?
C. What are the limits of this exclusion?
D. How will ExxonMobil manage the waste
if it is delisted?
E. When is the final delisting exclusion
effective?
F. How does this final rule affect states?
II. Background
A. What is a ‘‘delisting’’?
B. What regulations allow facilities to
delist a waste?
C. What information must the generator
supply?
III. EPA’s Evaluation of the Waste Data
A. What waste did ExxonMobil petition
EPA to delist?
B. How much waste did ExxonMobil
propose to delist?
C. How did ExxonMobil sample and
analyze the waste data in this petition?
IV. Public Comments Received on the
Proposed Exclusion
A. Who submitted comments on the
proposed rule?
B. Comments and Responses
V. Statutory and Executive Order Reviews
I. Overview Information
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A. What action is EPA finalizing?
After evaluating the petition, EPA
proposed on June 19, 2012, to exclude
the underflow water from the lists of
hazardous wastes under 40 CFR 261.31
and 261.32 (see 73 FR 54760). EPA is
finalizing the decision to grant
ExxonMobil’s delisting petition to have
the underflow water excluded, or
delisted from the definition of
hazardous waste subject to certain
continued verification and monitoring
conditions.
B. Why is EPA approving this delisting?
ExxonMobil’s petition requests a
delisting for the underflow water listed
as F039. ExxonMobil does not believe
that the petitioned waste meet the
criteria for which EPA listed them.
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
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Amendments of 1984 (HSWA). See
section 3001(f) of RCRA, 42 U.S.C.
6921(f), and 40 CFR 260.22 (d)(1)–(4). In
making the initial delisting
determination, EPA evaluated the
petitioned waste against the listing
criteria and factors cited in
§§ 261.11(a)(2) and (a)(3). Based on this
review, EPA agrees with the petitioner
that the waste is non-hazardous with
respect to the original listing criteria. If
EPA had found, based on this review,
that the waste remained hazardous
based on the factors for which the waste
was originally listed, EPA would have
proposed to deny the petition. EPA
evaluated the waste with respect to
other factors or criteria to assess
whether there is a reasonable basis to
believe that such additional factors
could cause the waste to be hazardous.
EPA considered whether the waste is
acutely toxic, the concentration of the
constituents in the waste, their tendency
to migrate and to bioaccumulate, their
persistence in the environment once
released from the waste, plausible and
specific types of management of the
petitioned waste, the quantities of waste
generated, and waste variability. EPA
believes that the petitioned wastes do
not meet the listing criteria and thus
should not be a listed waste. EPA’s
decision to delist wastes from the
facility is based on the information
submitted in support of this rule,
including descriptions of the waste and
analytical data from the ExxonMobil,
Beaumont, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste
described in the petition only if the
requirements described in Table 1 and
2 of part 261, Appendix IX and the
conditions contained herein are
satisfied.
D. How will ExxonMobil manage the
waste if it 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
review. Ultimately, the underflow will
enter the waste water treatment system
where it is commingled with other
wastewaters from the Baytown
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Chemical Plant and Baytown Olefins
Plant.
E. When is the final delisting exclusion
effective?
This rule is effective September 20,
2012. The Hazardous and Solid Waste
Amendments of 1984 amended Section
3010 of RCRA allows rules to become
effective in less than six months when
the regulated community does not need
the six-month period to come into
compliance. That is the case here
because this rule reduces, rather than
increases, the existing requirements for
persons generating hazardous wastes.
These reasons also provide a basis for
making this rule effective immediately,
upon publication, under the
Administrative Procedure Act, pursuant
to 5 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion
under the Federal RCRA delisting
program, only states subject to Federal
RCRA delisting provisions would be
affected. This would exclude two
categories of States: States having a dual
system that includes Federal RCRA
requirements and their own
requirements, and States who have
received our authorization to make their
own delisting decisions.
Here are the details: We allow states
to impose their own non-RCRA
regulatory requirements that are more
stringent than EPA’s, under section
3009 of RCRA. These more stringent
requirements may include a provision
that prohibits a Federally issued
exclusion from taking effect in the State.
Because a dual system (that is, both
Federal (RCRA) and State (non-RCRA)
programs) may regulate a petitioner’s
waste, we urge petitioners to contact the
State regulatory authority to establish
the status of their wastes under the State
law.
EPA has also authorized some States
(for example, Louisiana, Georgia,
Illinois) to administer a delisting
program in place of the Federal
program, that is, to make State delisting
decisions. Therefore, this exclusion
does not apply in those authorized
States. If 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 they can manage the waste as
nonhazardous in the State.
II. Background
A. What is a delisting petition?
A delisting petition is a request from
a generator to EPA or another agency
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with jurisdiction to exclude from the list
of hazardous wastes, wastes the
generator does not consider hazardous
under RCRA.
B. What regulations allow facilities to
delist a waste?
Under 40 CFR 260.20 and 260.22,
facilities may petition the EPA to
remove their wastes from hazardous
waste control by excluding them from
the lists of hazardous wastes contained
in §§ 261.31 and 261.32. Specifically,
§ 260.20 allows any person to petition
the Administrator to modify or revoke
any provision of Parts 260 through 266,
268 and 273 of Title 40 of the Code of
Federal Regulations. Section 260.22
provides generators the opportunity to
petition the Administrator to exclude a
waste on a ‘‘generator-specific’’ basis
from the hazardous waste lists.
C. What information must the generator
supply?
Petitioners must provide sufficient
information to EPA to allow the EPA to
determine that the waste to be excluded
does not meet any of the criteria under
which the waste was listed as a
hazardous waste. In addition, the
Administrator must determine where
he/she has a reasonable basis to believe
that factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be a hazardous waste, that such
factors do not warrant retaining the
waste as a hazardous waste.
III. EPA’s Evaluation of the Waste Data
A. What waste did 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.
B. How much waste did ExxonMobil
propose to delist?
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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.
C. How did ExxonMobil sample and
analyze the waste data in this petition?
To support its petition, ExxonMobil
submitted:
(1) Historical information on waste
generation and management practices;
and
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(2) Analytical results from five
samples for total concentrations of
compounds of concern (COC)s.
IV. Public Comments Received on the
Proposed Exclusion
A. Who submitted comments on the
proposed rule?
The EPA received public comments
on the June 2012, proposed rule from
two citizens. The comments and
responses are addressed below.
B. What comments were submitted on
the ExxonMobil delisting petition?
Comment: The DRAS link identified
in the Federal Register proposed rule
(i.e., https://www.epa.gov/reg5rcra/
wptdiv/hazardous/delisting/drassoftware.html) appears to be broken.
Response: The correct link is https://
www.epa.gov/Region5/waste/
hazardous/delisting/dras-software.html.
Comment: It appears that DRAS was
run using the ‘‘landfill’’ waste
management unit (WMU) input, but the
Proposed Rule states that disposal in a
surface impoundment is the most
reasonable, worst-case disposal
scenario. Do you know why the landfill
WMU was used in DRAS rather than the
surface impoundment input?
Response: This was a mistake on the
part of EPA. The delisting limits have
been reevaluated in DRAS using the
‘‘surface impoundment’’ WMU. The
updated DRAS report is in the docket
file and the new delisting limits are in
Table 1 of part 261, Appendix IX of this
rule. This error does not affect the
decision to grant the petition. In all
cases, the delisting concentration is
lower than initially proposed.
Comment: In the Proposed Rule on
page 36450, Table 1, Constituent,
Maximum Total Concentration (mg/L),
among 40 chemicals, 30 species are ND
(none detected). What EPA method was
applied? Were these ND species filtered
through soil and nature decayed in the
soil?
Response: As documented in the
laboratory analytical reports included as
Attachment 4 to the delisting petition,
the following SW–846 Methods were
utilized to analyze samples collected in
support of the delisting process: 7470
(Mercury), 6020 (Metals), 8270
(Semivolatiles), 8260 (Volatiles), 9056
(Fluoride), M4500CN E&G (Cyanide),
SM4500P E (Phosphorus), and 1613B
(Dioxins and Furans). The laboratory
Quality Assurance Plan (Attachment 2
of the delisting petition) indicates that
the analytical methods cited above are
capable of achieving the detection and
reporting limits required to characterize
the samples relative to EPA’s regulatory
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limits. A review of the laboratory
analytical results confirms the required
detection and reporting limits were
achieved. Per the EPA-approved
Sampling and Analysis Plan, the
samples were collected from the
Underflow Sump at the North Landfarm
in the ExxonMobil Baytown Refinery.
Water in the Underflow Sump originates
as rain that falls onto the landfarm plots,
as irrigation applied to the plots (in the
form of fire water, wash rack water, or
underflow water), or as liquid in
waste(s) applied to the landfarm plots.
These liquids percolate through
approximately 10 feet of waste at the
North Landfarm to a fine sand layer that
underlies the North Landfarm but
overlies a clay liner. Within said sand
layer are a series of pipes (the
Underflow Collection Lines) which
collect the percolation liquids and
convey them to the Underflow Sump.
Therefore, the samples collected are
representative of liquids that have been
‘‘filtered through soil and nature
decayed in the soil’’ and have had
sufficient opportunity to contact
constituents present therein.
V. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review’’ (58
FR 51735, October 4, 1993), this rule is
not of general applicability and
therefore is not a regulatory action
subject to review by the Office of
Management and Budget (OMB). This
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) because it
applies to a particular facility only.
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4). Because this
rule will affect only a particular facility,
it will not significantly or uniquely
affect small governments, as specified in
section 203 of UMRA. Because this rule
will affect only a particular facility, this
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
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will affect only a particular facility, this
rule does not have tribal implications,
as specified in Executive Order 13175,
‘‘Consultation and Coordination With
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000). Thus,
Executive Order 13175 does not apply
to this rule. This rule also is not subject
to Executive Order 13045, ‘‘Protection of
Children From Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant as defined in
Executive Order 12866, and because the
Agency does not have reason to believe
the environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
basis for this belief is that the Agency
used the DRAS program, which
considers health and safety risks to
infants and children, to calculate the
maximum allowable concentrations for
this rule. This rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)), because it is not a significant
regulatory action under Executive Order
12866. This rule does not involve
technical standards; thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988,
‘‘Civil Justice Reform,’’ (61 FR 4729,
February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to
eliminate drafting errors and ambiguity,
minimize potential litigation, and
provide a clear legal standard for
affected conduct. The Congressional
Review Act, 5 U.S.C. 801 et seq., as
added by the Small Business Regulatory
Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report which includes a copy of the
rule to each House of the Congress and
to the Comptroller General of the United
States. Section 804 exempts from
section 801 the following types of rules
(1) rules of particular applicability; (2)
rules relating to agency management or
personnel; and (3) rules of agency
organization, procedure, or practice that
do not substantially affect the rights or
obligations of non-agency parties 5
U.S.C. 804(3). EPA is not required to
submit a rule report regarding this
action under section 801 because this is
a rule of particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C.
6921(f).
Dated: September 10, 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 amended
as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
■
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6938.
2. In Tables 1 and 2 of Appendix IX
to part 261 add the following waste
stream in alphabetical order by facility
to read as follows:
■
Appendix IX to Part 261—Waste
Excluded Under §§ 260.20 and 260.22
TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Address
Waste description
*
ExxonMobil North
Landfarm.
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Facility
*
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—0.0779; Barium—20.6; Benzene—0.0437; Benzo(a)anthracene—0.0453; Benzo(b)fluoranthene—0.206; Benzo(k)fluoranthene—
12200; Benzo(a)pyrene—0.0297; Cadmium—0.119; Carbon tetrachloride—0.0549; Chlorobenzene—
0.951; Chloroform—0.0379; Chromium—5; Chrysene—4.53; Cobalt—0.738; Copper—51.4; o-Cresol—
200; m-Cresol—200; p-Cresol—200; 1,2-Dichloroethane—0.0463; 1,1-Dichloroethylene—0.0612; 2,4-Dinitrotoluene—0.00795; Fluoride—25.2; Hexachlorobenzene—0.0285; Hexachloroethane—0.287; Lead—
4.95;
Manganese—12.2;
Mercury—0.0291;
Methyl
ethyl
ketone—197;
Molybdenum—3.09;
Nitrobenzene—0.164; Pentachlorophenol—0.0109; Pyridine—0.328; Selenium—1.04; Silver—3.38; TotalTCDD—.00000239; Tetrachloroethylene—0.0106; Trichloroethylene—0.0439; 2,4,6-Trichlorophenol—
0.184; Vinyl Chloride—0.00386; Zinc—168.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous cannot 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:
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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
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Facility
Address
Waste description
(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.
(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. 183 / Thursday, September 20, 2012 / Rules and Regulations
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 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. 2012–23091 Filed 9–19–12; 8:45 am]
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Federal Register / Vol. 77, No. 183 / Thursday, September 20, 2012 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[EPA–HQ–SFUND–1989–0008; FRL–9729–9]
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List: Deletion
of the New Hanover County Airport
Burn Pit Superfund Site
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency Region 4 announces the
deletion of the New Hanover County
Airport Burn Pit Superfund Site (Site)
located in Wilmington, North Carolina,
from the National Priorities List (NPL).
The NPL, promulgated pursuant to
Section 105 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended, is an
appendix of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). EPA and the
State of North Carolina, through the
North Carolina Department of
Environment and Natural Resources
(DENR), have determined that all
appropriate response actions under
CERCLA have been completed.
However, this deletion does not
preclude future actions under
Superfund.
SUMMARY:
This action is effective
September 20, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–HQ–SFUND–
1989–0008. All documents in the docket
are listed on the https://
www.regulations.gov Web site. 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,
is not placed on the Internet and will be
publicly available only in the hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the site information repositories.
Locations, contacts, phone numbers
and viewing hours are:
Regional Site Information Repository:
U.S. EPA Record Center, Attn: Ms.
Debbie Jourdan, Atlanta Federal
Center, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Hours
of Operation 8 a.m.–4 p.m. (by
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DATES:
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appointment only) Monday through
Friday.
Local Site Information Repository: New
Hanover County Public Library 28401,
201 Chestnut Street, Wilmington,
North Carolina 28401.
Hours of operation: 9 a.m.–8 p.m.,
Monday and Tuesday, 9 a.m.–6 p.m.,
Wednesday and Thursday, 9 a.m.–5
p.m. Friday and Saturday, closed on
Sunday.
FOR FURTHER INFORMATION CONTACT:
Beverly Hudson-Stepter, Remedial
Project Manager, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303.
Contact No: (404) 562–8816. Electronic
mail at: stepter.beverly@epa.gov.
SUPPLEMENTARY INFORMATION: The site to
be deleted from the NPL is: New
Hanover County Airport Burn Pit
Superfund Site located in Wilmington,
North Carolina. A Notice of Intent To
Delete was published in the Federal
Register on June 22, 2012.
The closing date for comments on the
Notice of Intent to Delete was July 22,
2012. No public comments were
received during the comment period.
Therefore, a responsiveness summary
was not prepared and placed in the
docket, EPA–R04–SFUND–2012–0091,
on www.regulations.gov, or in the
repositories listed above.
EPA maintains the NPL as the list of
sites that appear to present a significant
risk to public health, welfare, or the
environment. Deletion from the NPL
does not preclude further remedial
action. Whenever there is a significant
release from a site deleted from the NPL,
the deleted site may be restored to the
NPL without application of the hazard
ranking system. Deletion of a site from
the NPL does not affect responsible
party liability in the unlikely event that
future conditions warrant further
actions.
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
9601–9657; E.O. 12777, 56 FR 54757, 3 CFR,
1991 Comp., p. 351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p. 193.
List of Subjects in 40 CFR Part 300
SUPPLEMENTARY INFORMATION:
Environmental protection; Air
pollution control; Chemicals; Hazardous
substances, Hazardous waste,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Dated: August 27, 2012.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.
For reasons set out in the preamble,
40 CFR part 300 is amended as follows:
PART 300—[AMENDED]
1. The authority citation for part 300
continues to read as follows:
■
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2. Table 1 of Appendix B to Part 300
is amended by removing ‘‘New Hanover
County Airport Burn Pit Site,’’
‘‘Wilmington, North Carolina.’’
■
[FR Doc. 2012–23153 Filed 9–19–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 110816505–2184–03]
RIN 0648–XC201
Fisheries of the Northeastern United
States; Northeast Multispecies
Fisheries Management Plan; Northern
Red Hake Quota Harvested
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
Temporary rule; possession
limit reduction.
ACTION:
The northern red hake
possession limit is reduced to the
incidental possession limit of 400 lb
(181.44 kg) for the remainder of the
2012 fishing year.
SUMMARY:
Effective at 0001 hr local time,
September 20, 2012, through 2400 hr
local time April 30, 2013.
DATES:
FOR FURTHER INFORMATION CONTACT:
Jason Berthiaume, (978) 281–9177, or
Jason.Berthiaume@noaa.gov.
The
regulations at 50 CFR 648.86(d)(4)
require that, if the NMFS Northeast
Region Administrator (Regional
Administrator) projects that 90 percent
of the total allowable landings (TAL)
has been landed for a small-mesh
multispecies stock, the Regional
Administrator shall reduce the
possession limit for that stock to the
incidental possession limit of 400 lb
(181.44 kg) for the remainder of the
fishing year.
The 2012 fishing year northern red
hake TAL is 199,077 lb (90,300 kg) (77
FR 19138; March 30, 2012) and 90
percent of the TAL is 179,169 lb (81,270
kg). Based on dealer, vessel trip report,
and other available information, NMFS
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[Federal Register Volume 77, Number 183 (Thursday, September 20, 2012)]
[Rules and Regulations]
[Pages 58315-58321]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23091]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2010-0066; SW FRL-9730-5]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is granting a
petition submitted by ExxonMobil Refining and Supply Company
(ExxonMobil) Baytown Refinery to exclude from hazardous waste control
(or delist) a certain solid waste. This final rule responds to the
petition submitted by ExxonMobil to have the F039 underflow water
generated at the North Landfarm (NLF) in Baytown, Texas excluded, or
delisted, from the definition of a hazardous waste.
After careful analysis and evaluation of comments submitted by the
public, the EPA has concluded that the petitioned wastes are not
hazardous waste when disposed of in Subtitle D landfills. This
exclusion applies to 7,427 cubic yards per year of the F039 underflow
water. Accordingly, this final rule excludes the petitioned waste from
the requirements of hazardous waste regulations under the Resource
Conservation and Recovery Act (RCRA) when disposed of in Subtitle D
landfills but imposes testing conditions to ensure that the future-
generated wastes remain qualified for delisting.
DATES: Effective Date: September 20, 2012.
ADDRESSES: The public docket for this final rule is located at the U.S.
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in the EPA Freedom of
Information Act review room on the 7th floor from 9:00 a.m. to 4:00
p.m., Monday through Friday, excluding Federal holidays. Call (214)
665-6444 for appointments. The reference number for this docket is EPA-
R06-RCRA-2012-0138. The public may copy material from any regulatory
docket at no cost for the first 100 pages and at a
[[Page 58316]]
cost of $0.15 per page for additional copies.
FOR FURTHER INFORMATION CONTACT: For general information, contact
Melissa Smith, at (214) 665-7357. For technical information concerning
this notice, contact Wendy Jacques, U. S. Environmental Protection
Agency, 1445 Ross Avenue, Dallas, Texas, (214) 665-7395, or
jacques.wendy@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this delisting?
C. What are the limits of this exclusion?
D. How will ExxonMobil manage the waste if it is delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a ``delisting''?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Data
A. What waste did ExxonMobil petition EPA to delist?
B. How much waste did ExxonMobil propose to delist?
C. How did ExxonMobil sample and analyze the waste data in this
petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. Comments and Responses
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
After evaluating the petition, EPA proposed on June 19, 2012, to
exclude the underflow water from the lists of hazardous wastes under 40
CFR 261.31 and 261.32 (see 73 FR 54760). EPA is finalizing the decision
to grant ExxonMobil's delisting petition to have the underflow water
excluded, or delisted from the definition of hazardous waste subject to
certain continued verification and monitoring conditions.
B. Why is EPA approving this delisting?
ExxonMobil's petition requests a delisting for the underflow water
listed as F039. ExxonMobil does not believe that the petitioned waste
meet the criteria for which EPA listed them. 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). 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 wastes do not meet the listing criteria
and thus should not be a listed waste. EPA's decision to delist wastes
from the facility is based on the information submitted in support of
this rule, including descriptions of the waste and analytical data from
the ExxonMobil, Beaumont, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in Table 1 and 2 of part 261, Appendix IX
and the conditions contained herein are satisfied.
D. How will ExxonMobil manage the waste if it 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 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.
E. When is the final delisting exclusion effective?
This rule is effective September 20, 2012. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA allows rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here because this rule reduces, rather than increases, the
existing requirements for persons generating hazardous wastes. These
reasons also provide a basis for making this rule effective
immediately, upon publication, under the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude two categories of
States: States having a dual system that includes Federal RCRA
requirements and their own requirements, and States who have received
our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA
regulatory requirements that are more stringent than EPA's, under
section 3009 of RCRA. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, we urge petitioners to contact the State regulatory authority to
establish the status of their wastes under the State law.
EPA has also authorized some States (for example, Louisiana,
Georgia, Illinois) to administer a delisting program in place of the
Federal program, that is, to make State delisting decisions. Therefore,
this exclusion does not apply in those authorized States. If 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 they can manage the waste as
nonhazardous in the State.
II. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to EPA or
another agency
[[Page 58317]]
with jurisdiction to exclude from the list of hazardous wastes, wastes
the generator does not consider hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control by excluding them from
the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of Parts 260 through
266, 268 and 273 of Title 40 of the Code of Federal Regulations.
Section 260.22 provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA to allow the
EPA to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste, that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Data
A. What waste did 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.
B. How much waste did ExxonMobil propose to delist?
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.
C. How did ExxonMobil sample and analyze the waste 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.
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
The EPA received public comments on the June 2012, proposed rule
from two citizens. The comments and responses are addressed below.
B. What comments were submitted on the ExxonMobil delisting petition?
Comment: The DRAS link identified in the Federal Register proposed
rule (i.e., https://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html) appears to be broken.
Response: The correct link is https://www.epa.gov/Region5/waste/hazardous/delisting/dras-software.html.
Comment: It appears that DRAS was run using the ``landfill'' waste
management unit (WMU) input, but the Proposed Rule states that disposal
in a surface impoundment is the most reasonable, worst-case disposal
scenario. Do you know why the landfill WMU was used in DRAS rather than
the surface impoundment input?
Response: This was a mistake on the part of EPA. The delisting
limits have been reevaluated in DRAS using the ``surface impoundment''
WMU. The updated DRAS report is in the docket file and the new
delisting limits are in Table 1 of part 261, Appendix IX of this rule.
This error does not affect the decision to grant the petition. In all
cases, the delisting concentration is lower than initially proposed.
Comment: In the Proposed Rule on page 36450, Table 1, Constituent,
Maximum Total Concentration (mg/L), among 40 chemicals, 30 species are
ND (none detected). What EPA method was applied? Were these ND species
filtered through soil and nature decayed in the soil?
Response: As documented in the laboratory analytical reports
included as Attachment 4 to the delisting petition, the following SW-
846 Methods were utilized to analyze samples collected in support of
the delisting process: 7470 (Mercury), 6020 (Metals), 8270
(Semivolatiles), 8260 (Volatiles), 9056 (Fluoride), M4500CN E&G
(Cyanide), SM4500P E (Phosphorus), and 1613B (Dioxins and Furans). The
laboratory Quality Assurance Plan (Attachment 2 of the delisting
petition) indicates that the analytical methods cited above are capable
of achieving the detection and reporting limits required to
characterize the samples relative to EPA's regulatory limits. A review
of the laboratory analytical results confirms the required detection
and reporting limits were achieved. Per the EPA-approved Sampling and
Analysis Plan, the samples were collected from the Underflow Sump at
the North Landfarm in the ExxonMobil Baytown Refinery. Water in the
Underflow Sump originates as rain that falls onto the landfarm plots,
as irrigation applied to the plots (in the form of fire water, wash
rack water, or underflow water), or as liquid in waste(s) applied to
the landfarm plots. These liquids percolate through approximately 10
feet of waste at the North Landfarm to a fine sand layer that underlies
the North Landfarm but overlies a clay liner. Within said sand layer
are a series of pipes (the Underflow Collection Lines) which collect
the percolation liquids and convey them to the Underflow Sump.
Therefore, the samples collected are representative of liquids that
have been ``filtered through soil and nature decayed in the soil'' and
have had sufficient opportunity to contact constituents present
therein.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this 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
[[Page 58318]]
will affect only a particular facility, this rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination With Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children From Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules (1) rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: September 10, 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 amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
0
2. In Tables 1 and 2 of Appendix IX to part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
ExxonMobil 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--0.0779;
Barium--20.6; Benzene--0.0437;
Benzo(a)anthracene--0.0453;
Benzo(b)fluoranthene--0.206;
Benzo(k)fluoranthene--12200; Benzo(a)pyrene--
0.0297; Cadmium--0.119; Carbon
tetrachloride--0.0549; Chlorobenzene--0.951;
Chloroform--0.0379; Chromium--5; Chrysene--
4.53; Cobalt--0.738; Copper--51.4; o-Cresol--
200; m-Cresol--200; p-Cresol--200; 1,2-
Dichloroethane--0.0463; 1,1-
Dichloroethylene--0.0612; 2,4-
Dinitrotoluene--0.00795; Fluoride--25.2;
Hexachlorobenzene--0.0285; Hexachloroethane--
0.287; Lead--4.95; Manganese--12.2; Mercury--
0.0291; Methyl ethyl ketone--197;
Molybdenum--3.09; Nitrobenzene--0.164;
Pentachlorophenol--0.0109; Pyridine--0.328;
Selenium--1.04; Silver--3.38; Total-TCDD--
.00000239; Tetrachloroethylene--0.0106;
Trichloroethylene--0.0439; 2,4,6-
Trichlorophenol--0.184; Vinyl Chloride--
0.00386; Zinc--168.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous
cannot 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:
[[Page 58319]]
(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.
(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 58320]]
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 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. 2012-23091 Filed 9-19-12; 8:45 am]
BILLING CODE 6560-50-P
