Hazardous Waste Management System; Identification and Listing of Hazardous Waste, 24925-24933 [2017-11231]
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FOR FURTHER INFORMATION CONTACT: Matt
Rau, Environmental Engineer, Control
Strategies Section, Air Programs Branch
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Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604,
(312) 886–6524, rau.matthew@epa.gov.
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Dated: May 4, 2017.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
[FR Doc. 2017–10926 Filed 5–30–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
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[EPA–R06–RCRA–2017–0153; FRL–9962–
44–Region 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 Oil
SUMMARY:
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Corporation Beaumont Refinery
(ExxonMobil) to exclude (or delist) the
secondary impoundment basin solids in
Beaumont, Texas from the lists of
hazardous wastes. EPA used the
Delisting Risk Assessment Software
(DRAS) Version 3.0.47 in the evaluation
of the impact of the petitioned waste on
human health and the environment.
DATES: We will accept comments until
June 30, 2017. We will stamp comments
received after the close of the comment
period as late. These late comments may
or may not be considered in formulating
a final decision. Your requests for a
hearing must reach EPA by June 15,
2017. The request must contain the
information prescribed in 40 CFR
260.20(d) (hereinafter all CFR cites refer
to 40 CFR unless otherwise stated).
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
RCRA–2017–0153, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For
technical information regarding the
ExxonMobil Beaumont Refinery
petition, contact Michelle Peace at 214–
665–7430 or by email at
peace.michelle@epa.gov.
Your requests for a hearing must
reach EPA by June 15, 2017. The request
must contain the information described
in § 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
Administrator to modify or revoke any
provision of parts 260 through 266, 268,
and 273. Section 260.22(a) specifically
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24925
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.
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 waste 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
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 can I as an interested party submit
comments?
B. How may I review the docket or obtain
copies of the proposed exclusion?
VI. Statutory and Executive Order Reviews
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I. Overview Information
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A. What action is EPA proposing?
EPA is proposing to approve the
delisting petition submitted by
ExxonMobil to have the secondary
impoundment basin (SIB) solids
excluded, or delisted from the definition
of a hazardous waste. The SIB solids are
listed as F037 (primary oil/water/solids
separation sludge); and F038 (secondary
oil/water/solids separation sludge).
B. Why is EPA proposing to approve this
delisting?
ExxonMobil’s petition requests an
exclusion from the F037 and F038 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
§§ 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 Beaumont,
Texas facility.
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C. How will ExxonMobil manage the
waste if it is delisted?
If the SIB solids are delisted,
contingent upon approval of the
delisting petition, storage containers
with SIB solids will be transported to an
authorized, solid waste landfill (e.g.
RCRA Subtitle D landfill, commercial/
industrial solid waste landfill, etc.) for
disposal.
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 USCA
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,
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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
§ 261.11(a)(2) or (a)(3), or (b) 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
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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 section 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 2016, ExxonMobil
petitioned EPA to exclude from the lists
of hazardous wastes contained in
§§ 261.31 and 261.32, SIB solids (F037,
F038) generated from its facility located
in Beaumont, 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 one-time
exclusion for 400,000 cubic yards of as
generated wet SIB solids.
B. Who is ExxonMobil and what process
does it use to generate the petitioned
waste?
ExxonMobil Beaumont Refinery
processes crude oil in the production of
a number of petroleum products,
including fuels and chemical
feedstocks. The petitioned waste, SIB
solids, originated from both historical
and current operation of the wastewater
treatment system at the refinery. To the
extent possible, hydrocarbons present in
refinery wastewaters have been
recovered. However, historically more
hydrocarbons passed through the ‘‘oil
recovery system’’ and flowed into the
SIB. Hydrocarbons in the wastewater
can result from various sources (e.g.
crude oil). Over time, more of the oily
streams were routed to storage tanks
from collection system piping and/or
smaller tanks for interception and
recovery instead of into the SIB.
Recovered oil from the oil recovery
system is stored in tanks prior to being
reintroduced into the refining process.
Historically, these oily flows occurred
in conjunction with facility operations,
were relatively routine in nature, and
not directly associated with
precipitation. As such, they were
classified by EPA as ‘‘dry weather’’
flows. By contrast, wastewater directly
associated with precipitation (i.e. storm
water) is referred to as ‘‘wet weather’’
flows. The EPA listing criteria for F037
generally encompasses primary solids
associated with dry-weather, oily flows,
and the EPA listing criteria for F038
generally encompasses secondary solids
associated with dry-weather, oily flows.
During the early 1990s, ExxonMobil
implemented a program to identify and
mitigate dry weather flows to the SIB,
and those flows have since been
eliminated. Since the SIB historically
received dry-weather, oily flows as
specified in the November 2, 1990
24927
Federal Register rule publication, the
lower stratum of solids within the pond
are believed to be classified as F037
when generated. Dry-weather, oily flows
have since been eliminated from
reaching the SIB. However, creating a
definitive ‘‘bright line’’ in the solid
stratum is not practical, so ExxonMobil
assumes that solids removed from the
SIB bear the F037 (primary oil/water/
solids separation sludge) listing when
generated. Although it is not believed
that the F038 (secondary oil/water/
solids separation sludge) listing would
apply, ExxonMobil has conservatively
elected to also include this listing as
part of the delisting effort.
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 thirty-nine
samples for total and TCLP
concentrations of compounds of
concern (COC)s;
D. What were the results of
ExxonMobil’s analysis?
EPA believes that the descriptions of
the ExxonMobil analytical
characterization provide a reasonable
basis to grant ExxonMobil’s petition for
an exclusion of the SIB solids. EPA
believes the data submitted in support
of the petition show the SIB solids are
non-hazardous. Analytical data for the
SIB solids 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 SIB
solids. 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 SIB
solids are non-hazardous.
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TABLE 1—ANALYTICAL RESULTS/MAXIMUM ALLOWABLE DELISTING CONCENTRATION
Secondary Impoundment Basin (SIB) Solids ExxonMobil Beaumont Refinery, Beaumont, Texas
Maximum total
concentration
(mg/kg)
Constituent
Antimony ......................................................................................................................................
Arsenic .........................................................................................................................................
Barium ..........................................................................................................................................
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4.84
33.6
455
31MYP1
Maximum
TCLP
concentration
(mg/L)
0.023
0.077
1.47
Maximum
TCLP delisting
level
(mg/L)
.109
.424
36
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TABLE 1—ANALYTICAL RESULTS/MAXIMUM ALLOWABLE DELISTING CONCENTRATION—Continued
Secondary Impoundment Basin (SIB) Solids ExxonMobil Beaumont Refinery, Beaumont, Texas
Maximum total
concentration
(mg/kg)
Constituent
Beryllium ......................................................................................................................................
Cadmium ......................................................................................................................................
Chromium ....................................................................................................................................
Cobalt ...........................................................................................................................................
Lead .............................................................................................................................................
Mercury ........................................................................................................................................
Nickel ...........................................................................................................................................
Selenium ......................................................................................................................................
Silver ............................................................................................................................................
Vanadium .....................................................................................................................................
Zinc ..............................................................................................................................................
2,4 Dimethylphenol ......................................................................................................................
2-Methylphenol ............................................................................................................................
3-Methylphenol ............................................................................................................................
4-Methylphenol ............................................................................................................................
Acenaphthene ..............................................................................................................................
Anthracene ...................................................................................................................................
Benz(a)anthracene ......................................................................................................................
Benz(a)pyrene .............................................................................................................................
Bis(2-ethylhexyl)phthalate ............................................................................................................
Chrysene ......................................................................................................................................
Di-n-butyl phthalate ......................................................................................................................
Fluoranthene ................................................................................................................................
Fluorene .......................................................................................................................................
Indeno(1,2,3-cd)pyrene ................................................................................................................
Naphthalene .................................................................................................................................
Phenol ..........................................................................................................................................
Pyrene ..........................................................................................................................................
Benzene .......................................................................................................................................
Xylenes, total ...............................................................................................................................
1.38
2.05
697
19.4
400
3.61
68.2
28.7
1.23
90.7
2470
0.97
0<0.71
<0.64
<0.64
1.7
2.9
7.2
5
34
19
0.66
2.1
4.9
2.6
26
<0.71
N/A
1.1
53
Maximum
TCLP
concentration
(mg/L)
<0.002
<0.002
0.205
0.0371
0.656
0.000049
0.152
0.0177
0.002
0.0815
5.43
0.0018
<.000033
0.002
0.00047
0.00091
0.00019
0.000034
<0.00003
0.0002
0.000048
0.0013
0.000078
0.0016
<0.000051
0.02
0.00025
0.00019
<0.004
0.18
Maximum
TCLP delisting
level
(mg/L)
2.0
0.09
2.27
0.214
0.702
0.068
13.5
0.890
5.0
3.77
197
11.3
28.9
28.9
2.89
10.6
25.9
0.07
26.3
106,000
7.01
24.6
2.46
4.91
73
0.0327
173
4.45
0.077
9.56
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.
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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
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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
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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’’).
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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.
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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 landfill.
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 SIB solids.
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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 SIB solids will not
impose any threat to human health and
the environment.
Thus, EPA believes ExxonMobil
should be granted an exclusion for the
SIB solids. EPA believes the data
submitted in support of the petition
show ExxonMobil’s SIB solids are nonhazardous. 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 SIB
solids are non-hazardous.
EPA therefore, proposes to grant an
exclusion to ExxonMobil in Beaumont,
Texas, for the SIB solids 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 SIB solids.
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.
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 SIB solids, below which
these wastes would be considered nonhazardous. 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
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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 SIB solids that contains
hazardous levels of inorganic and
organic constituents according to
Subtitle C of RCRA. Managing the SIB
solids as a hazardous waste until the
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 SIB
solids to assure that the solids do not
exceed the maximum levels specified in
paragraph (1) of the exclusion language.
This verification program will occur as
wastes are removed from the basin and
scheduled for disposal. The volume of
wastes removed from the basin may not
exceed 400,000 cubic yards of as
generated wet SIB solids material. Any
as generated SIB solids waste in excess
of 400,000 cubic yards must be disposed
as hazardous waste 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 verification testing
program demonstrate that the SIB solids
meet the delisting levels, ExxonMobil
may commence disposing of the solids
for a period of one year. EPA will notify
ExxonMobil in writing, if and when it
begins and ends disposal of the SIB
solids.
(4) Data Submittals:
To provide appropriate
documentation that ExxonMobil’s SIB
solids meet 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 (4) 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 400,000 cubic
yards of as generated wet SIB solids
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generated at the ExxonMobil Beaumont
Refinery after successful verification
testing. EPA would require ExxonMobil
to file a new delisting petition for waste
generated in excess of the as generated
wet 400,000 cubic yards and treat the
solids as hazardous waste:
ExxonMobil must manage waste
volumes greater than as generated wet
400,000 cubic yards of the SIB solids 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
SIB solids from ExxonMobil will be
disposed of in an authorized, solid
waste landfill (e.g. RCRA Subtitle D
landfill, commercial/industrial solid
waste landfill, etc.).
(5) 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 and 62
FR 63458 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.
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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 section 553 (b).
(6) 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 sixty (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 Kishor Fruitwala, Section
Chief (6MM–RP), Multimedia Division,
Environmental Protection Agency
(EPA), 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202. Identify your
comments at the top with this regulatory
docket number: ‘‘EPA–R6–RCRA–2017–
0153, ExxonMobil Beaumont Refinery
Secondary Impoundment Basin Solids
delisting.’’ You may submit your
comments electronically to Michelle
Peace at peace.michelle@epa.gov.
You should submit requests for a
hearing to Kishor Fruitwala, Section
Chief (6MM–RP), Multimedia Division,
Environmental Protection Agency
(EPA), 1445 Ross Avenue, Suite 1200,
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, Suite
1200, Dallas, Texas 75202. It is available
for viewing in EPA Freedom of
Information Act Review Room from 9:00
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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 either 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
the environmental health or safety risks
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addressed by this action present a
disproportionate risk to children. The
basis for this belief is that the Agency
used DRAS, which considers health and
safety risks to children, to calculate the
maximum allowable concentrations for
this rule. This rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)), because it is not a significant
regulatory action under Executive Order
12866. This rule does not involve
technical standards; thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988,
‘‘Civil Justice Reform’’, (61 FR 4729,
February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to
eliminate drafting errors and ambiguity,
minimize potential litigation, and
provide a clear legal standard for
affected conduct.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report which includes a
copy of the rule to each House of the
Congress and to the Comptroller General
of the United States. Section 804
exempts from section 801 the following
types of rules: (1) Rules of particular
applicability; (2) rules relating to agency
management or personnel; and (3) rules
of agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report
regarding today’s action under section
801 because this is a rule of particular
applicability. Executive Order (EO)
12898 (59 FR 7629 (Feb. 16, 1994))
establishes Federal executive policy on
environmental justice. Its main
provision directs Federal agencies, to
the greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. The Agency’s risk
assessment did not identify risks from
management of this material in an
authorized, solid waste landfill (e.g.
24931
RCRA Subtitle D landfill, commercial/
industrial solid waste landfill, etc.).
Therefore, EPA believes that any
populations in proximity of the landfills
used by this facility should not be
adversely affected by common waste
management practices for this delisted
waste.
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 2, 2017.
Wren Stenger,
Director, Multimedia 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 table 1 of appendix IX to part 261
add the entry ‘‘ExxonMobil’’ in
alphabetical order to read as follows:
■
Appendix IX to Part 261—Wastes
Excluded Under §§ 260.20 and 260.22
TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES
Facility
Address
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Beaumont, TX ............. Secondary Impoundment Basin Solids (SIB) (EPA Hazardous Waste Numbers F037 and
F038) generated at a maximum rate of as generated wet 400,000 cubic yards.
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.
Secondary Impoundment Basin Solids (SIB). Leachable Concentrations (mg/l): Antimony—
0.109; Arsenic—0.424; Barium-36; Beryllium—2.0 Cadmium-0.09; Chromium-2.27; Cobalt0.214; Lead-0.702; Mercury-0.068; Nickel-13.5; Selenium-0.890; Silver-5.0; Vanadium-3.77;
Zinc-197; 2,4 Dimethylphenol-11.3; 2-Methylphenol-28.9; 3-Methylphenol-28.9; 4-Methylphenol-2.89;
Acenaphthene-10.6;
Anthracene-25.9;
Benz(a)anthracene-0.07;
Benz(a)pyrene-26.3; Bis(2-ethylhexyl) phthalate-106,000 Chrysene-7.01; Di-n-butyl phthalate-24.6; Fluoranthene-2.46; Fluorene-4.91 Indeno (1,2,3-cd) pyrene-73; Naphthalene0.0327; Phenol—173; Pyrene-4.45; Benzene-0.077; Xylenes, total-9.56
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous cannot begin until compliance with the limits set in
paragraph (1) for the SIB solids are verified.
(B) If constituent levels in any sample and retest sample taken by ExxonMobil exceed any of
the delisting levels set in paragraph (1) for the SIB solids, ExxonMobil must do the following:
(i) notify EPA in accordance with paragraph (5) and
(ii) manage and dispose the SIB solids as hazardous waste generated under Subtitle C of
RCRA.
(3) Testing Requirements:
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TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
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Facility
Address
Waste description
ExxonMobil must perform analytical testing by sampling and analyzing the SIB solids as follows: (i) Collect a representative sample of the SIB solids for analysis of all constituents
listed in paragraph (1) prior to disposal.
(ii) The samples for the annual testing shall be a representative 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 SIB solids are representative for all constituents listed in paragraph (1).
(4) 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 Section Chief, 6MM–RP, Multimedia
Division, U. S. Environmental Protection Agency Region 6, 1445 Ross Ave., Suite 1200,
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 onsite for a minimum of five years.
(C) Furnish these records and data when either EPA or the State of Texas requests them for
inspection.
(D) Send along with all data a signed copy of the following certification statement, to attest to
the truth and accuracy of the data submitted:
‘‘Under civil and criminal penalty of law for the making or submission of false or fraudulent
statements or representations (pursuant to the applicable provisions of the Federal Code,
which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that
the information contained in or accompanying this document is true, accurate and complete.
As to the (those) identified section(s) of this document for which I cannot personally verify its
(their) truth and accuracy, I certify as the company official having supervisory responsibility
for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete.
If any of this information is determined by EPA in its sole discretion to be false, inaccurate or
incomplete, and upon conveyance of this fact to the company, I recognize and agree that
this exclusion of waste will be void as if it never had effect or to the extent directed by EPA
and that the company will be liable for any actions taken in contravention of the company’s
RCRA and CERCLA obligations premised upon the company’s reliance on the void exclusion.’’
(5) 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 verification 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.
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TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
(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.
(6) 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.
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Agencies
[Federal Register Volume 82, Number 103 (Wednesday, May 31, 2017)]
[Proposed Rules]
[Pages 24925-24933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11231]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2017-0153; FRL-9962-44-Region 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
Oil Corporation Beaumont Refinery (ExxonMobil) to exclude (or delist)
the secondary impoundment basin solids in Beaumont, Texas from the
lists of hazardous wastes. EPA used the Delisting Risk Assessment
Software (DRAS) Version 3.0.47 in the evaluation of the impact of the
petitioned waste on human health and the environment.
DATES: We will accept comments until June 30, 2017. We will stamp
comments received after the close of the comment period as late. These
late comments may or may not be considered in formulating a final
decision. Your requests for a hearing must reach EPA by June 15, 2017.
The request must contain the information prescribed in 40 CFR 260.20(d)
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2017-0153, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For technical information regarding
the ExxonMobil Beaumont Refinery petition, contact Michelle Peace at
214-665-7430 or by email at peace.michelle@epa.gov.
Your requests for a hearing must reach EPA by June 15, 2017. The
request must contain the information described in Sec. 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
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 waste 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 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 can I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VI. Statutory and Executive Order Reviews
[[Page 24926]]
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to approve the delisting petition submitted by
ExxonMobil to have the secondary impoundment basin (SIB) solids
excluded, or delisted from the definition of a hazardous waste. The SIB
solids are listed as F037 (primary oil/water/solids separation sludge);
and F038 (secondary oil/water/solids separation sludge).
B. Why is EPA proposing to approve this delisting?
ExxonMobil's petition requests an exclusion from the F037 and F038
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
Beaumont, Texas facility.
C. How will ExxonMobil manage the waste if it is delisted?
If the SIB solids are delisted, contingent upon approval of the
delisting petition, storage containers with SIB solids will be
transported to an authorized, solid waste landfill (e.g. RCRA Subtitle
D landfill, commercial/industrial solid waste landfill, etc.) for
disposal.
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 USCA 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 (b) 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
[[Page 24927]]
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 section
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 2016, ExxonMobil petitioned EPA to exclude from the lists
of hazardous wastes contained in Sec. Sec. 261.31 and 261.32, SIB
solids (F037, F038) generated from its facility located in Beaumont,
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 one-time exclusion for
400,000 cubic yards of as generated wet SIB solids.
B. Who is ExxonMobil and what process does it use to generate the
petitioned waste?
ExxonMobil Beaumont Refinery processes crude oil in the production
of a number of petroleum products, including fuels and chemical
feedstocks. The petitioned waste, SIB solids, originated from both
historical and current operation of the wastewater treatment system at
the refinery. To the extent possible, hydrocarbons present in refinery
wastewaters have been recovered. However, historically more
hydrocarbons passed through the ``oil recovery system'' and flowed into
the SIB. Hydrocarbons in the wastewater can result from various sources
(e.g. crude oil). Over time, more of the oily streams were routed to
storage tanks from collection system piping and/or smaller tanks for
interception and recovery instead of into the SIB. Recovered oil from
the oil recovery system is stored in tanks prior to being reintroduced
into the refining process. Historically, these oily flows occurred in
conjunction with facility operations, were relatively routine in
nature, and not directly associated with precipitation. As such, they
were classified by EPA as ``dry weather'' flows. By contrast,
wastewater directly associated with precipitation (i.e. storm water) is
referred to as ``wet weather'' flows. The EPA listing criteria for F037
generally encompasses primary solids associated with dry-weather, oily
flows, and the EPA listing criteria for F038 generally encompasses
secondary solids associated with dry-weather, oily flows. During the
early 1990s, ExxonMobil implemented a program to identify and mitigate
dry weather flows to the SIB, and those flows have since been
eliminated. Since the SIB historically received dry-weather, oily flows
as specified in the November 2, 1990 Federal Register rule publication,
the lower stratum of solids within the pond are believed to be
classified as F037 when generated. Dry-weather, oily flows have since
been eliminated from reaching the SIB. However, creating a definitive
``bright line'' in the solid stratum is not practical, so ExxonMobil
assumes that solids removed from the SIB bear the F037 (primary oil/
water/solids separation sludge) listing when generated. Although it is
not believed that the F038 (secondary oil/water/solids separation
sludge) listing would apply, ExxonMobil has conservatively elected to
also include this listing as part of the delisting effort.
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 thirty-nine samples for total and TCLP
concentrations of compounds of concern (COC)s;
D. What were the results of ExxonMobil's analysis?
EPA believes that the descriptions of the ExxonMobil analytical
characterization provide a reasonable basis to grant ExxonMobil's
petition for an exclusion of the SIB solids. EPA believes the data
submitted in support of the petition show the SIB solids are non-
hazardous. Analytical data for the SIB solids 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 SIB solids. 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 SIB solids are non-hazardous.
Table 1--Analytical Results/Maximum Allowable Delisting Concentration
Secondary Impoundment Basin (SIB) Solids ExxonMobil Beaumont Refinery, Beaumont, Texas
----------------------------------------------------------------------------------------------------------------
Maximum total Maximum TCLP Maximum TCLP
Constituent concentration concentration delisting
(mg/kg) (mg/L) level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony........................................................ 4.84 0.023 .109
Arsenic......................................................... 33.6 0.077 .424
Barium.......................................................... 455 1.47 36
[[Page 24928]]
Beryllium....................................................... 1.38 <0.002 2.0
Cadmium......................................................... 2.05 <0.002 0.09
Chromium........................................................ 697 0.205 2.27
Cobalt.......................................................... 19.4 0.0371 0.214
Lead............................................................ 400 0.656 0.702
Mercury......................................................... 3.61 0.000049 0.068
Nickel.......................................................... 68.2 0.152 13.5
Selenium........................................................ 28.7 0.0177 0.890
Silver.......................................................... 1.23 0.002 5.0
Vanadium........................................................ 90.7 0.0815 3.77
Zinc............................................................ 2470 5.43 197
2,4 Dimethylphenol.............................................. 0.97 0.0018 11.3
2-Methylphenol.................................................. 0<0.71 <.000033 28.9
3-Methylphenol.................................................. <0.64 0.002 28.9
4-Methylphenol.................................................. <0.64 0.00047 2.89
Acenaphthene.................................................... 1.7 0.00091 10.6
Anthracene...................................................... 2.9 0.00019 25.9
Benz(a)anthracene............................................... 7.2 0.000034 0.07
Benz(a)pyrene................................................... 5 <0.00003 26.3
Bis(2-ethylhexyl)phthalate...................................... 34 0.0002 106,000
Chrysene........................................................ 19 0.000048 7.01
Di-n-butyl phthalate............................................ 0.66 0.0013 24.6
Fluoranthene.................................................... 2.1 0.000078 2.46
Fluorene........................................................ 4.9 0.0016 4.91
Indeno(1,2,3-cd)pyrene.......................................... 2.6 <0.000051 73
Naphthalene..................................................... 26 0.02 0.0327
Phenol.......................................................... <0.71 0.00025 173
Pyrene.......................................................... N/A 0.00019 4.45
Benzene......................................................... 1.1 <0.004 0.077
Xylenes, total.................................................. 53 0.18 9.56
----------------------------------------------------------------------------------------------------------------
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.
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'').
[[Page 24929]]
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 landfill. 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
SIB solids.
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 SIB solids will not impose any
threat to human health and the environment.
Thus, EPA believes ExxonMobil should be granted an exclusion for
the SIB solids. EPA believes the data submitted in support of the
petition show ExxonMobil's SIB solids are 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 SIB solids are non-hazardous.
EPA therefore, proposes to grant an exclusion to ExxonMobil in
Beaumont, Texas, for the SIB solids 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 SIB solids.
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.
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 SIB solids, 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 SIB solids that contains hazardous levels of
inorganic and organic constituents according to Subtitle C of RCRA.
Managing the SIB solids as a hazardous waste until the 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 SIB solids to assure that the solids do not exceed the maximum
levels specified in paragraph (1) of the exclusion language. This
verification program will occur as wastes are removed from the basin
and scheduled for disposal. The volume of wastes removed from the basin
may not exceed 400,000 cubic yards of as generated wet SIB solids
material. Any as generated SIB solids waste in excess of 400,000 cubic
yards must be disposed as hazardous waste 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 verification testing program demonstrate that the SIB
solids meet the delisting levels, ExxonMobil may commence disposing of
the solids for a period of one year. EPA will notify ExxonMobil in
writing, if and when it begins and ends disposal of the SIB solids.
(4) Data Submittals:
To provide appropriate documentation that ExxonMobil's SIB solids
meet 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 (4) 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
400,000 cubic yards of as generated wet SIB solids
[[Page 24930]]
generated at the ExxonMobil Beaumont Refinery after successful
verification testing. EPA would require ExxonMobil to file a new
delisting petition for waste generated in excess of the as generated
wet 400,000 cubic yards and treat the solids as hazardous waste:
ExxonMobil must manage waste volumes greater than as generated wet
400,000 cubic yards of the SIB solids 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 SIB solids from ExxonMobil will be disposed of in an
authorized, solid waste landfill (e.g. RCRA Subtitle D landfill,
commercial/industrial solid waste landfill, etc.).
(5) 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 and 62 FR 63458 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 section 553 (b).
(6) 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 sixty (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 Kishor
Fruitwala, Section Chief (6MM-RP), Multimedia Division, Environmental
Protection Agency (EPA), 1445 Ross Avenue, Suite 1200, Dallas, Texas
75202. Identify your comments at the top with this regulatory docket
number: ``EPA-R6-RCRA-2017-0153, ExxonMobil Beaumont Refinery Secondary
Impoundment Basin Solids delisting.'' You may submit your comments
electronically to Michelle Peace at peace.michelle@epa.gov.
You should submit requests for a hearing to Kishor Fruitwala,
Section Chief (6MM-RP), Multimedia Division, Environmental Protection
Agency (EPA), 1445 Ross Avenue, Suite 1200, 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, Suite
1200, 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 either
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 the environmental health or safety risks
[[Page 24931]]
addressed by this action present a disproportionate risk to children.
The basis for this belief is that the Agency used DRAS, which considers
health and safety risks to children, to calculate the maximum allowable
concentrations for this rule. This rule is not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)),
because it is not a significant regulatory action under Executive Order
12866. This rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988, ``Civil Justice Reform'', (61 FR
4729, February 7, 1996), in issuing this rule, EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report which includes a copy of the rule to
each House of the Congress and to the Comptroller General of the United
States. Section 804 exempts from section 801 the following types of
rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report regarding today's action under section
801 because this is a rule of particular applicability. Executive Order
(EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive
policy on environmental justice. Its main provision directs Federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The Agency's risk assessment did not identify risks from
management of this material in an authorized, solid waste landfill
(e.g. RCRA Subtitle D landfill, commercial/industrial solid waste
landfill, etc.). Therefore, EPA believes that any populations in
proximity of the landfills used by this facility should not be
adversely affected by common waste management practices for this
delisted waste.
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 2, 2017.
Wren Stenger,
Director, Multimedia 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
0
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.
0
2. In table 1 of appendix IX to part 261 add the entry ``ExxonMobil''
in alphabetical order to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
ExxonMobil........................... Beaumont, TX........... Secondary Impoundment Basin Solids (SIB) (EPA
Hazardous Waste Numbers F037 and F038)
generated at a maximum rate of as generated wet
400,000 cubic yards.
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.
Secondary Impoundment Basin Solids (SIB).
Leachable Concentrations (mg/l): Antimony--
0.109; Arsenic--0.424; Barium-36; Beryllium--
2.0 Cadmium-0.09; Chromium-2.27; Cobalt-0.214;
Lead-0.702; Mercury-0.068; Nickel-13.5;
Selenium-0.890; Silver-5.0; Vanadium-3.77; Zinc-
197; 2,4 Dimethylphenol-11.3; 2-Methylphenol-
28.9; 3-Methylphenol-28.9; 4-Methylphenol-2.89;
Acenaphthene-10.6; Anthracene-25.9;
Benz(a)anthracene-0.07; Benz(a)pyrene-26.3;
Bis(2-ethylhexyl) phthalate-106,000 Chrysene-
7.01; Di-n-butyl phthalate-24.6; Fluoranthene-
2.46; Fluorene-4.91 Indeno (1,2,3-cd) pyrene-
73; Naphthalene-0.0327; Phenol--173; Pyrene-
4.45; Benzene-0.077; Xylenes, total-9.56
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous cannot
begin until compliance with the limits set in
paragraph (1) for the SIB solids are verified.
(B) If constituent levels in any sample and
retest sample taken by ExxonMobil exceed any of
the delisting levels set in paragraph (1) for
the SIB solids, ExxonMobil must do the
following:
(i) notify EPA in accordance with paragraph (5)
and
(ii) manage and dispose the SIB solids as
hazardous waste generated under Subtitle C of
RCRA.
(3) Testing Requirements:
[[Page 24932]]
ExxonMobil must perform analytical testing by
sampling and analyzing the SIB solids as
follows: (i) Collect a representative sample of
the SIB solids for analysis of all constituents
listed in paragraph (1) prior to disposal.
(ii) The samples for the annual testing shall be
a representative 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 SIB
solids are representative for all constituents
listed in paragraph (1).
(4) 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 Section Chief, 6MM-RP, Multimedia
Division, U. S. Environmental Protection Agency
Region 6, 1445 Ross Ave., Suite 1200, Dallas,
Texas 75202, within the time specified. All
supporting data can be submitted on CD-ROM or
comparable electronic media.
(B) Compile records of analytical data from
paragraph (3), summarized, and maintained on-
site for a minimum of five years.
(C) Furnish these records and data when either
EPA or the State of Texas requests them for
inspection.
(D) Send along with all data a signed copy of
the following certification statement, to
attest to the truth and accuracy of the data
submitted:
``Under civil and criminal penalty of law for
the making or submission of false or fraudulent
statements or representations (pursuant to the
applicable provisions of the Federal Code,
which include, but may not be limited to, 18
U.S.C. 1001 and 42 U.S.C. 6928), I certify that
the information contained in or accompanying
this document is true, accurate and complete.
As to the (those) identified section(s) of this
document for which I cannot personally verify
its (their) truth and accuracy, I certify as
the company official having supervisory
responsibility for the persons who, acting
under my direct instructions, made the
verification that this information is true,
accurate and complete.
If any of this information is determined by EPA
in its sole discretion to be false, inaccurate
or incomplete, and upon conveyance of this fact
to the company, I recognize and agree that this
exclusion of waste will be void as if it never
had effect or to the extent directed by EPA and
that the company will be liable for any actions
taken in contravention of the company's RCRA
and CERCLA obligations premised upon the
company's reliance on the void exclusion.''
(5) 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 verification 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.
[[Page 24933]]
(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.
(6) 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.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2017-11231 Filed 5-30-17; 8:45 am]
BILLING CODE 6560-50-P