Hazardous Waste Management System; Identification and Listing of Hazardous Waste;Proposed Rule, 66742-66751 [2023-20408]
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Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules
Major Facilities without an Operating
Permit),’’ section 8.1, ‘‘Definitions;’’
subchapter 16, ‘‘Control and Prohibition
of Air Pollution by Volatile Organic
Compounds;’’ subchapter 17, ‘‘Control
and Prohibition of Air Pollution by
Toxic Substances;’’ subchapter 19,
‘‘Control and Prohibition of Air
Pollution by Oxides of Nitrogen;’’
subchapter 21, ‘‘Emission Statements;’’
and Chapter 27A, subchapter 3.10,
‘‘Civil Administrative Penalties for
Violations of Rules Adopted Pursuant to
the Act,’’ with State effective dates of
January 16, 2018. The EPA is soliciting
public comments on the issues
discussed in this document. These
comments will be considered before
taking final action.
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V. Incorporation by Reference
In this document, the EPA is
proposing to include regulatory text that
includes incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is proposing to
incorporate by reference revisions to
N.J.A.C. 7:27 subchapter 8, ‘‘Permits and
Certificates for Minor Facilities (and
Major Facilities without an Operating
Permit),’’ section 8.1, ‘‘Definitions;’’
subchapter 16, ‘‘Control and Prohibition
of Air Pollution by Volatile Organic
Compounds;’’ subchapter 17, ‘‘Control
and Prohibition of Air Pollution by
Toxic Substances;’’ subchapter 18,
‘‘Control and Prohibition of Air
Pollution from New or Altered Sources
Affecting Ambient Air Quality
(Emission Offset Rules);’’ subchapter 19,
‘‘Control and Prohibition of Air
Pollution by Oxides of Nitrogen;’’
subchapter 21, ‘‘Emission Statements;’’
and Chapter 27A, subchapter 3.10,
‘‘Civil Administrative Penalties for
Violations of Rules Adopted Pursuant to
the Act’’ as described in section II, of
this preamble. The EPA has made, and
will continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 2 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law(s)
as meeting federal requirements and
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does not impose additional
requirements beyond those imposed by
state law(s). For that reason, this
proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a state program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act.
In addition, this proposed SIP will not
apply on any Indian reservation land or
in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rules do not have
Tribal implications and will not impose
substantial direct costs on Tribal
governments or preempt Tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies
to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
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regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The NJDEP evaluated environmental
justice as part of its SIP submittal even
though the CAA and applicable
implementing regulations neither
prohibit nor require an evaluation. The
EPA’s evaluation of the NJDEP’s
environmental justice considerations is
described above in the section titled,
‘‘Environmental Justice
Considerations.’’ The analysis was done
for the purpose of providing additional
context and information about this
rulemaking to the public, not as a basis
of the action. The EPA is taking action
under the CAA on bases independent of
New Jersey’s evaluation of
environmental justice. Due to the nature
of the action being taken here, this
action is expected to have a neutral to
positive impact on the air quality of the
affected area. In addition, there is no
information in the record upon which
this decision is based that is
inconsistent with the stated goal of E.O.
12898 of achieving environmental
justice for people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ammonia,
Incorporation by reference,
Intergovernmental relations, Nitrogen
oxides, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2023–21138 Filed 9–27–23; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2023–0040; FRL–11286–
01–R6]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste;Proposed Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules
The Environmental Protection
Agency (EPA) is proposing to grant an
exclusion from the list of hazardous
wastes to WRB Refining LP (Petitioner)
located in Borger, Texas. This action
responds to a petition to exclude (or
‘‘delist’’) up to 7,000 cubic yards per
year of solids removed from four
stormwater tanks from the list of federal
hazardous wastes when disposed of in
a Resource Conservation Recovery Act
(RCRA) Subtitle D Landfill. The EPA is
proposing to grant the petition based on
an evaluation of waste-specific
information provided by the Petitioner.
A previous proposed action was
published in the Federal Register on
November 23, 2022, that proposed to
grant this petition (see Docket ID
Number EPA–R06–RCRA–2022–0653).
However, after the proposed rule was
published, EPA received notification
during the public comment period from
the Petitioner that the table detailing the
delisting constituents and levels was
incorrect. After review, EPA agreed that
the information contained in the table in
question was incorrect. EPA has
corrected the table to reflect the
appropriate constituents and values and
is withdrawing the previously
published proposed rule from
November 23, 2022. EPA is issuing a
new action proposing to grant the
petition, which will include a new 30day comment period.
DATES: Comments on this proposed
exclusion must be received by October
30, 2023.
ADDRESSES: Submit your comments by
one of the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
• Email: shah.harry@epa.gov.
Instructions: The EPA must receive
your comments by October 30, 2023.
Direct your comments to Docket ID
Number EPA–R06–RCRA–2023–0040.
The EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI), or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov, or email. The
Federal regulations.gov website is an
‘‘anonymous access’’ system, which
means the EPA will not know your
identity or contact information unless
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SUMMARY:
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you provide it in the body of your
comment. If you send an email
comment directly to the EPA without
going through regulations.gov, your
email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
internet. If you submit an electronic
comment, the EPA recommends that
you include your name and other
contact information in the body of your
comment with any CBI you submit. If
the EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, the EPA
may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption and be free of any defects
or viruses.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov. Although listed in
the index, some information is not
publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy.
You can view and copy the delisting
petition and associated publicly
available docket materials either
through www.regulations.gov or at: EPA,
Region 6, 1201 Elm Street, Suite 500,
Dallas, Texas 75270. The EPA facility is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays and facility closures
due to COVID–19. We recommend that
you telephone Harry Shah, at (214) 665–
6457, before visiting the Region 6 office.
Interested persons wanting to examine
these documents should make an
appointment with the office.
FOR FURTHER INFORMATION CONTACT:
Harry Shah, (214) 665–6457,
shah.harry@epa.gov. Out of an
abundance of caution for members of
the public and our staff, the EPA Region
6 office may be closed to the public to
reduce the risk of transmitting COVID–
19. We encourage the public to submit
comments via https://
www.regulations.gov, as there will be a
delay in processing mail and no courier
or hand deliveries will be accepted.
Please call or email the contact listed
above if you need alternative access to
material indexed but not provided in
the docket.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview Information
II. Background
A. What is the history of the delisting
program?
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66743
B. What is a delisting petition, and what
does it require of a petitioner?
C. What factors must the EPA consider in
deciding whether to grant a delisting
petition?
D. Environmental Justice Evaluation
III. The EPA’s Evaluation of the Waste
Information and Data
A. What waste did the Petitioner petition
the EPA to delist?
B. How did the Petitioner generate the
waste?
C. How did the Petitioner sample and
analyze the petitioned waste?
D. What factors did the EPA consider in
deciding whether to grant the delisting
petition?
E. How did the EPA evaluate the risk of
delisting this waste?
F. What did the EPA conclude?
IV. Conditions for Exclusion
A. How will the Petitioner manage the
waste if it is delisted?
B. What are the maximum allowable
concentrations of hazardous constituents
in the waste?
C. How frequently must the Petitioner test
the waste?
D. What data must the Petitioner submit?
E. What happens if the Petitioner fails to
meet the conditions of the exclusion?
F. What must the Petitioner do if the
process changes?
V. When would the EPA finalize the
proposed delisting exclusion?
VI. How would this action affect states?
VII. Public Comments Received From the
Previous Proposed Exclusion
A. Who submitted comments on the
previous proposed rule?
B. Comments Submitted on the November
23, 2022, Proposed Rule (Docket ID
Number EPA–R06–RCRA–2022–0653)
VIII. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant a May
2020 petition (‘‘Delisting Petition for
Stormwater Solids’’) request submitted
by WRB Refining LP in Borger, Texas to
exclude (or ‘‘delist’’) up to 7,000 cubic
yards per year of F037 stormwater solids
from the list of federal hazardous waste
set forth in 40 CFR 261.3 (hereinafter,
all sectional references are to 40 CFR
unless otherwise indicated). The
Petitioner claims that the petitioned
wastes do not meet the criteria for
which the EPA listed it, and that there
are no additional constituents or factors
which could cause the waste to be
hazardous. Based on our review
described in Section III, we propose to
approve the petition request, and allow
the delisted waste to be disposed in a
Subtitle D landfill. A copy of the May
2020 petition is located in the docket to
this proposal action.
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Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules
II. Background
A. What is the history of the delisting
program?
The 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. The EPA has amended
this list several times and codifies the
list in §§ 261.31 and 261.32.
The EPA lists the Petitioner’s wastes
as hazardous because: (1) the wastes
typically and frequently exhibit one or
more of the characteristics of hazardous
wastes identified in Subpart C of part
261 (that is, ignitability, corrosivity,
reactivity, and toxicity), (2) the wastes
meet the criteria for listing contained in
§ 261.11(a)(2) or (a)(3), or (3) the wastes
are mixed with or derived from the
treatment, storage or disposal of such
characteristic and listed wastes and
which therefore become hazardous
under § 261.3(a)(2)(iv) or (c)(2)(i),
known as the ‘‘mixture’’ or ‘‘derivedfrom’’ rules, respectively.
Individual waste streams may vary,
however, depending on raw materials,
industrial processes, and other factors.
Thus, while a waste described in these
part 261 regulations or resulting from
the operation of the mixture or derivedfrom 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 the 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?
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A delisting petition is a request from
a facility to the EPA or an authorized
state to exclude wastes from the list of
hazardous wastes. The facility petitions
the EPA because it does not consider the
waste as hazardous under RCRA
regulations.
In a delisting petition, the petitioner
must show that wastes generated at a
particular facility do not meet any of the
criteria for which the waste was listed.
The criteria for which the EPA lists a
waste are in 40 CFR part 261 and further
explained in the background documents
for the listed waste in the June 30, 1992
publication of the ‘‘Final Best
Demonstrated Available Technology
(BDAT) Background Document for
Newly Listed Refinery Wastes F037 and
F038’’ (https://nepis.epa.gov/Exe/
ZyNET.exe/
P100VUGS.TXT?ZyActionD=
ZyDocument&
Client=EPA&Index=1991+Thru+1994&
Docs=&Query=&Time=&EndTime=&
SearchMethod=1&TocRestrict=n&
Toc=&TocEntry=&QField=&
QFieldYear=&QFieldMonth=&
QFieldDay=&IntQFieldOp=0&
ExtQFieldOp=0&XmlQuery=&
File=D%3A%5Czyfiles%5CIndex%20
Data%5C91thru94%5CTxt%5
C00000035%5CP100VUGS.txt&
User=ANONYMOUS&
Password=anonymous&SortMethod=
h%7C-&MaximumDocuments=
1&FuzzyDegree=0&ImageQuality=
r75g8/r75g8/x150y150g16/
i425&Display=hpfr&DefSeekPage=x&
SearchBack=ZyActionL&Back=
ZyActionS&
BackDesc=Results%20page&
MaximumPages=1&
ZyEntry=1&SeekPage=x&ZyPURL).
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 must 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.
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 the EPA consider
in deciding whether to grant a delisting
petition?
Besides considering the criteria in 40
CFR 260.22(a) and § 3001(f) of RCRA, 42
U.S.C. 6921(f), and in the background
documents for the listed wastes, EPA
must consider any factors (including
additional constituents) aside from
those for which EPA listed the waste, if
a reasonable basis exists that these
additional factors could cause the waste
to be hazardous.
The EPA must also consider
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).
D. Environmental Justice Evaluation
To better meet EPA’s ‘‘responsibilities
related to the protection of public health
and the environment, EPA has
developed a new environmental justice
(EJ) mapping and screening tool called
EJ Screen’’ that reports values as a
percentile when compared to a state or
the nation. ‘‘It is based on nationally
consistent data and an approach that
combines environmental and
demographic indicators in maps and
reports,’’ (https://www.epa.gov/
ejscreen). EPA is providing analysis of
environmental justice associated with
this action. We are doing so for the
purpose of providing information to the
public, not as a basis of our final action.
EPA utilized EJScreen to evaluate
potential environmental justice
concerns in communities at one-,
three-, and five-mile radiuses around
the Borger facility. EPA considers the
potential for EJ concerns in a
community when one or more of the 13
supplemental EJ indices is at or above
the 80th percentile when compared to
the rest of the USA. At the one-mile
radial measurement, six supplemental
EJ indices exceeded the 80th percentile,
at the three-mile radial measurement,
five supplemental EJ indices exceeded
the 80th percentile, and at the five-mile
radial measurement, three supplemental
EJ indices exceeded the 80th percentile.
This information is provided below in
Table 1. More information on EJ Screen,
including an explanation of the 13 EJ
indices can be found at www.epa.gov/
ejscreen/what-ejscreen.
TABLE 1—SUPPLEMENTAL EJ INDICES AT ONE-, THREE-, AND FIVE-MILE RADIUSES AROUND THE FACILITY
Supplemental EJ index
(USA percentile)
Particulate Matter 2.5 Supplemental Index ...............................................................
Ozone Supplemental Index .......................................................................................
Diesel Particulate Matter Supplemental Index ..........................................................
Air Toxics Cancer Risk Supplemental Index .............................................................
Air Toxics Respiratory HI Supplemental Index .........................................................
Toxic Releases to Air Supplemental Index ...............................................................
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1 Mile radius
around the facility
3 Mile radius
around the facility
5 Mile radius
around the facility
13
81
62
44
27
92
12
79
60
43
26
89
11
75
53
40
25
86
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TABLE 1—SUPPLEMENTAL EJ INDICES AT ONE-, THREE-, AND FIVE-MILE RADIUSES AROUND THE FACILITY—Continued
Supplemental EJ index
(USA percentile)
1 Mile radius
around the facility
3 Mile radius
around the facility
5 Mile radius
around the facility
68
84
44
92
79
84
85
61
83
42
91
71
80
83
57
79
39
88
65
75
81
Traffic Proximity Supplemental Index ........................................................................
Lead Paint Supplemental Index ................................................................................
Superfund Proximity Supplemental Index .................................................................
RMP Facility Proximity Supplemental Index .............................................................
Hazardous Waste Proximity Supplemental Index .....................................................
Underground Storage Tanks Supplemental Index ....................................................
Wastewater Discharge Supplemental Index .............................................................
III. The EPA’s Evaluation of the Waste
Information and Data
A. What waste did the Petitioner
petition the EPA to delist?
In May 2020, WRB Refining LP
petitioned the EPA to exclude from the
list of hazardous wastes contained in
§ 261.31, stormwater tank solids (F037)
generated from its facility located in
Borger, Texas. The waste falls under the
classification of listed waste pursuant to
§ 261.31. Specifically, in its petition,
WRB Refining requested that the EPA
grant a standard exclusion for 7,000
cubic yards per year of the stormwater
tank solids.
B. How did the Petitioner generate the
waste?
The principal products manufactured
at the Refinery are gasoline, diesel,
aviation fuel, natural gas liquids (NGL),
petroleum coke, and solvents. The
stormwater tanks are active and have
been in operation for approximately 25
years. To restore capacity in the
stormwater tanks, the Borger Refinery
will be removing accumulated solids.
The solids removal process will
typically occur within a calendar year
and will be an ongoing operational item
for the refinery in the future.C
The solids are removed from the four
stormwater tanks. These tanks are listed
as the North Stormwater Tank, West
Stormwater Tank, North Dropout Basin,
and West Grit Trap (hereafter
collectively referred to as ‘‘the
stormwater tanks’’). The four
stormwater tanks are identified as solid
waste management unit (SWMU) No. 50
on the facility’s notice of registration
(NOR) with the Texas Commission on
Environmental Quality (TCEQ).
The stormwater tanks 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
stormwater tanks. 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 stormwater tanks. 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 the EPA as ‘‘dry
weather’’ flows. By contrast, wastewater
directly associated with precipitation
(i.e., stormwater) is referred to as ‘‘wet
weather’’ flows. The EPA listing criteria
for F037 generally encompasses primary
solids associated with dry-weather, oily
flows.
Since the stormwater tanks receive
what could be classified as dry-weather,
oily flows as specified in the November
2, 1990, Federal Register rule
publication (55 FR 46354, Nov. 2, 1990),
the solids within the four tanks are
believed to be classified as F037 when
generated. WRB Refining assumes that
solids removed from the stormwater
tanks bear the F037 (primary oil/water/
solids separation sludge) listing when
generated.
C. How did the Petitioner sample and
analyze the petitioned waste?
A total of eight acceptable sample
results were provided by Petitioner to
support the petition. The EPA
considered all 8 samples of the
stormwater tank solids and the disposal
scenario of the landfill was modeled
using the Delisting Risk Assessment
Software. The worst-case scenario of the
constituents’ concentrations for the
F037 solids were used as input in the
model to determine if it would meet the
hazardous waste criteria for which it
was listed. The maximum total and
leachate concentrations for the
inorganic and organic constituents
which were found in the analytical data
provided by Petitioner are presented in
Table 2.
TABLE 2—MAXIMUM TOTAL AND TCLP CONCENTRATIONS
Maximum total
concentration
(mg/kg)
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Chemical name
Acenaphthene ..............................................................................................................................................
Acetone ........................................................................................................................................................
Anthracene ...................................................................................................................................................
Antimony ......................................................................................................................................................
Arsenic .........................................................................................................................................................
Barium ..........................................................................................................................................................
Benz(a)anthracene ......................................................................................................................................
Benzene .......................................................................................................................................................
Benzo(a)pyrene ...........................................................................................................................................
Benzo(b)fluoranthene ..................................................................................................................................
Benzo(k)fluoranthene ...................................................................................................................................
Beryllium ......................................................................................................................................................
Bis(2-ethylhexyl)phthalate ............................................................................................................................
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0.04
<0.0033
0.18
6.93
10.5
732
0.26
0.19
0.19
0.17
0.16
0.91
1.2
28SEP1
Maximum TCLP
concentration
(mg/l)
<0.00030
<0.040
<0.00030
0.0293
0.0277
3.1
<0.00030
<0.012
<0.00040
<0.00040
<0.00070
<0.0020
<0.00080
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TABLE 2—MAXIMUM TOTAL AND TCLP CONCENTRATIONS—Continued
Maximum total
concentration
(mg/kg)
Chemical name
Cadmium ......................................................................................................................................................
Carbon disulfide ...........................................................................................................................................
Chlorobenzene .............................................................................................................................................
Chloroform ...................................................................................................................................................
Chromium ....................................................................................................................................................
Chrysene ......................................................................................................................................................
Cobalt ...........................................................................................................................................................
Dibenz(a,h)anthracene ................................................................................................................................
1,2-Dichlorobenzene ....................................................................................................................................
1,3-Dichlorobenzene ....................................................................................................................................
1,4-Dichlorobenzene ....................................................................................................................................
1,1-Dichloroethane .......................................................................................................................................
1,2-Dichloroethane .......................................................................................................................................
1,1-Dichloroethylene ....................................................................................................................................
Diethyl phthalate ..........................................................................................................................................
Dimethyl phthalate .......................................................................................................................................
2,4-Dimethylphenol ......................................................................................................................................
Di-n-butyl-phthalate ......................................................................................................................................
2,4-Dinitrophenol ..........................................................................................................................................
1,4-Dioxane ..................................................................................................................................................
Ethylbenzene ...............................................................................................................................................
Fluoranthrene ...............................................................................................................................................
Fluorene .......................................................................................................................................................
Indeno(1,2,3-cd)pyrene ................................................................................................................................
Lead .............................................................................................................................................................
Mercury ........................................................................................................................................................
Methyl ethyl ketone ......................................................................................................................................
Naphthalene .................................................................................................................................................
Nickel ...........................................................................................................................................................
4-Nitrophenol ...............................................................................................................................................
Phenanthrene ..............................................................................................................................................
Phenol ..........................................................................................................................................................
Pyrene ..........................................................................................................................................................
Pyridine ........................................................................................................................................................
Selenium ......................................................................................................................................................
Silver ............................................................................................................................................................
Styrene .........................................................................................................................................................
Tetrachloroethylene .....................................................................................................................................
Toluene ........................................................................................................................................................
1,1,1-Trichloroethane ...................................................................................................................................
Trichloroethylene (1,1,2-Trichloroethylene) .................................................................................................
Vanadium .....................................................................................................................................................
Xylenes, Total ..............................................................................................................................................
Zinc ..............................................................................................................................................................
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D. What factors did the EPA consider in
deciding whether to grant the delisting
petition?
In reviewing this petition, we
considered the original listing criteria
and the additional factors required by
the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See
§ 222 of HSWA, 42 U.S.C. 6921(f), and
40 CFR 260.22(d)(2) through (4). We
evaluated the petitioned wastes against
the listing criteria and factors cited in
§ 261.11(a)(2) and (3).
In addition to the criteria in 40 CFR
260.22(a), 261.11(a)(2) and (3), 42 U.S.C.
6921(f), and in the background
documents for the listed wastes, the
EPA also considered factors (including
additional constituents) other than those
for which EPA listed the waste if these
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additional factors could cause the waste
to be hazardous (See the background
documents).
Our proposed decision to grant the
May 2020 petition to delist the waste
from Petitioner’s facility in Borger,
Texas is based on our evaluation of the
wastes for factors or criteria which
could cause the waste to be hazardous.
These factors included: (1) Whether the
waste is considered acutely toxic; (2) the
toxicity of the constituents; (3) the
concentration of the constituents in the
waste; (4) the tendency of the
constituents to migrate and to
bioaccumulate; (5) the persistence in the
environment of any constituents once
released from the waste; (6) plausible
and specific types of management of the
petitioned waste; (7) the quantity of
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1.03
0.026
<0.00098
<0.00082
80.8
0.34
13.3
0.061
<0.0099
<0.0099
<0.017
<0.00082
<0.00098
<0.00082
<0.017
0.034
<0.054
0.0057
<0.074
<0.033
0.0063
0.84
0.17
0.12
301
1.58
0.092
0.18
439
<0.031
1.2
<0.018
0.92
<0.015
2.8
0.08
<0.0011
<0.0011
0.036
<0.00082
<0.00098
50.4
0.087
930
Maximum TCLP
concentration
(mg/l)
0.00689
<0.018
<0.0080
<0.012
0.00495
<0.00080
0.0355
<0.00060
<0.00040
<0.00050
<0.00040
<0.0080
<0.010
<0.010
<0.00070
<0.00050
<0.00040
<0.00080
<0.00050
<0.82
<0.010
<0.00040
<0.00050
<0.00060
0.974
<0.000030
<0.020
0.0047
0.142
<0.00060
<0.00040
<0.00040
<0.00030
<0.00030
<0.0110
<0.00200
<0.010
<0.012
<0.010
<0.010
0.010
<0.00600
<0.010
2.76
waste produced; and (8) waste
variability.
The EPA must also consider as
hazardous wastes mixtures containing
listed hazardous wastes and wastes
derived from treating, storing, or
disposing of listed hazardous waste. See
40 CFR 261.3(a)(2)(iv) and (c)(2)(i),
called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. Mixture and
derived-from wastes are also eligible for
exclusion but remain hazardous until
excluded.
E. How did the EPA evaluate the risk of
delisting this waste?
For this proposed delisting
determination, we evaluated the risk
that the waste would be disposed of as
a non-hazardous waste in a landfill. We
considered transport of waste
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constituents through groundwater,
surface water and air. We evaluated
Petitioner’s analysis of the petitioned
waste using the Delisting Risk
Assessment Software (DRAS) to predict
the concentration of hazardous
constituents that might be released from
the petitioned waste and to determine if
the waste would pose a threat to human
health and the environment. The DRAS
software and associated documentation
can be found at www.epa.gov/hw/
hazardous-waste-delisting-riskassessment-software-dras.
To predict the potential for release to
groundwater from landfilled wastes and
subsequent routes of exposure to a
receptor, the DRAS uses dilution
attenuation factors derived from the
EPA’s Composite Model for leachate
migration with transformation products.
From a release to groundwater, the
DRAS considers routes of exposure to a
human receptor through ingestion of
contaminated groundwater, inhalation
from groundwater while showering and
dermal contact from groundwater while
bathing.
From a release to surface water by
erosion of waste from an open landfill
into storm water run-off, DRAS
evaluates the exposure to a human
receptor by fish ingestion and ingestion
of drinking water. From a release of
waste particles and volatile emissions to
air from the surface of an open landfill,
DRAS considers routes of exposure of
inhalation of volatile constituents,
inhalation of particles, and air
deposition of particles on residential
soil and subsequent ingestion of the
contaminated soil by a child. The
technical support document and the
user’s guide to DRAS are available at
https://www.epa.gov/hw/hazardouswaste-delisting-risk-assessmentsoftware-dras.
F. What did the EPA conclude?
Petitioner stated in its petition that
the petitioned waste meets the criteria
of F037 for which the EPA listed it.
Petitioner also stated that no additional
constituents or factors could cause the
waste to be hazardous. Petitioner also
stated that disposal in a landfill will not
adversely impact human health or the
environment. The EPA’s review of this
petition included consideration of the
original listing criteria, and the
additional factors required by the
Hazardous and Solid Waste
Amendments of 1984 (HSWA). See
section 3001(f) of RCRA, 42 U.S.C.
6921(f), and CFR 260.22(d)(1)–(4). In
making the initial delisting
determination, the EPA evaluated the
petitioned waste against the listing
criteria and factors cited in
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§ 261.11(a)(2) and (a)(3). Based on this
review, the EPA agrees with the
Petitioner that the petitioned waste is
nonhazardous with respect to the
original listing criteria. (If the EPA had
found, based on this review, that the
waste remained hazardous based on the
factors for which the waste was
originally listed, the EPA would
propose to deny the petition.) The EPA
evaluated the waste with respect to
other factors or criteria to assess
whether there is a reasonable basis to
believe that such additional factors
could cause the waste to be hazardous.
The EPA considered whether the waste
is acutely toxic, the concentration of the
constituents in the waste, their tendency
to migrate and to bioaccumulate, their
persistence in the environment once
released from the waste, plausible and
specific types of management of the
petitioned waste, the quantities of waste
generated, and waste The EPA believes
that the petitioned waste does not meet
the listing criteria and thus, should not
be a listed waste. The EPA’s proposed
decision to delist the waste from
Petitioner’s facility is based on the
information submitted in support of this
rule, including descriptions of the
wastes and analytical data from the
Borger, Texas facility, and that is
contained in the Petition and
attachments, all of which are included
in the docket to this action.
IV. Conditions for Exclusion
A. How will the Petitioner manage the
waste if it is delisted?
If the petitioned wastes are delisted as
proposed, the Petitioner must dispose of
them in a Subtitle D landfill which is
permitted, licensed, or registered by a
state to manage industrial waste or in
the on-site landfill.
B. What are the maximum allowable
concentrations of hazardous
constituents in the waste?
The EPA notes that in some instances
the maximum allowable total
constituent concentrations provided by
the DRAS model exceed 100% of the
waste—these DRAS results are an
artifact of the risk calculations that do
not have physical meaning. In instances
where DRAS predicts a maximum
constituent greater than 100 percent of
the waste (that is, greater than 1,000,000
mg/kg or mg/L, respectively, for total
and TCLP concentrations), the EPA is
not proposing to require the Petitioner
to perform sampling and analysis for
that constituent and sampling type (total
or TCLP).
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C. How frequently must the Petitioner
test the waste?
The testing approach for this waste
stream will be conducted as generated.
Prior to disposal of any future tank
cleanouts, Petitioner must conduct
sampling and analysis as described in
the delisting sampling and analysis plan
and ensure that the wastes do not
exceed the delisting parameters. If
compliance with the delisting
parameters is demonstrated with
analytical testing (TCLP analysis), the
Petitioner may dispose of the tank
cleanouts. The annual amount of solids
generated from the tank clean outs may
not exceed 7,000 cubic yards. The
annual sampling report shall include
the volume of solids disposed of in the
landfill, as well as annual testing event
data. The petitioner should monitor and
report increasing trends of constituents
which will affect the overall compliance
with the stormwater discharge permit.
D. What data must the Petitioner
submit?
The Petitioner must submit the data
obtained through verification testing to
U.S. EPA Region 6, Office of Land,
Chemicals and Redevelopment Division,
1201 Elm Street, Suite 500, M/C 6LCR–
RP, Dallas, Texas 75270–2102, within
30 days after receiving the final results
from the laboratory. These results may
be submitted electronically to Harry
Shah, shah.harry@epa.gov. The
Petitioner must make those records
available for inspection. All data must
be accompanied by a signed copy of the
certification statement in 40 CFR
260.22(i)(12).
E. What happens if the Petitioner fails
to meet the conditions of the exclusion?
If this Petitioner violates the terms
and conditions established in the
exclusion, the Agency may start
procedures to withdraw the exclusion.
Additionally, the terms of the exclusion
provide that ‘‘[a]ny waste volume for
which representative composite
sampling does not reflect full
compliance with the exclusion criteria
must continue to be managed as
hazardous.’’
If the testing of the waste does not
demonstrate compliance with the
delisting concentrations described in
section IV.C above, or other data
(including but not limited to leachate
data or groundwater monitoring data
from the final land disposal facility)
relevant to the delisted waste indicates
that any constituent is at a
concentration in waste above specified
delisting verification concentrations in
Table 1, the Petitioner must notify the
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Agency within 10 days, or such later
date as the EPA may agree to in writing,
after receiving the final verification
testing results from the laboratory or of
first possessing or being made aware of
other relevant data. The EPA may
require the Petitioner to conduct
additional verification sampling to
better define the particular volume of
wastes within the affected unit that does
not fully satisfy delisting criteria. For
any volume of wastes for which the
corresponding representative sample(s)
do not reflect full compliance with
delisting exclusion levels, the exclusion
by its terms does not apply, and the
waste must be managed as hazardous.
The EPA has the authority under
RCRA and the Administrative
Procedures Act, 5 U.S.C. 551 (1978) et
seq. to reopen a delisting decision if we
receive new information indicating that
the conditions of this exclusion have
been violated or, are otherwise not being
met.
F. What must the Petitioner do if the
process changes?
Any process changes or additions
implemented at Petitioner’s facility
which would significantly impact the
constituent concentrations of the waste
must be reported to the EPA in
accordance with Condition VI. of the
exclusion language.
ddrumheller on DSK120RN23PROD with PROPOSALS1
V. When would the EPA finalize the
proposed delisting exclusion?
HSWA specifically requires the EPA
to provide notice and an opportunity for
public comment before granting or
denying a final exclusion. Thus, the
EPA will not make a final decision or
grant an exclusion until it has addressed
all timely public comments, including
any at public hearings. Upon receipt
and consideration of all comments, the
EPA will publish its final determination
as a final rule. Since this rule would
reduce the existing requirements for
persons generating hazardous wastes,
the regulated community does not need
a six-month period to come into
compliance in accordance with § 3010
of RCRA, as amended by HSWA.
VI. How would this action affect states?
Because the EPA is proposing to issue
this exclusion under the federal RCRA
delisting regulations, only states subject
to federal RCRA delisting provisions
will be affected. This exclusion may not
be effective in states which have
received authorization from the EPA to
make their own delisting decisions.
RCRA allows states to impose more
stringent regulatory requirements than
RCRA’s under § 3009 of RCRA. These
more stringent requirements may
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include a provision that prohibits a
federally-issued exclusion from taking
effect in the state. We urge Petitioners
to contact the state regulatory authority
to establish the status of its wastes
under the state law.
The EPA has also authorized some
states to administer a delisting program
in place of the federal program, that is,
to make state delisting decisions.
Therefore, this exclusion does not apply
in those states. If the Petitioner manages
the wastes in any state with delisting
authorization, the Petitioner must obtain
delisting authorization or other
determination from the receiving state
before it can manage the waste as
nonhazardous in that state.
VII. Public Comments Received From
the Previous Proposed Exclusion
A. Who submitted comments on the
previous proposed rule?
The EPA received four public
comments on the November 23, 2022
(87 FR 71532), proposed rule via
regulations.gov and email submittal.
The previous proposed rule has since
been withdrawn due to a discrepancy
with information contained in the
Federal Register publication, which was
brought to EPA’s attention by the
Petitioner. The Petitioner subsequently
submitted a public comment via email
during the public comment period to
the EPA Region 6 office identifying the
discrepancy regarding the delisting
constituents and values listed in the
table titled ‘‘Appendix IX to Part 261
Wastes Excluded Under §§ 260.2 and
260.22’’ (see comment 4). Since the
previous proposed rule was withdrawn,
the four previously submitted public
comments will be addressed under a
new proposed rule at the conclusion of
a new 30-day comment period.
B. Comments Submitted on the
November 23, 2022, Proposed Rule
(Docket ID Number EPA–R06–RCRA–
2022–0653)
Comment 1. ‘‘Although I am not sure
where I stand overall on delisting the
waste in question, I do believe that the
processes in which this decision was
made were appropriate. I trust the EPA
in its decision to approve delisting the
waste and removal of solids at WRB
Refining LP in Borger, Texas. The how
this decision was made could have been
a lot more careless. However, the EPA
took a lot into consideration and tested
multiple samples from the petitioner’s
facility and agreed with the petitioner
that the wastes are nonhazardous. It also
did an environmental justice evaluation.
Environmental justice is often
overlooked when it comes to making
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decisions concerning discarding waste.
This proposed rule is a great example of
how to go about making such decisions
while taking caution.’’
Comment 2. ‘‘I appose this rule/
exception being passed through. When
you take the table and look at some of
the chemicals that make up this storm
drain runoff products there are some
very hazardous chemicals that make up
these products. One chemical that
makes up this product is Beryllium.
Beryllium can be lethal in humans and
cause a variety of health concerns.
According to the EPA website
‘‘beryllium is toxic at 0.002 milligrams
per kilogram body weight per day (mg/
kg/d)’’ (Beryllium compounds—US
EPA). Using this equation the average
size man weighing 200lbs can only be
exposed to .4mg a day. That is roughly
only 146mg a year. The refinery is
requesting that they be allowed to dump
.91mg per kg a year into a nonhazardous
waste landfill. That would mean that
they would be dumping enough
material (Beryllium) to lethally infect
50,000 people per year.’’
Comment 3. ‘‘I believe that to not
consider stormwater as a hazardous
waste is a bold statement, but since a lot
of measures are taken to ensure this is
not a health hazard for animals and for
humans. I think if it keeps being
measured how many toxic chemicals
this stormwater has before being
disposed somewhere else. Since the
stormwater waste is going to be
disposed in a landfill that is permitted
to manage industrial waste, this can give
a sense of safety, but it is not truly
known how this landfill will manage
and treat this waste, and if it will do it
correctly to ensure that no animals have
contact or do not get poisoned by the
stormwater. Stormwater usually has
many toxic chemicals that can pollute
water sources such as oil, pesticides,
antifreeze, grease and other types of
chemicals that can be dangerous and
poisonous to the environment and the
wildlife that inhabit these water
sources. Also, one of the consequences
is that they can cause toxic algae blooms
that sink and decompose in the water
removing oxygen from it. Animals and
other organisms can’t live in water with
low dissolved oxygen levels. It can also
contaminate drinking water supplies if
not treated properly. These
consequences should be kept in mind
before agreeing, as the public, to these
types of petitions. If stormwater is
treated properly in a treatment plant
this can reduce how hazardous this
might be. Since the stormwater that the
petitioner wants to delist as a possible
hazard has such small amounts of these
toxic chemicals, it makes sense why the
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EPA thinks to delist this waste. One of
the examples of this small amounts is
Arsenic, which is a solid that occurs
naturally in water and soil but that is
also produced industrially in big
quantities. The amount of Arsenic that
is considered as a hazard is 6.1 while
the amount of arsenic that the
stormwater in this facility has it’s 0.1.
However, all these amounts need to be
tested each time that the facility wants
to dispose of them, to ensure that it is
still not considered a hazard, which is
one of the rules of EPA to consider the
petition of the facility. I think if it is
proved that the stormwater waste from
this facility is treated properly in this
landfills, it is safe to say that this would
not be a hazard for humans or wildlife.
Comment 4. ‘‘On November 23, 2022,
EPA published the draft delisting
petition for WRB Refining LP
(Petitioner), which was submitted in
May 2020. On behalf of WRB Refining
LP and Big Star Consulting LLC, please
accept the comments to the draft
publication that are contained herein.
The delisting levels calculated using
EPA’s Delisting Risk Assessment
Software (DRAS) were presented in the
2020 petition request and subsequently
updated in March 2022 using DRAS
Version 4.0. The delisting values
reflected in the Federal Register are not
in agreement with the calculated values.
Specifically, it appears that the delisting
values published on November 23rd
were inadvertently carried forward from
a prior delisting petition. We
respectfully request that Item (1) in the
table found on Page 71538 of the
Federal Register be revised to reflect the
following desilting levels:
Stormwater Solids Leachate:
Acenapthene—219; Anthracene—534;
Antimony—2.52; Arsenic—0.266;
Barium—100; Benz(a)anthracene—10.5;
Benzo(a)pyrene—3,960;
Benzo(b)fluoranthene—33,700;
Benzene—1.59; 2-Butanone—7,150;
Cadmium—1.0; Carbondisulfide—1,150;
Chromium—1.56; Chrysene—1,050;
Cobalt—5.56; Di-n-butyl-phthalate—
507; Ethylbenzene—16.2;
Fluoranthrene—50.7; Fluorene—101;
Indeno(1,2,3-cd)pyrene—3.71; Lead—
5.0; Mercury—0.2; Napthalene—1.95;
Nickel—279; Pyrene—91.7; Selenium—
1.0; Silver—5.0; Toluene—311;
Vanadium—85.6; Xylenes, Total—177;
Zinc—4,060.
VIII. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
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A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This proposed action is exempt from
review by the Office of Management and
Budget because it is a rule of particular
applicability, not general applicability.
The proposed action approves a
delisting petition under RCRA for the
petitioned waste at a particular facility.
B. Paperwork Reduction Act
This proposed action 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 only applies to a
particular facility.
C. Regulatory Flexibility Act
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provision of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
D. Unfunded Mandates Reform Act
This proposed action does not contain
any unfunded mandate as described in
the Unfunded Mandates Reform Act (2
U.S.C. 1531–1538) and does not
significantly or uniquely affect small
governments. The action imposes no
new enforceable duty on any state,
local, or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This proposed action 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.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This proposed action does not have
tribal implications as specified in
Executive Order 13175. This proposed
action applies only to a particular
facility on non-tribal land. Thus,
Executive Order 13175 does not apply
to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This proposed action is not subject to
Executive Order 13045 because it is not
economically significant as defined in
Executive Order 13045 and because the
EPA does not believe the environmental
health or safety risks addressed by this
action present a disproportionate risk to
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66749
children. This proposed action’s health
and risk assessments using the Agency’s
Delisting Risk Assessment Software
(DRAS), which considers health and
safety risks to children, are described in
section III.E above. The technical
support document and the user’s guide
for DRAS are included in the docket.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This proposed action is not subject to
Executive Order 13211, because it is not
a significant regulatory action under
Executive Order 13211.
I. National Technology Transfer and
Advancement Act
This proposed action does not involve
technical standards as described by the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note).
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
Feb. 16, 1994) directs federal agencies to
identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies,’’ (https://www.epa.gov/
environmentaljustice/learn-aboutenvironmental-justice).
The EPA believes that this proposed
action does not have disproportionately
high and adverse human health or
environmental effects on minority
populations, low-income populations,
and/or indigenous peoples. The EPA
has determined that this proposed
action 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
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provided to human health or the
environment. The Agency’s risk
assessment, as described in section III.E
above, 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.) or
the on-site landfill. Therefore, the EPA
believes that any populations in
proximity of the landfills used by the
Borger facility should not be adversely
affected by common waste management
practices for this delisted waste.
K. Congressional Review Act
This proposed action is exempt from
the Congressional Review Act (5 U.S.C.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
801 et seq.) because it is a rule of
particular applicability.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
List of Subjects in 40 CFR Part 261
Dated: September 14, 2023.
Monica Smith,
Acting Director, Land, Chemicals and
Redevelopment Division.
*
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
2. Amend table 1 of Appendix IX to
part 261, by adding an entry for ‘‘WRB
Refining LP’’ at the end of the table to
read as follows:
■
For the reasons set out in the
preamble, the EPA proposes to amend
40 CFR part 261 as follows:
*
1. The authority citation for part 261
continues to read as follows:
■
Environmental protection, Hazardous
waste, Recycling, and Reporting and
recordkeeping requirements.
Appendix IX to Part 261 Wastes
Excluded Under §§ 260.20 and 260.22
*
*
*
Facility
Address
Waste description
WRB Refining LP ....
Borger, Texas ......
Stormwater Solids (the EPA Hazardous Waste No. F037) generated at a maximum generation of
7,000 cubic yards per calendar year after (date rule finalized) and disposed in a landfill. WRB Refining must implement a verification program that meets the following Paragraphs:
(1) Delisting Levels: All leachable constituent concentrations must not exceed the following levels.
The petitioner must use the method specified in 40 CFR 261.24 to measure constituents in the
waste leachate (mg/L). Stormwater Solids Leachate: Acenaphthene—219; Anthracene—534; Antimony 2.52; Arsenic—0.266; Barium—100; Benz(a)anthracene—10.5; Benzene—0.5;
Benzo(a)pyrene—3,960; Beryllium—2.95; Cadmium—1; Carbon disulfide—1,150; Chlorobenzene—31.1; Chloroform—1.64; Chromium—1.56; Chrysene—1,050; Cobalt—5.56; Di-n-butyl
phthalate—507; 1,2-Dichlorobenzene—192; 1,4-Dichlorobenzene—4.26; 1,1-Dichloroethane—
1,080; 1,2-Dichloroethane—0.5; 1,1-Dichloroethylene—0.7; 2,4-Dimethylphenol—234; 2,4Dinitrophenol—23.8; 1,4-Dioxane—2.32; Ethylbenzene—16.2; Fluoranthene—50.7; Fluorene—
101; Lead—5; Mercury—0.2; Methyl ethyl ketone—200; Napthalene—1.95; Nickel—279; Phenol—3,580; Pyrene—91.7; Pyridine—5; Selenium—1; Silver—5; Styrene—31.1;
Tetrachloroethylene—0.7; Toluene—311; Trichloroethylene—0.5; Vanadium—85.6; Xylenes—177;
Zinc—4,060
(2) Waste Holding and Handling:
(A) All stormwater solids from tank clean outs must be tested to assure they have met the concentrations described in Paragraph (1). Solids that do not meet the concentrations must be
disposed of as hazardous waste.
(B) Levels of constituents measured in the samples of the solids that do not exceed the levels
set forth in Paragraph (1) are non-hazardous. WRB Refining can manage and dispose the
non-hazardous stormwater solids according to all applicable solid waste regulations.
(C) WRB Refining must maintain a record of the actual volume of the stormwater solids to be
disposed in the Subtitle D or on-site landfill according to the requirements in Paragraph (4).
(3) Changes in Operating Conditions: If WRB Refining significantly changes the process described in its petition or starts any processes that may or could affect the composition or type
of waste generated as established under Paragraph (1) (by illustration, but not limitation,
changes in equipment or operating conditions of the treatment process), they must notify the
EPA in writing; they may no longer handle the wastes generated from the new process as
nonhazardous until the test results of the wastes meet the delisting levels set in Paragraph
(1) and they have received written approval to do so from the EPA.
(4) Data Submittals: WRB Refining must submit the information described below. If WRB Refining fails to submit the required data within the specified time or maintain the required records
on-site for the specified time, the EPA, at its discretion, will consider this sufficient basis to
reopen the exclusion as described in Paragraph 5. WRB Refining must:
(A) Submit the data obtained through Paragraph 3 to the Chief, RCRA Permits & Solid Waste
Section, Mail Code, (6LCR–RP) US EPA Region 6, 1201 Elm Street, Suite 500, Dallas, TX
75270 within the time specified. Data may be submitted via email to the technical contact for
the delisting program.
(B) Compile records of operating conditions and analytical data from Paragraph (3), summarized, and maintained on-site for a minimum of five years.
(C) Furnish these records and data when the EPA or the State of Texas request them for inspection.
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Facility
(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 the 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 the 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, any time after disposal of the delisted waste, WRB Refining possesses or is otherwise
made aware of any environmental data (including but not limited to leachate data or ground
water monitoring data) or any other data relevant to the delisted waste indicating that any
constituent identified for the delisting verification testing is at level higher than the delisting
level allowed by the Division Director in granting the petition, then the facility must report the
data, in writing, to the Division Director within 10 days of first possessing or being made
aware of that data.
(B) If the verification testing of the waste does not meet the delisting requirements in Paragraph
1, WRB Refining 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 WRB Refining fails to submit the information described in paragraphs (4), (5)(A) or (5)(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 Agency action to protect human health or the environment. Further action may include suspending, or revoking
the exclusion, or other appropriate response necessary to protect human health and the environment.
(D) If the Division Director determines that the reported information does require Agency action,
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 Agency action is not necessary. The facility shall
have 10 days from the date of the Division Director’s notice to present such information.
(E) Following the receipt of information from the facility described in paragraph (5)(D) or (if no
information is presented under paragraph (5)(D)) the initial receipt of information described in
paragraphs (4), (5)(A) or (5)(B), the Division Director will issue a final written determination
describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise.
(6) Notification Requirements: WRB Refining 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 written notification to any State Regulatory Agency to which, or through which
they will transport the delisted waste described above for disposal, 60 days before beginning
such activities. If WRB Refining transports the excluded waste to or manages the waste in
any state with delisting authorization, WRB Refining must obtain delisting authorization from
that state before it can manage the waste as nonhazardous in the state.
(B) Update the one-time written notification if they ship the delisted waste to a different disposal
facility.
(C) Failure to provide the notification will result in a violation of the delisting variance and a
possible revocation of the exclusion.
[FR Doc. 2023–20408 Filed 9–27–23; 8:45 am]
ddrumheller on DSK120RN23PROD with PROPOSALS1
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66742-66751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20408]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2023-0040; FRL-11286-01-R6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste;Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 66743]]
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant an exclusion from the list of hazardous wastes to WRB Refining LP
(Petitioner) located in Borger, Texas. This action responds to a
petition to exclude (or ``delist'') up to 7,000 cubic yards per year of
solids removed from four stormwater tanks from the list of federal
hazardous wastes when disposed of in a Resource Conservation Recovery
Act (RCRA) Subtitle D Landfill. The EPA is proposing to grant the
petition based on an evaluation of waste-specific information provided
by the Petitioner. A previous proposed action was published in the
Federal Register on November 23, 2022, that proposed to grant this
petition (see Docket ID Number EPA-R06-RCRA-2022-0653). However, after
the proposed rule was published, EPA received notification during the
public comment period from the Petitioner that the table detailing the
delisting constituents and levels was incorrect. After review, EPA
agreed that the information contained in the table in question was
incorrect. EPA has corrected the table to reflect the appropriate
constituents and values and is withdrawing the previously published
proposed rule from November 23, 2022. EPA is issuing a new action
proposing to grant the petition, which will include a new 30-day
comment period.
DATES: Comments on this proposed exclusion must be received by October
30, 2023.
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Email: [email protected].
Instructions: The EPA must receive your comments by October 30,
2023. Direct your comments to Docket ID Number EPA-R06-RCRA-2023-0040.
The EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI), or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal regulations.gov website is
an ``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through regulations.gov, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment with any CBI you
submit. If the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the EPA may not
be able to consider your comment. Electronic files should avoid the use
of special characters, any form of encryption and be free of any
defects or viruses.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy.
You can view and copy the delisting petition and associated
publicly available docket materials either through www.regulations.gov
or at: EPA, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270.
The EPA facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and facility closures due to COVID-
19. We recommend that you telephone Harry Shah, at (214) 665-6457,
before visiting the Region 6 office. Interested persons wanting to
examine these documents should make an appointment with the office.
FOR FURTHER INFORMATION CONTACT: Harry Shah, (214) 665-6457,
[email protected]. Out of an abundance of caution for members of the
public and our staff, the EPA Region 6 office may be closed to the
public to reduce the risk of transmitting COVID-19. We encourage the
public to submit comments via https://www.regulations.gov, as there
will be a delay in processing mail and no courier or hand deliveries
will be accepted. Please call or email the contact listed above if you
need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview Information
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 the EPA consider in deciding whether to
grant a delisting petition?
D. Environmental Justice Evaluation
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
B. How did the Petitioner generate the waste?
C. How did the Petitioner sample and analyze the petitioned
waste?
D. What factors did the EPA consider in deciding whether to
grant the delisting petition?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude?
IV. Conditions for Exclusion
A. How will the Petitioner manage the waste if it is delisted?
B. What are the maximum allowable concentrations of hazardous
constituents in the waste?
C. How frequently must the Petitioner test the waste?
D. What data must the Petitioner submit?
E. What happens if the Petitioner fails to meet the conditions
of the exclusion?
F. What must the Petitioner do if the process changes?
V. When would the EPA finalize the proposed delisting exclusion?
VI. How would this action affect states?
VII. Public Comments Received From the Previous Proposed Exclusion
A. Who submitted comments on the previous proposed rule?
B. Comments Submitted on the November 23, 2022, Proposed Rule
(Docket ID Number EPA-R06-RCRA-2022-0653)
VIII. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant a May 2020 petition (``Delisting
Petition for Stormwater Solids'') request submitted by WRB Refining LP
in Borger, Texas to exclude (or ``delist'') up to 7,000 cubic yards per
year of F037 stormwater solids from the list of federal hazardous waste
set forth in 40 CFR 261.3 (hereinafter, all sectional references are to
40 CFR unless otherwise indicated). The Petitioner claims that the
petitioned wastes do not meet the criteria for which the EPA listed it,
and that there are no additional constituents or factors which could
cause the waste to be hazardous. Based on our review described in
Section III, we propose to approve the petition request, and allow the
delisted waste to be disposed in a Subtitle D landfill. A copy of the
May 2020 petition is located in the docket to this proposal action.
[[Page 66744]]
II. Background
A. What is the history of the delisting program?
The 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. The
EPA has amended this list several times and codifies the list in
Sec. Sec. 261.31 and 261.32.
The EPA lists the Petitioner's wastes as hazardous because: (1) the
wastes typically and frequently exhibit one or more of the
characteristics of hazardous wastes identified in Subpart C of part 261
(that is, ignitability, corrosivity, reactivity, and toxicity), (2) the
wastes meet the criteria for listing contained in Sec. 261.11(a)(2) or
(a)(3), or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules, respectively.
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these part 261 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 the 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 the EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
The facility petitions the EPA because it does not consider the waste
as hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which the EPA lists a
waste are in 40 CFR part 261 and further explained in the background
documents for the listed waste in the June 30, 1992 publication of the
``Final Best Demonstrated Available Technology (BDAT) Background
Document for Newly Listed Refinery Wastes F037 and F038'' (https://nepis.epa.gov/Exe/ZyNET.exe/P100VUGS.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1991+Thru+1994&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C91thru94%5CTxt%5C00000035%5CP100VUGS.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL).
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 must
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.
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 the EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in 40 CFR 260.22(a) and Sec.
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) aside from those for which EPA listed the waste, if a
reasonable basis exists that these additional factors could cause the
waste to be hazardous.
The EPA must also consider 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).
D. Environmental Justice Evaluation
To better meet EPA's ``responsibilities related to the protection
of public health and the environment, EPA has developed a new
environmental justice (EJ) mapping and screening tool called EJ
Screen'' that reports values as a percentile when compared to a state
or the nation. ``It is based on nationally consistent data and an
approach that combines environmental and demographic indicators in maps
and reports,'' (https://www.epa.gov/ejscreen). EPA is providing
analysis of environmental justice associated with this action. We are
doing so for the purpose of providing information to the public, not as
a basis of our final action.
EPA utilized EJScreen to evaluate potential environmental justice
concerns in communities at one-, three-, and five-mile radiuses around
the Borger facility. EPA considers the potential for EJ concerns in a
community when one or more of the 13 supplemental EJ indices is at or
above the 80th percentile when compared to the rest of the USA. At the
one-mile radial measurement, six supplemental EJ indices exceeded the
80th percentile, at the three-mile radial measurement, five
supplemental EJ indices exceeded the 80th percentile, and at the five-
mile radial measurement, three supplemental EJ indices exceeded the
80th percentile. This information is provided below in Table 1. More
information on EJ Screen, including an explanation of the 13 EJ indices
can be found at www.epa.gov/ejscreen/what-ejscreen.
Table 1--Supplemental EJ Indices at One-, Three-, and Five-Mile Radiuses Around the Facility
----------------------------------------------------------------------------------------------------------------
1 Mile radius 3 Mile radius 5 Mile radius
Supplemental EJ index (USA percentile) around the around the around the
facility facility facility
----------------------------------------------------------------------------------------------------------------
Particulate Matter 2.5 Supplemental Index.............. 13 12 11
Ozone Supplemental Index............................... 81 79 75
Diesel Particulate Matter Supplemental Index........... 62 60 53
Air Toxics Cancer Risk Supplemental Index.............. 44 43 40
Air Toxics Respiratory HI Supplemental Index........... 27 26 25
Toxic Releases to Air Supplemental Index............... 92 89 86
[[Page 66745]]
Traffic Proximity Supplemental Index................... 68 61 57
Lead Paint Supplemental Index.......................... 84 83 79
Superfund Proximity Supplemental Index................. 44 42 39
RMP Facility Proximity Supplemental Index.............. 92 91 88
Hazardous Waste Proximity Supplemental Index........... 79 71 65
Underground Storage Tanks Supplemental Index........... 84 80 75
Wastewater Discharge Supplemental Index................ 85 83 81
----------------------------------------------------------------------------------------------------------------
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
In May 2020, WRB Refining LP petitioned the EPA to exclude from the
list of hazardous wastes contained in Sec. 261.31, stormwater tank
solids (F037) generated from its facility located in Borger, Texas. The
waste falls under the classification of listed waste pursuant to Sec.
261.31. Specifically, in its petition, WRB Refining requested that the
EPA grant a standard exclusion for 7,000 cubic yards per year of the
stormwater tank solids.
B. How did the Petitioner generate the waste?
The principal products manufactured at the Refinery are gasoline,
diesel, aviation fuel, natural gas liquids (NGL), petroleum coke, and
solvents. The stormwater tanks are active and have been in operation
for approximately 25 years. To restore capacity in the stormwater
tanks, the Borger Refinery will be removing accumulated solids. The
solids removal process will typically occur within a calendar year and
will be an ongoing operational item for the refinery in the future.C
The solids are removed from the four stormwater tanks. These tanks
are listed as the North Stormwater Tank, West Stormwater Tank, North
Dropout Basin, and West Grit Trap (hereafter collectively referred to
as ``the stormwater tanks''). The four stormwater tanks are identified
as solid waste management unit (SWMU) No. 50 on the facility's notice
of registration (NOR) with the Texas Commission on Environmental
Quality (TCEQ).
The stormwater tanks 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 stormwater
tanks. 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 stormwater tanks.
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 the EPA as ``dry weather'' flows. By
contrast, wastewater directly associated with precipitation (i.e.,
stormwater) is referred to as ``wet weather'' flows. The EPA listing
criteria for F037 generally encompasses primary solids associated with
dry-weather, oily flows.
Since the stormwater tanks receive what could be classified as dry-
weather, oily flows as specified in the November 2, 1990, Federal
Register rule publication (55 FR 46354, Nov. 2, 1990), the solids
within the four tanks are believed to be classified as F037 when
generated. WRB Refining assumes that solids removed from the stormwater
tanks bear the F037 (primary oil/water/solids separation sludge)
listing when generated.
C. How did the Petitioner sample and analyze the petitioned waste?
A total of eight acceptable sample results were provided by
Petitioner to support the petition. The EPA considered all 8 samples of
the stormwater tank solids and the disposal scenario of the landfill
was modeled using the Delisting Risk Assessment Software. The worst-
case scenario of the constituents' concentrations for the F037 solids
were used as input in the model to determine if it would meet the
hazardous waste criteria for which it was listed. The maximum total and
leachate concentrations for the inorganic and organic constituents
which were found in the analytical data provided by Petitioner are
presented in Table 2.
Table 2--Maximum Total and TCLP Concentrations
------------------------------------------------------------------------
Maximum total Maximum TCLP
Chemical name concentration (mg/ concentration (mg/
kg) l)
------------------------------------------------------------------------
Acenaphthene...................... 0.04 <0.00030
Acetone........................... <0.0033 <0.040
Anthracene........................ 0.18 <0.00030
Antimony.......................... 6.93 0.0293
Arsenic........................... 10.5 0.0277
Barium............................ 732 3.1
Benz(a)anthracene................. 0.26 <0.00030
Benzene........................... 0.19 <0.012
Benzo(a)pyrene.................... 0.19 <0.00040
Benzo(b)fluoranthene.............. 0.17 <0.00040
Benzo(k)fluoranthene.............. 0.16 <0.00070
Beryllium......................... 0.91 <0.0020
Bis(2-ethylhexyl)phthalate........ 1.2 <0.00080
[[Page 66746]]
Cadmium........................... 1.03 0.00689
Carbon disulfide.................. 0.026 <0.018
Chlorobenzene..................... <0.00098 <0.0080
Chloroform........................ <0.00082 <0.012
Chromium.......................... 80.8 0.00495
Chrysene.......................... 0.34 <0.00080
Cobalt............................ 13.3 0.0355
Dibenz(a,h)anthracene............. 0.061 <0.00060
1,2-Dichlorobenzene............... <0.0099 <0.00040
1,3-Dichlorobenzene............... <0.0099 <0.00050
1,4-Dichlorobenzene............... <0.017 <0.00040
1,1-Dichloroethane................ <0.00082 <0.0080
1,2-Dichloroethane................ <0.00098 <0.010
1,1-Dichloroethylene.............. <0.00082 <0.010
Diethyl phthalate................. <0.017 <0.00070
Dimethyl phthalate................ 0.034 <0.00050
2,4-Dimethylphenol................ <0.054 <0.00040
Di-n-butyl-phthalate.............. 0.0057 <0.00080
2,4-Dinitrophenol................. <0.074 <0.00050
1,4-Dioxane....................... <0.033 <0.82
Ethylbenzene...................... 0.0063 <0.010
Fluoranthrene..................... 0.84 <0.00040
Fluorene.......................... 0.17 <0.00050
Indeno(1,2,3-cd)pyrene............ 0.12 <0.00060
Lead.............................. 301 0.974
Mercury........................... 1.58 <0.000030
Methyl ethyl ketone............... 0.092 <0.020
Naphthalene....................... 0.18 0.0047
Nickel............................ 439 0.142
4-Nitrophenol..................... <0.031 <0.00060
Phenanthrene...................... 1.2 <0.00040
Phenol............................ <0.018 <0.00040
Pyrene............................ 0.92 <0.00030
Pyridine.......................... <0.015 <0.00030
Selenium.......................... 2.8 <0.0110
Silver............................ 0.08 <0.00200
Styrene........................... <0.0011 <0.010
Tetrachloroethylene............... <0.0011 <0.012
Toluene........................... 0.036 <0.010
1,1,1-Trichloroethane............. <0.00082 <0.010
Trichloroethylene (1,1,2- <0.00098 0.010
Trichloroethylene)...............
Vanadium.......................... 50.4 <0.00600
Xylenes, Total.................... 0.087 <0.010
Zinc.............................. 930 2.76
------------------------------------------------------------------------
D. What factors did the EPA consider in deciding whether to grant the
delisting petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the
petitioned wastes against the listing criteria and factors cited in
Sec. 261.11(a)(2) and (3).
In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and
(3), 42 U.S.C. 6921(f), and in the background documents for the listed
wastes, the EPA also considered factors (including additional
constituents) other than those for which EPA listed the waste if these
additional factors could cause the waste to be hazardous (See the
background documents).
Our proposed decision to grant the May 2020 petition to delist the
waste from Petitioner's facility in Borger, Texas is based on our
evaluation of the wastes for factors or criteria which could cause the
waste to be hazardous. These factors included: (1) Whether the waste is
considered acutely toxic; (2) the toxicity of the constituents; (3) the
concentration of the constituents in the waste; (4) the tendency of the
constituents to migrate and to bioaccumulate; (5) the persistence in
the environment of any constituents once released from the waste; (6)
plausible and specific types of management of the petitioned waste; (7)
the quantity of waste produced; and (8) waste variability.
The EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
E. How did the EPA evaluate the risk of delisting this waste?
For this proposed delisting determination, we evaluated the risk
that the waste would be disposed of as a non-hazardous waste in a
landfill. We considered transport of waste
[[Page 66747]]
constituents through groundwater, surface water and air. We evaluated
Petitioner's analysis of the petitioned waste using the Delisting Risk
Assessment Software (DRAS) to predict the concentration of hazardous
constituents that might be released from the petitioned waste and to
determine if the waste would pose a threat to human health and the
environment. The DRAS software and associated documentation can be
found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
To predict the potential for release to groundwater from landfilled
wastes and subsequent routes of exposure to a receptor, the DRAS uses
dilution attenuation factors derived from the EPA's Composite Model for
leachate migration with transformation products. From a release to
groundwater, the DRAS considers routes of exposure to a human receptor
through ingestion of contaminated groundwater, inhalation from
groundwater while showering and dermal contact from groundwater while
bathing.
From a release to surface water by erosion of waste from an open
landfill into storm water run-off, DRAS evaluates the exposure to a
human receptor by fish ingestion and ingestion of drinking water. From
a release of waste particles and volatile emissions to air from the
surface of an open landfill, DRAS considers routes of exposure of
inhalation of volatile constituents, inhalation of particles, and air
deposition of particles on residential soil and subsequent ingestion of
the contaminated soil by a child. The technical support document and
the user's guide to DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
F. What did the EPA conclude?
Petitioner stated in its petition that the petitioned waste meets
the criteria of F037 for which the EPA listed it. Petitioner also
stated that no additional constituents or factors could cause the waste
to be hazardous. Petitioner also stated that disposal in a landfill
will not adversely impact human health or the environment. The EPA's
review of this petition included consideration of the original listing
criteria, and the additional factors required by the Hazardous and
Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42
U.S.C. 6921(f), and CFR 260.22(d)(1)-(4). In making the initial
delisting determination, the EPA evaluated the petitioned waste against
the listing criteria and factors cited in Sec. 261.11(a)(2) and
(a)(3). Based on this review, the EPA agrees with the Petitioner that
the petitioned waste is nonhazardous with respect to the original
listing criteria. (If the EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste was
originally listed, the EPA would propose to deny the petition.) The EPA
evaluated the waste with respect to other factors or criteria to assess
whether there is a reasonable basis to believe that such additional
factors could cause the waste to be hazardous. The EPA considered
whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste The EPA believes
that the petitioned waste does not meet the listing criteria and thus,
should not be a listed waste. The EPA's proposed decision to delist the
waste from Petitioner's facility is based on the information submitted
in support of this rule, including descriptions of the wastes and
analytical data from the Borger, Texas facility, and that is contained
in the Petition and attachments, all of which are included in the
docket to this action.
IV. Conditions for Exclusion
A. How will the Petitioner manage the waste if it is delisted?
If the petitioned wastes are delisted as proposed, the Petitioner
must dispose of them in a Subtitle D landfill which is permitted,
licensed, or registered by a state to manage industrial waste or in the
on-site landfill.
B. What are the maximum allowable concentrations of hazardous
constituents in the waste?
The EPA notes that in some instances the maximum allowable total
constituent concentrations provided by the DRAS model exceed 100% of
the waste--these DRAS results are an artifact of the risk calculations
that do not have physical meaning. In instances where DRAS predicts a
maximum constituent greater than 100 percent of the waste (that is,
greater than 1,000,000 mg/kg or mg/L, respectively, for total and TCLP
concentrations), the EPA is not proposing to require the Petitioner to
perform sampling and analysis for that constituent and sampling type
(total or TCLP).
C. How frequently must the Petitioner test the waste?
The testing approach for this waste stream will be conducted as
generated. Prior to disposal of any future tank cleanouts, Petitioner
must conduct sampling and analysis as described in the delisting
sampling and analysis plan and ensure that the wastes do not exceed the
delisting parameters. If compliance with the delisting parameters is
demonstrated with analytical testing (TCLP analysis), the Petitioner
may dispose of the tank cleanouts. The annual amount of solids
generated from the tank clean outs may not exceed 7,000 cubic yards.
The annual sampling report shall include the volume of solids disposed
of in the landfill, as well as annual testing event data. The
petitioner should monitor and report increasing trends of constituents
which will affect the overall compliance with the stormwater discharge
permit.
D. What data must the Petitioner submit?
The Petitioner must submit the data obtained through verification
testing to U.S. EPA Region 6, Office of Land, Chemicals and
Redevelopment Division, 1201 Elm Street, Suite 500, M/C 6LCR-RP,
Dallas, Texas 75270-2102, within 30 days after receiving the final
results from the laboratory. These results may be submitted
electronically to Harry Shah, [email protected]. The Petitioner must
make those records available for inspection. All data must be
accompanied by a signed copy of the certification statement in 40 CFR
260.22(i)(12).
E. What happens if the Petitioner fails to meet the conditions of the
exclusion?
If this Petitioner violates the terms and conditions established in
the exclusion, the Agency may start procedures to withdraw the
exclusion. Additionally, the terms of the exclusion provide that
``[a]ny waste volume for which representative composite sampling does
not reflect full compliance with the exclusion criteria must continue
to be managed as hazardous.''
If the testing of the waste does not demonstrate compliance with
the delisting concentrations described in section IV.C above, or other
data (including but not limited to leachate data or groundwater
monitoring data from the final land disposal facility) relevant to the
delisted waste indicates that any constituent is at a concentration in
waste above specified delisting verification concentrations in Table 1,
the Petitioner must notify the
[[Page 66748]]
Agency within 10 days, or such later date as the EPA may agree to in
writing, after receiving the final verification testing results from
the laboratory or of first possessing or being made aware of other
relevant data. The EPA may require the Petitioner to conduct additional
verification sampling to better define the particular volume of wastes
within the affected unit that does not fully satisfy delisting
criteria. For any volume of wastes for which the corresponding
representative sample(s) do not reflect full compliance with delisting
exclusion levels, the exclusion by its terms does not apply, and the
waste must be managed as hazardous.
The EPA has the authority under RCRA and the Administrative
Procedures Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting
decision if we receive new information indicating that the conditions
of this exclusion have been violated or, are otherwise not being met.
F. What must the Petitioner do if the process changes?
Any process changes or additions implemented at Petitioner's
facility which would significantly impact the constituent
concentrations of the waste must be reported to the EPA in accordance
with Condition VI. of the exclusion language.
V. When would the EPA finalize the proposed delisting exclusion?
HSWA specifically requires the EPA to provide notice and an
opportunity for public comment before granting or denying a final
exclusion. Thus, the EPA will not make a final decision or grant an
exclusion until it has addressed all timely public comments, including
any at public hearings. Upon receipt and consideration of all comments,
the EPA will publish its final determination as a final rule. Since
this rule would reduce the existing requirements for persons generating
hazardous wastes, the regulated community does not need a six-month
period to come into compliance in accordance with Sec. 3010 of RCRA,
as amended by HSWA.
VI. How would this action affect states?
Because the EPA is proposing to issue this exclusion under the
federal RCRA delisting regulations, only states subject to federal RCRA
delisting provisions will be affected. This exclusion may not be
effective in states which have received authorization from the EPA to
make their own delisting decisions.
RCRA allows states to impose more stringent regulatory requirements
than RCRA's under Sec. 3009 of RCRA. These more stringent requirements
may include a provision that prohibits a federally-issued exclusion
from taking effect in the state. We urge Petitioners to contact the
state regulatory authority to establish the status of its wastes under
the state law.
The EPA has also authorized some states to administer a delisting
program in place of the federal program, that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
states. If the Petitioner manages the wastes in any state with
delisting authorization, the Petitioner must obtain delisting
authorization or other determination from the receiving state before it
can manage the waste as nonhazardous in that state.
VII. Public Comments Received From the Previous Proposed Exclusion
A. Who submitted comments on the previous proposed rule?
The EPA received four public comments on the November 23, 2022 (87
FR 71532), proposed rule via regulations.gov and email submittal. The
previous proposed rule has since been withdrawn due to a discrepancy
with information contained in the Federal Register publication, which
was brought to EPA's attention by the Petitioner. The Petitioner
subsequently submitted a public comment via email during the public
comment period to the EPA Region 6 office identifying the discrepancy
regarding the delisting constituents and values listed in the table
titled ``Appendix IX to Part 261 Wastes Excluded Under Sec. Sec. 260.2
and 260.22'' (see comment 4). Since the previous proposed rule was
withdrawn, the four previously submitted public comments will be
addressed under a new proposed rule at the conclusion of a new 30-day
comment period.
B. Comments Submitted on the November 23, 2022, Proposed Rule (Docket
ID Number EPA-R06-RCRA-2022-0653)
Comment 1. ``Although I am not sure where I stand overall on
delisting the waste in question, I do believe that the processes in
which this decision was made were appropriate. I trust the EPA in its
decision to approve delisting the waste and removal of solids at WRB
Refining LP in Borger, Texas. The how this decision was made could have
been a lot more careless. However, the EPA took a lot into
consideration and tested multiple samples from the petitioner's
facility and agreed with the petitioner that the wastes are
nonhazardous. It also did an environmental justice evaluation.
Environmental justice is often overlooked when it comes to making
decisions concerning discarding waste. This proposed rule is a great
example of how to go about making such decisions while taking
caution.''
Comment 2. ``I appose this rule/exception being passed through.
When you take the table and look at some of the chemicals that make up
this storm drain runoff products there are some very hazardous
chemicals that make up these products. One chemical that makes up this
product is Beryllium. Beryllium can be lethal in humans and cause a
variety of health concerns. According to the EPA website ``beryllium is
toxic at 0.002 milligrams per kilogram body weight per day (mg/kg/d)''
(Beryllium compounds--US EPA). Using this equation the average size man
weighing 200lbs can only be exposed to .4mg a day. That is roughly only
146mg a year. The refinery is requesting that they be allowed to dump
.91mg per kg a year into a nonhazardous waste landfill. That would mean
that they would be dumping enough material (Beryllium) to lethally
infect 50,000 people per year.''
Comment 3. ``I believe that to not consider stormwater as a
hazardous waste is a bold statement, but since a lot of measures are
taken to ensure this is not a health hazard for animals and for humans.
I think if it keeps being measured how many toxic chemicals this
stormwater has before being disposed somewhere else. Since the
stormwater waste is going to be disposed in a landfill that is
permitted to manage industrial waste, this can give a sense of safety,
but it is not truly known how this landfill will manage and treat this
waste, and if it will do it correctly to ensure that no animals have
contact or do not get poisoned by the stormwater. Stormwater usually
has many toxic chemicals that can pollute water sources such as oil,
pesticides, antifreeze, grease and other types of chemicals that can be
dangerous and poisonous to the environment and the wildlife that
inhabit these water sources. Also, one of the consequences is that they
can cause toxic algae blooms that sink and decompose in the water
removing oxygen from it. Animals and other organisms can't live in
water with low dissolved oxygen levels. It can also contaminate
drinking water supplies if not treated properly. These consequences
should be kept in mind before agreeing, as the public, to these types
of petitions. If stormwater is treated properly in a treatment plant
this can reduce how hazardous this might be. Since the stormwater that
the petitioner wants to delist as a possible hazard has such small
amounts of these toxic chemicals, it makes sense why the
[[Page 66749]]
EPA thinks to delist this waste. One of the examples of this small
amounts is Arsenic, which is a solid that occurs naturally in water and
soil but that is also produced industrially in big quantities. The
amount of Arsenic that is considered as a hazard is 6.1 while the
amount of arsenic that the stormwater in this facility has it's 0.1.
However, all these amounts need to be tested each time that the
facility wants to dispose of them, to ensure that it is still not
considered a hazard, which is one of the rules of EPA to consider the
petition of the facility. I think if it is proved that the stormwater
waste from this facility is treated properly in this landfills, it is
safe to say that this would not be a hazard for humans or wildlife.
Comment 4. ``On November 23, 2022, EPA published the draft
delisting petition for WRB Refining LP (Petitioner), which was
submitted in May 2020. On behalf of WRB Refining LP and Big Star
Consulting LLC, please accept the comments to the draft publication
that are contained herein.
The delisting levels calculated using EPA's Delisting Risk
Assessment Software (DRAS) were presented in the 2020 petition request
and subsequently updated in March 2022 using DRAS Version 4.0. The
delisting values reflected in the Federal Register are not in agreement
with the calculated values. Specifically, it appears that the delisting
values published on November 23rd were inadvertently carried forward
from a prior delisting petition. We respectfully request that Item (1)
in the table found on Page 71538 of the Federal Register be revised to
reflect the following desilting levels:
Stormwater Solids Leachate: Acenapthene--219; Anthracene--534;
Antimony--2.52; Arsenic--0.266; Barium--100; Benz(a)anthracene--10.5;
Benzo(a)pyrene--3,960; Benzo(b)fluoranthene--33,700; Benzene--1.59; 2-
Butanone--7,150; Cadmium--1.0; Carbondisulfide--1,150; Chromium--1.56;
Chrysene--1,050; Cobalt--5.56; Di-n-butyl-phthalate--507;
Ethylbenzene--16.2; Fluoranthrene--50.7; Fluorene--101; Indeno(1,2,3-
cd)pyrene--3.71; Lead--5.0; Mercury--0.2; Napthalene--1.95; Nickel--
279; Pyrene--91.7; Selenium--1.0; Silver--5.0; Toluene--311; Vanadium--
85.6; Xylenes, Total--177; Zinc--4,060.
VIII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is exempt from review by the Office of
Management and Budget because it is a rule of particular applicability,
not general applicability. The proposed action approves a delisting
petition under RCRA for the petitioned waste at a particular facility.
B. Paperwork Reduction Act
This proposed action 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 only applies to a particular facility.
C. Regulatory Flexibility Act
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
D. Unfunded Mandates Reform Act
This proposed action does not contain any unfunded mandate as
described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and
does not significantly or uniquely affect small governments. The action
imposes no new enforceable duty on any state, local, or tribal
governments or the private sector.
E. Executive Order 13132: Federalism
This proposed action 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications as specified
in Executive Order 13175. This proposed action applies only to a
particular facility on non-tribal land. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This proposed action is not subject to Executive Order 13045
because it is not economically significant as defined in Executive
Order 13045 and because the EPA does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This proposed action's health and
risk assessments using the Agency's Delisting Risk Assessment Software
(DRAS), which considers health and safety risks to children, are
described in section III.E above. The technical support document and
the user's guide for DRAS are included in the docket.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
13211.
I. National Technology Transfer and Advancement Act
This proposed action does not involve technical standards as
described by the National Technology Transfer and Advancement Act of
1995 (15 U.S.C. 272 note).
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs federal
agencies to identify and address ``disproportionately high and adverse
human health or environmental effects'' of their actions on minority
populations and low-income populations to the greatest extent
practicable and permitted by law. The EPA defines environmental justice
(EJ) as ``the fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect to
the development, implementation, and enforcement of environmental laws,
regulations, and policies.'' The EPA further defines the term fair
treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies,'' (https://www.epa.gov/environmentaljustice/learn-about-environmental-justice).
The EPA believes that this proposed action does not have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations, and/or
indigenous peoples. The EPA has determined that this proposed action
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
[[Page 66750]]
provided to human health or the environment. The Agency's risk
assessment, as described in section III.E above, 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.) or the on-site landfill. Therefore, the EPA believes
that any populations in proximity of the landfills used by the Borger
facility should not be adversely affected by common waste management
practices for this delisted waste.
K. Congressional Review Act
This proposed action is exempt from the Congressional Review Act (5
U.S.C. 801 et seq.) because it is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Dated: September 14, 2023.
Monica Smith,
Acting Director, Land, Chemicals and Redevelopment Division.
For the reasons set out in the preamble, the EPA proposes to amend
40 CFR part 261 as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
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. Amend table 1 of Appendix IX to part 261, by adding an entry for
``WRB Refining LP'' at the end of the table to read as follows:
Appendix IX to Part 261 Wastes Excluded Under Sec. Sec. 260.20 and
260.22
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Facility Address...................... Waste description
----------------------------------------------------------------------------------------------------------------
WRB Refining LP................. Borger, Texas................ Stormwater Solids (the EPA Hazardous Waste No.
F037) generated at a maximum generation of
7,000 cubic yards per calendar year after
(date rule finalized) and disposed in a
landfill. WRB Refining must implement a
verification program that meets the following
Paragraphs:
(1) Delisting Levels: All leachable constituent
concentrations must not exceed the following
levels. The petitioner must use the method
specified in 40 CFR 261.24 to measure
constituents in the waste leachate (mg/L).
Stormwater Solids Leachate: Acenaphthene--219;
Anthracene--534; Antimony 2.52; Arsenic--
0.266; Barium--100; Benz(a)anthracene--10.5;
Benzene--0.5; Benzo(a)pyrene--3,960;
Beryllium--2.95; Cadmium--1; Carbon disulfide--
1,150; Chlorobenzene--31.1; Chloroform--1.64;
Chromium--1.56; Chrysene--1,050; Cobalt--5.56;
Di-n-butyl phthalate--507; 1,2-
Dichlorobenzene--192; 1,4-Dichlorobenzene--
4.26; 1,1-Dichloroethane--1,080; 1,2-
Dichloroethane--0.5; 1,1-Dichloroethylene--
0.7; 2,4-Dimethylphenol--234; 2,4-
Dinitrophenol--23.8; 1,4-Dioxane--2.32;
Ethylbenzene--16.2; Fluoranthene--50.7;
Fluorene--101; Lead--5; Mercury--0.2; Methyl
ethyl ketone--200; Napthalene--1.95; Nickel--
279; Phenol--3,580; Pyrene--91.7; Pyridine--5;
Selenium--1; Silver--5; Styrene--31.1;
Tetrachloroethylene--0.7; Toluene--311;
Trichloroethylene--0.5; Vanadium--85.6;
Xylenes--177; Zinc--4,060
(2) Waste Holding and Handling:
(A) All stormwater solids from tank clean
outs must be tested to assure they have met
the concentrations described in Paragraph
(1). Solids that do not meet the
concentrations must be disposed of as
hazardous waste.
(B) Levels of constituents measured in the
samples of the solids that do not exceed
the levels set forth in Paragraph (1) are
non-hazardous. WRB Refining can manage and
dispose the non-hazardous stormwater solids
according to all applicable solid waste
regulations.
(C) WRB Refining must maintain a record of
the actual volume of the stormwater solids
to be disposed in the Subtitle D or on-site
landfill according to the requirements in
Paragraph (4).
(3) Changes in Operating Conditions: If WRB
Refining significantly changes the process
described in its petition or starts any
processes that may or could affect the
composition or type of waste generated as
established under Paragraph (1) (by
illustration, but not limitation, changes
in equipment or operating conditions of the
treatment process), they must notify the
EPA in writing; they may no longer handle
the wastes generated from the new process
as nonhazardous until the test results of
the wastes meet the delisting levels set in
Paragraph (1) and they have received
written approval to do so from the EPA.
(4) Data Submittals: WRB Refining must
submit the information described below. If
WRB Refining fails to submit the required
data within the specified time or maintain
the required records on-site for the
specified time, the EPA, at its discretion,
will consider this sufficient basis to
reopen the exclusion as described in
Paragraph 5. WRB Refining must:
(A) Submit the data obtained through
Paragraph 3 to the Chief, RCRA Permits &
Solid Waste Section, Mail Code, (6LCR-RP)
US EPA Region 6, 1201 Elm Street, Suite
500, Dallas, TX 75270 within the time
specified. Data may be submitted via email
to the technical contact for the delisting
program.
(B) Compile records of operating conditions
and analytical data from Paragraph (3),
summarized, and maintained on-site for a
minimum of five years.
(C) Furnish these records and data when the
EPA or the State of Texas request them for
inspection.
[[Page 66751]]
(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 the 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 the 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, any time after disposal of the
delisted waste, WRB Refining possesses or
is otherwise made aware of any
environmental data (including but not
limited to leachate data or ground water
monitoring data) or any other data relevant
to the delisted waste indicating that any
constituent identified for the delisting
verification testing is at level higher
than the delisting level allowed by the
Division Director in granting the petition,
then the facility must report the data, in
writing, to the Division Director within 10
days of first possessing or being made
aware of that data.
(B) If the verification testing of the waste
does not meet the delisting requirements in
Paragraph 1, WRB Refining 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 WRB Refining fails to submit the
information described in paragraphs (4),
(5)(A) or (5)(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 Agency action
to protect human health or the environment.
Further action may include suspending, or
revoking the exclusion, or other
appropriate response necessary to protect
human health and the environment.
(D) If the Division Director determines that
the reported information does require
Agency action, 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 Agency action is not
necessary. The facility shall have 10 days
from the date of the Division Director's
notice to present such information.
(E) Following the receipt of information
from the facility described in paragraph
(5)(D) or (if no information is presented
under paragraph (5)(D)) the initial receipt
of information described in paragraphs (4),
(5)(A) or (5)(B), the Division Director
will issue a final written determination
describing the Agency actions that are
necessary to protect human health or the
environment. Any required action described
in the Division Director's determination
shall become effective immediately, unless
the Division Director provides otherwise.
(6) Notification Requirements: WRB Refining
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 written notification to any
State Regulatory Agency to which, or
through which they will transport the
delisted waste described above for
disposal, 60 days before beginning such
activities. If WRB Refining transports the
excluded waste to or manages the waste in
any state with delisting authorization, WRB
Refining must obtain delisting
authorization from that state before it can
manage the waste as nonhazardous in the
state.
(B) Update the one-time written notification
if they ship the delisted waste to a
different disposal facility.
(C) Failure to provide the notification will
result in a violation of the delisting
variance and a possible revocation of the
exclusion.
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[FR Doc. 2023-20408 Filed 9-27-23; 8:45 am]
BILLING CODE 6560-50-P
