[Federal Register: October 1, 2010 (Volume 75, Number 190)]
[Rules and Regulations]
[Page 60632-60640]
[DOCID:fr01oc10-12]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2010-0066; SW FRL-9208-7]

Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Direct Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is proposing to grant a petition submitted by ExxonMobil
Refining and Supply Company--Beaumont Refinery (Beaumont Refinery) to
exclude (or delist) a certain solid waste generated by its Beaumont,
Texas, facility from the lists of hazardous wastes. EPA used the
Delisting Risk Assessment Software (DRAS) Version 3.0 in the evaluation
of the impact of the petitioned waste on human health and the
environment.

DATES: This rule is effective on November 30, 2010. Comments must be
received by November 1, 2010. Your requests for a hearing must reach
EPA by October 18, 2010. The request must contain the information
described in Sec.  260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2010-0066 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov: Follow
the on-line instructions for submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Mail: Michelle Peace, Environmental Protection Agency,
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code:
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier. Deliver your comments to: Michelle
Peace, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue,
Dallas, TX 75202.
    Requests for a hearing should be made to: Ben Banipal, Section
Chief of the Corrective Action and Waste Minimization Section,
Multimedia Planning and Permitting Division (6PD-C), Environmental
Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2010-0066. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2010-0066, is available for viewing from 8 a.m. to 5 p.m., Monday
through Friday, excluding Federal holidays. The public may copy
material from any regulatory docket at no cost for the first 100 pages
and at a cost of $0.15 per page for additional copies. EPA requests
that you contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The interested persons
wanting to examine these documents should make an appointment with the
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket or the
Beaumont Refinery petition, contact Michelle Peace, Environmental
Protection Agency, Multimedia Planning and Permitting Division, RCRA
Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by
calling<PHONE_NUMBER> or by e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Beaumont Refinery submitted a petition under
40 CFR 260.20 and 260.22(a). Section 260.20 allows any person to
petition the Administrator to modify or revoke any provision of parts
260 through 266, 268 and 273. Section 260.22(a) specifically provides
generators the opportunity to petition the Administrator to exclude a

waste on a ``generator specific'' basis from the hazardous waste lists.
    The Agency bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would conditionally exclude the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA).
    If finalized, we would conclude the petitioned waste from this
facility is non-hazardous with respect to the original listing criteria
and that the waste process used will substantially reduce the
likelihood of migration of hazardous constituents from this waste. We
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the
environment.

Table of Contents

I. Overview Information
    A. What action is EPA approving?
    B. Why is EPA approving this delisting?
    C. How will Beaumont Refinery manage the wastes, if it is
delisted?
    D. When would the delisting exclusion be finalized?
    E. How would this action affect States?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a
petitioner?
    C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What wastes did Beaumont Refinery petition EPA to delist?
    B. Who is Beaumont Refinery and what process do they use to
generate the petitioned wastes?
    C. What information did Beaumont Refinery submit to support this
petition?
    D. What were the results of Beaumont Refinery's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Beaumont Refinery's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens, if Beaumont Refinery violates the terms and
conditions?
V. Final Action
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA approving?

    EPA is approving the delisting petition submitted by Beaumont
Refinery to have centrifuge solids generated from treatment of Tank
Bottoms from its Lower Park Tank Farm excluded, or delisted, from the
definition of a hazardous waste. The centrifuge solids are derived from
the management and treatment of several F- and K-waste codes. These
waste codes are F037, F038, K048, K049, K051, K052, K169, and K170.

B. Why is EPA approving this delisting?

    Beaumont Refinery's petition requests a delisting for the
centrifuge solids listed as F037, F038, K048, K049, K051, K052, K169,
and K170. Beaumont Refinery does not believe that the petitioned wastes
meet the criteria for which EPA listed them. Beaumont Refinery also
believes no additional constituents or factors could cause the wastes
to be hazardous. EPA's review of this petition included consideration
of the original listing criteria, and the additional factors required
by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In
making the initial delisting determination, EPA evaluated the
petitioned waste against the listing criteria and factors cited in
Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA agrees
with the petitioner that the waste is non-hazardous with respect to the
original listing criteria. If EPA had found, based on this review, that
the waste remained hazardous based on the factors for which the waste
was originally listed, EPA would have proposed to deny the petition.
EPA evaluated the waste with respect to other factors or criteria to
assess whether there is a reasonable basis to believe that such
additional factors could cause the waste to be hazardous. EPA
considered whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. EPA
believes that the petitioned wastes do not meet the listing criteria
and thus should not be a listed waste. EPA's decision to delist wastes
from the facility is based on the information submitted in support of
this rule, including descriptions of the waste and analytical data from
the Beaumont Refinery, Beaumont, Texas facility.

C. How will Beaumont Refinery manage the waste, if it is delisted?

    Beaumont Refinery will dispose of the storage containers with the
centrifuge solids. The centrifuge solids will be transported and
disposed of at a permitted municipal solid waste landfill or a
commercial industrial waste landfill regulated by the Texas Commission
on Environmental Quality (TCEQ).

D. When would the delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
    RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to
become effective in less than six months after EPA addresses public
comments when the regulated facility does not need the six-month period
to come into compliance. That is the case here, because this rule, if
finalized, would reduce the existing requirements for persons
generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).

E. How would this action affect the States?

    Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude States which have
received authorization from EPA to make their own delisting decisions.
    EPA allows the States to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to

establish the status of their wastes under the State law. Delisting
petitions approved by EPA Administrator under 40 CFR 260.22 are
effective in the State of Texas only after the final rule has been
published in the Federal Register.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing section 3001 of RCRA. EPA has
amended this list several times and published it in Sec. Sec.  261.31
and 261.32. EPA lists these wastes as hazardous because: (1) They
typically and frequently exhibit one or more of the characteristics of
hazardous wastes identified in Subpart C of Part 261 (that is,
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet
the criteria for listing contained in Sec.  261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations generally is hazardous, a specific waste
from an individual facility meeting the listing description may not be
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.

B. What is a delisting petition, and what does it require of a
petitioner?

    A delisting petition is a request from a facility to EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions EPA because it does not believe the wastes
should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics and
present sufficient information for EPA to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste. See part 261 and the background documents for the
listed waste.
    Generators remain obligated under RCRA to confirm whether their
waste remains non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.

C. What factors must EPA consider in deciding whether to grant a
delisting petition?

    Besides considering the criteria in Sec.  260.22(a) and section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those for which EPA listed the waste, if a
reasonable basis exists to determine that these additional factors
could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

III. EPA's Evaluation of the Waste Information and Data

A. What waste did Beaumont Refinery petition EPA to delist?

    Beaumont Refinery petitioned EPA on September 9, 2009, to exclude
from the lists of hazardous wastes contained in Sec. Sec.  261.31, and
261.32, from its centrifuge solids from the treatment of tank bottoms
from five tanks from the Lower Park Tank Farm.
    The waste stream was generated from the Beaumont Refinery facility
located in Beaumont, Texas. The centrifuge solids are listed under EPA
Hazardous Waste No. F037, F038, K048, K049, K051, K052, K169, and K170.
Specifically, in its petition, Beaumont Refinery requested that EPA
grant a one time exclusion for 8,300 cubic yards of the centrifuge
solids.

B. Who is Beaumont Refinery and what process do they use to generate
the petitioned waste?

    Beaumont Refinery is a petroleum refinery located at 1795 Burt
Street in Beaumont, Jefferson County, Texas. The Beaumont Texas
Facility is situated on approximately 1,200 acres of land. The refinery
began operations at the current location in 1903 as Magnolia Petroleum
Company. The facility is operated on a continuous basis with production
occurring 24 hours per day, 7 days per week, and 365 days per year and
produces approximately seven petroleum products from crude oil, the
primary raw material. Significant production processes/units at the
Beaumont Refinery include crude units, saturated gas plant, fluid
catalytic cracker, hydrocracker, diesel hydrotreater, coker, jet fuel
treaters, cogeneration, isomerization, continuous catalytic reformers,
alkylation, sulfur recovery plants, and wastewater treatment. Tanks
758, 763, 765, 766 and 771 in the Beaumont Refinery's Lower Park Tank
Farm were constructed during the early days of the facility, and as the
tanks aged, the service gradually changed from product storage to slop
oil storage. The slop oil system at a refinery entails collecting
materials that have some degree of recoverable hydrocarbon (e.g., crude
oil, API separator sludge, DAF float, etc.) but also have materials
that are not readily recoverable (e.g., solids, scale, sediment, etc.).
Candidate oily streams are routed to slop oil storage tanks from
collection system piping and/or from smaller tanks prior to being
reprocessed within the refinery to recovery oil. To initiate the Lower
Park Tank Farm cleanout project, the Beaumont Refinery determined that
the five tanks were in slop oil service beginning in the 1960's. Since
the tank bottoms in the five tanks are historical, the Beaumont
Refinery has elected to conservatively assume that the solids from the
tanks may bear K- and F-waste codes associated with petroleum refining.
Tank 758 was selected as the first tank to clean and sample since it is
expected to have the highest concentrations of chemicals and hazardous
constituents. The Beaumont Refinery's subcontractor Superall Products
LLP has developed a proprietary chemical (Superall 38), which acts as a
chemical agent for treating wastes from oil-related clean-up activities
that, when coupled with centrifuging, reduces the volume and toxicity
of historical tank bottoms from the refinery's Lower Park Tank Farm.
The primary function of Superall 38 is to facilitate recovery of as
much oil and associated constituents of concern as possible for
reintroduction into the refinery process. The proprietary mixture does
not contain RCRA Part 261 Appendix VIII or Part 264 Appendix IX
constituents. Historical tank bottoms in Tank 758 served as the worst-
case representation of the five tanks and the biggest challenge for
performance of the Superall 38 treatment process and passing delisting
criteria.
    The Beaumont Refinery intends to dispose of the delisted centrifuge
solids at an authorized municipal solid waste or commercial industrial
solid waste

landfill. Treatment of historical tank bottoms from Tanks 758, 763,
765, 766 and 771 in the Beaumont Refinery's Lower Park Tank Farm
generate centrifuge solids that are classified as F037, F038, K048,
K049, K051, K052, K169 and K170 listed hazardous wastes pursuant to 40
CFR 261.31 and 261.32. The 40 CFR part 261 hazardous constituents which
are the basis for listing can be found in Table 1.

Table 1--EPA Waste Codes for Centrifuge Solids and the Basis for Listing
------------------------------------------------------------------------
            Waste code                       Basis for listing
------------------------------------------------------------------------
F037.............................  Benzene, benzo(a)pyrene, chrysene,
                                    lead, chromium.
F038.............................  Benzene, benzo(a)pyrene, chrysene,
                                    lead, chromium.
K048.............................  Hexavalent chromium, lead.
K049.............................  Hexavalent chromium, lead.
K051.............................  Hexavalent chromium, lead.
K052.............................  Lead.
K169.............................  Benzene.
K170.............................  Benzo(a)pyrene,
                                    dibenzo(a,h)anthracene,
                                    benzo(a)anthracene,
                                    benzo(b)fluoranthene,
                                    benzo(k)fluoranthene, 3-
                                    methylcholanthrene, 7,12-
                                    dimethylbenzo(a)anthracene.
------------------------------------------------------------------------

C. What information did Beaumont Refinery submit to support this
petition?

    To support its petition, Beaumont Refinery submitted:
    1. Analytical results of the toxicity characteristic leaching
procedure (TCLP) analysis for volatile and semivolatile organics, and
metals for ten samples and one duplicate of the centrifuge solids;
    2. Analytical results of the total constituent analysis for
volatile and semivolatile organics, and metals for three samples of the
centrifuge solids;
    3. Analytical results for Appendix IX volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs, and metals for
one sample of the centrifuge solids;
    4. Analytical results for the EPA Region 6 TCLP analysis for
Appendix IX metals for one sample of the centrifuge solids;
    5. Analytical results for the oily waste extraction procedure
(OWEP) for Beaumont Refinery metals for one sample of the centrifuge
solids;
    6. Analytical results for total reactive cyanides for three samples
of the centrifuge solids;
    7. Analytical results for total reactive sulfides for three samples
of the centrifuge solids;
    8. Analytical results for total oil and grease for ten samples of
the centrifuge solids;
    9. Description of the operations and waste generated from the
centrifuging of tank bottoms at the Lower Park Tank Farm.

D. What were the results of Beaumont Refinery's analysis?

    EPA believes that the descriptions of Beaumont Refinery's waste,
and the analytical data submitted in support of the petition show that
the centrifuge solids are non-hazardous. Analytical data from Beaumont
Refinery's centrifuge solid samples were used in the Delisting Risk
Assessment Software (DRAS). The data summaries for detected
constituents are presented in Table 2. EPA has reviewed the sampling
procedures used by Beaumont Refinery and has determined that they
satisfy EPA's criteria for collecting representative samples of the
variations in constituent concentrations in the Centrifuge solids. The
data submitted in support of the petition show that constituents in
Beaumont Refinery's wastes are presently below health-based risk levels
used in the delisting decision-making. EPA believes that Beaumont
Refinery has successfully demonstrated that the Centrifuge solids are
non-hazardous.

     Table 2--Analytical Results and Maximum Allowable Delisting Concentrations of the Centrifuge Solids\1\
----------------------------------------------------------------------------------------------------------------
                                                   Maximum total (mg/ Maximum TCLP (mg/  Maximum allowable  TCLP
                   Constituent                            kg)                 l)         delisting level  (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony.........................................               5.38             0.0224                     1.87
Arsenic..........................................               26.9             0.0353                      5.0
Acetone..........................................              < 0.5               0.65                     9080
Acenaphthene.....................................                 26              0.009                      185
Anthracene.......................................                 32              0.006                      452
Beryllium........................................              0.289             <0.001                    20.44
Butyl benzene phthalate..........................                3.7            0.00026                      698
Barium...........................................                823               1.94                      100
Benzene..........................................                0.8              0.046                      0.5
Bis(2-ethylhexyl)phthalate.......................              < 0.5             0.0058                   0.0522
Benzo(a) anthracene..............................                 72            < 0.001                     1.22
Benzo(a) pyrene..................................                 67            < 0.001                   461.44
Benzo(b) fluoranthene............................                 28            < 0.001                   3916.8
Benzo(k) fluoranthene............................                 10            < 0.001                     11.6
m,p cresol.......................................                  6               0.16                      200
Cadmium..........................................              0.837            < 0.001                      1.0
Chromium.........................................                608              0.122                      5.0
Cobalt...........................................               20.5             0.0735                     3.64
Copper...........................................                302            < 0.001                    417.3
o-cresol.........................................                1.5             0.0091                      200
Chrysene.........................................                120            0.00014                      122
2,4 Dimethyl phenol..............................                9.8              0.066                      198
Di-n-butyl phthalate.............................              < 0.5             0.0012                      429
7,12 dimethylbenz(a)anthracene...................                 53            < 0.001                  0.08176
Dibenz(a,h)anthracene............................                1.7            < 0.001                     4.41
Ethylbenzene.....................................              < 0.5              0.073                      189
Fluorene.........................................                 54             0.0033                     85.6
Fluoranthrene....................................                 17            < 0.001                    42.96
Lead.............................................               1290               1.44                      5.0

Mercury..........................................               2.65           0.000065                      0.2
Methyl Isobutyl ketone...........................              < 0.5               0.02                      807
2-Methylnaphthalene..............................                570            < 0.001                    12.70
Naphthalene......................................                180               0.15                    0.571
Nickel...........................................                195              0.556                      231
Phenanthrene.....................................                170             0.0041           Not applicable
Phenol...........................................              < 0.5             0.0033                     3030
Pyrene...........................................                100             0.0057                     77.6
Selenium.........................................               20.6            < 0.001                      1.0
Silver...........................................              0.194            < 0.001                      5.0
Thallium.........................................              0.842            < 0.001                    0.639
Tin..............................................               3.46            < 0.001                     22.5
Toluene..........................................                0.5              0.032                      263
Vanadium.........................................              < 0.5              0.138                     57.5
Xylenes..........................................                3.3               0.16                      167
Zinc.............................................               1160               8.41                     3530
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.

E. How did EPA evaluate the risk of delisting this waste?

    The worst case scenario for management of the centrifuge solids was
modeled for disposal in a landfill. EPA used such information gathered
to identify plausible exposure routes (i.e., ground water, surface
water, soil, air) for hazardous constituents present in the Centrifuge
solids. EPA determined that disposal in a Subtitle D landfill is the
most reasonable, worst-case disposal scenario for Beaumont Refinery's
centrifuge solids. EPA applied the DRAS described in 65 FR 58015
(September 27, 2000), 65 FR 75637 (December 4, 2000) and 73 FR 28768
(May 19, 2008), to predict the maximum allowable concentrations of
hazardous constituents that may be released from the petitioned wastes
after disposal and determined the potential impact of the disposal of
Beaumont Refinery's petitioned wastes on human health and the
environment. In assessing potential risks to ground water, EPA used the
maximum estimated waste volumes and the maximum reported extract
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the ground water at a hypothetical
receptor well down gradient from the disposal site. Using the risk
level (carcinogenic risk of 10-5 and non-cancer hazard index
of 0.1), the DRAS program can back-calculate the acceptable receptor
well concentrations (referred to as compliance-point concentrations)
using standard risk assessment algorithms and Agency health-based
numbers. Using the maximum compliance-point concentrations and EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP) fate and transport modeling factors, the DRAS further back-
calculates the maximum permissible waste constituent concentrations not
expected to exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill for the
centrifuge solids. A reasonable worst-case scenario is appropriate when
evaluating whether a waste should be relieved of the protective
management constraints of RCRA Subtitle C. The use of some reasonable
worst-case scenarios resulted in conservative values for the
compliance-point concentrations and ensured that the waste, once
removed from hazardous waste regulation, will not pose a significant
threat to human health and/or the environment. The DRAS also uses the
maximum estimated waste volumes and the maximum reported total
concentrations to predict possible risks associated with releases of
waste constituents through surface pathways (e.g., volatilization or
wind-blown particulate from the landfill). As in the above ground water
analyses, the DRAS uses the risk level, the health-based data and
standard risk assessment and exposure algorithms to predict maximum
compliance-point concentrations of waste constituents at a hypothetical
point of exposure. Using fate and transport equations, the DRAS uses
the maximum compliance-point concentrations and back-calculates the
maximum allowable waste constituent concentrations (or ``delisting
levels'').
    In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
    EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, the
disposal will occur in an offsite Landfill, so no ground water
monitoring data for disposal of this waste stream in the landfill is
available.
    EPA believes that the descriptions of Beaumont Refinery's
Centrifuge solids and analytical characterizations of these wastes
illustrate the presence of toxic constituents at lower concentrations
in these waste streams. Therefore, it is reasonable to conclude that
the likelihood of migration of hazardous constituents from the
petitioned waste will be substantially reduced so that short-term and
long-term threats to human health and the environment are minimized.
    The DRAS results, which calculated the maximum allowable
concentration of chemical constituents in the Centrifuge solids are
presented in Table 2. Based on the comparison of the DRAS results and
maximum TCLP concentrations found in Table 2, the

petitioned wastes should be delisted because no constituents of concern
are likely to be present or formed as reaction products or byproducts
in Beaumont Refinery's wastes as long as they are disposed of in a
Subtitle D Landfill.

F. What did EPA conclude about Beaumont Refinery's analysis?

    EPA concluded, after reviewing Beaumont Refinery's processes that
no other hazardous constituents of concern, other than those for which
Beaumont Refinery tested, are likely to be present or formed as
reaction products or by-products in Beaumont Refinery's wastes. In
addition, on the basis of explanations and analytical data provided by
Beaumont Refinery, pursuant to Sec.  260.22, EPA concludes that the
petitioned wastes: Centrifuge solids do not exhibit any of the
characteristics of ignitability, corrosivity, reactivity, or toxicity.
See Sec. Sec.  261.21, 261.22, 261.23, and 261.24 respectively.

G. What other factors did EPA consider in its evaluation?

    During the evaluation of this petition, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the Centrifuge
solids. With regard to airborne dispersion in particular, EPA believes
that exposure to airborne contaminants from the petitioned waste is
unlikely. No appreciable air releases are likely from the centrifuge
solids under any likely disposal conditions. EPA evaluated the
potential hazards resulting from the unlikely scenario of airborne
exposure to hazardous constituents released from the solids in an open
landfill. The results of this worst-case analysis indicated that there
is no substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from the centrifuge
solids.

H. What is EPA's evaluation of this delisting petition?

    The descriptions by Beaumont Refinery of the hazardous waste
process and analytical characterization, with the proposed verification
testing requirements (as discussed later in this notice), provide a
reasonable basis for EPA to grant the petition. The data submitted in
support of the petition show that constituents in the waste are below
the maximum allowable concentrations (See Table 2). EPA believes that
the Centrifuge solids generated by Beaumont Refinery contain hazardous
constituents at levels which will present minimal short-term and long-
term threats from the petitioned wastes to human health and the
environment.
    Thus, EPA believes that it should grant to Beaumont Refinery an
exclusion from the list of hazardous wastes for the Centrifuge solids.
EPA believes that the data submitted in support of the petition show
the Beaumont Refinery's Centrifuge solids to be non-hazardous.
    EPA has reviewed the sampling procedures used by Beaumont Refinery
and has determined they satisfy EPA's criteria for collecting
representative samples of variable constituent concentrations in the
Centrifuge solids. The data submitted in support of the petition show
that constituents in Beaumont Refinery's wastes are presently below the
compliance-point concentrations used in the delisting decision-making
process and would not pose a substantial hazard to the environment and
the public. EPA believes that Beaumont Refinery has successfully
demonstrated that the Centrifuge solids are non-hazardous.
    EPA, therefore, proposes to grant an exclusion to Beaumont Refinery
for the Centrifuge solids described in its September 2009 petition.
EPA's decision to exclude these wastes is based on analysis performed
on samples taken of the Centrifuge solids.
    If EPA finalizes the rule, EPA will no longer regulate 8,300 cubic
yards of centrifuge solids from Beaumont Refinery's Beaumont facility
under parts 262 through 268 and the permitting standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, Beaumont Refinery, must comply with the
requirements in 40 CFR Part 261, Appendix IX, Tables 1 and 2 as amended
by this notice. The text below gives the rationale and details of those
requirements.
(1) Data Submittals
    To provide appropriate documentation that the Beaumont Refinery
facility is correctly managing the Centrifuge solids, Beaumont Refinery
must compile, summarize, and keep delisting records on-site for a
minimum of five years. Beaumont Refinery must keep all delisting
records for five years. Paragraph (1) requires that Beaumont Refinery
furnish these data upon request for inspection by any employee or
representative of EPA or the State of Texas.
    If the exclusion is made final, then it will apply only to 8,300
cubic yards of centrifuge solids generated at the Beaumont Refinery
facility after successful initial verification testing.
    EPA would require Beaumont Refinery to submit additional
verification data under any of the following circumstances:
    (a) Beaumont Refinery must submit a modification to the petition
complete with full sampling and analysis for circumstances where the
waste volume changes and/or additional waste codes are added to the
waste stream. EPA will publish an amendment to the exclusion if the
changes are acceptable.
    Beaumont Refinery must manage waste volumes greater than 8,300
cubic yards of centrifuge solids as hazardous waste until EPA grants a
revised exclusion. When this exclusion becomes final, the management by
Beaumont Refinery of the Centrifuge solids covered in this petition
would be relieved from Subtitle C jurisdiction. Beaumont Refinery may
not classify the waste as non-hazardous until the revised exclusion is
finalized.
(2) Reopener
    The purpose of paragraph (2) is to require Beaumont Refinery to
disclose new or different information related to a condition at the
facility or disposal of the waste, if it is pertinent to the delisting.
This provision will allow EPA to reevaluate the exclusion, if a source
provides new or additional information to EPA. EPA will evaluate the
information on which it based the decision to see if it is still
correct or if circumstances have changed so that the information is no
longer correct or would cause EPA to deny the petition, if presented.
    This provision expressly requires Beaumont Refinery to report
differing site conditions or assumptions used in the petition in
addition to failure to meet the annual testing conditions within 10
days of discovery. If EPA discovers such information itself or from a
third party, it can act on it as appropriate. The language being
proposed is similar to those provisions found in RCRA regulations
governing no-migration petitions at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. EPA may reopen a delisting decision when
it receives new information that calls into question the assumptions
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is
merited in light of EPA's experience. See the Federal

Register notice regarding Reynolds Metals Company at 62 FR 37694 (July
14, 1997) and 62 FR 63458 (December 1, 1997) where the delisted waste
leached at greater concentrations into the environment than the
concentrations predicted when conducting the TCLP, leading EPA to
repeal the delisting. If an immediate threat to human health and the
environment presents itself, EPA will continue to address these
situations on a case-by-case basis. Where necessary, EPA will make a
good cause finding to justify emergency rulemaking. See APA section 553
(b)(3)(B).

B. What happens, if Beaumont Refinery violates the terms and
conditions?

    If Beaumont Refinery violates the terms and conditions established
in the exclusion, EPA will start procedures to withdraw the exclusion.
Where there is an immediate threat to human health and the environment,
EPA will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Beaumont Refinery to conduct the appropriate waste
analysis and comply with the criteria explained above in paragraph (1)
of the exclusion.

V. Final Action

    EPA is approving the delisting petition for the centrifuge solids
generated at Beaumont Refinery's Beaumont--Texas facility.
    EPA is publishing this rule without prior proposal because we view
this as a non-controversial exclusion and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register, we are publishing a separate document that will serve as the
proposed rule to approve the petition if relevant adverse comments are
received on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time. For further information about commenting on
this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. We would address all public comments in a
subsequent final rule based on the proposed rule. Please note that if
we receive adverse comment on a paragraph, or section of this rule and
if that provision may be severed from the remainder of the rule, we may
adopt as final those provisions of the rule that are not the subject of
an adverse comment.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have Tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules: (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability.

Lists of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: September 20, 2010.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.

0
For the reasons set out in the preamble, 40 CFR part 261 is proposed to
be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for Part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

0
2. In Tables 1 and 2 of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded under Sec. Sec.  260.20 and
260.22.

                                                    Table 1--Waste Excluded From Non-Specific Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Facility                              Address                                            Waste description
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
ExxonMobil Refining and Supply Company-   Beaumont, TX...................  Centrifuge Solids (EPA Hazardous Waste Numbers F037, F038, K048, K049, K051,
 Beaumont Refinery.                                                         K052, K169, and K170.) generated at a maximum rate of 8,300 cubic yards
                                                                            after November 30, 2010 and disposed of in a Subtitle D Landfill.
                                                                           (1) Reopener V
                                                                           (A) If, anytime after disposal of the delisted waste Beaumont Refinery
                                                                            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 testing data (and retest, if applicable) of the waste does not meet
                                                                            the delisting requirements in paragraph 1, Beaumont Refinery 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 Beaumont Refinery fails to submit the information described in
                                                                            paragraphs (1)(A) or (1)(B) or if any other information is received from any
                                                                            source, the Division Director will make a preliminary determination as to
                                                                            whether the reported information requires EPA action to protect human health
                                                                            and/or the environment. Further action may include suspending, or revoking
                                                                            the exclusion, or other appropriate response necessary to protect human
                                                                            health and the environment.
                                                                           (D) If the Division Director determines that the reported information
                                                                            requires action by EPA, the Division Director will notify the facility in
                                                                            writing of the actions the Division Director believes are necessary to
                                                                            protect human health and the environment. The notice shall include a
                                                                            statement of the proposed action and a statement providing the facility with
                                                                            an opportunity to present information as to why the proposed EPA action is
                                                                            not necessary. The facility shall have 10 days from receipt of the Division
                                                                            Director's notice to present such information.
                                                                           (E) Following the receipt of information from the facility described in
                                                                            paragraph (1)(D) or (if no information is presented under paragraph (1)(D))
                                                                            the initial receipt of information described in paragraphs (1)(A) or (1)(B),
                                                                            the Division Director will issue a final written determination describing
                                                                            EPA actions that are necessary to protect human health and/or the
                                                                            environment. Any required action described in the Division Director's
                                                                            determination shall become effective immediately, unless the Division
                                                                            Director provides otherwise.
                                                                           (2) Notification Requirements:
                                                                           Beaumont Refinery must do the following before transporting the delisted
                                                                            waste. Failure to provide this notification will result in a violation of
                                                                            the delisting petition and a possible revocation of the decision.
                                                                           (A) Provide a one-time written notification to any State Regulatory Agency to
                                                                            which or through which it will transport the delisted waste described above
                                                                            for disposal, 60 days before beginning such activities.
                                                                           (B) Update one-time written notification, if it ships the delisted waste into
                                                                            a different disposal facility.

                                                                           (C) Failure to provide this notification will result in a violation of the
                                                                            delisting variance and a possible revocation of the decision.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                      Table 2--Waste Excluded From Specific Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Facility                              Address                                            Waste description
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
ExxonMobil Refining and Supply Company--  Beaumont, TX...................  Centrifuge Solids (EPA Hazardous Waste Numbers F037, F038, K048, K049, K051,
 Beaumont Refinery.                                                         K052, K169, and K170.) generated at a maximum rate of 8,300 cubic yards
                                                                            after November 30, 2010 and disposed of in a Subtitle D Landfill.
                                                                           Beaumont Refinery must implement the requirements in Table 1. Wastes Excluded
                                                                            from Non-Specific Sources for the petition to be valid.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

[FR Doc. 2010-24571 Filed 9-30-10; 8:45 am]
BILLING CODE 6560-50-P