[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66742-66751]
[FR Doc No: 2023-20408]

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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.

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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<PHONE_NUMBER>,
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,<PHONE_NUMBER>,
[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.

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
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                                                           1 Mile radius      3 Mile radius      5 Mile radius
         Supplemental EJ index (USA percentile)              around the         around the         around the
                                                              facility           facility           facility
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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

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
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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

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

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

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

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

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.

                                                                    (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]
BILLING CODE 6560-50-P


OLD and MON   Assigning Storage Tanks*

* Note this document represents an updated and modified position from the American Chemistry Council's OLD comments at page 20. Clear Applicability  " Subject to" versus " Controlled Under" EPA should eliminate the overlap between OLD and MON and other source categories by delineating the OLD boundary by excluding equipment and operations that have been previously determined to be part of another 40 CFR Part 63 standard, specifically including the MON. Emission points that have already been determined to belong to a separate source category ( including those which EPA has already determined that controls are not justified under the MACT rule for that source category) must not be included in the OLD source category.

I ntervening Storage Tank The " intervening storage tank" concept has been used in many other Part 63 standards, including the HON ( § 63.100( g)( 3)), the Group I Polymer & Resins MACT ( § 63.480( g)( 7)), and the Group IV Polymers & Resins MACT ( § 63.1310( g)( 7)). It was first introduced in the August 26, 1996 revisions to the HON, where EPA agreed that the distinction between storage vessels used for product storage and vessels used more for purposes of facilitating product distribution was ambiguous and needed clarification. EPA stated that their solution to this problem ". . . will result in assignment of storage vessels in a manner consistent with normal management of facility operations. Specifically, it is expected that storage vessels that are an integral part of operation of a CMPU subject to the HON will be regulated under the HON and that storage vessels that are used to facilitate product distribution will be regulated as part of the organic liquids distribution source category and not under the HON." 61 Fed Reg. at 43701 ( August 26, 1996). A similar logic applies to MON units.

Recommendation Where a bulk tank in a tank farm area has received organic liquids from outside the plant site and feeds that material to another storage tank at a MON process unit ( an " intervening storage tank"), the bulk tank is assigned to the organic liquid distribution MACT, and the " intervening storage tank" to the MON process unit. This can be illustrated in the drawing below.

Both Tank 1 and Tank 2 are located in the Organic Liquids Distribution area. Tank 1 feeds into a smaller storage tank located at the process unit ( an " intervening storage tank"), as well as to other process units at the facility. Tank 2 feeds directly into the MON process unit. Tanks 3 and 4 are located at the process unit. In this illustration, Tanks 1 is subject to the OLD rule, as it is the bulk tanks for the facility. Tanks 2, 3 and 4, however, would be part of the process unit, and subject to any MACT standard that applies to that unit. They would not be subject to the OLD MACT. Tank assignments are made based ON USE not geography. T a n k 1 T a n k 2 T a n k 3 T a n k 4 T r a n s fe r O p e ra t io n D i s t r ib u t i o n A r e a P r o c e s s U n i t P r o c e s s U n i t T o o th e r p r o c e s s u n i t s O r g a n ic L i q u i d f r o m O f f  s i t e Drawing 2


[Federal Register Volume 78, Number 80 (Thursday, April 25, 2013)]
[Notices]
[Pages 24456-24458]
[FR Doc No: 2013-09766]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69420; File No. SR-C2-2013-018]

Self-Regulatory Organizations; C2 Options Exchange, Incorporated;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
Amending C2 Rules Governing Letters of Guarantee and Authorization

April 19, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that, on April 11, 2013, C2 Options Exchange, Incorporated (the
``Exchange'' or ``C2'') filed with the Securities and Exchange
Commission (the ``Commission'') the proposed rule change as described
in Items I, II and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.\3\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See also Securities Exchange Act Release No. 68879 (February
8, 2013), 78 FR 11249 (February 15, 2013) (CBOE-2012-124) (order
approving a proposed rule change to amend various CBOE rules
governing letters of guarantee and authorization).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend C2 rules governing letters of
guarantee and authorization. The text of the proposed rule change is
available on the Exchange's Web site (http://www.c2exchange.com/Legal/)
and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Permit Holders that have trading functions on the Exchange, are
required to submit a letter of guarantee or authorization \4\ for that
Permit Holder's trading activities on the Exchange from a Clearing
Participant.\5\ The purpose of this proposal is to amend various
Exchange rules governing letters of guarantee and authorization to:
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    \4\ A letter of guarantee is typically provided to C2 by a
Clearing Participant guaranteeing any trades made by one of its TPH
customers, e.g., a Market-Maker. The Commission notes that ``TPH''
refers to ``Trading Permit Holder,'' which is defined in CBOE Bylaws
Article I, Section 1.1(f) (the term ``Trading Permit Holder'' means
any ``individual, corporation, partnership, limited liability
company or other entity authorized by the Rules that holds a Trading
Permit* * *'').
    \5\ C2 Rule 1.1 defines ``Clearing Participant'' as a ``Permit
Holder that has been admitted to membership in the Clearing
Corporation pursuant to the provisions of the Rules of the Clearing
Corporation.''
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     Give the Exchange the ability to prevent access to its
marketplace if a Permit Holder does not have an effective letter of
guarantee or authorization on file with the Exchange;
     Provide that any written revocation of a letter of
guarantee or authorization will be given effect as quickly as the
Exchange can process it;
     Give the Exchange the ability to take any action necessary
to give effect to actions by the Clearing Corporation,\6\ such as
restricting the activities of a Clearing Participant or suspending a
Clearing Participant; and
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    \6\ The Options Clearing Corporation (``OCC'') is currently the
only Clearing Corporation of C2.
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     Automatically terminate the trading permit(s) and Permit
Holder status of a Permit Holder if the Permit Holder does not have a
required letter of guarantee or authorization in place for ninety
consecutive days.
    The changes proposed in this filing are intended to clarify and
codify existing and well-established principles regarding activities
permitted by Clearing Participants. While elementary, the Exchanges
believes that it is important to specifically provide in its rules that
a Permit Holder must have a valid letter of guarantee or authorization
in order to engage in trading activities and, if one is not in place,
the Exchange is permitted to prevent connectivity and access to the
Exchange by that Permit Holder. Similarly, the definition of a Clearing
Participant requires that a Permit Holder be admitted to membership in
the OCC.\7\ If the OCC restricts the activities of a Clearing
Participant or terminates a Clearing Participant's membership in the
OCC, that Permit Holder no longer meets the definition of a ``Clearing
Participant.'' As a result, the Exchange believes it is appropriate to
codify its ability to take action, as necessary, to give effect to any
restriction or suspension issued by the OCC. Finally, the Exchange is
proposing to provide that if a Permit Holder does not have a required
letter of guarantee or authorization in place for ninety consecutive
days, the Permit Holder's status and trading permit(s) will
automatically terminate (in addition to previous action by the Exchange
not to allow the Permit Holder to have access and connectivity to the
Exchange without a required guarantee which would occur following the
revocation of a guarantee). If a Permit Holder no longer has a valid
letter of guarantee and authorization, that Permit Holder presents risk
to the marketplace and the Exchange believes it is appropriate to
terminate trading, access and connectivity and then Permit Holder
status in this situation.
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    \7\ See C2 Rule 1.1.
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    The Exchange is proposing to amend C2 Rule 3.10 so that it will
govern letters of guarantee and authorization (currently Rule 3.10 is
limited to letters of guarantee). The Exchange is proposing to add new
paragraphs (b) through (g) to Rule 3.10 to expressly provide the
Exchange with remedial powers in the event the OCC restricts or
suspends a Clearing Participant. The Exchange is also proposing to add
new paragraph (h) to Rule 3.10 to govern the termination of Permit
Holder status when a Permit Holder is without a required letter of
guarantee or authorization for a ninety consecutive day period.
    First, the Exchange is proposing to provide that a Permit Holder
may not engage in any trading activities on the Exchange if an
effective letter of guarantee or authorization required to engage in
those activities is not on file with the Exchange. If a Permit Holder
does not have an effective letter of guarantee or authorization on file
with the Exchange, the Exchange will be permitted to prevent access and
connectivity to the Exchange by that Permit Holder.
    Second, the Exchange is proposing to provide that letters of
guarantee and authorization filed with the Exchange will remain in
effect until a written notice of revocation has been filed with the
Permit Holder Department and the revocation becomes effective or the
letter of guarantee or authorization otherwise becomes invalid pursuant
to Exchange rules. A written notice of

revocation will become effective as soon as the Exchange is able to
process the revocation. A revocation will in no way relieve a Clearing
Participant of responsibility for transactions guaranteed prior to the
effectiveness of the revocation.
    Third, the Exchange is proposing to provide that if the OCC
restricts the activities of a Clearing Participant or suspends a
Clearing Participant as a Clearing Member of the OCC, the Exchange will
be permitted to take action as necessary to give effect to the
restriction or suspension. For example, if the OCC restricts
transactions cleared by a Clearing Participant to ``closing only''
transactions, the Exchange will be similarly able to restrict
transactions on the Exchange for clearance by that Clearing Participant
as a Clearing Member of the OCC to ``closing only'' transactions.
Similarly, if the OCC suspends a Clearing Participant, the Exchange
will be similarly able to prevent access and connectivity to the
Exchange by the suspended Clearing Participant.
    Fourth, the Exchange is proposing to provide that if a Clearing
Participant's status as a Clearing Member of the OCC is terminated or
if a Clearing Participant's status as a C2 Permit Holder is terminated,
all letters of guarantee and authorization on file with the Exchange
from that Clearing Participant will no longer be valid effective as
soon as the Exchange is able to process the invalidation of these
letters of guarantee and authorization.
    Fifth, the Exchange is proposing to provide that if a Clearing
Participant has been suspended as a Clearing Member of the OCC or as a
C2 Permit Holder, all existing letters of guarantee and authorization
from that Clearing Participant will be invalid during the period of the
suspension effective as soon as the Exchange is able to process the
invalidation of those letters of guarantee and authorization.
    Sixth, the Exchange is proposing to provide that the invalidation
of a letter of guarantee or authorization will in no way relieve the
Clearing Participant that issued the letter of guarantee or
authorization of responsibility from transactions guaranteed prior to
the effectiveness of the invalidation.
    Seventh, the Exchange is proposing to provide that if a Permit
Holder does not have a required letter of guarantee or authorization
for period of ninety consecutive days, the Permit Holder's trading
permit(s) and status as a Permit Holder shall automatically be
terminated.
    A revocation of a letter of guarantee or authorization will not
occur immediately upon receipt of the revocation by the Permit Holder
Department because it takes time for the Exchange to process and
effectuate the revocation. For example, there are changes that must be
input into the Exchange's systems in order to systematize and
effectuate a revocation. Also Exchange staff may be occupied with other
matters when a revocation is received and may not immediately be able
to process the revocation. Accordingly, the revocation and invalidation
of letters of guarantee and authorization under proposed Rules 3.10(c)
and 3.10(f) shall become effective as soon as the Exchange is able to
process the revocation or invalidation. The Exchange will endeavor to
process revocations and invalidations in a timely manner under the
circumstances but makes no guarantees in this respect.
    If a Permit Holder has a letter of guarantee or authorization that
is revoked or invalidated, that Permit Holder's orders and quotes will
be rejected after the revocation or invalidation after the revocation
or invalidation becomes effective unless and until the Trading Permit
has another effective letter of guarantee or authorization in place and
on file with the Exchange. This means that a Trading Permit without an
effective letter of guarantee or authorization will not be able to
continue to trade on the Exchange.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\8\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \9\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitation
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \10\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ Id.
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    In particular, expressly permitting the Exchange to take action as
needed to give effect to a restriction or suspension issued by the OCC
will protect the integrity of the Exchange's marketplace by limiting
trading to only those Permit Holders with effective and unrestricted
letters of guarantee and authorization. A key purpose for having
Clearing Participants is to reduce the risk of market participants
failing to honor executed trades. By requiring that Permit Holders have
an effective and unrestricted letters of guarantee, the Exchange is
advancing this purpose. Additionally, the Exchange believes that the
proposed rule change is designed to remove impediments to and to
perfect the mechanism for a free and open market and a national market
system, and, in general, to protect investors and the public interest
in that it will allow the Exchange to take actions to give effect to
restrictions or suspensions issued by the OCC. The ability to take
action is designed to prevent the execution of trades on the Exchange
which may not be able to be ultimately cleared and settled if access to
the Exchange's marketplace is not restricted in tandem with a
restriction or suspension issued by the OCC. Also, preventing access
and connectivity to the Exchange by a Permit Holder if that Permit
Holder's Clearing Participant revokes the Permit Holder's letter of
guarantee or authorization is beneficial to the marketplace and serves
to protect investors since it prevents trading by a Permit Holder
without a financial guarantee for that trading. If a Permit Holder no
longer has a valid letter of guarantee or authorization, that Permit
Holder presents risk to the marketplace and the Exchange believes it is
appropriate to prevent access and connectivity to the Exchange by that
Permit Holder in this situation. The Exchange also believes that having
the ability to terminate the Permit Holder status and trading permit(s)
of a Permit Holder that does not have a required letter of guarantee or
authorization for ninety consecutive days is desirable since it allows
the Exchange to appropriately manage and control access to its
marketplace by limiting access only to those with a financial guarantee
which thereby serves to protect investors by ensuring that
counterparties to trades have such a guarantee.

    The Exchange believes the proposed rule change is also consistent
with the Section 6(b)(7) \11\ requirements that the rules of an
exchange provide a fair procedure for the denial of membership to any
person seeking membership therein and the prohibition or limitation by
an exchange of any person with respect to access to services offered by
the exchange.
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    \11\ 15 U.S.C. 78f(b)(7).
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    Specifically, with respect to the proposed automatic termination
provision when a Permit Holder does not have a required letter of
guarantee or authorization for ninety consecutive days, the Exchange
believes that that provision establishes a fair procedure because it
strikes the appropriate balance between giving a deficient Permit
Holder an adequate amount of time to cure the deficiency of not having
a required letter of guarantee or authorization and allowing the
Exchange to appropriately limit access to its marketplace only to those
Permit Holders with a financial guarantee. Furthermore, the automatic
termination provision does not prohibit or limit a previously
terminated Permit Holder from seeking to gain access again to the
Exchange by applying to become a Permit Holder subsequent to the
termination if the Permit Holder is able to again acquire the required
letter of guarantee and authorization.

B. Self-Regulatory Organization's Statement on Burden on Competition

    C2 does not believe that the proposed rule change will impose any
burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange does not believes
the proposed rule change will pose any burden on intramarket
competition because it is applied to all TPHs equally as all will have
the same requirements with respect to letters of guarantee.
Additionally, the Exchange does not believe the proposed rule change
will pose any burden on intermarket competition because the proposed
rule change merely allows the Exchange to clarify and codify existing
and well-established principles regarding activities permitted by
Clearing Participants. Therefore, there would be no further impact on
intermarket competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not:
    A. Significantly affect the protection of investors or the public
interest;
    B. Impose any significant burden on competition; and
    C. Become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate,

it has become effective pursuant to Section 19(b)(3)(A) of the Act \12\
and Rule 19b-4(f)(6) \13\ thereunder. At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission will institute proceedings to determine whether the proposed
rule change should be approved or disapproved.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(6).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please
include File Number SR-C2-2013-018 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-C2-2013-018. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-C2-2013-018 and should be
submitted on or before May 16, 2013.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2013-09766 Filed 4-24-13; 8:45 am]
BILLING CODE 8011-01-P