[Federal Register Volume 74, Number 130 (Thursday, July 9, 2009)]
[Proposed Rules]
[Pages 32838-32846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16261]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FDMS Docket No.: EPA-R04-RCRA-2008-0900; FRL-8922-2]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to grant a petition submitted by The Valero 
Refining Company--Tennessee, L.L.C. (Valero) to exclude or ``delist'' a 
certain sediment generated by its Memphis Refinery in Memphis, 
Tennessee from the lists of hazardous wastes. EPA used the Delisting 
Risk Assessment Software (DRAS) in the evaluation of the potential 
impact of the petitioned waste on human health and the environment. EPA 
bases its proposed decision to grant the petition based on an 
evaluation of waste-specific information provided by Valero (the 
petitioner). This proposed decision, if finalized, would conditionally 
exclude the petitioned waste from the requirements of the hazardous 
waste regulations under the Resource Conservation and Recovery Act 
(RCRA).
    This exclusion would be valid only when the Storm Water Basin 
Sediment is disposed of in a Subtitle D landfill that is permitted, 
licensed, or registered by a State to manage industrial solid waste.
    If finalized, EPA would conclude that Valero's petitioned waste is 
nonhazardous with respect to the original listing criteria and that 
there are no other factors that would cause the waste to be hazardous.

DATES: EPA will accept public comments on this proposed decision until 
August 10, 2009. EPA will stamp comments received after the close of 
the comment period as late. These late comments may not be considered 
in formulating a final decision. Any person may request a hearing on 
this proposed decision by filing a request to EPA by July 24, 2009. The 
request must contain

[[Page 32839]]

the information prescribed in 40 CFR 260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
RCRA-2008-0900, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (404) 562-8566.
    4. Mail: EPA-R04-RCRA-2008-0900, RCRA/OPA Enforcement and 
Compliance Branch, RCRA Division, U.S. Environmental Protection Agency 
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303.
    5. Hand Delivery or Courier: Kristin Lippert, RCRA/OPA Enforcement 
and Compliance Branch, RCRA Division, U.S. Environmental Protection 
Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-RCRA-
2008-0900. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the RCRA/OPA Enforcement and 
Compliance Branch, RCRA Division, U.S. Environmental Protection Agency, 
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kristin Lippert, North Enforcement and 
Compliance Section, (Mail Code 4WD-RCRA), RCRA/OPA Enforcement and 
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam 
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 
30303 or call (404) 562-8605 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. What are the terms for disposal of Valero's Storm Water Basin 
Sediment pursuant to this exclusion?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect States?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What regulations allow a waste to be delisted?
    D. What factors must the EPA consider in deciding whether to 
grant a delisting petition?
III. Valero's Petition to Delist Its Waste
    A. What waste did Valero petition EPA to delist?
    B. How is the petitioned waste generated?
    C. What information did Valero submit in support of its 
petition?
IV. EPA's Evaluation of Valero's Petition
    A. How did EPA evaluate the information submitted?
    B. What did EPA conclude about this waste?
    C. What other factors did EPA consider in its evaluation?
V. Conditions
    A. With what conditions must Valero comply for its Storm Water 
Basin Sediment to be delisted?
    B. What happens if Valero is unable to meet the terms and 
conditions of this delisting?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism

I. Overview Information

A. What action is EPA proposing?

    Today EPA is proposing to grant the petition submitted by Valero to 
have its Storm Water Basin sediment generated at its Memphis Refinery 
in Tennessee excluded or delisted from the definition of a hazardous 
waste, contingent upon its disposal in a Subtitle D Landfill. This is a 
one-time exclusion for 2,700 cubic yards of sediment.

B. Why is EPA proposing to approve this delisting?

    Valero's petition requests a delisting for the Storm Water Basin 
sediment from being considered a F037 waste. Valero believes that the 
Storm Water Basin sediment does not meet the original criteria for the 
hazardous waste listing. Valero also believes no additional 
constituents or factors could cause the waste to be hazardous. EPA's 
review of this petition included consideration of the original listing 
criteria, and the additional factors required by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA). See Section 3001(f) of RCRA at 
42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the initial 
delisting determination, EPA evaluated the petitioned waste against the 
listing criteria and factors cited in 40 CFR 261.11(a)(2) and (a)(3). 
Based on this review, EPA agrees with the petitioner that the waste is 
nonhazardous with respect to the original listing criteria. If EPA had 
found, based on this review, that the waste remained hazardous based on 
the factors for which the waste was originally listed, EPA would have 
proposed to deny the petition. EPA evaluated the waste with respect to 
other factors or criteria to assess

[[Page 32840]]

whether there is a reasonable basis to believe that such additional 
factors could cause the waste to be hazardous. EPA considered whether 
the waste is acutely toxic, the concentration of the constituents in 
the waste, their tendency to migrate and to bioaccumulate, their 
persistence in the environment once released from the waste, plausible 
and specific types of management of the petitioned waste, the 
quantities of waste generated, and waste variability. EPA believes that 
the petitioned waste does not meet the listing criteria and thus should 
not be a listed waste. EPA's proposed decision to delist waste from 
Valero's facility is based on the information submitted in support of 
this rule, including descriptions of the wastes and analytical data 
from the Memphis Refinery at the Tennessee facility.

C. What are the terms for disposal of Valero's Storm Water Basin 
Sediment pursuant to this exclusion?

    If the petitioned waste is delisted, Valero must dispose of it in a 
Subtitle D landfill which is permitted, licensed, or registered by a 
State to manage industrial waste.

D. When would the proposed delisting exclusion be finalized?

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

E. How would this action affect states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be affected. This would exclude States who have 
received authorization from EPA to make their own delisting decisions.
    We allow States to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under RCRA Section 
3009, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the State. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the State regulatory authority 
to establish the status of their wastes under the State law. Delisting 
petitions approved by the EPA Administrator or his delegate under 40 
CFR 260.22 are effective in the State of Tennessee after the final rule 
has been published in the Federal Register.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing Section 3001 of RCRA. EPA has 
amended this list several times and published it in the 40 CFR 261.31 
and 261.32. EPA lists these wastes as hazardous because: (1) They 
typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in Subpart C of 40 CFR part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in 40 CFR 261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations 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, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

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

    A delisting petition is a request from a facility to the EPA or an 
authorized State to exclude waste from the list of hazardous wastes 
pursuant to RCRA. The facility petitions EPA because it does not 
consider the wastes hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that the waste, 
generated at a particular facility, does not meet any of the criteria 
for which EPA listed the waste as set forth in 40 CFR 261.11 and the 
background documents for the listed waste. In addition, a petitioner 
must demonstrate pursuant to 40 CFR 260.22 that the waste does not 
exhibit any of the hazardous waste characteristics (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 
(see 40 CFR 260.22, 42 U.S.C. 6921(f), and the background documents for 
the listed waste).
    Generators remain obligated under RCRA to confirm that their waste 
remains nonhazardous based on the hazardous waste characteristics even 
if the EPA has ``delisted'' the waste.

C. What regulations allow a waste to be delisted?

    Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), a generator may 
petition the EPA to remove its waste from the lists of hazardous wastes 
contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 
allows any person to petition the Administrator to modify or revoke any 
provisions of 40 CFR parts 260 through 266, 268, and 273 of 40 CFR.

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

    Besides considering the criteria in 40 CFR 260.22(a) and Section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and information in the background 
documents for the listed waste, EPA must consider any factors 
(including additional constituents) other than those for which EPA 
listed the waste if a reasonable basis exists that the additional 
factors could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste (see 40 CFR 261.3(a)(2)(iii) and 
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively). These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded (see 66 FR 27266, May 16, 2001).

III. Valero's Petition To Delist Its Waste

A. What waste did Valero petition EPA to delist?

    On July 25, 2008, Valero petitioned EPA to exclude from the lists 
of

[[Page 32841]]

hazardous waste contained in 40 CFR 261.31 and 261.32, F037 Storm Water 
Basin sediment generated from its facility located in Memphis, 
Tennessee. The F037 listing is for a petroleum refinery primary oil/
water/solids separation sludge. This sediment has collected in the 
bottom of the Storm Water Basin since 1993 and is between three (3) to 
four (4) feet deep. The sediment originates from storm water flows 
(i.e., wet weather flows) and may have occurred from flows during non-
storm events (i.e., dry weather flows). This sediment waste stream is 
classified as hazardous waste due to ``carry over'' of waste codes 
resulting from the RCRA's ``mixture'' and ``derived-from'' rules and/or 
a conservative interpretation for the assignment of hazardous waste 
code F037. The waste conservatively falls under the classification of 
listed waste under 40 CFR 261.3. Specifically, in its petition, Valero 
requested that EPA grant a one-time exclusion for 2,700 cubic yards of 
the F037 Storm Water Basin sediment.

B. How is the petitioned waste generated?

    Valero generates hazardous and nonhazardous industrial solid wastes 
as a result of refinery and chemical processes, wastewater treatment, 
refinery/chemical plant feed, product storage and distribution. The 
sediment in the Storm Water Basin originates from storm water flow 
associated with the Memphis Refinery as well as Martin Luther King Jr. 
Park that is north of and upgradient to the refinery. Accounting for 
the existing sediment depth of three to four feet, the basin has a 
remaining capacity of roughly 600,000 gallons with overall dimensions 
of approximately 200 feet by 100 feet.
    In addition to storm water (i.e., wet weather flows) entering the 
Storm Water Basin, some flows during non-storm events (i.e., dry 
weather flows) may have occurred from sources that could be viewed as 
``oily''. Therefore, the sediment could carry the EPA hazardous waste 
code of F037. In the absence of definitive information regarding these 
dry weather flows and their classification, Valero has elected to 
conservatively assume that sediment in the Storm Water Basin bears EPA 
hazardous waste code F037.

C. What information did Valero submit in support of its petition?

    To support its petition, Valero submitted: (1) Facility information 
on production processes and waste generation processes including 
analytical data from twelve (12) samples collected on August 7, 2007, 
in the Storm Water Basin; (2) Results of the total constituent list for 
40 CFR part 264 Appendix IX volatiles, semivolatiles, metals, 
pesticides, herbicides, dioxins and PCB for the sampling on August 7, 
2007; (3) Results of the constituent list for Appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for volatiles, 
semivolatiles, and metals for the sampling on August 7, 2007; (4) 
Analytical constituents of concern for F037 for the sampling on August 
7, 2007; (5) Results from total oil and grease analyses for the 
sampling on August 7, 2007; and (6) Summary of the July 2006 Sediment 
Data (Highest Results from Detections).
    EPA believes that the Valero analytical characterization 
demonstrates that the Storm Water Basin sediment is nonhazardous. 
Analytical data for the F037 Storm Water Basin sediment samples were 
used in the Delisting Risk Assessment Software. The data summaries for 
detected constituents are presented in Table I. EPA has reviewed the 
sampling procedures used by Valero and has determined that they satisfy 
EPA criteria for collecting representative samples of the variations in 
constituent concentrations in the F037 Storm Water Basin sediment. The 
data submitted in support of the petition show that constituents in 
Valero's waste are presently below health-based levels used in the 
delisting decision-making. EPA believes that Valero has successfully 
demonstrated that the F037 Storm Water Basin sediment is nonhazardous.

                           Table I--Maximum Total and TCLP Concentrations and Maximum
 [Allowable Delisting Concentration Levels, Storm Water Basin F037 Sediment, Valero's Memphis Refinery, Memphis,
                                                   Tennessee]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Maximum
                                                              Maximum total     Maximum TCLP        allowable
                        Constituent                            constituent       constituent        delisting
                                                            analysis (mg/kg)   analysis (mg/L)    concentration
                                                                                                  level (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene..............................................             0.464            <0.008               N/A
Antimony..................................................              7.86             0.309              1.13
Anthracene................................................             0.833            <0.008               N/A
Arsenic...................................................                26             0.092             0.205
Barium....................................................               236              1.53               160
Benz(a)anthracene.........................................              5.79            <0.008               N/A
Benzo(a)pyrene............................................              5.32            <0.008           0.00177
Benzo(b)fluoranthene......................................              2.73            <0.008             0.016
Benzo(g,h,i)perylene......................................            2.22 J            <0.008               N/A
Benzo(k)fluoranthene......................................              3.26            <0.008               N/A
Beryllium.................................................             0.358             <0.01              9.12
Bis(2-ethylhexyl)phthalate................................             1.7 J             0.406               2.5
Cadmium...................................................             0.908            <0.005              1.23
Chromium\+6\..............................................              34.0             <0.01              3.82
Chromium..................................................               N/A             <0.01             8,440
Chrysene..................................................              11.2            <0.008              3.04
Chloroform................................................            0.0182            0.0182              5.33
Cobalt....................................................              11.0             0.069               N/A
Copper....................................................              45.5               N/A            23,100
Cyanide...................................................                <1               N/A              29.6
Dibenz(a,h)anthrancene....................................             1.2 J            <0.008          0.000833
Hepta-dioxins (totals)....................................          6.12E-04               N/A               N/A
Hexa-dioxins (totals).....................................           1.3E-04               N/A               N/A
Penta-dioxins (totals)....................................           2.8E-05               N/A               N/A

[[Page 32842]]

 
Tetra-dioxins (totals)....................................          1.16E-05               N/A               N/A
Ethylbenzene..............................................              1.56            0.0133               N/A
Fluoranthene..............................................              1.52            <0.008              3.53
Fluorene..................................................              1.01            <0.008              12.2
Hepta-furans..............................................          2.08E-04               N/A               N/A
Hexa-furans...............................................          1.83E-04               N/A               N/A
Penta-furans (totals).....................................          2.05E-04               N/A               N/A
Tetra-furans (totals).....................................          4.01E-05               N/A               N/A
1,2,3,4,6,7,8-HpCDD.......................................       0.242E-03 B               N/A               N/A
1,2,3,4,6,7,8-HpCDF.......................................          6.67E-05               N/A               N/A
1,2,3,4,7,8,9-HpCDF.......................................          2.11E-05               N/A               N/A
1,2,3,4,7,8-HxCDD.........................................          5.38E-06               N/A               N/A
1,2,3,6,7,8-HxCDD.........................................          1.16E-05               N/A               N/A
1,2,3,7,8,9-HxCDD.........................................          1.39E-05               N/A               N/A
1,2,3,4,7,8-HxCDF.........................................          1.62E-05               N/A               N/A
1,2,3,6,7,8-HxCDF.........................................          8.55E-06               N/A               N/A
1,2,3,7,8,9-HxCDF.........................................       0.577E-06 J               N/A               N/A
2,3,4,6,7,8-HxCDF.........................................           6.1E-06               N/A               N/A
Indeno(1,2,3-cd)pyrene....................................             0.749            <0.008               N/A
Lead......................................................              46.8             0.015             1,640
Mercury...................................................              1.04            <0.001             0.178
2-Methylnaphthalene.......................................              5.89            <0.008               N/A
Naphthalene...............................................              1.36            <0.008               N/A
Nickel....................................................              57.9             0.248              61.9
OCDD......................................................       4.34E-03 EB               N/A               N/A
OCDF......................................................          1.45E-04               N/A               N/A
1,2,3,7,8-PeCDD...........................................        3.44E-06 J               N/A               N/A
1,2,3,7,8-PeCDF...........................................       3.25E-06 JK               N/A               N/A
2,3,4,7,8-PeCDF...........................................          4.63E-06               N/A               N/A
Phenanthrene..............................................              4.24            <0.008               N/A
n-propylbenzene...........................................              1.04             <0.01               N/A
Pyrene....................................................              7.40            <0.008              2.71
Selenium..................................................              <5.0             <0.05              4.77
Silver....................................................              <2.5            <0.005              8.41
Sulfide...................................................               736               N/A               N/A
2,3,7,8-TCDD..............................................       0.847E-06 J               N/A          4.48E-08
2,3,7,8-TCDF..............................................        3.69E-06 C               N/A               N/A
Thallium..................................................                <2               N/A              0.29
Tin.......................................................              6.16               N/A               N/A
1,3,5-Trimethylbenzene....................................              8.10            0.0282               N/A
Vanadium..................................................              94.6             0.391              46.3
Xylenes, Total............................................              8.99            0.0737               N/A
Zinc......................................................               742              2.34               615
----------------------------------------------------------------------------------------------------------------
Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
(B) Based on DRAS modeling with a target risk of 10-5 and a target HI of 0.1. One-time sediment volume of 2,700
  cy.

IV. EPA's Evaluation of Valero's Petition

A. How did EPA evaluate the information submitted?

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e., ground water, 
surface water, air) for hazardous constituents present in the 
petitioned waste. EPA determined that disposal in an unlined Subtitle D 
landfill is the most reasonable, worst-case disposal scenario for 
Valero's petitioned waste. EPA applied the Delisting Risk Assessment 
Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 
75637 (December 4, 2000) to predict the maximum allowable 
concentrations of hazardous constituents that may be released from the 
petitioned waste after disposal and determined the potential impact of 
the disposal of Valero's petitioned waste on human health and the 
environment. A copy of this software can be found on the Internet at 
http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. In assessing 
potential risks to ground water, EPA used the maximum estimated waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
ground water at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 10-5 and non-
cancer hazard index of 0.1), the DRAS program can back-calculate the 
acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and EPA 
health-based numbers. Using the

[[Page 32843]]

maximum compliance-point concentrations and the EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP) fate and 
transport modeling factors, the DRAS further back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from disposal of the petitioned waste in an unlined landfill, 
and that a reasonable worst-case scenario is appropriate when 
evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of some reasonable 
worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    The DRAS also uses the maximum estimated waste volumes and the 
maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance-point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA believes that the descriptions of Valero hazardous waste 
process and analytical characterization, which illustrate the presence 
of toxic constituents at lower concentrations in these waste streams, 
provide a reasonable basis to conclude that the likelihood of migration 
of hazardous constituents from the petitioned waste will be 
substantially reduced so that short-term and long-term threats to human 
health and the environment are minimized.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of the DRAS results and maximum TCLP 
and Totals concentrations found in Table I, the petitioned waste should 
be delisted because no constituents of concern tested are likely to be 
present or formed as reaction products or by-products above the 
delisting levels.

B. What did EPA conclude about this waste?

    The descriptions of Valero's hazardous waste process and analytical 
characterization provide a reasonable basis for EPA to grant the 
exclusion. The data submitted in support of the petition show that 
constituents in the waste are below the maximum allowable leachable 
concentrations (see Table I). We believe the short-term and long-term 
threats posed to human health and the environment are minimized from 
the petitioned waste due to the low levels of hazardous constituents 
present in the waste.
    It is EPA's position that we should grant Valero an exclusion for 
the F037 Storm Water Basin sediment. The data submitted to EPA in 
support of the petition show Valero's F037 Storm Water Basin sediment 
is nonhazardous.
    We have reviewed the sampling procedures used by Valero and have 
determined they satisfy EPA criteria for collecting representative 
samples of variable constituent concentrations in the F037 Storm Water 
Basin sediment. The data submitted in support of the petition show that 
constituents in Valero's waste are presently below the compliance point 
concentrations used in the delisting decision-making and would not pose 
a substantial hazard to the environment. EPA believes that Valero has 
successfully demonstrated that the F037 Storm Water Basin sediment is 
nonhazardous.
    EPA therefore proposes to grant an exclusion to Valero Memphis 
Refinery Memphis, Tennessee, for the F037 Storm Water Basin sediment 
described in its petition. EPA's decision to exclude this waste is 
based on descriptions of the treatment activities associated with the 
petitioned waste and characterization of the F037 Storm Water Basin 
sediment.
    If we finalize the proposed rule, EPA will no longer regulate the 
petitioned waste under 40 CFR parts 262 through 268 and the permitting 
standards of part 270.
    EPA concluded, after reviewing Valero's processes, that no other 
hazardous constituents of concern, other than those for which Valero 
tested, are likely to be present or formed as reaction products or by-
products in the wastes. In addition, on the basis of explanations and 
analytical data provided by Valero, pursuant to 40 CFR 260.22, EPA 
concludes that the petitioned waste does not exhibit any of the 
characteristics of ignitability, corrosivity, or reactivity. See 40 CFR 
261.21, 261.22 and 261.23, respectively. Neither did it show the 
toxicity characteristic.

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

    During the evaluation of Valero's petition, EPA also considered the 
potential impact of the petitioned waste via non-ground water routes 
(i.e., air emissions and surface runoff). EPA evaluated the potential 
hazards resulting from the unlikely scenario of airborne exposure to 
hazardous constituents released from Valero's waste in an open 
landfill. The results of this worst-case analysis indicated that there 
is no substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from Valero's F037 
Storm Water Basin sediment. With regard to airborne dispersion in 
particular, EPA believes that exposure to airborne contaminants from 
Valero's petitioned waste is unlikely. Therefore, no appreciable air 
releases are likely from Valero's waste under the modeled disposal 
conditions. EPA also considered the potential impact of the petitioned 
waste via a surface water route. EPA believes that containment 
structures at Class I Landfills can effectively control surface water 
runoff, as the Subtitle D regulations (See 56 FR 50978, October 9, 
1991) prohibit pollutant discharges into surface waters. Furthermore, 
the concentrations of any hazardous constituents dissolved in the 
runoff will tend to be lower than the levels in the TCLP leachate 
analyses reported in this notice due to the aggressive acidic medium 
used for extraction in the TCLP. EPA believes that, in general, the 
F037 Storm Water Basin sediment is unlikely to directly enter a surface 
water body without first traveling through the saturated subsurface 
where dilution and attenuation of hazardous constituents will also 
occur.
    Based on the reasons discussed above, EPA believes that the 
contamination of surface water through runoff from the waste disposal 
area is very unlikely. Nevertheless, EPA evaluated the

[[Page 32844]]

potential impacts on surface water if Valero's waste were released from 
a Class I Landfill through runoff and erosion. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). EPA therefore concluded that Valero's F037 Storm Water Basin 
sediment is not a present or potential substantial hazard to human 
health and the environment via the surface water exposure pathway.

V. Conditions

A. With what conditions must Valero comply for its Storm Water Basin 
Sediment to be delisted?

    The petitioner, Valero, must comply with the requirements in 40 CFR 
part 261, Appendix IX, Table 1. The text below gives the rationale and 
details of those requirements. (1) Reopener: The purpose of Paragraph 1 
is to require Valero to disclose new or different information related 
to a condition at the facility or disposal of the waste, if it is 
pertinent to the delisting. This provision will allow EPA to reevaluate 
the exclusion, if a source provides new or additional information to 
EPA. EPA will evaluate the information on which we based the decision 
to see if it is still correct, or if circumstances have changed so that 
the information is no longer correct or would cause EPA to deny the 
petition, if presented.
    This provision expressly requires Valero to report differing site 
conditions or assumptions used in the petition (i.e., if the wastes 
begin to leach at higher concentrations than predicted) within 10 days 
of discovery. If EPA discovers such information itself or from a third 
party, it can act on it as appropriate. The language being proposed is 
similar to those provisions found in RCRA regulations governing no-
migration petitions at 40 CFR 268.6.
    It is EPA's position that we have the authority under RCRA and the 
Administrative Procedure Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. We may reopen a delisting decision when we 
receive new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delistings is 
merited in light of EPA experience. See Reynolds Metals Company at 62 
FR 37694 and 62 FR 63458, where the delisted waste leached at greater 
concentrations in the environment than the concentrations predicted 
when conducting the TCLP, thus leading EPA to repeal the delisting. If 
an immediate threat to human health and the environment presents 
itself, EPA will continue to address these situations case by case. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA Sec. 553 (b). (2) Notification 
Requirements: In order to adequately track wastes that have been 
delisted, EPA is requiring that Valero provide a one-time notification 
to any State regulatory agency through which or to which the delisted 
waste is being carried. Valero must provide this notification within 60 
days of commencing this activity.

B. What happens if Valero is unable to meet the terms and conditions of 
this delisting?

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

VI. Regulatory Impact

    Because EPA is issuing today's exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be affected. This exclusion may not be effective in 
States that have received EPA's authorization to make their own 
delisting decisions.
    Under Section 3009 of RCRA, EPA allows States to impose their own 
non-RCRA regulatory requirements that are more stringent than EPA's. 
These more stringent requirements may include a provision that 
prohibits a federally issued exclusion from taking effect in the State. 
EPA urges petitioners to contact the State regulatory authority to 
establish the status of their wastes under the State law.
    EPA has also authorized some States to administer a delisting 
program in place of the Federal program, that is, to make State 
delisting decisions. Therefore, this exclusion does not apply in those 
authorized States. If Valero manages the Storm Water Basin Sediment in 
any State with delisting authorization, Valero must obtain delisting 
authorization from the State before it can manage the Storm Water Basin 
Sediment as nonhazardous in that State.
    Under Executive Order 12866, the EPA must conduct an ``assessment 
of the potential costs and benefits'' for all ``significant'' 
regulatory actions. The proposal to grant an exclusion is not 
significant, since its effect, if promulgated, would be to reduce the 
overall costs and economic impact of EPA's hazardous waste management 
regulations. This reduction would be achieved by excluding waste 
generated at a specific facility from EPA's lists of hazardous wastes, 
thus enabling a facility to manage its waste as nonhazardous.
    Because there is no additional impact from this proposed rule, this 
proposal would not be a significant regulation, and no cost/benefit 
assessment is required. The Office of Management and Budget (OMB) has 
also exempted this rule from the requirement for OMB review under 
Section (6) of Executive Order 12866.

VII. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an 
agency is required to publish a general notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis which describes the impact of 
the rule on small entities (that is, small businesses, small 
organizations, and small governmental jurisdictions). No regulatory 
flexibility analysis is required, however, if the Administrator or 
delegated representative certifies that the rule will not have any 
impact on small entities.
    This rule, if promulgated, will not have an adverse economic impact 
on small entities since its effect would be to reduce the overall costs 
of EPA's hazardous waste regulations and would be limited to one 
facility. Accordingly, EPA hereby certifies that this proposed 
regulation, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. This regulation, therefore, 
does not require a regulatory flexibility analysis.

VIII. Paperwork Reduction Act

    Information collection and record keeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub. L. 96-511, 44 U.S.C. Section 3501 et seq.) and have been 
assigned OMB Control Number 2050-0053.

IX. Unfunded Mandates Reform Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
the EPA generally must prepare a written statement for rules with 
Federal

[[Page 32845]]

mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year.
    When such a statement is required for the EPA rules, under Section 
205 of the UMRA the EPA must identify and consider alternatives, 
including the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The EPA must 
select that alternative, unless the Administrator explains in the final 
rule why it was not selected or it is inconsistent with law.
    Before EPA establishes regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, EPA must develop under Section 203 of the UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, giving them meaningful and timely input in 
the development of EPA's regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising them 
on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector.
    EPA finds that this delisting decision is deregulatory in nature 
and does not impose any enforceable duty on any State, local, or tribal 
governments or the private sector. In addition, the proposed delisting 
decision does not establish any regulatory requirements for small 
governments and so does not require a small government agency plan 
under UMRA Section 203.

X. Executive Order 13045

    The Executive Order 13045 is entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that the EPA determines (1) is 
economically significant as defined under Executive Order 12866, and 
(2) the environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This proposed rule is not 
subject to Executive Order 13045 because this is not an economically 
significant regulatory action as defined by Executive Order 12866.

XI. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments.
    If the mandate is unfunded, EPA must provide to the Office of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments to have ``meaningful and timely input'' in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. This 
action does not involve or impose any requirements that affect Indian 
Tribes. Accordingly, the requirements of Section 3(b) of Executive 
Order 13084 do not apply to this rule.

XII. National Technology Transfer and Advancement Act

    Under Section 12(d) of the National Technology Transfer and 
Advancement Act, EPA is directed to use voluntary consensus standards 
in its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (for example, materials specifications, test 
methods, sampling procedures, business practices, etc.) developed or 
adopted by voluntary consensus standard bodies. Where available and 
potentially applicable voluntary consensus standards are not used by 
EPA, the Act requires that EPA provide Congress, through the OMB, an 
explanation of the reasons for not using such standards.
    This rule does not establish any new technical standards and thus, 
EPA has no need to consider the use of voluntary consensus standards in 
developing this final rule.

XIII. Executive Order 13132 Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that 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.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless EPA 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This action does not have federalism implications. It will not have 
a substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, because it affects only one facility.

List of Subjects in 40 CFR Part 261

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

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

    Dated: January 21, 2009.
G. Alan Farmer,
Director, RCRA Division, Region 4.

    Editorial Note: This document was received in the Office of the 
Federal Register on July 6, 2009.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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


[[Page 32846]]


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

    2. In Table 1 of Appendix IX of Part 261, it is proposed to add the 
following wastes in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under 40 CFR Sec. Sec.  260.20 
and 260.22

                                Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                             Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                   * * * * * *
The Valero Refining Company--           Memphis, TN...................  Storm Water Basin sediment (EPA
 Tennessee, L.L.C.                                                       Hazardous Waste No. F037) generated one
                                                                         time at a volume of 2,700 cubic yards
                                                                         [insert publication date of the final
                                                                         rule] and disposed in a Subtitle D
                                                                         landfill. This is a one time exclusion
                                                                         and applies to 2,700 cubic yards of
                                                                         Storm Water Basin sediment. (1)
                                                                         Reopener. (A) If, anytime after
                                                                         disposal of the delisted waste, Valero
                                                                         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 Valero fails to submit the
                                                                         information described in paragraph (A)
                                                                         or if any other information is received
                                                                         from any source, the Division Director
                                                                         will make a preliminary determination
                                                                         as to whether the reported information
                                                                         requires EPA action to protect human
                                                                         health or the environment. Further
                                                                         action may include suspending, or
                                                                         revoking the exclusion, or other
                                                                         appropriate response necessary to
                                                                         protect human health and the
                                                                         environment. (C) If the Division
                                                                         Director determines that the reported
                                                                         information does require EPA 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 EPA
                                                                         action is not necessary. The facility
                                                                         shall have 10 days from the date of the
                                                                         Division Director's notice to present
                                                                         such information. (D) Following the
                                                                         receipt of information from the
                                                                         facility described in paragraph (C) or
                                                                         (if no information is presented under
                                                                         paragraph initial receipt of
                                                                         information described in paragraphs (A)
                                                                         or (B), the Division Director will
                                                                         issue a final written determination
                                                                         describing EPA 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. (2)
                                                                         Notification Requirements: Valero must
                                                                         do the following before transporting
                                                                         the delisted waste: Failure to provide
                                                                         this notification will result in a
                                                                         violation of the delisting petition and
                                                                         a possible revocation of the decision.
                                                                         (A) Provide a one-time written
                                                                         notification to any State Regulatory
                                                                         Agency to which or through which they
                                                                         will transport the delisted waste
                                                                         described above for disposal, 60 days
                                                                         before beginning such activities. (B)
                                                                         Update the one-time written
                                                                         notification, if they ship the delisted
                                                                         waste to a different disposal facility.
                                                                         (C) Failure to provide this
                                                                         notification will result in a violation
                                                                         of the delisting variance and a
                                                                         possible revocation of the decision.
 
                                                   * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. E9-16261 Filed 7-8-09; 8:45 am]
BILLING CODE 6560-50-P