[Federal Register Volume 74, Number 146 (Friday, July 31, 2009)]
[Rules and Regulations]
[Pages 38109-38114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18389]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2008-0418; SW-FRL-8933-3]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) is granting a petition 
submitted by WRB Refining, LLC Company to exclude (or delist) the 
sludge from its wastewater treatment plant generated by WRB Refining, 
LLC Company in Borger, Texas from the lists of hazardous wastes. This 
direct final rule responds to the petition submitted by WRB Refining, 
LLC Company to delist the thermal desorber residual solids with 
Hazardous Waste Numbers: F037, F038, K048, K049, K050, and K051.
    After careful analysis and use of the Delisting Risk Assessment 
Software (DRAS), EPA has concluded the petitioned waste is not 
hazardous waste. This exclusion applies to 5,000 cubic yards per year 
of the thermal desorber residual solids with Hazardous Waste Numbers: 
F037, F038, K048, K049, K050, and K051. Accordingly, this final rule 
excludes the petitioned waste from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA) 
when it is disposed in a Subtitle D Landfill.

DATES: This direct final rule will be effective September 29, 2009 
without further notice, unless EPA receives relevant adverse comments 
by August 31, 2009. If EPA receives such comment, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0418 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov: Follow 
the online instructions for submitting comments.
    2. E-mail: [email protected].
    3. Mail: Michelle Peace, Environmental Protection Agency, 
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code: 
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier. Deliver your comments to: Michelle 
Peace, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0418. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the internet. If you 
submit an electronic comment, EPA recommends that you include your

[[Page 38110]]

name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket. All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The 
hard copy RCRA regulatory docket for this rule, EPA-R06-RCRA-2008-0418, 
is available for viewing from 8 a.m. to 5 p.m., Monday through Friday, 
excluding Federal holidays. The public may copy material from the 
regulatory docket at $0.15 per page. EPA requests that you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The interested persons wanting to examine 
these documents should make an appointment with the office at least 24 
hours in advance.

FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the 
Corrective Action and Waste Minimization Section, Multimedia Planning 
and Permitting Division (6PD-C), Environmental Protection Agency Region 
6, 1445 Ross Avenue, Dallas, Texas 75202 at (214) 665-7324. For 
technical information concerning this rule, contact Young Moo Kim, 
Environmental Protection Agency Region 6, 1445 Ross Avenue, (6PD-C), 
Dallas, Texas 75202, at (214) 665-6788, or [email protected].

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

I. Overview Information
    A. What action is EPA taking?
    B. Why is EPA approving this action?
    C. What are the limits of this exclusion?
    D. How will WRB Refining, LLC Company manage the waste if it is 
delisted?
    E. When is the final delisting exclusion effective?
    F. How does this direct final rule affect states?
II. Background
    A. What is a delisting?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did WRB Refining, LLC Company petition EPA to 
delist?
    B. How much waste did WRB Refining, LLC Company propose to 
delist?
    C. How did WRB Refining, LLC Company sample and analyze the 
waste data in this petition?
IV. Public comments received on the proposed exclusion
    A. Who submitted comments on the proposed rule?
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA taking?

    After evaluating the petition, EPA proposed, on May 19, 2008, to 
exclude the thermal desorber residual solids from the lists of 
hazardous waste under 40 CFR 261.31 and 261.32 (see 73 FR 28768). After 
the comment period ended for the proposed rule, EPA received a request 
from WRB Refining to increase the volume of waste that may be disposed 
of by the facility. The original petition requested that 1,500 cubic 
yards of the residual solids be delisted. On September 19, 2008, a 
request was made to increase this volume to 5,000 cubic yards. The risk 
assessment has been run to insure that the waste does not exceed any 
delisting limits. The waste meets the criteria for 5,000 cubic yards. 
Therefore, EPA conditionally grants WRB Refining, LLC Company's 
delisting petition to have its thermal desorber residual solids managed 
and disposed as non-hazardous waste. EPA is opening a 30-day comment 
period to allow comment on the decision to grant the change in waste 
volume. If there are no adverse comments regarding this change, EPA's 
decision will become effective in 60 days.

B. Why is EPA approving this action?

    WRB Refining, LLC Company's petition requests a delisting from the 
F019 waste listing under 40 CFR 260.20 and 260.22. WRB Refining, LLC 
Company does not believe that the petitioned waste meets the criteria 
for which EPA listed it. WRB Refining, LLC Company 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. See section 3001(f) of 
RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated). In 
making the final delisting determination, 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, EPA agrees with the 
petitioner that the waste is non-hazardous with respect to the original 
listing criteria. If EPA had found, based on this review, that the 
waste remained hazardous based on the factors for which the waste was 
originally listed, EPA would have proposed to deny the petition. EPA 
evaluated the waste with respect to other factors or criteria to assess 
whether there is a reasonable basis to believe that such additional 
factors could cause the waste to be hazardous. EPA considered whether 
the waste is acutely toxic, the concentration of the constituents in 
the waste, their tendency to migrate and to bioaccumulate, their 
persistence in the environment once released from the waste, plausible 
and specific types of management of the petitioned waste, the 
quantities of waste generated, and waste variability. EPA believes that 
the petitioned waste does not meet the listing criteria and thus should 
not be a listed waste. EPA's final decision to delist waste from WRB 
Refining, LLC Company'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.

C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in 40 CFR part 261, Appendix IX, Table 1 
and the conditions contained herein are satisfied.

D. How will WRB Refining, LLC Company manage the waste if it is 
delisted?

    The sludge from WRB Refining, LLC Company will be disposed of in a 
RCRA Subtitle D landfill.

E. When is the final delisting exclusion effective?

    This direct final rule will be effective September 29, 2009 without 
further notice, unless EPA receives relevant adverse comments by August 
31, 2009.

F. How does this direct final rule 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 which have 
received authorization from

[[Page 38111]]

EPA to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the State regulatory authority 
to establish the status of their wastes under the State law.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program 
in place of the Federal program; that is, to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states unless that state makes the rule part of its authorized program. 
If WRB Refining, LLC Company transports the petitioned waste to or 
manages the waste in any state with delisting authorization, WRB 
Refining, LLC Company must obtain delisting authorization from that 
state before it can manage the waste as non-hazardous in the state.

II. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to EPA, or 
another agency with jurisdiction, to exclude or delist from the RCRA 
list of hazardous waste, certain wastes the generator believes should 
not be considered hazardous under RCRA.

B. What regulations allow facilities to delist a waste?

    Under Sec. Sec.  260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste regulation by excluding them 
from the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of 40 CFR parts 260 
through 265 and 268. Section 260.22 provides generators the opportunity 
to petition the Administrator to exclude a waste from a particular 
generating facility from the hazardous waste lists.

C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow EPA 
to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. Based 
on the information supplied by the generator, the Administrator must 
determine whether factors (including additional constituents) other 
than those for which the waste was listed could cause the waste to be a 
hazardous waste. The generator must also supply information to 
demonstrate that the waste does not exhibit any of the characteristics 
defined in Sec.  261.21-Sec.  261.24.

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

A. What waste did WRB Refining, LLC Company petition EPA to delist?

    On August 26, 2005, WRB Refining LLC(formerly ConocoPhillips 
Company) petitioned EPA to exclude from the lists of hazardous wastes 
contained in Sec. Sec.  261.31 and 261.32, thermal desorber residual 
solids from processing oil-bearing hazardous secondary materials 
including F037, F038, K048, K049, K050 and K051 generated by its 
facility located in Borger, Texas. The waste falls under the 
classification of listed waste pursuant to Sec. Sec.  261.31 and 
261.32.

B. How much waste did WRB Refining, LLC Company propose to delist?

    Specifically, in its petition, WRB Refining LLC requested that EPA 
grant a conditional exclusion for 1500 cubic yards per year of thermal 
desorber residual solids for a period of 10 years. On September 19, 
2008, the facility requested that the amount of waste delisted be 
increased from 1,500 to 5,000 cubic yards of waste a year.

C. How did WRB Refining, LLC Company sample and analyze the waste data 
in this petition?

    To support its petition, WRB Refining, LLC Company submitted:
     Historical information on waste generation and management 
practices;
     Results of the total constituents list for 40 CFR part 
264, Appendix IX volatile and semi-volatile organic compounds and 
metals. These wastes are also analyzed for cyanide, and sulfide.
     Results of the constituent list for appendix IX on 
Toxicity Characteristic Leaching Procedure (TCLP) extract for 
volatiles, semevolatiles, and metals.
     Results from total oil and grease analyses and multiple pH 
measurements, and
     Results from a total of ten composite samples including 
two duplicates, representing 60 discrete thermal desorber residual 
solid samples.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    No comments were received on the Proposed Rule during the comment 
period. However after the comment period closed, the facility requested 
an increase in the volume of waste excluded by the delisting petition. 
Based on the application of the DRAS model with the requested increase, 
the Agency has decided to allow the increase in volume requested by WRB 
Refining. The sample results provided by the petitioner meet the 
maximum allowable waste concentrations at 1,500 cubic yards and at the 
increased volume of 5,000 cubic yards. The delisting limits in the 
final exclusion will be revised to cover the additional waste volume. 
The delisting concentration limits are lower than the values originally 
proposed in the May 19, 2008 proposed rule.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review '' 
(58 FR 51735, October 4, 1993), this rule is not of general 
applicability and therefore is not a regulatory action subject to 
review by the Office of Management and Budget (OMB). This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it 
applies to a particular facility only. Because this rule is of 
particular applicability relating to a particular facility, it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 
205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). 
Because this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this final rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132, ``Federalism'', (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule.
    Similarly, because this rule will affect only a particular 
facility, this final rule does not have tribal implications, as

[[Page 38112]]

specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. The basis for this 
belief is that the Agency used the DRAS program, which considers health 
and safety risks to infants and children, to calculate the maximum 
allowable concentrations for this rule. This rule is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform'', (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report which includes a copy of the rule to 
each House of the Congress and to the Comptroller General of the United 
States. Section 804 exempts from section 801 the following types of 
rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: July 9, 2009.
William N. Rhea,
Acting Division Director, Multimedia Planning and Permitting Division, 
Region 6.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

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

                                Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                          Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
WRB Refining, LLC.....................  Borger, TX...............  Thermal desorber residual solids (Hazardous
                                                                    Waste Nos. F037, F038, K048, K049, K050, and
                                                                    K051) generated at a maximum annual rate of
                                                                    5,000 cubic yards per calendar year after
                                                                    September 29, 2009 and disposed in Subtitle
                                                                    D Landfill.
                                                                   For the exclusion to be valid, WRB Refining
                                                                    LLC must implement a verification testing
                                                                    program that meets the following Paragraphs:
                                                                   (1) Delisting Levels: All concentrations for
                                                                    those constituents must not exceed the
                                                                    maximum allowable concentrations in mg/l
                                                                    specified in this paragraph.
                                                                   Thermal Desorber Residual Solid Leachable
                                                                    Concentrations (mg/l): Antimony-0.165;
                                                                    Arsenic-0.0129; Barium-54.8; Beryllium-
                                                                    0.119; Cadmium-0.139; Chromium-3.23;
                                                                    Chromium, Hexavalent-3.23; Cobalt-20.7;
                                                                    Copper-38.6; Cyanide-4.69; Lead-1.07;
                                                                    Mercury-0.104; Nickel-20.6; Selenium-1.0;
                                                                    Silver-5.0; Tin-3790.00; Vanadium-1.46; Zinc-
                                                                    320.0; Acenapthene-16.2; Anthracene-39.5;
                                                                    Benzene-0.117; Carbon Disulfide-86.0; 2-
                                                                    chlorophenol-4.41; Dibenzofuran-0.0226; 1,4-
                                                                    Dichlororbenzene-0.518; Ethylbenzene-16.5;
                                                                    Fluoranthene-3.75; Methylene Chloride-0.077;
                                                                    Naphthalene-0.0498; Phenol-264.0; Pyrene-
                                                                    6.78; Toluene-23.0; 1,2,4-Trichlorobenzene-
                                                                    1.51; Trichlorofluoromethane-23.5; Xylenes-
                                                                    14.6.
                                                                   (2) Waste Holding and Handling:
                                                                   (A) Waste classification as non-hazardous can
                                                                    not begin until compliance with the limits
                                                                    set in paragraph (1) for thermal desorber
                                                                    residual solids has occurred for two
                                                                    consecutive quarterly sampling events.
                                                                   (B) If constituent levels in any sample taken
                                                                    by WRB Refining LLC exceed any of the
                                                                    delisting levels set in paragraph (1) for
                                                                    the thermal desorber residual solids, WRB
                                                                    Refining LLC must do the following:
                                                                   (i) Notify EPA in accordance with paragraph
                                                                    (6) and
                                                                   (ii) Manage and dispose the thermal desorber
                                                                    residual solids as hazardous waste generated
                                                                    under Subtitle C of RCRA.
                                                                   (3) Testing Requirements:
                                                                   Upon this exclusion becoming final, WRB
                                                                    Refining LLC may perform quarterly
                                                                    analytical testing by sampling and analyzing
                                                                    the desorber residual solids as follows:
                                                                   (A) Quarterly Testing:

[[Page 38113]]

 
                                                                   (i) Collect two representative composite
                                                                    samples of the sludge at quarterly intervals
                                                                    after EPA grants the final exclusion. The
                                                                    first composite samples may be taken at any
                                                                    time after EPA grants the final approval.
                                                                    Sampling should be performed in accordance
                                                                    with the sampling plan approved by EPA in
                                                                    support of the exclusion.
                                                                   (ii) Analyze the samples for all constituents
                                                                    listed in paragraph (1). Any composite
                                                                    sample taken that exceeds the delisting
                                                                    levels listed in paragraph (1) for the
                                                                    sludge must be disposed as hazardous waste
                                                                    in accordance with the applicable hazardous
                                                                    waste requirements.
                                                                   (iii) Within thirty (30) days after taking
                                                                    its first quarterly sample, WRB Refining LLC
                                                                    will report its first quarterly analytical
                                                                    test data to EPA. If levels of constituents
                                                                    measured in the samples of the sludge do not
                                                                    exceed the levels set forth in paragraph (1)
                                                                    of this exclusion for two consecutive
                                                                    quarters, WRB Refining LLC can manage and
                                                                    dispose the non-hazardous thermal desorber
                                                                    residual solids according to all applicable
                                                                    solid waste regulations.
                                                                   (B) Annual Testing: (i) If WRB Refining LLC
                                                                    completes the quarterly testing specified in
                                                                    paragraph (3) above and no sample contains a
                                                                    constituent at a level which exceeds the
                                                                    limits set forth in paragraph (1), WRB
                                                                    Refining LLC may begin annual testing as
                                                                    follows: WRB Refining LLC must test two
                                                                    representative composite samples of the
                                                                    thermal desorber residual solids for all
                                                                    constituents listed in paragraph (1) at
                                                                    least once per calendar year.
                                                                   (ii) The samples for the annual testing shall
                                                                    be a representative composite sample
                                                                    according to appropriate methods. As
                                                                    applicable to the method-defined parameters
                                                                    of concern, analyses requiring the use of SW-
                                                                    846 methods incorporated by reference in 40
                                                                    CFR 260.11 must be used without
                                                                    substitution. As applicable, the SW-846
                                                                    methods might include Methods 0010, 0011,
                                                                    0020, 0023A, 0030, 0031, 0040, 0050, 0051,
                                                                    0060, 0061, 1010A, 1020B,1110A, 1310B, 1311,
                                                                    1312, 1320, 1330A, 9010C, 9012B, 9040C,
                                                                    9045D, 9060A, 9070A (uses EPA Method 1664,
                                                                    Rev. A), 9071B, and 9095B. Methods must meet
                                                                    Performance Based Measurement System
                                                                    Criteria in which the Data Quality
                                                                    Objectives are to demonstrate that samples
                                                                    of the WRB Refining thermal desorber
                                                                    residual solids are representative for all
                                                                    constituents listed in paragraph (1).
                                                                   (iii) The samples for the annual testing
                                                                    taken for the second and subsequent annual
                                                                    testing events shall be taken within the
                                                                    same calendar month as the first annual
                                                                    sample taken.
                                                                   (iv) The annual testing report should include
                                                                    the total amount of delisted waste in cubic
                                                                    yards disposed as non-hazardous waste during
                                                                    the calendar year.
                                                                   (4) Changes in Operating Conditions: If WRB
                                                                    Refining LLC significantly changes the
                                                                    process described in its petition or starts
                                                                    any processes that generate(s) the waste
                                                                    that may or could affect the composition or
                                                                    type of waste generated (by illustration,
                                                                    but not limitation, changes in equipment or
                                                                    operating conditions of the treatment
                                                                    process), it must notify EPA in writing and
                                                                    it may no longer handle the wastes generated
                                                                    from the new process as non-hazardous until
                                                                    the wastes meet the delisting levels set in
                                                                    paragraph (1) and it has received written
                                                                    approval to do so from EPA.
                                                                   WRB Refining LLC must submit a modification
                                                                    to the petition, complete with full sampling
                                                                    and analysis, for circumstances where the
                                                                    waste volume changes and/or additional waste
                                                                    codes are added to the waste stream, if it
                                                                    wishes to dispose of the material as non-
                                                                    hazardous.
                                                                   (5) Data Submittals:
                                                                   WRB Refining LLC must submit the information
                                                                    described below. If WRB Refining LLC fails
                                                                    to submit the required data within the
                                                                    specified time or maintain the required
                                                                    records on-site for the specified time, EPA,
                                                                    at its discretion, will consider this
                                                                    sufficient basis to reopen the exclusion as
                                                                    described in paragraph (6). WRB Refining LLC
                                                                    must:
                                                                   (A) Submit the data obtained through
                                                                    paragraph (3) to the Chief, Corrective
                                                                    Action and Waste Minimization Section,
                                                                    Multimedia Planning and Permitting Division,
                                                                    U.S. Environmental Protection Agency Region
                                                                    6, 1445 Ross Ave., Dallas, Texas, 75202,
                                                                    within the time specified. All supporting
                                                                    data can be submitted on CD-ROM or
                                                                    comparable electronic media.
                                                                   (B) Compile records of analytical data from
                                                                    paragraph (3), summarized, and maintained on-
                                                                    site for a minimum of five years.
                                                                   (C) Furnish these records and data when
                                                                    either EPA or the State of Texas requests
                                                                    them for inspection.
                                                                   (D) Send along with all data a signed copy of
                                                                    the following certification statement, to
                                                                    attest to the truth and accuracy of the data
                                                                    submitted:
                                                                   ``Under civil and criminal penalty of law for
                                                                    the making or submission of false or
                                                                    fraudulent statements or representations
                                                                    (pursuant to the applicable provisions of
                                                                    the Federal Code, which include, but may not
                                                                    be limited to, 18 U.S.C. Sec.   1001 and 42
                                                                    U.S.C. Sec.   6928), I certify that the
                                                                    information contained in or accompanying
                                                                    this document is true, accurate and
                                                                    complete.
                                                                   As to the (those) identified section(s) of
                                                                    this document for which I cannot personally
                                                                    verify its (their) truth and accuracy, I
                                                                    certify as the company official having
                                                                    supervisory responsibility for the persons
                                                                    who, acting under my direct instructions,
                                                                    made the verification that this information
                                                                    is true, accurate and complete.
                                                                   If any of this information is determined by
                                                                    EPA in its sole discretion to be false,
                                                                    inaccurate or incomplete, and upon
                                                                    conveyance of this fact to the company, I
                                                                    recognize and agree that this exclusion of
                                                                    waste will be void as if it never had effect
                                                                    or to the extent directed by EPA and that
                                                                    the company will be liable for any actions
                                                                    taken in contravention of the company's RCRA
                                                                    and CERCLA obligations premised upon the
                                                                    company's reliance on the void exclusion.''
                                                                   (6) Re-opener

[[Page 38114]]

 
                                                                   (A) If, anytime after disposal of the
                                                                    delisted waste WRB Refining LLC 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 either the quarterly or annual testing
                                                                    of the waste does not meet the delisting
                                                                    requirements in paragraph 1, WRB Refining
                                                                    LLC 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 LLC fails to submit the
                                                                    information described in paragraphs (5),
                                                                    (6)(A) or (6)(B) or if any other information
                                                                    is received from any source, the Division
                                                                    Director will make a preliminary
                                                                    determination as to whether the reported
                                                                    information requires EPA action to protect
                                                                    human health and/or the environment. Further
                                                                    action may include suspending, or revoking
                                                                    the exclusion, or other appropriate response
                                                                    necessary to protect human health and the
                                                                    environment.
                                                                   (D) If the Division Director determines that
                                                                    the reported information requires action by
                                                                    EPA, the Division Director will notify the
                                                                    facility in writing of the actions the
                                                                    Division Director believes are necessary to
                                                                    protect human health and the environment.
                                                                    The notice shall include a statement of the
                                                                    proposed action and a statement providing
                                                                    the facility with an opportunity to present
                                                                    information as to why the proposed EPA
                                                                    action is not necessary. The facility shall
                                                                    have 10 days from the date of the Division
                                                                    Director's notice to present such
                                                                    information.
                                                                   (E) Following the receipt of information from
                                                                    the facility described in paragraph (6)(D)
                                                                    or (if no information is presented under
                                                                    paragraph (6)(D)) the initial receipt of
                                                                    information described in paragraphs (5),
                                                                    (6)(A) or (6)(B), the Division Director will
                                                                    issue a final written determination
                                                                    describing EPA actions that are necessary to
                                                                    protect human health and/or the environment.
                                                                    Any required action described in the
                                                                    Division Director's determination shall
                                                                    become effective immediately, unless the
                                                                    Division Director provides otherwise.
                                                                   (7) Notification Requirements
                                                                   WRB Refining LLC must do the following before
                                                                    transporting the delisted waste. Failure to
                                                                    provide this notification will result in a
                                                                    violation of the delisting petition and a
                                                                    possible revocation of the decision.
                                                                   (A) Provide a one-time written notification
                                                                    to any state Regulatory Agency to which or
                                                                    through which it will transport the delisted
                                                                    waste described above for disposal, 60 days
                                                                    before beginning such activities.
                                                                   (B) Update the one-time written notification
                                                                    if it ships the delisted waste into a
                                                                    different disposal facility.
                                                                   (C) Failure to provide this notification will
                                                                    result in a violation of the delisting
                                                                    variance and a possible revocation of the
                                                                    decision.
 
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[FR Doc. E9-18389 Filed 7-30-09; 8:45 am]
BILLING CODE 6560-50-P