[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Rules and Regulations]
[Pages 11002-11005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5097]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R04-RCRA-2008-0900; FRL-9124-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Environmental Protection Agency (EPA) is granting the petition 
submitted by The Valero Refining Company--Tennessee, LLC (Valero) to 
exclude or ``delist'' a certain sediment generated by its Memphis 
Refinery in Memphis, Tennessee from the lists of hazardous wastes. This 
final rule responds to a petition submitted by Valero to delist F037 
waste. The F037 waste is sediment generated in the Storm Water Basin.
    After careful analysis and use of the Delisting Risk Assessment 
Software (DRAS), EPA has concluded the petitioned waste is not 
hazardous waste. The F037 exclusion is a one-time exclusion for 2,700 
cubic yards of the F037 Storm Water Basin sediment. Accordingly, this 
final rule excludes the petitioned waste from the requirements of 
hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA).

DATES: Effective Date: March 10, 2010.

ADDRESSES: The public docket for this final rule is available either 
electronically at http://www.regulations.gov or in hard copy at the 
RCRA and 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 and is available 
for viewing through the EPA Freedom of Information Act (FOIA) from 9 
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call 
the FOIA Officer at (404) 562-8028 for appointments. The public may 
copy material from any regulatory docket at no cost for the first 100 
pages and at a cost of $0.15 per page for additional copies.

[[Page 11003]]


FOR FURTHER INFORMATION CONTACT: Kristin Lippert, North Enforcement and 
Compliance Section, (Mail Code 4WD-RCRA), RCRA and 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 Finalizing?
    B. Why Is EPA Approving This Action?
    C. What Are the Limits of This Exclusion?
    D. How Will Valero Manage the Waste, When Delisted?
    E. When Is the Final Delisting Exclusion Effective?
    F. How Does This 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 Valero Petition EPA To Delist?
    B. How Much Waste Did Valero Propose To Delist?
    C. How did Valero Sample and Analyze the Waste Data in This 
Petition?
IV. Public Comments Received on the Proposed Exclusions
    A. Who Submitted Comments on the Proposed Rules?
V. Statutory and Executive Order Reviews

I. Overview Information

A. What Action Is EPA Finalizing?

    After evaluating the petition for Valero, EPA proposed, on July 9, 
2009, to exclude the waste from the lists of hazardous waste under 
Sec.  261.31. EPA is finalizing the decision to grant Valero's 
delisting petition to have its F037 Storm Water Basin Sediment 
excluded, or delisted, from the definition of a hazardous waste, once 
it is disposed in a Subtitle D landfill.

B. Why Is EPA Approving This Action?

    Valero's petition requests a delisting from the F037 waste listing 
under 40 CFR 260.20 and 260.22. Valero does not believe that the 
petitioned waste meets the criteria for which EPA listed it. 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, 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 
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 whether there is a reasonable basis 
to believe that such additional factors could cause the wastes to be 
hazardous. EPA considered whether the waste is acutely toxic, the 
concentrations 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 the waste from Valero's facility is based on the 
information submitted in support of this rule, including description of 
the waste and analytical data from the Memphis, Tennessee facility.

C. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in Valero's 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 Valero Manage the Waste, When Delisted?

    The delisted F037 Storm Water Basin Sediment will be dispose of in 
a Subtitle D landfill which is permitted, licensed, or registered by a 
State to manage industrial waste.

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective March 10, 2010. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 
6930(b)(1), allow rules to become effective in less than six months 
after the rule is published when the regulated community does not need 
the six-month period to come into compliance. That is the case here 
because this rule reduces, rather than increases, the existing 
requirements for persons generating hazardous waste. This reduction in 
existing requirements also provides a basis for making this rule 
effective immediately, upon publication, under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

F. How Does This 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 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. 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, 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 Valero transports the petitioned waste to or manages the waste in 
any State with delisting authorization, Valero must obtain delisting 
authorization from that State before it can manage the waste as 
nonhazardous 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, waste the generator believes should not be 
considered hazardous under RCRA.

B. What Regulations Allow Facilities To Delist a Waste?

    Under 40 CFR 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,

[[Page 11004]]

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. In 
addition, the Administrator must determine, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste and that such factors do not 
warrant retaining the waste as a hazardous waste.

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

A. What Waste Did Valero Petition EPA To Delist?

    On July 25, 2008, Valero petitioned EPA to exclude from the lists 
of hazardous waste contained in Sec.  261.31 and 261.32, F037 Storm 
Water Basin Sediment.

B. How Much Waste Did Valero Propose To Delist?

    Valero requested that EPA grant a one-time exclusion for 2,700 
cubic yards of the F037 Storm Water Basin Sediment.

C. How did Valero Sample and Analyze the Waste Data in This 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).

IV. Public Comments Received on the Proposed Exclusions

A. Who Submitted Comments on the Proposed Rules?

    No comments were received on the proposed rule for the F037 waste.

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). 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 
specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, 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.

List of Subjects in 40 CFR Part 261

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

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

    Dated: March 1, 2010.
G. Alan Farmer,
Director, RCRA Division, Region 4.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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


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

[[Page 11005]]

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

                                Table 1--Waste Excluded From Non-Specific Sources
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               Facility                             Address                         Waste description
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                                                  * * * * * * *
The Valero Refining Company--           Memphis, TN...................  Storm Water Basin sediment (EPA
 Tennessee, LLC.                                                         Hazardous Waste No. F037) generated one-
                                                                         time at a volume of 2,700 cubic yards
                                                                         March 10, 2010 and disposed in 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.
 
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[FR Doc. 2010-5097 Filed 3-9-10; 8:45 am]
BILLING CODE 6560-50-P