[Federal Register Volume 76, Number 231 (Thursday, December 1, 2011)]
[Rules and Regulations]
[Pages 74709-74717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30152]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2010-0066; SW FRL-9490-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is granting a 
petition submitted by ExxonMobil Refining and Supply Company--Beaumont 
Refinery (Beaumont Refinery) to exclude from hazardous waste control 
(or delist) a certain solid waste. This final rule responds to the 
petition submitted by Beaumont Refinery to delist to have centrifuge 
solids generated from treatment of Tank Bottoms from its Lower Park 
Tank Farm excluded, or delisted, from the definition of a hazardous 
waste. The centrifuge solids are derived from the management and 
treatment of several F- and K-waste codes. These waste codes are F037, 
F038, K048, K049, K051, K052, K169, and K170.
    After careful analysis and evaluation of comments submitted by the 
public, the EPA has concluded that the petitioned wastes are not 
hazardous waste when disposed of in Subtitle D landfills. This 
exclusion applies to the centrifuge solids generated at Beaumont 
Refinery's Beaumont, Texas facility. Accordingly, this final rule 
excludes the petitioned waste from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA) 
when disposed of in Subtitle D landfills but imposes testing conditions 
to ensure that the future-generated wastes remain qualified for 
delisting.

DATES: Effective Date: December 1, 2011.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in the EPA Freedom of 
Information Act review room on the 7th floor from 9 a.m. to 4 p.m., 
Monday through Friday, excluding Federal holidays. Call (214) 665-6444 
for appointments. The reference number for this docket is ``EPA-R06-
RCRA-2010-0066''. 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.

FOR FURTHER INFORMATION CONTACT: For general information, contact Ben 
Banipal, at (214) 665-7324. For technical information concerning this 
notice, contact Michelle Peace, U.S. Environmental Protection Agency, 
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.

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 delisting?
    C. What are the limits of this exclusion?
    D. How will Beaumont Refinery manage the waste if it is 
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 Data
    A. What wastes did Beaumont Refinery petition EPA to delist?
    B. How much waste did Beaumont Refinery propose to delist?
    C. How did Beaumont Refinery 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?
    B. Comments and Responses
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA finalizing?

    The EPA is finalizing:
    (1) The decision to grant Beaumont Refinery's petition to have its 
centrifuge solids excluded, or delisted, from the definition of a 
hazardous waste, subject to certain continued verification and 
monitoring conditions; and
    (2) To use the Delisting Risk Assessment Software to evaluate the 
potential impact of the petitioned waste on human health and the 
environment. The Agency used this model to predict the concentration of 
hazardous constituents released from the petitioned waste, once it is 
disposed. After evaluating the petition, EPA proposed and issued a 
direct final rule, on October 1, 2010 to exclude the

[[Page 74710]]

Beaumont Refinery waste from the lists of hazardous wastes under 
Sec. Sec.  261.31 and 261.32. The direct final rule received adverse 
comments and was subsequently withdrawn on November 16, 2010. This 
decision is based on the proposed rule issued on October 1, 2010. The 
comments received on this rulemaking will be addressed as part of this 
decision.

B. Why is EPA approving this delisting?

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

C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in Table 1 and 2 of part 261, Appendix IX 
and the conditions contained herein are satisfied. The one-time 
exclusion applies to 8,300 cubic yards of centrifuge solids waste 
resulting from the treatment of tank bottoms from five tanks in the 
Lower Park Tank Farm.

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

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

E. When is the final delisting exclusion effective?

    This rule is effective December 1, 2011. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA to allow 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 reduces, rather than increases, the 
existing requirements for persons generating hazardous wastes. These 
reasons also provide 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 two categories of 
States: States having a dual system that includes Federal RCRA 
requirements and their own requirements, and States who have received 
our authorization to make their own delisting decisions.
    Here are the details: We allow states to impose their own non-RCRA 
regulatory requirements that are more stringent than EPA's, under 
section 3009 of RCRA. 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, we urge 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, 
Georgia, Illinois) 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 Beaumont 
Refinery transports the petitioned waste to or manages the waste in any 
State with delisting authorization, Beaumont Refinery must obtain 
delisting authorization from that State before they 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 from the list of hazardous 
wastes, wastes the generator does not consider hazardous under RCRA.

B. What regulations allow facilities to delist a waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control 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 Parts 260 through 
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 
Section 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow the 
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, that such factors do not 
warrant retaining the waste as a hazardous waste.

III. EPA's Evaluation of the Waste Data

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

    Beaumont Refinery petitioned EPA on September 9, 2009, to exclude 
from the lists of hazardous wastes contained in Sec. Sec.  261.31, and 
261.32, from its centrifuge solids from the treatment of tank bottoms 
from five tanks in the Lower Park Tank Farm.

[[Page 74711]]

    The waste stream was generated from the Beaumont Refinery facility 
located in Beaumont, Texas. The centrifuge solids are listed under EPA 
Hazardous Waste No. F037, F038, K048, K049, K051, K052, K169, and K170. 
Specifically, in its petition, Beaumont Refinery requested that EPA 
grant an one time exclusion for 8,300 cubic yards of the centrifuge 
solids.
    The 40 CFR Part 261 Appendix VII hazardous constituents which are 
the basis for listing can be found in Table 1.

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

B. How much waste did Beaumont Refinery propose to delist?

    Specifically, in its petition, Beaumont Refinery requested that EPA 
grant an one time exclusion for 8,300 cubic yards of the centrifuge 
solids.

C. How did Beaumont Refinery sample and analyze the waste data in this 
petition?

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

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

[[Page 74712]]

 
Fluoranthrene...................................................              17         < 0.001           42.96
Lead............................................................            1290            1.44             5.0
Mercury.........................................................            2.65        0.000065             0.2
Methyl Isobutyl ketone..........................................           < 0.5            0.02             807
2-Methylnaphthalene.............................................             570         < 0.001           12.70
Naphthalene.....................................................             180            0.15           0.571
Nickel..........................................................             195           0.556             231
Phenanthrene....................................................             170          0.0041             (*)
Phenol..........................................................           < 0.5          0.0033            3030
Pyrene..........................................................             100          0.0057            77.6
Selenium........................................................            20.6         < 0.001             1.0
Silver..........................................................           0.194         < 0.001             5.0
Thallium........................................................           0.842         < 0.001           0.639
Tin.............................................................            3.46         < 0.001            22.5
Toluene.........................................................             0.5           0.032             263
Vanadium........................................................           < 0.5           0.138            57.5
Xylenes.........................................................             3.3            0.16             167
Zinc............................................................            1160            8.41           3530
----------------------------------------------------------------------------------------------------------------
* Not applicable.
1 These levels represent the highest concentration of each constituent found in any one sample. These levels do
  not necessarily represent the specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    The EPA received public comments on October of 2010, proposed rule 
from three interested parties, the Environmental Technology Council 
(ETC), and Heritage Environmental and one citizen. Heritage 
Environmental submitted comments objecting to the absence of the full 
administrative record not appearing electronically on the 
regulations.gov site on October 28, 2010. ETC submitted three rounds of 
comments dated October 28, 2010, February 7, 2011, and March 7, 2011. 
The comments and responses are addressed below. Some responses to the 
October 28, 2010 items are not included because the actual records were 
sent to the commenter for verification purposes and no further comment 
is warranted.

B. What comments were submitted on the Beaumont Refinery delisting 
petition?

    Comment 1. These materials are listed hazardous wastes. The 
centrifuged solids fail to meet the treatment standards for placement 
in a fully permitted hazardous waste landfill that is designed to 
contain and manage toxic hazardous waste. It is completely inconsistent 
with EPA land disposal restrictions to grant even a variance to the LDR 
for these materials based on their exceeding the LDR treatment 
standards by a factor of 100 times greater concentration of the 
hazardous waste constituents. It is therefore unacceptable to delist 
these solids from hazardous waste regulation and allow their placement 
in a substantially less restrictive municipal solid waste landfill. The 
entire petition should be rejected.
    Response 1. The Delisting Program and the LDR program serve 
different purposes. Different standards of compliance apply. ``A waste 
is eligible for delisting only if that waste as generated at a 
particular facility does not meet any of the criteria under which the 
waste was listed as a hazardous waste. In addition, the waste may not 
contain any other Appendix VIII constituents that would cause the waste 
to be hazardous.'' RCRA Sec.  3001(f) and 40 CFR 260.22.
    The derived-from rule states that any solid waste generated from 
the treatment, storage, or disposal of a listed hazardous waste, 
including any sludge, spill residue, ash, emission control dust, or 
leachate, remains a hazardous waste unless and until delisted (Sec.  
261.3(c)(2)(i)).
    EPA's regulations establish two ways of identifying solid wastes as 
hazardous under RCRA. A waste may be considered hazardous if it 
exhibits certain hazardous properties (``characteristics'') or if it is 
included on a specific list of wastes EPA has determined are hazardous 
(``listing'' a waste as hazardous) because we found them to pose 
substantial present or potential hazards to human health or the 
environment. EPA's regulations in the Code of Federal Regulations (40 
CFR) define four hazardous waste characteristic properties: 
Ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24).
    In order to list wastes EPA conducts a more specific assessment of 
a particular waste or category of wastes. The Agency will ``list'' them 
if they meet criteria set out in 40 CFR 261.11.
    As described in Sec.  261.11, EPA may list a waste as hazardous if 
the waste:

--Exhibits any of the characteristics, i.e., ignitability, corrosivity, 
reactivity, or toxicity (Sec.  261.11(a)(1));
--Is ``acutely'' hazardous (e.g., if it is fatal to humans or animals 
at low doses, (Sec.  261.11(a)(2)); or
--It contains any of the toxic constituents listed in 40 CFR part 261, 
Appendix VIII and, after consideration of various factors described in 
the regulation, is capable of posing a ``substantial present or 
potential hazard to human health or the environment when improperly 
treated, stored, transported, or disposed of, or otherwise managed'' 
(Sec.  261.11(a)(3)).

    EPA places a substance on the list of hazardous constituents in 
Appendix VIII if scientific studies have shown the substance has toxic 
effects on humans

[[Page 74713]]

or other life forms. Generally, listing of wastes is not driven by 
threshold limits except in the case of the toxicity characteristic 
determination. Several of the limits cited by the commenter are the TC 
limit for the constituents stated. If the waste is characteristic, then 
it can't be delisted. The delisting limit is constrained by the TC 
limit.
    In 1984, Congress created EPA's Land Disposal Restrictions (LDR) 
program. The LDR program ensures that toxic constituents present in 
hazardous waste are properly treated before hazardous waste is land 
disposed. Since then, the LDR team has developed mandatory technology-
based treatment standards that must be met before hazardous waste is 
placed in a landfill. These standards help minimize short and long-term 
threats to human health and the environment, which directly benefits 
local communities where hazardous waste landfills are located. The LDR 
Program does not determine if a waste is hazardous, it regulates how 
hazardous wastes are to be managed at the time of disposal.
    We do believe that the concentrations specified as delisting levels 
do minimize short term and long term threats to human health and the 
environment. Whereas, some LDR treatment standards are based on the 
best demonstrated technology, the delisting exit levels are risk based 
standards. We have not stated that ExxonMobil's waste is not subject to 
the LDR standards, because the waste was not delisted at the point of 
generation, ExxonMobil may submit a variance to the treatment standards 
as described in 268.42(b) or 268.44 in order to ensure compliance with 
the LDR standards, but the Delisting decision may still be made. 
However, wastes destined for disposal in Subtitle C landfills are 
subject to the LDR limits. Wastes when delisted must comply with all 
applicable Subtitle D landfill requirements.
    Comment 2. EPA has given specific guidance for the generation of 
sampling plans for the delisting of hazardous waste. This guidance is 
presented in the document SW846, Chapter 9, Sampling Plans. The 
variability of the waste must be established as part of a delisting 
petition. No such statistical analysis is presented for either the 
original wastes, or the centrifuged solids. The petitioner simply 
states without justification that the studied solids were thought to be 
representative of the highest concentration materials. However, no 
laboratory analysis data are presented to show the variability of the 
concentrations of the hazardous constituents in the subject waste 
materials. Also, EPA's own guidance states that the minimum number of 
samples required for a delisting petition shall ``in no case be less 
than four samples,'' even when the variability has been determined and 
the 90% upper confidence limit has been shown to be below the 
regulatory threshold for a specific analytical parameter. The 
petitioner consistently presents one to three sample data results, with 
no statistical analysis of the data. The entire petition should be 
rejected for failure to properly characterize both the original waste 
material and the centrifuged solids with a sampling plan that meets 
USEPA guidance for this type of delisting request.
    Response 2. Eleven samples of waste were analyzed to support this 
delisting petition. In prediction of the worst case scenario, EPA 
selects the maximum waste concentration of the data provided for the 
waste. The Sampling and Analysis Plan for the Centrifuge Solids was 
reviewed and approved by EPA. The Sampling and Analysis of this 
material is acceptable for demonstration that the waste sampled is 
representative of the waste to be disposed.
    Comment 3. Uncontrolled disposal of these materials could result in 
the creation of a Federal Superfund site. The constituent 
concentrations of carcinogenic PAH compounds at over 350 mg/kg PAH in 
the centrifuged solids exceed the cleanup standards for numerous 
Federal Superfund sites. It is unimaginable that EPA would grant 
permission for non-hazardous disposal of a toxic waste that would 
require a large scale remediation at a Superfund site. The purpose of 
RCRA is to prevent the creation of Superfund sites, not promote them. 
The entire petition should be denied so that additional Superfund sites 
are not created as a result of the uncontrolled non-hazardous disposal 
of these materials.
    Response 3. Since the Risk Assessment Guidance for Superfund was 
published, the risk-based cleanup levels should be established from the 
toxicity of an individual compound of concerns (COC) in PAHs. The 
equations and exposure parameter inputs for carcinogen risk 
calculations are mainly in Part A & B of the Guidance. 10E-6 is the 
departure risk for a carcinogen with standardized exposure default 
values. The total risk in PAHs is the sum from the risk of each 
compound in PAHs. However, site-specific cleanup levels can be 
established by site-specific exposure parameter inputs through site-
specific risk assessment.
    Therefore, the cleanup levels are different from one chemical to 
another in PAHs. The screening levels of COCs with a risk level, 10E-6 
are in Regional Screening Level Summary Table. The web address for the 
Table is http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/index.htm.
    Comment 4: A listed hazardous waste is prohibited from land 
disposal under RCRA, unless the hazardous waste is first treated to the 
level or by a method of treatment which substantially diminishes the 
toxicity of the waste or substantially reduces the likelihood of 
migration of hazardous constituents from the waste so that short-term 
and long-term threats to human health and the environment are 
minimized. RCRA & 3004(d), (g) & (m). No other form or method of 
treatment is allowed by law, except treatment that complies with RCRA 
Sec.  3004(m). In addition, no generator may ``in any way dilute a 
restricted waste or the residual from treatment of a restricted waste 
as a substitute for adequate treatment'' that achieves the mandatory 
treatment standards. 40 CFR Sec.  268.3 (emphasis added).
    For the F037, F038, K048, K049, K051, K052, K169 and K170 hazardous 
wastes generated from the slop oil tanks in the Beaumont Refiner Lower 
Park Tank Farm, the mandatory treatment standards require treatment to 
concentration-based levels for a plethora of regulated constituents 
ranging alphabetically from acenaphthene to xylenes. 40 CFR 268.40. 
These treatment levels are based on the best demonstrated available 
treatment achieved through high-temperature incineration.
    Contrary to these basic principles and applicable law, EPA has 
proposed to delist and allow land disposal of the slop oil solids 
generated at the Beaumont tank farm at concentration levels greatly in 
excess of the mandatory treatment standards. In doing so, EPA attempts 
to perpetrate a sham by delisting the slop oil solids from ineffective 
treatment that is nothing more than prohibited dilution of the 
hazardous waste. In the preamble EPA claims that Exxon has petitioned 
to delist the ``centrifuge solids from the treatment of tank bottoms 
from the five tanks from the Lower Park Tank Farm.'' 75 Fed. Reg. at 
60634 (emphasis added). Specifically, EPA asserts that Exxon's 
subcontractor will use ``a proprietary chemical (Superall 38), which 
acts as a chemical agent for treating wastes from oil-related clean-up 
activities that, when coupled with centrifuging, reduces the volume and 
toxicity'' of the slop oil tank wastes. Id. (emphasis added).
    There is not a scintilla of evidence in the administrative record 
that Superall 38 effectively treats the slop oil waste to reduce 
toxicity, or that the product

[[Page 74714]]

functions in any way other than as a cleaning agent. The record does 
not contain any information supporting EPA's claim that Superall 38 is 
a chemical agent for effective treatment of the slop oil waste. Indeed, 
Superall Products LLP makes no such claims itself in its Web site 
advertisements for its product. Most importantly, the Superall cleaning 
agent clearly does not reduce ``the volume and toxicity'' of the waste 
to the mandatory treatment levels required by RCRA and the regulations.
    Most importantly, the Superall product is mixed with large volumes 
of water for use as a cleaning agent. The slop oil waste is thereby 
diluted and hazardous constituents are transferred to the water so that 
the concentrations are reduced in the solids after centrifuging. This 
process of dilution and centrifuging is clearly not the mandatory 
treatment required by the regulations, and is in fact a way of diluting 
the restricted waste in express violation of the dilution prohibition 
in 40 CFR 268.3. The analytical data on the slop oil solids on which 
the entire DRAS modeling was based are useless, since there is no way 
of determining how much water and cleaning solution was mixed with the 
slop oil, and there are no restrictions in EPA's delisting on diluting 
the waste as much as necessary to ``pass'' the DRAS modeling. All the 
DRAS modeling proves is that hazardous waste can be diluted with water 
to reduce constituent concentrations, something that Congress 
specifically prohibited in the land disposal prohibitions of RCRA. The 
slop oil waste generated by Exxon in the Beaumont Refinery's Lower Park 
Tank Farm is listed as F037 and F038 because it contains petroleum 
refinery oil/water/solids separation sludges that are listed as 
hazardous wastes due to benzene, benzo(a)pyrene, chrysene, lead and 
chromium. 40 CFR Part 261, App. VII. In addition, the slop oil waste is 
listed as K048, K049, K051, K052, K169 and K170 because it contains 
dissolved air flotation (DAF) float, slop oil emulsion solids, API 
separator sludge, crude oil storage tank sediment, clarified slurry oil 
tank sediment and in-line filter separation solids that are listed as 
hazardous wastes due to hexavalent chromium, lead, benzene, 
benzo(a)pyrene, dibenz(a,h)anthracene, benzo(a)anthracene, 
benzo(b)fluoranthene, benzo(k)fluoranthene, 3-methylcholanthrene, and 
7,12-dimethylbenz(a)anthracene. Id.
    This slop oil waste indisputably meets the criteria for which the 
ingredient wastes were listed as hazardous wastes. There is no basis 
whatsoever in the Exxon delisting petition for determining that the 
slop oil waste is not a hazardous waste, or as generated can 
legitimately be delisted.
    Now that EPA Region 6 has finally provided the administrative 
record for the Exxon delisting petition, it is apparent that the 
proposed delisting of the F- and K-listed slop oil tank bottoms would 
be arbitrary, capricious, and contrary to law. These slop oil wastes 
meet the criteria for listing as hazardous waste and undoubtedly 
contain high concentrations of Appendix VIII hazardous constituents, 
although the record contains scant information or analytical data on 
the actual waste. Instead, Exxon has applied for delisting of the waste 
solids after mixing with high volumes of water and centrifuging, which 
would clearly violate the delisting requirements of RCRA, the land 
disposal prohibitions, and the dilution prohibition in 40 CFR 268.3.
    Response 4. The Delisting Program and the LDR program serve 
different purposes and because they serve different purposes, different 
standards of compliance apply. As the commenter states ``A waste is 
eligible for delisting only if that waste as generated at a particular 
facility does not meet any of the criteria under which the waste was 
listed as a hazardous waste. In addition, the waste may not contain any 
other Appendix VIII constituents that would cause the waste to be 
hazardous. RCRA Sec.  3001(f) and 40 CFR 260.22.''
    The derived-from rule states that any solid waste generated from 
the treatment, storage, or disposal of a listed hazardous waste, 
including any sludge, spill residue, ash, emission control dust, or 
leachate, remains a hazardous waste unless and until delisted. (Sec.  
261.3(c)(2)(i)).
    EPA's regulations establish two ways of identifying solid wastes as 
hazardous under RCRA. A waste may be considered hazardous if it 
exhibits certain hazardous properties (``characteristics'') or if it is 
included on a specific list of wastes EPA has determined are hazardous 
(``listing'' a waste as hazardous) because we found them to pose 
substantial present or potential hazards to human health or the 
environment. EPA's regulations in the Code of Federal Regulations (40 
CFR) define four hazardous waste characteristic properties: 
ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24).
    In order to list wastes EPA conducts a more specific assessment of 
a particular waste or category of wastes. The Agency will ``list'' them 
if they meet criteria set out in 40 CFR 261.11. As described in Sec.  
261.11, EPA may list a waste as hazardous if the waste: exhibits any of 
the characteristics, i.e., ignitability, corrosivity, reactivity, or 
toxicity (Sec.  261.11(a)(1)); is ``acutely'' hazardous (e.g., if it is 
fatal to humans or animals at low doses, Sec.  261.11(a)(2)); or it 
contains any of the toxic constituents listed in 40 CFR part 261, 
Appendix VIII and, after consideration of various factors described in 
the regulation, is capable of posing a ``substantial present or 
potential hazard to human health or the environment when improperly 
treated, stored, transported, or disposed of, or otherwise managed'' 
(Sec.  261.11(a)(3)).
    EPA placed a substance on the list of hazardous constituents in 
Appendix VIII if scientific studies have shown the substance has toxic 
effects on humans or other life forms.
    Generally, listing of wastes are not driven by threshold limits 
except in the case of the toxicity characteristic (TC) determination. 
Several of the limits cited by the commenter are the TC limit for the 
constituents stated. If the waste is characteristic, then it can't be 
delisted. The delisting limit is bound by the TC limit.
    In 1984, Congress created EPA's Land Disposal Restrictions (LDR) 
program. The LDR program ensures that toxic constituents present in 
hazardous waste are properly treated before hazardous waste is land 
disposed. Since then, the LDR team has developed mandatory technology-
based treatment standards that must be met before hazardous waste is 
placed in a landfill. These standards help minimize short and long-term 
threats to human health and the environment, which directly benefits 
local communities where hazardous waste landfills are located. The LDR 
Program does not determine if a waste is hazardous it is how hazardous 
wastes are to be managed at the time of disposal.
    We do believe that the concentrations specified as delisting levels 
do minimize short term and long term threats to human health and the 
environment. Whereas, some LDR treatment standards are based on the 
best demonstrated technology, the delisting exit levels are risk based 
standards. We have not stated that Beaumont Refinery is not subject to 
the LDR standards, because the waste was not delisted at the point of 
generation, Beaumont Refinery may submit a variance to the treatment 
standards as described in Sec.  268.42(b) or 268.44 in order to ensure 
compliance with the LDR standards, but the Delisting decision may still 
be made. However, wastes destined for disposal in Subtitle C landfills 
are subject to the LDR limits.

[[Page 74715]]

Therefore, wastes when delisted must comply with all applicable 
Subtitle D landfill requirements.
    The primary function of Superall 38 is to facilitate recovery of as 
much oil (and associated COCs) as possible for subsequent 
reintroduction into the refinery process. And after introduction of 
this cleaning agent and centrifuging there was a reduction in volume of 
the residuals. The centrifuge solids, the petitioned waste, are 
separated from the liquid portion of the mixture. The recovered oil is 
returned to the process, and any remaining liquid portion is treated in 
the wastewater treatment system to standards which meet the facility's 
NPDES permit and the centrifuge solids will be disposed of in a 
Subtitle D Landfill when this exclusion is finalized. ExxonMobil's 
centrifuge residuals do indicate a reduction of hazardous waste 
concentrations. Thus, because the remaining liquid portion is taken out 
of the RCRA jurisdiction and put under Clean Water Act jurisdiction and 
the remaining RCRA waste is reduced, the EPA does not consider this 
process to constitute dilution under RCRA regulations. The EPA believes 
that the delisting concentrations met by this residuals to be delisted 
fall within the acceptable lifetime risk range of 10-4 to 10-6 and that 
for the non-carcinogenic constituents that an individual could be 
exposed to on a daily basis are without appreciable risk of deleterious 
effects during a lifetime.

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

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: November 19, 2011.
Carl E. Edlund,
P.E., Director, Multimedia Planning and Permitting Division.

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

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

                                Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                 Facility                                Address                       Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
ExxonMobil Refining and Supply Company--   Beaumont, TX......................  Centrifuge Solids (EPA Hazardous
 Beaumont Refinery.                                                             Waste Numbers F037, F038, K048,
                                                                                K049, K051, K052, K169, and
                                                                                K170.) generated at a maximum
                                                                                rate of 8,300 cubic yards after
                                                                                December 1, 2011.

[[Page 74716]]

 
                                                                               (1) Reopener.
                                                                               (A) If, anytime after disposal of
                                                                                the delisted waste Beaumont
                                                                                Refinery possesses or is
                                                                                otherwise made aware of any
                                                                                environmental data (including
                                                                                but not limited to leachate data
                                                                                or ground water monitoring data)
                                                                                or any other data relevant to
                                                                                the delisted waste indicating
                                                                                that any constituent identified
                                                                                for the delisting verification
                                                                                testing is at level higher than
                                                                                the delisting level allowed by
                                                                                the Division Director in
                                                                                granting the petition, then the
                                                                                facility must report the data,
                                                                                in writing, to the Division
                                                                                Director within 10 days of first
                                                                                possessing or being made aware
                                                                                of that data.
                                                                               (B) If testing data (and retest,
                                                                                if applicable) of the waste does
                                                                                not meet the delisting
                                                                                requirements in paragraph 1,
                                                                                Beaumont Refinery must report
                                                                                the data, in writing, to the
                                                                                Division Director within 10 days
                                                                                of first possessing or being
                                                                                made aware of that data.
                                                                               (C) If Beaumont Refinery fails to
                                                                                submit the information described
                                                                                in paragraphs (1)(A) or (1)(B)
                                                                                or if any other information is
                                                                                received from any source, the
                                                                                Division Director will make a
                                                                                preliminary determination as to
                                                                                whether the reported information
                                                                                requires EPA action to protect
                                                                                human health and/or the
                                                                                environment. Further action may
                                                                                include suspending, or revoking
                                                                                the exclusion, or other
                                                                                appropriate response necessary
                                                                                to protect human health and the
                                                                                environment.
                                                                               (D) If the Division Director
                                                                                determines that the reported
                                                                                information requires action by
                                                                                EPA, the Division Director will
                                                                                notify the facility in writing
                                                                                of the actions the Division
                                                                                Director believes are necessary
                                                                                to protect human health and the
                                                                                environment. The notice shall
                                                                                include a statement of the
                                                                                proposed action and a statement
                                                                                providing the facility with an
                                                                                opportunity to present
                                                                                information as to why the
                                                                                proposed EPA action is not
                                                                                necessary. The facility shall
                                                                                have 10 days from receipt of the
                                                                                Division Director's notice to
                                                                                present such information.
                                                                               (E) Following the receipt of
                                                                                information from the facility
                                                                                described in paragraph (1)(D) or
                                                                                (if no information is presented
                                                                                under paragraph (1)(D)) the
                                                                                initial receipt of information
                                                                                described in paragraphs (1)(A)
                                                                                or (1)(B), the Division Director
                                                                                will issue a final written
                                                                                determination describing EPA
                                                                                actions that are necessary to
                                                                                protect human health and/or the
                                                                                environment. Any required action
                                                                                described in the Division
                                                                                Director's determination shall
                                                                                become effective immediately,
                                                                                unless the Division Director
                                                                                provides otherwise.
                                                                               (2) Notification Requirements:
                                                                                Beaumont Refinery must do the
                                                                                following before transporting
                                                                                the delisted waste. Failure to
                                                                                provide this notification will
                                                                                result in a violation of the
                                                                                delisting petition and a
                                                                                possible revocation of the
                                                                                decision.
                                                                               (A) Provide a one-time written
                                                                                notification to any state
                                                                                Regulatory Agency to which or
                                                                                through which it will transport
                                                                                the delisted waste described
                                                                                above for disposal, 60 days
                                                                                before beginning such
                                                                                activities.
                                                                               (B) Update one-time written
                                                                                notification, if it ships the
                                                                                delisted waste into a different
                                                                                disposal facility.
                                                                               (C) Failure to provide this
                                                                                notification will result in a
                                                                                violation of the delisting
                                                                                variance and a possible
                                                                                revocation of the decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 74717]]


                                  Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
                 Facility                                Address                       Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
ExxonMobil Refining and Supply Company--   Beaumont, TX......................  Centrifuge Solids (EPA Hazardous
 Beaumont Refinery.                                                             Waste Numbers F037, F038, K048,
                                                                                K049, K051, K052, K169, and
                                                                                K170.) generated at a maximum
                                                                                rate of 8,300 cubic yards after
                                                                                December 1, 2011.
                                                                               Beaumont Refinery must implement
                                                                                the requirements in Table 1.
                                                                                Wastes Excluded from Non-
                                                                                Specific Sources for the
                                                                                petition to be valid.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-30152 Filed 11-30-11; 8:45 am]
BILLING CODE 6560-50-P