[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12497-12501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5006]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R08-RCRA-2011-0823; FRL-9640-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (``EPA,'' ``the Agency'' 
or ``we'' in this preamble) today is granting a petition submitted by 
the ConocoPhillips Billings, Montana Refinery (``ConocoPhillips'', 
``Refinery'' or ``Petitioner'') to exclude or ``delist,'' from the list 
of hazardous wastes, a maximum of 200 cubic yards per year of residual 
solids from sludge removed from two storm water tanks at its Billings, 
Montana refinery and processed in accordance with the petition.
    After careful analysis we have concluded that the petitioned waste 
is not a hazardous waste. This exclusion conditionally excludes the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA) when processed 
in accordance with the petition and disposed in a Subtitle D landfill 
permitted, licensed, or otherwise authorized by a State to accept the 
delisted processed storm water tank sludge. This rule also imposes 
testing conditions for future processed storm water tank residuals to 
ensure they continue to qualify for delisting.

DATES: This final rule is effective on March 1, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No.: EPA-R08-RCRA-2011-0823. All documents in the docket are listed on 
the http://www.regulations.gov web site or in hard copy at the 
Environmental Protection Agency Region VIII, Office of Partnerships and 
Regulatory Assistance, Solid & Hazardous Waste Program, Mail Code: 8P-
HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The docket is 
available for viewing from 8 a.m. to 3 p.m., Monday through Friday 
excluding Federal holidays. You may

[[Page 12498]]

copy material from any regulatory docket at a cost of $0.15 per page. 
EPA requests that you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. You should 
make an appointment with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: Christina Cosentini, Solid and 
Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Mail Code 
8P-HW, Denver, Colorado 80202, (303) 312-6231, 
[email protected].

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

I. Background
    A. What is a delisting petition?
    B. What regulation allow a waste to be delisted?
II. ConocoPhillips Petition
    A. What waste did ConocoPhillips petition to delist?
    B. What information was submitted in support of this petition?
III. EPA's Evaluation and Final Decision
    A. What decision is EPA finalizing and why?
    B. What are the terms of this exclusion?
    C. When is the delisting effective?
    D. How does this action affect states?
IV. Statutory and Executive Order Reviews

I. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to exclude waste 
from the list of hazardous wastes under RCRA regulations. In a 
delisting petition, the petitioner must show that waste generated at a 
particular facility does not meet any of the criteria for which the EPA 
listed the waste as set forth in 40 CFR 261.11 and the background 
document for the waste. In addition, a petitioner must demonstrate that 
the waste does not exhibit any of the hazardous waste characteristics 
of ignitability, reactivity, corrosivity, or toxicity and must present 
sufficient information for the EPA to decide whether any factors, in 
addition to those for which the waste was listed, warrant retaining it 
as a hazardous waste. (See 40 CFR 260.22; 42 U.S.C. 6921(f).)
    If a delisting petition is granted, the generator remains obligated 
under RCRA to confirm that future generated waste remains nonhazardous 
based on hazardous waste characteristics and to ensure that future 
generated wastes meet the conditions set forth in this final rule.

B. What regulations allow a waste to be delisted?

    Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may 
petition the EPA to remove their waste from hazardous waste control by 
excluding them from the lists of hazardous wastes contained in 40 CFR 
261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to 
petition the Administrator to modify or revoke any provision of parts 
260 through 266, 268 and 273 of 40 CFR. 40 CFR 260.22 provides a 
generator the opportunity to petition the Administrator to exclude a 
waste from the lists of hazardous wastes on a ``generator-specific'' 
basis.

II. ConocoPhillips Petition

A. What waste did ConocoPhillips petition to delist?

    On December 3, 2010, ConocoPhillips petitioned the EPA to exclude a 
maximum annual volume of 200 cubic yards of F037 residual solids from 
processing (for oil recovery) sludge removed from two storm water tanks 
at the Billings, Montana refinery, from the lists of hazardous waste 
contained in 40 CFR 261.31, because it believed that the petitioned 
wastes did not meet any of the criteria for which the waste was listed 
and there were no additional constituents or factors that would cause 
the waste to be hazardous. ConocoPhillips generates the waste through 
periodically removing and processing sludge accumulated in two storm 
water tanks through oil recovery and dewatering. The sludge is not 
accumulated at a constant rate and is currently removed from the tanks 
at approximately 18 month intervals and processed via centrifuge and/or 
filter press for oil recovery and dewatering. Recovered oil is 
reinserted into the refining process and water from dewatering is 
routed to the Refinery's on-site wastewater treatment plant.

B. What information was submitted in support of this petition?

    ConocoPhillips submitted detailed descriptions of the process 
generating the waste and other information regarding the makeup of 
materials contributing to the sludge. ConocoPhillips asserted that the 
waste does not meet the criteria for the F037 waste code listing and 
that there are no other factors that might cause the waste to be 
hazardous.
    To support its assertion that the waste is not hazardous, 
ConocoPhillips collected samples of the waste for analysis. Sample 
collection and chemical analysis were conducted in accordance with a 
pre-approved sampling and analysis plan. Details of the sampling and 
analysis plan and the analytical results are contained in the docket 
for the December 8, 2011 proposed rule.

III. EPA's Evaluation and Final Decision

A. What decision is EPA finalizing and why?

    Today the EPA is finalizing an exclusion for up to 200 cubic yards 
of residual solids, generated annually, from processing (for oil 
recovery) sludge removed from two storm water tanks at the 
ConocoPhillips Billings, Montana Refinery from the lists of hazardous 
waste contained in 40 CFR 261.31. Review of this petition included 
consideration of the original listing criteria, as well as the 
additional factors required by the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). See Sec.  222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(d)(2)-(4).
    On December 8, 2011, the EPA proposed to exclude or delist the 
storm water tank process residual generated at the ConocoPhillips 
Billings, Montana Refinery from the list of hazardous wastes in 40 CFR 
261.31 and accepted public comment on the proposed rule (76 FR 76677). 
No public comments were received, and for reasons stated in both the 
proposed rule and this document, we believe that the storm water tank 
process residual from the ConocoPhillips Billings, Montana Refinery 
should be excluded from hazardous waste control.

B. What are the terms of this exclusion?

    This exclusion applies only to a maximum annual generation of 200 
cubic yards of process residual from treatment of sludge in two storm 
water tanks at the ConocoPhillips Billings, Montana Refinery. This 
exclusion is effective only if the storm water sludge is processed in 
accordance with this rule, and the accompanying petition, and if all 
conditions contained in this rule are satisfied. ConocoPhillips must 
dispose of this waste in a Subtitle D landfill permitted, licensed or 
regulated by the State of Montana, or other state subject to Federal 
RCRA delisting, to accept the delisted processed storm water tank 
sludge. ConocoPhillips must verify prior to disposal that the 
constituent concentrations in the residual solids do not exceed the 
allowable levels set forth in this exclusion.

C. When is the delisting effective?

    This rule is effective March 1, 2012. 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

[[Page 12499]]

the regulated community does not need the six-month period to come into 
compliance. This rule reduces rather than increases the existing 
requirements and, therefore, is effective immediately upon publication 
under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How does this action affect states?

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

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review,'' 
(58 FR 51735, Oct. 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, Aug. 10, 1999). Thus, Executive Order 13132 does not apply to 
this rule.
    Similarly, because this rule will apply to a particular facility, 
this final rule does not have tribal implications, as specified in 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' (65 FR 67249, Nov. 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, Apr. 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 DRAS, which considers health and safety risks to 
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, the 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:  RCRA 3001(f), 42 U.S.C. 6921(f).

    Dated: February 14, 2012.
James B. Martin,
Regional Administrator, Region 8.

    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 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
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                Facility                            Address                        Waste description
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                                                  * * * * * * *
ConocoPhillips Billings Refinery........  Billings, Montana..........  Residual solids from centrifuge and/or
                                                                        filter press processing of storm water
                                                                        tank sludge (F037) generated at a
                                                                        maximum annual rate of 200 cubic yards
                                                                        per year must be disposed in a lined
                                                                        Subtitle D landfill, licensed, permitted
                                                                        or otherwise authorized by a state to
                                                                        accept the delisted processed storm
                                                                        water tank sludge. The exclusion becomes
                                                                        effective March 1, 2012.

[[Page 12500]]

 
                                                                       For the exclusion to be valid, the
                                                                        ConocoPhillips Billings Refinery must
                                                                        implement a verification testing program
                                                                        that meets the following Paragraphs:
                                                                       1. Delisting levels: The constituent
                                                                        concentrations in a leachate extract of
                                                                        the waste measured in any sample must
                                                                        not exceed the following concentrations
                                                                        (mg/L TCLP): Acenaphthene-37.9; Antimony-
                                                                        .97; Anthracene-50; Arsenic-.301; Barium-
                                                                        100; Benz(a)anthracene-.25; Benzene-.5;
                                                                        Benzo(a)pyrene-1.1; Benzo(b)fluoranthene-
                                                                        8.7; Benzo(k) fluoranthene-50; Bis(2-
                                                                        ethylhexyl)phthalate-50; 2-Butanone-50;
                                                                        Cadmium-1.0; Carbon disulfide-36;
                                                                        Chromium-5.0; Chrysene-25.0; Cobalt-
                                                                        .763; Cyanide(total)-41.2;
                                                                        Dibenz(a,h)anthrancene-1.16; Di-n-octyl
                                                                        phthalate-50; 1,4-Dioxane-36.5;
                                                                        Ethylbenzene-12; Fluoranthene-8.78;
                                                                        Fluorene-17.5; Indeno(1,2,3-cd)pyrene-
                                                                        27.3; Lead-5.0; Mercury-.2; m&p -Cresol-
                                                                        10.3; Naphthalene-1.17; Nickel-48.2; o-
                                                                        Cresol-50; Phenanthrene-50; Phenol-50;
                                                                        Pyrene-15.9; Selenium-1.0; Silver-5.0;
                                                                        Tetrachloroethene-0.7; Toluene-26;
                                                                        Trichloroethene-.403; Vanadium-12.3;
                                                                        Xylenes (total)-22; Zinc-500.
                                                                       2. Verification Testing: To verify that
                                                                        the waste does not exceed the specified
                                                                        delisting levels, ConocoPhillips must
                                                                        collect and analyze two composite
                                                                        samples of the residual solids from the
                                                                        processed sludge to account for
                                                                        potential variability in each tank.
                                                                        Composite samples must be collected each
                                                                        time cleanout occurs and residuals are
                                                                        generated. Sample collection and
                                                                        analyses, including quality control
                                                                        procedures, must be performed using
                                                                        appropriate methods. If oil and grease
                                                                        comprise less than 1 percent of the
                                                                        waste, SW-846 Method 1311 must be used
                                                                        for generation of the leachate extract
                                                                        used in the testing for constituents of
                                                                        concern listed above. SW-846 Method
                                                                        1330A must be used for generation of the
                                                                        leaching extract if oil and grease
                                                                        comprise 1 percent or more of the waste.
                                                                        SW-846 Method 9071B must be used for
                                                                        determination of oil and grease. SW-846
                                                                        Methods 1311, 1330A, and 9071B are
                                                                        incorporated by reference in 40 CFR
                                                                        260.11. As applicable, the SW-846
                                                                        methods might include Methods 1311,
                                                                        3010, 3510, 6010, 6020, 7470, 7471,
                                                                        8260, 8270, 9014, 9034, 9213, and 9215.
                                                                        If leachate concentrations measured in
                                                                        samples do not exceed the levels set
                                                                        forth in paragraph 1, ConocoPhillips can
                                                                        dispose of the processed sludge in a
                                                                        lined Subtitle D landfill which is
                                                                        permitted, licensed, or registered by
                                                                        the state of Montana or other state
                                                                        which is subject to Federal RCRA
                                                                        delisting. If constituent levels in any
                                                                        sample and any retest sample for any
                                                                        constituent exceed the delisting levels
                                                                        set in paragraph (1) ConocoPhillips must
                                                                        do the following:
                                                                       (A) Notify the EPA in accordance with
                                                                        paragraph (5) and;
                                                                       (B) Manage and dispose of the process
                                                                        residual solids as F037 hazardous waste
                                                                        generated under Subtitle C of RCRA.
                                                                       3. Changes in Operating Conditions:
                                                                        ConocoPhillips must notify the EPA in
                                                                        writing if the manufacturing process,
                                                                        the chemicals used in the manufacturing
                                                                        process, the treatment process, or the
                                                                        chemicals used in the treatment process
                                                                        significantly change. ConocoPhillips
                                                                        must handle wastes generated after the
                                                                        process change as hazardous until it
                                                                        has: Demonstrated that the wastes
                                                                        continue to meet the delisting
                                                                        concentrations in paragraph (1);
                                                                        demonstrated that no new hazardous
                                                                        constituents listed in appendix VIII of
                                                                        part 261 have been introduced; and it
                                                                        has received written approval from the
                                                                        EPA.
                                                                       4. Data Submittal: Whenever tank cleanout
                                                                        is conducted ConocoPhillips must verify
                                                                        that the residual solids from the
                                                                        processed storm water tank sludge meet
                                                                        the delisting levels in 40 CFR part 261
                                                                        Appendix IX Table 1, as amended by this
                                                                        notice. ConocoPhillips must submit the
                                                                        verification data to U.S. EPA Region 8,
                                                                        1595 Wynkoop Street, RCRA Delisting
                                                                        Program, Mail code 8P-HW, Denver, CO
                                                                        80202. ConocoPhillips must compile,
                                                                        summarize and maintain onsite records of
                                                                        tank cleanout and process operating
                                                                        conditions and analytical data for a
                                                                        period of five years.
                                                                       5. Reopener Language: (A) If, anytime
                                                                        after final approval of this exclusion,
                                                                        ConocoPhillips 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
                                                                        EPA in granting the petition, then the
                                                                        facility must report the data, in
                                                                        writing to the EPA at the address above,
                                                                        within 10 days of first possessing or
                                                                        being made aware of that data.
                                                                       (B) If ConocoPhillips fails to submit the
                                                                        information described in paragraph (A)
                                                                        or if any other information is received
                                                                        from any source, the EPA 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.

[[Page 12501]]

 
                                                                       (C) If the EPA determines that the
                                                                        reported information requires the EPA
                                                                        action, the EPA will notify the facility
                                                                        in writing of the actions the agency
                                                                        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 the EPA action is not
                                                                        necessary. The facility shall have 30
                                                                        days from the date of the notice to
                                                                        present such information.
                                                                       (D) If after 30 days ConocoPhillips
                                                                        presents no further information or after
                                                                        a review of any submitted information,
                                                                        the EPA will issue a final written
                                                                        determination describing the Agency
                                                                        actions that are necessary to protect
                                                                        human health or the environment. Any
                                                                        required action described in the EPAs
                                                                        determination shall become effective
                                                                        immediately, unless the EPA provides
                                                                        otherwise.
                                                                       (E) Notification Requirements:
                                                                        ConocoPhillips 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.
                                                                       (1) 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.
                                                                       (2) Update the onetime written
                                                                        notification, if it ships the delisted
                                                                        waste to a different disposal facility.
                                                                       (3) 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. 2012-5006 Filed 2-29-12; 8:45 am]
BILLING CODE 6560-50-P