[Federal Register Volume 82, Number 103 (Wednesday, May 31, 2017)]
[Proposed Rules]
[Pages 24925-24933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11231]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2017-0153; FRL-9962-44-Region 6]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA)

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to grant a petition submitted by ExxonMobil 
Oil Corporation Beaumont Refinery (ExxonMobil) to exclude (or delist) 
the secondary impoundment basin solids in Beaumont, Texas from the 
lists of hazardous wastes. EPA used the Delisting Risk Assessment 
Software (DRAS) Version 3.0.47 in the evaluation of the impact of the 
petitioned waste on human health and the environment.

DATES: We will accept comments until June 30, 2017. We will stamp 
comments received after the close of the comment period as late. These 
late comments may or may not be considered in formulating a final 
decision. Your requests for a hearing must reach EPA by June 15, 2017. 
The request must contain the information prescribed in 40 CFR 260.20(d) 
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2017-0153, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For technical information regarding 
the ExxonMobil Beaumont Refinery petition, contact Michelle Peace at 
214-665-7430 or by email at [email protected].
    Your requests for a hearing must reach EPA by June 15, 2017. The 
request must contain the information described in Sec.  260.20(d).

SUPPLEMENTARY INFORMATION: ExxonMobil submitted a petition under 40 CFR 
260.20 and 260.22(a). Section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268, and 273. Section 260.22(a) specifically provides generators 
the opportunity to petition the Administrator to exclude a waste on a 
``generator specific'' basis from the hazardous waste lists.
    EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This decision, if finalized, would conditionally exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, EPA would conclude that ExxonMobil's petitioned waste 
is non-hazardous with respect to the original listing criteria. EPA 
would also conclude that ExxonMobil's process minimizes short-term and 
long-term threats from the petitioned waste to human health and the 
environment.

Table of Contents

    The information in this section is organized as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will ExxonMobil manage the waste, if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did ExxonMobil petition EPA to delist?
    B. Who is ExxonMobil and what process does it use to generate 
the petitioned waste?
    C. How did ExxonMobil sample and analyze the data in this 
petition?
    D. What were the results of ExxonMobil's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about ExxonMobil's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if ExxonMobil violates the terms and conditions?
V. Public Comments
    A. How can I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
VI. Statutory and Executive Order Reviews

[[Page 24926]]

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing to approve the delisting petition submitted by 
ExxonMobil to have the secondary impoundment basin (SIB) solids 
excluded, or delisted from the definition of a hazardous waste. The SIB 
solids are listed as F037 (primary oil/water/solids separation sludge); 
and F038 (secondary oil/water/solids separation sludge).

B. Why is EPA proposing to approve this delisting?

    ExxonMobil's petition requests an exclusion from the F037 and F038 
waste listings pursuant to 40 CFR 260.20 and 260.22. ExxonMobil does 
not believe that the petitioned waste meets the criteria for which EPA 
listed it. ExxonMobil also believes no additional constituents or 
factors could cause the waste to be hazardous. EPA's review of this 
petition included consideration of the original listing criteria and 
the additional factors required by the Hazardous and Solid Waste 
Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all sectional 
references are to 40 CFR unless otherwise indicated). In making the 
initial delisting determination, EPA evaluated the petitioned waste 
against the listing criteria and factors cited in Sec. Sec.  
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the 
petitioner that the waste is non-hazardous with respect to the original 
listing criteria. If EPA had found, based on this review, that the 
waste remained hazardous based on the factors for which the waste was 
originally listed, EPA would have proposed to deny the petition. EPA 
evaluated the waste with respect to other factors or criteria to assess 
whether there is a reasonable basis to believe that such additional 
factors could cause the waste to be hazardous. EPA considered whether 
the waste is acutely toxic, the concentration of the constituents in 
the waste, their tendency to migrate and to bioaccumulate, their 
persistence in the environment once released from the waste, plausible 
and specific types of management of the petitioned waste, the 
quantities of waste generated, and waste variability. EPA believes that 
the petitioned waste does not meet the listing criteria and thus should 
not be a listed waste. EPA's proposed decision to delist waste from 
ExxonMobil is based on the information submitted in support of this 
rule, including descriptions of the wastes and analytical data from the 
Beaumont, Texas facility.

C. How will ExxonMobil manage the waste if it is delisted?

    If the SIB solids are delisted, contingent upon approval of the 
delisting petition, storage containers with SIB solids will be 
transported to an authorized, solid waste landfill (e.g. RCRA Subtitle 
D landfill, commercial/industrial solid waste landfill, etc.) for 
disposal.

D. When would the proposed delisting exclusion be finalized?

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

E. How would this action affect the states?

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

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from non-specific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended this list several times and published it in 40 CFR 261.31 and 
261.32.
    EPA lists these wastes as hazardous because: (1) The wastes 
typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in subpart C of part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity), (2) the wastes 
meet the criteria for listing contained in Sec.  261.11(a)(2) or 
(a)(3), or (b) the wastes are mixed with or derived from the treatment, 
storage or disposal of such characteristic and listed wastes and which 
therefore become hazardous under Sec.  261.3(a)(2)(iv) or (c)(2)(i), 
known as the ``mixture'' or ``derived-from'' rules, respectively.
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations or resulting from the operation of the 
mixture or derived-from rules generally is hazardous, a specific waste 
from an individual facility may not be hazardous.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

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

    A delisting petition is a request from a facility to EPA or an 
authorized state to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not consider the wastes 
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a

[[Page 24927]]

particular facility do not meet any of the criteria for which the waste 
was listed. The criteria for which EPA lists a waste are in part 261 
and further explained in the background documents for the listed waste.
    In addition, under 40 CFR 260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See part 261 and the background documents for the 
listed waste.)
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

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

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

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

A. What waste did ExxonMobil petition EPA to Delist?

    In August 2016, ExxonMobil petitioned EPA to exclude from the lists 
of hazardous wastes contained in Sec. Sec.  261.31 and 261.32, SIB 
solids (F037, F038) generated from its facility located in Beaumont, 
Texas. The waste falls under the classification of listed waste 
pursuant to Sec. Sec.  261.31 and 261.32. Specifically, in its 
petition, ExxonMobil requested that EPA grant a one-time exclusion for 
400,000 cubic yards of as generated wet SIB solids.

B. Who is ExxonMobil and what process does it use to generate the 
petitioned waste?

    ExxonMobil Beaumont Refinery processes crude oil in the production 
of a number of petroleum products, including fuels and chemical 
feedstocks. The petitioned waste, SIB solids, originated from both 
historical and current operation of the wastewater treatment system at 
the refinery. To the extent possible, hydrocarbons present in refinery 
wastewaters have been recovered. However, historically more 
hydrocarbons passed through the ``oil recovery system'' and flowed into 
the SIB. Hydrocarbons in the wastewater can result from various sources 
(e.g. crude oil). Over time, more of the oily streams were routed to 
storage tanks from collection system piping and/or smaller tanks for 
interception and recovery instead of into the SIB. Recovered oil from 
the oil recovery system is stored in tanks prior to being reintroduced 
into the refining process. Historically, these oily flows occurred in 
conjunction with facility operations, were relatively routine in 
nature, and not directly associated with precipitation. As such, they 
were classified by EPA as ``dry weather'' flows. By contrast, 
wastewater directly associated with precipitation (i.e. storm water) is 
referred to as ``wet weather'' flows. The EPA listing criteria for F037 
generally encompasses primary solids associated with dry-weather, oily 
flows, and the EPA listing criteria for F038 generally encompasses 
secondary solids associated with dry-weather, oily flows. During the 
early 1990s, ExxonMobil implemented a program to identify and mitigate 
dry weather flows to the SIB, and those flows have since been 
eliminated. Since the SIB historically received dry-weather, oily flows 
as specified in the November 2, 1990 Federal Register rule publication, 
the lower stratum of solids within the pond are believed to be 
classified as F037 when generated. Dry-weather, oily flows have since 
been eliminated from reaching the SIB. However, creating a definitive 
``bright line'' in the solid stratum is not practical, so ExxonMobil 
assumes that solids removed from the SIB bear the F037 (primary oil/
water/solids separation sludge) listing when generated. Although it is 
not believed that the F038 (secondary oil/water/solids separation 
sludge) listing would apply, ExxonMobil has conservatively elected to 
also include this listing as part of the delisting effort.

C. How did ExxonMobil sample and analyze the data in this petition?

    To support its petition, ExxonMobil submitted:
    (1) Historical information on waste generation and management 
practices; and
    (2) Analytical results from thirty-nine samples for total and TCLP 
concentrations of compounds of concern (COC)s;

D. What were the results of ExxonMobil's analysis?

    EPA believes that the descriptions of the ExxonMobil analytical 
characterization provide a reasonable basis to grant ExxonMobil's 
petition for an exclusion of the SIB solids. EPA believes the data 
submitted in support of the petition show the SIB solids are non-
hazardous. Analytical data for the SIB solids samples were used in the 
DRAS to develop delisting levels. The data summaries for COCs are 
presented in Table I. EPA has reviewed the sampling procedures used by 
ExxonMobil and has determined that it satisfies EPA criteria for 
collecting representative samples of the variations in constituent 
concentrations in the SIB solids. In addition, the data submitted in 
support of the petition show that constituents in ExxonMobil's waste 
are presently below health-based levels used in the delisting decision-
making. EPA believes that ExxonMobil has successfully demonstrated that 
the SIB solids are non-hazardous.

                      Table 1--Analytical Results/Maximum Allowable Delisting Concentration
             Secondary Impoundment Basin (SIB) Solids ExxonMobil Beaumont Refinery, Beaumont, Texas
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                                                                   Maximum total   Maximum TCLP    Maximum  TCLP
                           Constituent                             concentration   concentration     delisting
                                                                      (mg/kg)         (mg/L)       level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony........................................................            4.84           0.023            .109
Arsenic.........................................................            33.6           0.077            .424
Barium..........................................................             455            1.47              36

[[Page 24928]]

 
Beryllium.......................................................            1.38          <0.002             2.0
Cadmium.........................................................            2.05          <0.002            0.09
Chromium........................................................             697           0.205            2.27
Cobalt..........................................................            19.4          0.0371           0.214
Lead............................................................             400           0.656           0.702
Mercury.........................................................            3.61        0.000049           0.068
Nickel..........................................................            68.2           0.152            13.5
Selenium........................................................            28.7          0.0177           0.890
Silver..........................................................            1.23           0.002             5.0
Vanadium........................................................            90.7          0.0815            3.77
Zinc............................................................            2470            5.43             197
2,4 Dimethylphenol..............................................            0.97          0.0018            11.3
2-Methylphenol..................................................          0<0.71        <.000033            28.9
3-Methylphenol..................................................           <0.64           0.002            28.9
4-Methylphenol..................................................           <0.64         0.00047            2.89
Acenaphthene....................................................             1.7         0.00091            10.6
Anthracene......................................................             2.9         0.00019            25.9
Benz(a)anthracene...............................................             7.2        0.000034            0.07
Benz(a)pyrene...................................................               5        <0.00003            26.3
Bis(2-ethylhexyl)phthalate......................................              34          0.0002         106,000
Chrysene........................................................              19        0.000048            7.01
Di-n-butyl phthalate............................................            0.66          0.0013            24.6
Fluoranthene....................................................             2.1        0.000078            2.46
Fluorene........................................................             4.9          0.0016            4.91
Indeno(1,2,3-cd)pyrene..........................................             2.6       <0.000051              73
Naphthalene.....................................................              26            0.02          0.0327
Phenol..........................................................           <0.71         0.00025             173
Pyrene..........................................................             N/A         0.00019            4.45
Benzene.........................................................             1.1          <0.004           0.077
Xylenes, total..................................................              53            0.18            9.56
----------------------------------------------------------------------------------------------------------------
Notes: These levels represent the highest constituent concentration found in any one sample and does not
  necessarily represent the specific level found in one sample.

E. How did EPA evaluate the risk of delisting the waste?

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e. groundwater, 
surface water, air) for hazardous constituents present in the 
petitioned waste. EPA determined that disposal in a surface impoundment 
is the most reasonable, worst-case disposal scenario for ExxonMobil's 
petitioned waste. EPA applied the Delisting Risk Assessment Software 
(DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 
(December 4, 2000), to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned waste 
after disposal and determined the potential impact of the disposal of 
ExxonMobil's petitioned waste on human health and the environment. A 
copy of this software can be found on the world wide web at http://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html. In 
assessing potential risks to groundwater, EPA used the maximum waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
groundwater at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 
10-5 and non-cancer hazard index of 1.0), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and EPA health-based numbers. Using the maximum 
compliance-point concentrations and EPA's Composite Model for Underflow 
water Migration with Transformation Products (EPACMTP) fate and 
transport modeling factors, the DRAS further back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point concentrations in groundwater.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible groundwater contamination 
resulting from disposal of the petitioned waste in a surface 
impoundment, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of some reasonable 
worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    The DRAS also uses the maximum estimated waste volumes and the 
maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g. volatilization from the impoundment). As in the above groundwater 
analyses, the DRAS uses the risk level, the health-based data and 
standard risk assessment and exposure algorithms to predict maximum 
compliance-point concentrations of waste constituents at a hypothetical 
point of exposure. Using fate and transport equations, the DRAS uses 
the maximum compliance-point concentrations and back-calculates the 
maximum allowable waste constituent concentrations (or ``delisting 
levels'').

[[Page 24929]]

    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed. The waste must be disposed in the type of unit the fate and 
transport model evaluates.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of the DRAS and TCLP Analyses results 
found in Table I, the petitioned waste should be delisted because no 
constituents of concern tested are likely to be present or formed as 
reaction products or by-products in ExxonMobil waste.

F. What did EPA conclude about ExxonMobil's waste analysis?

    EPA concluded, after reviewing ExxonMobil's processes that no other 
hazardous constituents of concern, other than those for which tested, 
are likely to be present or formed as reaction products or by-products 
in the waste. In addition, on the basis of explanations and analytical 
data provided by ExxonMobil, pursuant to Sec.  260.22, EPA concludes 
that the petitioned waste do not exhibit any of the characteristics of 
ignitability, corrosivity, reactivity or toxicity. See Sec. Sec.  
261.21, 261.22 and 261.23, respectively.

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

    During the evaluation of ExxonMobil's petition, EPA also considered 
the potential impact of the petitioned waste via non-groundwater routes 
(i.e. air emission and surface runoff). With regard to airborne 
dispersion in particular, EPA believes that exposure to airborne 
contaminants from ExxonMobil's petitioned waste is unlikely. Therefore, 
no appreciable air releases are likely from ExxonMobil's waste under 
any likely disposal conditions. EPA evaluated the potential hazards 
resulting from the unlikely scenario of airborne exposure to hazardous 
constituents released from ExxonMobil's waste in an open landfill. The 
results of this worst-case analysis indicated that there is no 
substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from ExxonMobil's 
SIB solids.

H. What is EPA's evaluation of this delisting petition?

    The descriptions of ExxonMobil's hazardous waste process and 
analytical characterization provide a reasonable basis for EPA to grant 
the exclusion. The data submitted in support of the petition show that 
constituents in the waste are below the leachable concentrations (see 
Table I). EPA believes that ExxonMobil's SIB solids will not impose any 
threat to human health and the environment.
    Thus, EPA believes ExxonMobil should be granted an exclusion for 
the SIB solids. EPA believes the data submitted in support of the 
petition show ExxonMobil's SIB solids are non-hazardous. The data 
submitted in support of the petition show that constituents in 
ExxonMobil's waste are presently below the compliance point 
concentrations used in the delisting decision and would not pose a 
substantial hazard to the environment. EPA believes that ExxonMobil has 
successfully demonstrated that the SIB solids are non-hazardous.
    EPA therefore, proposes to grant an exclusion to ExxonMobil in 
Beaumont, Texas, for the SIB solids described in its petition. EPA's 
decision to exclude this waste is based on descriptions of the 
treatment activities associated with the petitioned waste and 
characterization of the SIB solids.
    If EPA finalizes the proposed rule, EPA will no longer regulate the 
petitioned waste under Parts 262 through 268 and the permitting 
standards of Part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, ExxonMobil, must comply with the requirements in 40 
CFR part 261, appendix IX, Table 1. The text below gives the rationale 
and details of those requirements.
    (1) Delisting Levels:
    This paragraph provides the levels of constituents for which 
ExxonMobil must test the SIB solids, below which these wastes would be 
considered non-hazardous. EPA selected the set of inorganic and organic 
constituents specified in paragraph (1) of 40 CFR part 261, Appendix 
IX, Table 1, (the exclusion language) based on information in the 
petition. EPA compiled the inorganic and organic constituents list from 
the composition of the waste, descriptions of ExxonMobil's treatment 
process, previous test data provided for the waste, and the respective 
health-based levels used in delisting decision-making. These delisting 
levels correspond to the allowable levels measured in the TCLP 
concentrations.
    (2) Waste Holding and Handling:
    The purpose of this paragraph is to ensure that ExxonMobil manages 
and disposes of any SIB solids that contains hazardous levels of 
inorganic and organic constituents according to Subtitle C of RCRA. 
Managing the SIB solids as a hazardous waste until the verification 
testing is performed will protect against improper handling of 
hazardous material. If EPA determines that the data collected under 
this paragraph do not support the data provided for in the petition, 
the exclusion will not cover the petitioned waste. The exclusion is 
effective upon publication in the Federal Register but the disposal as 
non-hazardous cannot begin until the verification sampling is 
completed.
    (3) Verification Testing Requirements:
    ExxonMobil must complete a rigorous verification testing program on 
the SIB solids to assure that the solids do not exceed the maximum 
levels specified in paragraph (1) of the exclusion language. This 
verification program will occur as wastes are removed from the basin 
and scheduled for disposal. The volume of wastes removed from the basin 
may not exceed 400,000 cubic yards of as generated wet SIB solids 
material. Any as generated SIB solids waste in excess of 400,000 cubic 
yards must be disposed as hazardous waste if EPA determines that the 
data collected under this paragraph do not support the data provided 
for the petition, the exclusion will not cover the generated wastes. If 
the data from the verification testing program demonstrate that the SIB 
solids meet the delisting levels, ExxonMobil may commence disposing of 
the solids for a period of one year. EPA will notify ExxonMobil in 
writing, if and when it begins and ends disposal of the SIB solids.
    (4) Data Submittals:
    To provide appropriate documentation that ExxonMobil's SIB solids 
meet the delisting levels, ExxonMobil must compile, summarize, and keep 
delisting records on-site for a minimum of five years. It should keep 
all analytical data obtained through paragraph (3) of the exclusion 
language including quality control information for five years. 
Paragraph (4) of the exclusion language requires that ExxonMobil 
furnish these data upon request for inspection by any employee or 
representative of EPA or the State of Texas.
    If the proposed exclusion is made final, it will apply only to 
400,000 cubic yards of as generated wet SIB solids

[[Page 24930]]

generated at the ExxonMobil Beaumont Refinery after successful 
verification testing. EPA would require ExxonMobil to file a new 
delisting petition for waste generated in excess of the as generated 
wet 400,000 cubic yards and treat the solids as hazardous waste:
    ExxonMobil must manage waste volumes greater than as generated wet 
400,000 cubic yards of the SIB solids as hazardous until EPA grants a 
new exclusion.
    When this exclusion becomes final, ExxonMobil's management of the 
wastes covered by this petition would be relieved from Subtitle C 
jurisdiction, the SIB solids from ExxonMobil will be disposed of in an 
authorized, solid waste landfill (e.g. RCRA Subtitle D landfill, 
commercial/industrial solid waste landfill, etc.).
    (5) Reopener:
    The purpose of paragraph (6) of the exclusion language is to 
require ExxonMobil to disclose new or different information related to 
a condition at the facility or disposal of the waste, if it is 
pertinent to the delisting. ExxonMobil must also use this procedure, if 
the waste sample in the annual testing fails to meet the levels found 
in paragraph (1). This provision will allow EPA to reevaluate the 
exclusion, if a source provides new or additional information to EPA. 
EPA will evaluate the information on which EPA based the decision to 
see if it is still correct, or if circumstances have changed so that 
the information is no longer correct or would cause EPA to deny the 
petition, if presented. This provision expressly requires ExxonMobil to 
report differing site conditions or assumptions used in the petition, 
in addition to failure to meet the annual testing conditions within 10 
days of discovery. If EPA discovers such information itself or from a 
third party, it can act on it as appropriate. The language being 
proposed is similar to those provisions found in RCRA regulations 
governing no-migration petitions at Sec.  268.6.
    EPA believes that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delistings is 
merited, in light of EPA's experience. See Reynolds Metals Company at 
62 FR 37694 and 62 FR 63458 where the delisted waste leached at greater 
concentrations in the environment than the concentrations predicted 
when conducting the TCLP, thus leading EPA to repeal the delisting. If 
an immediate threat to human health and the environment presents 
itself, EPA will continue to address these situations on a case-by-case 
basis. Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA section 553 (b).
    (6) Notification Requirements:
    In order to adequately track wastes that have been delisted, EPA is 
requiring that ExxonMobil provide a one-time notification to any state 
regulatory agency through which or to which the delisted waste is being 
carried. ExxonMobil must provide this notification sixty (60) days 
before commencing this activity.

B. What happens if ExxonMobil violates the terms and conditions?

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

V. Public Comments

A. How can I as an interested party submit comments?

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to Kishor 
Fruitwala, Section Chief (6MM-RP), Multimedia Division, Environmental 
Protection Agency (EPA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 
75202. Identify your comments at the top with this regulatory docket 
number: ``EPA-R6-RCRA-2017-0153, ExxonMobil Beaumont Refinery Secondary 
Impoundment Basin Solids delisting.'' You may submit your comments 
electronically to Michelle Peace at [email protected].
    You should submit requests for a hearing to Kishor Fruitwala, 
Section Chief (6MM-RP), Multimedia Division, Environmental Protection 
Agency (EPA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202.

B. How may I review the docket or obtain copies of the proposed 
exclusion?

    You may review the RCRA regulatory docket for this proposed rule at 
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Suite 
1200, Dallas, Texas 75202. It is available for viewing in EPA Freedom 
of Information Act Review Room from 9:00 a.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at fifteen cents per page for 
additional copies. Docket materials may be available either 
electronically in http://www.regulations.gov and you may also request 
the electronic files of the docket which do not appear on 
regulations.gov.

VI. 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

[[Page 24931]]

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, 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. Executive Order 
(EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The Agency's risk assessment did not identify risks from 
management of this material in an authorized, solid waste landfill 
(e.g. RCRA Subtitle D landfill, commercial/industrial solid waste 
landfill, etc.). Therefore, EPA believes that any populations in 
proximity of the landfills used by this facility should not be 
adversely affected by common waste management practices for this 
delisted waste.

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: May 2, 2017.
Wren Stenger,
Director, Multimedia Division, Region 6.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.

0
2. In table 1 of appendix IX to part 261 add the entry ``ExxonMobil'' 
in alphabetical order to read as follows:

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

                               Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
ExxonMobil...........................  Beaumont, TX...........  Secondary Impoundment Basin Solids (SIB) (EPA
                                                                 Hazardous Waste Numbers F037 and F038)
                                                                 generated at a maximum rate of as generated wet
                                                                 400,000 cubic yards.
                                                                For the exclusion to be valid, ExxonMobil must
                                                                 implement a verification testing program for
                                                                 each of the waste streams that meets the
                                                                 following Paragraphs:
                                                                (1) Delisting Levels: All concentrations for
                                                                 those constituents must not exceed the maximum
                                                                 allowable concentrations in mg/l specified in
                                                                 this paragraph.
                                                                Secondary Impoundment Basin Solids (SIB).
                                                                 Leachable Concentrations (mg/l): Antimony--
                                                                 0.109; Arsenic--0.424; Barium-36; Beryllium--
                                                                 2.0 Cadmium-0.09; Chromium-2.27; Cobalt-0.214;
                                                                 Lead-0.702; Mercury-0.068; Nickel-13.5;
                                                                 Selenium-0.890; Silver-5.0; Vanadium-3.77; Zinc-
                                                                 197; 2,4 Dimethylphenol-11.3; 2-Methylphenol-
                                                                 28.9; 3-Methylphenol-28.9; 4-Methylphenol-2.89;
                                                                 Acenaphthene-10.6; Anthracene-25.9;
                                                                 Benz(a)anthracene-0.07; Benz(a)pyrene-26.3;
                                                                 Bis(2-ethylhexyl) phthalate-106,000 Chrysene-
                                                                 7.01; Di-n-butyl phthalate-24.6; Fluoranthene-
                                                                 2.46; Fluorene-4.91 Indeno (1,2,3-cd) pyrene-
                                                                 73; Naphthalene-0.0327; Phenol--173; Pyrene-
                                                                 4.45; Benzene-0.077; Xylenes, total-9.56
                                                                (2) Waste Holding and Handling:
                                                                (A) Waste classification as non-hazardous cannot
                                                                 begin until compliance with the limits set in
                                                                 paragraph (1) for the SIB solids are verified.
                                                                (B) If constituent levels in any sample and
                                                                 retest sample taken by ExxonMobil exceed any of
                                                                 the delisting levels set in paragraph (1) for
                                                                 the SIB solids, ExxonMobil must do the
                                                                 following:
                                                                (i) notify EPA in accordance with paragraph (5)
                                                                 and
                                                                (ii) manage and dispose the SIB solids as
                                                                 hazardous waste generated under Subtitle C of
                                                                 RCRA.
                                                                (3) Testing Requirements:

[[Page 24932]]

 
                                                                ExxonMobil must perform analytical testing by
                                                                 sampling and analyzing the SIB solids as
                                                                 follows: (i) Collect a representative sample of
                                                                 the SIB solids for analysis of all constituents
                                                                 listed in paragraph (1) prior to disposal.
                                                                (ii) The samples for the annual testing shall be
                                                                 a representative sample according to
                                                                 appropriate methods. As applicable to the
                                                                 method-defined parameters of concern, analyses
                                                                 requiring the use of SW-846 methods
                                                                 incorporated by reference in 40 CFR 260.11 must
                                                                 be used without substitution. As applicable,
                                                                 the SW-846 methods might include Methods 0010,
                                                                 0011, 0020, 0023A, 0030, 0031, 0040, 0050,
                                                                 0051, 0060, 0061, 1010A, 1020B,1110A, 1310B,
                                                                 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C,
                                                                 9045D, 9060A, 9070A (uses EPA Method 1664, Rev.
                                                                 A), 9071B, and 9095B. Methods must meet
                                                                 Performance Based Measurement System Criteria
                                                                 in which the Data Quality Objectives are to
                                                                 demonstrate that samples of the ExxonMobil SIB
                                                                 solids are representative for all constituents
                                                                 listed in paragraph (1).
                                                                (4) Data Submittals:
                                                                ExxonMobil must submit the information described
                                                                 below. If ExxonMobil fails to submit the
                                                                 required data within the specified time or
                                                                 maintain the required records on-site for the
                                                                 specified time, EPA, at its discretion, will
                                                                 consider this sufficient basis to reopen the
                                                                 exclusion as described in paragraph(6).
                                                                 ExxonMobil must:
                                                                (A) Submit the data obtained through paragraph 3
                                                                 to the Section Chief, 6MM-RP, Multimedia
                                                                 Division, U. S. Environmental Protection Agency
                                                                 Region 6, 1445 Ross Ave., Suite 1200, Dallas,
                                                                 Texas 75202, within the time specified. All
                                                                 supporting data can be submitted on CD-ROM or
                                                                 comparable electronic media.
                                                                (B) Compile records of analytical data from
                                                                 paragraph (3), summarized, and maintained on-
                                                                 site for a minimum of five years.
                                                                (C) Furnish these records and data when either
                                                                 EPA or the State of Texas requests them for
                                                                 inspection.
                                                                (D) Send along with all data a signed copy of
                                                                 the following certification statement, to
                                                                 attest to the truth and accuracy of the data
                                                                 submitted:
                                                                ``Under civil and criminal penalty of law for
                                                                 the making or submission of false or fraudulent
                                                                 statements or representations (pursuant to the
                                                                 applicable provisions of the Federal Code,
                                                                 which include, but may not be limited to, 18
                                                                 U.S.C. 1001 and 42 U.S.C. 6928), I certify that
                                                                 the information contained in or accompanying
                                                                 this document is true, accurate and complete.
                                                                As to the (those) identified section(s) of this
                                                                 document for which I cannot personally verify
                                                                 its (their) truth and accuracy, I certify as
                                                                 the company official having supervisory
                                                                 responsibility for the persons who, acting
                                                                 under my direct instructions, made the
                                                                 verification that this information is true,
                                                                 accurate and complete.
                                                                If any of this information is determined by EPA
                                                                 in its sole discretion to be false, inaccurate
                                                                 or incomplete, and upon conveyance of this fact
                                                                 to the company, I recognize and agree that this
                                                                 exclusion of waste will be void as if it never
                                                                 had effect or to the extent directed by EPA and
                                                                 that the company will be liable for any actions
                                                                 taken in contravention of the company's RCRA
                                                                 and CERCLA obligations premised upon the
                                                                 company's reliance on the void exclusion.''
                                                                (5) Reopener
                                                                (A) If, anytime after disposal of the delisted
                                                                 waste ExxonMobil possesses or is otherwise made
                                                                 aware of any environmental data (including but
                                                                 not limited to underflow water data or ground
                                                                 water monitoring data) or any other data
                                                                 relevant to the delisted waste indicating that
                                                                 any constituent identified for the delisting
                                                                 verification testing is at level higher than
                                                                 the delisting level allowed by the Division
                                                                 Director in granting the petition, then the
                                                                 facility must report the data, in writing, to
                                                                 the Division Director within 10 days of first
                                                                 possessing or being made aware of that data.
                                                                (B) If either the verification testing (and
                                                                 retest, if applicable) of the waste does not
                                                                 meet the delisting requirements in paragraph 1,
                                                                 ExxonMobil 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 ExxonMobil fails to submit the
                                                                 information described in paragraphs (5),(6)(A)
                                                                 or (6)(B) or if any other information is
                                                                 received from any source, the Division Director
                                                                 will make a preliminary determination as to
                                                                 whether the reported information requires EPA
                                                                 action to protect human health and/or the
                                                                 environment. Further action may include
                                                                 suspending, or revoking the exclusion, or other
                                                                 appropriate response necessary to protect human
                                                                 health and the environment.
                                                                (D) If the Division Director determines that the
                                                                 reported information requires action by EPA,
                                                                 the Division Director will notify the facility
                                                                 in writing of the actions the Division Director
                                                                 believes are necessary to protect human health
                                                                 and the environment. The notice shall include a
                                                                 statement of the proposed action and a
                                                                 statement providing the facility with an
                                                                 opportunity to present information as to why
                                                                 the proposed EPA action is not necessary. The
                                                                 facility shall have 10 days from receipt of the
                                                                 Division Director's notice to present such
                                                                 information.

[[Page 24933]]

 
                                                                (E) Following the receipt of information from
                                                                 the facility described in paragraph (6)(D) or
                                                                 (if no information is presented under paragraph
                                                                 (6)(D)) the initial receipt of information
                                                                 described in paragraphs (5), (6)(A) or (6)(B),
                                                                 the Division Director will issue a final
                                                                 written determination describing EPA actions
                                                                 that are necessary to protect human health and/
                                                                 or the environment. Any required action
                                                                 described in the Division Director's
                                                                 determination shall become effective
                                                                 immediately, unless the Division Director
                                                                 provides otherwise.
                                                                (6) Notification Requirements:
                                                                ExxonMobil 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) For onsite disposal, a notice should be
                                                                 submitted to the State to notify the State that
                                                                 disposal of the delisted materials has begun.
                                                                (C) Update one-time written notification, if it
                                                                 ships the delisted waste into a different
                                                                 disposal facility.
                                                                (D) Failure to provide this notification will
                                                                 result in a violation of the delisting
                                                                 exclusion and a possible revocation of the
                                                                 decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

[FR Doc. 2017-11231 Filed 5-30-17; 8:45 am]
 BILLING CODE 6560-50-P