[Federal Register Volume 88, Number 14 (Monday, January 23, 2023)]
[Proposed Rules]
[Pages 3945-3953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00685]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2022-0781; FRL-10238-01-Region 6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant an exclusion from the list of hazardous wastes to ExxonMobil 
Baytown Refinery (EMBR or Petitioner) located in Baytown, Texas. This 
action responds to a petition to exclude (or ``delist'') up to 2,409 
cubic yards per year of API separator sludge--from the list of federal 
hazardous wastes when disposed of in a Subtitle D Landfill. Resource 
Conservation Recovery Act (RCRA). The EPA is proposing to grant the 
petition based on an evaluation of waste-specific information provided 
by Petitioner.

DATES: Comments on this proposed exclusion must be received by February 
22, 2023.

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
    Instructions: The EPA must receive your comments by February 22, 
2023. Direct your comments to Docket ID Number EPA-R06-RCRA-2022-0781. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI), or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal regulations.gov website is 
an ``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through regulations.gov, your email address will be automatically 
captured and included as part of the comment that is placed in the 
public docket and made available on the internet. If you submit an 
electronic comment, the EPA recommends that you include your name and 
other contact information in the body of your comment with any CBI you 
submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption and be free of any 
defects or viruses.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy.
    You can view and copy the delisting petition and associated 
publicly available docket materials either through www.regulations.gov 
or at: EPA, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270. 
The EPA facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays and facility closures due to COVID-
19. The EPA recommend that you telephone Harry Shah, at (214) 665-6457, 
before visiting the Region 6 office. Interested persons wanting to 
examine these documents should make an appointment with the office.

FOR FURTHER INFORMATION CONTACT: Harry Shah, (214) 665-6457, 
[email protected]. Out of an abundance of caution for members of the 
public and our staff, the EPA Region 6 office may be closed to the 
public to reduce the risk of transmitting COVID-19. The EPA encourage 
the public to submit comments via https://www.regulations.gov, as there 
will be a delay in processing mail and no courier or hand deliveries 
will be accepted. Please call or email the contact listed above if you 
need alternative access to material indexed but not provided in the 
docket.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Overview Information
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 the EPA consider in deciding whether to 
grant a delisting petition?
    D. Environmental Justice Evaluation
III. The EPA's Evaluation of the Waste Information and Data
    A. What waste did the Petitioner petition the EPA to delist?
    B. How did the Petitioner generate the waste?
    C. How did the Petitioner sample and analyze the petitioned 
waste?
    D. What factors did the EPA consider in deciding whether to 
propose to grant the delisting petition?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What did the EPA conclude?
IV. Conditions for Exclusion
    A. How will the Petitioner manage the waste if it is delisted?
    B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?
    C. How frequently must the Petitioner test the waste?
    D. What data must the Petitioner submit?
    E. What happens if the Petitioner fails to meet the conditions 
of the exclusion?

[[Page 3946]]

    F. What must the Petitioner do if the process changes?
V. When would the EPA finalize the proposed delisting exclusion?
VI. How would this action affect states?
VII. Statutory and Executive Order Reviews

I. Overview Information

    The EPA is proposing to grant a May 2021 petition (``K051 Delisting 
Petition'') request submitted by EMBR in Baytown, Texas to exclude (or 
``delist'') up to 2,409 cubic yards per year K051 API separator sludge 
from the list of federal hazardous waste set forth in 40 CFR 261.3 
(hereinafter, all sectional references are to 40 CFR unless otherwise 
indicated) for offsite disposal. The Petitioner claims that the 
petitioned wastes do not meet the criteria for which the EPA listed it, 
and that there are no additional constituents or factors which could 
cause the waste to be hazardous. Based on our review described in 
Section III, the EPA propose to approve the petition request, and allow 
the delisted waste to be disposed in a Subtitle D landfill. A copy of 
the May 2021 petition is located in the docket to this proposal action.

II. Background

A. What is the history of the delisting program?

    The 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. The 
EPA has amended this list several times and codifies the list in 
Sec. Sec.  261.31 and 261.32.
    The EPA lists the Petitioner's 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. Sec.  
261.11(a)(2) or (3), or (3) 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. 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 part 261 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 the 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 the EPA or an 
authorized state to exclude wastes from the list of hazardous wastes. 
The facility petitions the EPA because it does not consider the waste 
as hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which the EPA lists a 
waste are in 40 CFR part 261 and further explained in the background 
documents for the listed waste in the April 1988 publication of the 
``Proposed Best Demonstrated Available Technology (BDAT) Background 
Document for Petroleum Refining Treatability Group (K048, K049, K050, 
K051, K052)'' (https://nepis.epa.gov/Exe/ZyNET.exe/2000ERGU.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1986+Thru+1990&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C86thru90%5CTxt%5C00000002%5C2000ERGU.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL).
    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 must 
present sufficient information for the EPA to decide whether factors 
other than those for which the waste was listed warrant retaining it as 
a hazardous waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if the EPA has ``delisted'' the waste.

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

    Besides considering the criteria in 40 CFR 260.22(a) and 3001(f) of 
RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed 
wastes, the EPA must consider any factors (including additional 
constituents) aside from those for which the EPA listed the waste, if a 
reasonable basis exists that these additional factors could cause the 
waste to be hazardous.
    The EPA must also consider hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec. 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).

D. Environmental Justice Evaluation

    To better meet the EPA's ``responsibilities related to the 
protection of public health and the environment, the EPA has developed 
an environmental justice (EJ) mapping and screening tool called EJ 
Screen'' that reports values as a percentile when compared to a state 
or the nation. ``It is based on nationally consistent data and an 
approach that combines environmental and demographic indicators in maps 
and reports,'' (https://www.epa.gov/ejscreen). The EPA is providing 
analysis of environmental justice associated with this action. The EPA 
are doing so for the purpose of providing information to the public, 
not as a basis of our final action.
    The EPA utilized EJ Screen to evaluate potential environmental 
justice concerns in communities at one-, three-, and five-mile radiuses 
around the Baytown facility. The EPA considers the potential for EJ 
concerns in a community when one or more of the 12 EJ indices is at or 
above the 80th percentile when compared to the rest of the USA. At the 
one-mile radial measurement, all 12 EJ indices exceeded the 80th 
percentile, at the three-mile measurement, 11 out of the 12 EJ indices 
exceeded the 80th percentile, and at the five-mile radial measurement, 
four EJ indices exceeded the 80th percentile. This information is 
provided in Table 1. More information on EJ Screen, including an 
explanation of the 12 EJ indices can be found at www.epa.gov/ejscreen/what-ejscreen.

[[Page 3947]]



                 Table 1--EJ Indices at One-, Three-, and Five-Mile Radiuses Around the Facility
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                                                                   1 Mile radius   3 Mile radius   5 Mile radius
                    EJ Index (USA percentile)                       around the      around the      around the
                                                                     facility        facility        facility
----------------------------------------------------------------------------------------------------------------
EJ Index for Particulate Matter 2.5.............................              86              81              74
EJ Index for Ozone..............................................              82              77              72
EJ Index for 2017 Diesel Particulate Matter.....................              86              82              77
EJ Index for 2017 Air Toxics Cancer Risk........................              95              89              79
EJ Index for 2017 Air Toxics Respiratory HI.....................              88              82              75
EJ Index for Traffic Proximity..................................              83              81              78
EJ Index for Lead Paint.........................................              84              82              79
EJ Index for Superfund Proximity................................              87              87              84
EJ Index for RMP Facility Proximity.............................              97              94              88
EJ Index for Hazardous Waste Proximity..........................              86              81              74
EJ Index for Underground Storage Tanks..........................              86              85              81
EJ Index for Wastewater Discharge...............................              90              87              85
----------------------------------------------------------------------------------------------------------------

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

A. What waste did the Petitioner petition the EPA to delist?

    In May 2021, EMBR petitioned the EPA to exclude from the list of 
hazardous wastes contained in Sec.  261.31, API separator sludge (K051) 
generated from its facility located in Baytown, Texas. The waste falls 
under the classification of listed waste pursuant to Sec.  261.31. 
Specifically, in its petition, EMBR requested that the EPA grant a 
standard exclusion for 2,409 cubic yards per year of the API separator 
sludge for offsite disposal.

B. How did the Petitioner generate the waste?

    Industrial wastewaters generated at the facility are mainly routed 
through three sewer systems (west, central and east). Industrial 
wastewater from the Baytown Chemical Plant and the Baytown Olefins 
plant are routed through the west sewer, ultimately discharging into 
Preseparator 14. Industrial wastewater from refinery process units and 
the Demineralization Plant are routed through the central sewer, 
ultimately discharging into Preseparator 13; industrial wastewaters 
from refinery process units, the Sour Water Strippers, Wastewater 
Strippers and the Velasco Street ditch are routed through the east 
sewer and ultimately discharge into Preseparator 15. The wastewater 
then travels through the stormwater diversion box, through a lift 
station, to API Separator 12, Wastewater Oxidation Unit (WOU), 
wastewater lagoons, and ultimately to the Houston Ship Channel. The API 
separator also receives industrial wastewater in the form of treated 
effluent from the Sanitary Treatment Plant. The API separator allows 
for gravitational separation of phases (oil, water, and solids) during 
residence time in the unit. Free oil is skimmed off for reprocessing; 
whereas, settled sludge (solids) are first pumped to Solids Removal 
Unit 1 and then sent off-site to a Thermal Desorption Unit or for off-
site disposal as a listed hazardous waste.

C. How did the Petitioner sample and analyze the petitioned waste?

    A total of four (1 sample per month for 4 months) acceptable sample 
results were provided by the Petitioner to support the petition. The 
EPA considered all 4 samples of the API separator sludge and the 
disposal scenario of the landfill was modeled using the Delisting Risk 
Assessment Software. The worst-case scenario of the constituents' 
concentrations for the K051 sludge were used as input in the model to 
determine if it would meet the hazardous waste criteria for which it 
was listed. The maximum total and leachate concentrations for the 
inorganic and organic constituents which were found in the analytical 
data provided by Petitioner are presented in Table 2.

             Table 2--Maximum Total and TCLP Concentrations
------------------------------------------------------------------------
                                           Maximum total   Maximum TCLP
              Chemical name                concentration   concentration
                                              (mg/kg)         (mg/l)
------------------------------------------------------------------------
Acenaphthene............................             6.7          0.0015
Acenapthylene...........................             1.6          0.0003
Aniline (benzeneamine)..................             3.1          0.0014
Anthracene..............................             7.5          0.0003
Antimony................................           0.968          0.0296
Arsenic.................................            3.81          0.0362
Barium..................................            82.4           0.397
Benz(a)anthracene.......................            0.56          0.0003
Benzene.................................            0.21           0.012
Benzo(a)pyrene..........................            0.37          0.0004
Benzo(b)fluoranthene....................            0.46          0.0004
Benzo(ghi)perylene......................            0.24          0.0003
Benzo(k)fluoranthene....................            0.34          0.0007
Beryllium...............................           0.542           0.002
Bis(2-ethylhexyl)phthalate..............            0.53          0.0008
Cadmium.................................           0.592           0.002
Chromium (III) (Chromic Ion)............            27.5           0.121
Chrysene................................            0.91          0.0008
Cobalt..................................            3.22          0.0134

[[Page 3948]]

 
Copper..................................            50.2          0.0723
Cresol m-...............................              21            0.17
Cresol o-...............................             5.6           0.066
Cresol p-...............................              21            0.17
DDD.....................................           0.043        2.00E-05
DDE.....................................           0.043        2.00E-05
DDT p,p'-...............................            0.03        2.20E-05
Dibenzofuran............................              13          0.0004
Dimethylphenol, 2,4-....................             3.7           0.028
Endosulfan (Endosulfan I and II,                   0.104        3.00E-05
 mixture)...............................
Endrin..................................           0.061        3.00E-05
Ethylbenzene............................             1.1           0.011
Fluoranthene............................             2.5          0.0004
Fluorene................................              20          0.0011
HCH, alpha- (Hexachlorocyclohexane alpha-           0.25        1.00E-05
 BHC)...................................
HCH, beta- (Hexachlorocyclohexane beta-            0.045        1.00E-05
 BHC)...................................
Heptachlor..............................         0.00097        1.00E-05
Heptachlor epoxide......................           0.013        1.00E-05
Indeno (1,2,3-cd) pyrene................             0.2          0.0006
Lead....................................            59.6           0.329
Mercury (Fish Pathway Only).............           0.445        0.000162
Mercury (Total).........................           0.445        0.000162
Methylnapthalene 2-.....................              52          0.0093
Naphthalene.............................              46          0.0098
Naphthaquinone 1,4-.....................             3.5          0.0006
Nickel..................................             264            1.04
Phenanthrene............................              44          0.0014
Phenol..................................             8.3            0.03
Pyrene..................................             4.9          0.0003
Selenium................................            1.75          0.0193
Silver..................................          0.0265         0.00211
Tetrachlorodibenzo-p-dioxin (TCDD)              4.31E-07        8.62E-06
 2,3,7,8-...............................
Thallium................................           0.213         0.00298
Tin.....................................            2.95           0.015
Toluene.................................             1.1           0.026
Vanadium................................             600            12.7
Xylenes (total).........................             5.9           0.071
Zinc....................................             398            1.15
------------------------------------------------------------------------

D. What factors did the EPA consider in deciding whether to propose to 
grant the delisting petition?

    In reviewing this petition, the EPA considered the original listing 
criteria and 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) through (4). The EPA evaluated the 
petitioned wastes against the listing criteria and factors cited in 
Sec. Sec.  261.11(a)(2) and (3).
    In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and 
(3), 42 U.S.C. 6921(f), and in the background documents for the listed 
wastes, the EPA also considered factors (including additional 
constituents) other than those for which the EPA listed the waste to 
determine if these additional factors could cause the waste to be 
hazardous (See the background documents).
    Our proposed decision to grant the May 2021 petition to delist the 
waste from the Petitioner's facility in Baytown, Texas is based on our 
evaluation of the wastes for factors or criteria which could cause the 
waste to be hazardous. These factors included: (1) whether the waste is 
considered acutely toxic; (2) the toxicity of the constituents; (3) the 
concentration of the constituents in the waste; (4) the tendency of the 
constituents to migrate and to bioaccumulate; (5) the persistence in 
the environment of any constituents once released from the waste; (6) 
plausible and specific types of management of the petitioned waste; (7) 
the quantity of waste produced; and (8) waste variability.
    The EPA must also consider as hazardous wastes mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and 
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

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

    For this proposed delisting determination, the EPA evaluated the 
risk that the waste would be disposed of as a non-hazardous waste in a 
landfill. The EPA considered transport of waste constituents through 
groundwater, surface water and air. The EPA evaluated the Petitioner's 
analysis of the petitioned waste using the Delisting Risk Assessment 
Software (DRAS) to predict the concentration of hazardous constituents 
that might be released from the petitioned waste and to determine if 
the waste would pose a threat to human health and the environment. The 
DRAS software and associated documentation can be found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.

[[Page 3949]]

    To predict the potential for release to groundwater from landfilled 
wastes and subsequent routes of exposure to a receptor, the DRAS uses 
dilution attenuation factors derived from the EPA's Composite Model for 
leachate migration with transformation products. From a release to 
groundwater, the DRAS considers routes of exposure to a human receptor 
through ingestion of contaminated groundwater, inhalation from 
groundwater while showering and dermal contact from groundwater while 
bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water run-off, DRAS evaluates the exposure to a 
human receptor by fish ingestion and ingestion of drinking water. From 
a release of waste particles and volatile emissions to air from the 
surface of an open landfill, DRAS considers routes of exposure of 
inhalation of volatile constituents, inhalation of particles, and air 
deposition of particles on residential soil and subsequent ingestion of 
the contaminated soil by a child. The technical support document and 
the user's guide to DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.

F. What did the EPA conclude?

    Petitioner stated in its petition that the petitioned waste meets 
the criteria of K051 for which the EPA listed it. Petitioner also 
stated that no additional constituents or factors could cause the waste 
to be hazardous. Petitioner also stated that disposal in a landfill 
will not adversely impact human health and the environment. The 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 CFR 260.22 (d)(1)-(4). In making the initial 
delisting determination, the 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, the EPA agrees with the Petitioner that 
the petitioned waste is nonhazardous with respect to the original 
listing criteria. (If the EPA had found, based on this review, that the 
waste remained hazardous based on the factors for which the waste was 
originally listed, the EPA would propose to deny the petition.) The 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. The 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. The 
EPA believes that the petitioned waste does not meet the listing 
criteria and thus, should not be a listed waste. The EPA's proposed 
decision to delist the waste from Petitioner's facility is based on the 
information submitted in support of this rule, including descriptions 
of the wastes and analytical data from the Baytown, Texas facility, and 
that is contained in the Petition and attachments, all of which are 
included in the docket to this action.

IV. Conditions for Exclusion

A. How will the Petitioner manage the waste if it is delisted?

    If the petitioned wastes are delisted as proposed, the Petitioner 
must dispose of them in a Subtitle D landfill which is permitted, 
licensed, or registered by a state to manage industrial waste.

B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?

    The EPA notes that in some instances the maximum allowable total 
constituent concentrations provided by the DRAS model exceed 100% of 
the waste--these DRAS results are an artifact of the risk calculations 
that do not have physical meaning. In instances where DRAS predicts a 
maximum constituent greater than 100 percent of the waste (that is, 
greater than 1,000,000 mg/kg or mg/L, respectively, for total and TCLP 
concentrations), the EPA is not proposing to require the Petitioner to 
perform sampling and analysis for that constituent and sampling type 
(total or TCLP).

C. How frequently must the Petitioner test the waste?

    The testing approach for this waste stream will be conducted 
annually during the second calendar quarter. Petitioner must conduct 
annual sampling and analysis as described in the delisting sampling and 
analysis plan and ensure that the wastes do not exceed the delisting 
parameters. If any measured constituent concentration exceeds the 
delisting levels set forth in Table 2, ExxonMobil must collect an 
additional representative sample within 10 business days of being made 
aware of the exceedance and test it expeditiously for the 
constituent(s) which exceeded delisting levels in the original annual 
sample. If compliance with the delisting parameters is demonstrated 
with analytical testing (TCLP analysis), the Petitioner may dispose of 
the API separator sludge as a non-hazardous waste. The annual amount of 
delisted sludge generated from the API Separator may not exceed 2,409 
cubic yards. The annual sampling report shall include the volume of 
solids disposed of in the landfill, as well as annual testing event 
data. The petitioner should monitor and report increasing trends of 
constituents which will affect the overall compliance with the 
discharge permit.

D. What data must the Petitioner submit?

    The Petitioner must submit the data obtained through verification 
testing to U.S. EPA Region 6, Office of Land, Chemicals and 
Redevelopment Division, 1201 Elm Street, Suite 500, M/C 6LCR-RP, 
Dallas, Texas 75270-2102, within 30 business days after receiving the 
final results from the laboratory. These results may be submitted 
electronically to Harry Shah, [email protected]. The Petitioner must 
make those records available for inspection. All data must be 
accompanied by a signed copy of the certification statement in 40 CFR 
260.22(i)(12).

E. What happens if the Petitioner fails to meet the conditions of the 
exclusion?

    If this Petitioner violates the terms and conditions established in 
the exclusion, the EPA may start procedures to withdraw the exclusion. 
Additionally, the terms of the exclusion provide that ``[a]ny waste 
volume for which representative composite sampling does not reflect 
full compliance with the exclusion criteria must continue to be managed 
as hazardous.''
    If the testing of the waste does not demonstrate compliance with 
the delisting concentrations described in Section IV.C above, or other 
data (including but not limited to leachate data or groundwater 
monitoring data from the final land disposal facility) relevant to the 
delisted waste indicates that any constituent is at a concentration in 
waste above specified delisting verification concentrations in Table 2, 
the Petitioner must notify the EPA within 10 business days, or such 
later date as the EPA may agree to in writing, after receiving the 
final verification testing results from the laboratory or of first 
possessing or being made aware of other relevant data. The EPA may 
require the Petitioner to

[[Page 3950]]

conduct additional verification sampling to better define the 
particular volume of wastes within the affected unit that does not 
fully satisfy delisting criteria. For any volume of wastes for which 
the corresponding representative sample(s) do not reflect full 
compliance with delisting exclusion levels, the exclusion by its terms 
does not apply, and the waste must be managed as hazardous.
    The EPA has the authority under RCRA and the Administrative 
Procedures Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting 
decision if the EPA receive new information indicating that the 
conditions of this exclusion have been violated or, are otherwise not 
being met.

F. What must the Petitioner do if the process changes?

    Any process changes or additions implemented at Petitioner's 
facility which would significantly impact the constituent 
concentrations of the waste must be reported to the EPA in accordance 
with Condition VI. of the exclusion language.

V. When would the EPA finalize the proposed delisting exclusion?

    HSWA specifically requires the EPA to provide notice and an 
opportunity for public comment before granting or denying a final 
exclusion. Thus, the EPA will not make a final decision or grant an 
exclusion until it has addressed all timely public comments, including 
any at public hearings. Upon receipt and consideration of all comments, 
the EPA will publish its final determination as a final rule. Since 
this rule would reduce the existing requirements for persons generating 
hazardous wastes, the regulated community does not need a six-month 
period to come into compliance in accordance with Sec.  3010 of RCRA, 
as amended by HSWA.

VI. How would this action affect states?

    Because the EPA is proposing to issue this exclusion under the 
federal RCRA delisting regulations, only states subject to federal RCRA 
delisting provisions will be affected. This exclusion may not be 
effective in states which have received authorization from the EPA to 
make their own delisting decisions.
    RCRA allows states to impose more stringent regulatory requirements 
than RCRA's under Sec.  3009 of RCRA. These more stringent requirements 
may include a provision that prohibits a federally-issued exclusion 
from taking effect in the state. The EPA urge Petitioners to contact 
the state regulatory authority to establish the status of its wastes 
under the state law.
    The EPA has also authorized some states to administer a delisting 
program in place of the federal program, that is, to make state 
delisting decisions. Therefore, this exclusion does not apply in those 
states. If the Petitioner manages the wastes in any state with 
delisting authorization, the Petitioner must obtain delisting 
authorization or other determination from the receiving state before it 
can manage the waste as nonhazardous in that state.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is exempt from review by the Office of 
Management and Budget because it is a rule of particular applicability, 
not general applicability. The proposed action approves a delisting 
petition under RCRA for the petitioned waste at a particular facility.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This proposed action is not an Executive Order 13771 regulatory 
action because actions such as approval of delisting petitions under 
RCRA are exempted under Executive Order 13771

C. Paperwork Reduction Act

    This proposed action 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 only applies to a particular facility.

D. Regulatory Flexibility Act

    Because this rule is of particular applicability relating to a 
particular facility, it is not subject to the regulatory flexibility 
provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

E. Unfunded Mandates Reform Act

    This proposed action does not contain any unfunded mandate as 
described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and 
does not significantly or uniquely affect small governments. The action 
imposes no new enforceable duty on any state, local, or tribal 
governments or the private sector.

F. Executive Order 13132: Federalism

    This proposed action 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications as specified 
in Executive Order 13175. This proposed action applies only to a 
particular facility on non-tribal land. Thus, Executive Order 13175 
does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 13045 and because the EPA does not believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This proposed action's health and 
risk assessments using the EPA's Delisting Risk Assessment Software 
(DRAS), which considers health and safety risks to children, are 
described in section III.E above. The technical support document and 
the user's guide for DRAS are included in the docket.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This proposed action is not subject to Executive Order 13211, 
because it is not a significant regulatory action under Executive Order 
13211.

J. National Technology Transfer and Advancement Act

    This proposed action does not involve technical standards as 
described by the National Technology Transfer and Advancement Act of 
1995 (15 U.S.C. 272 note).

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs federal 
agencies to identify and address ``disproportionately high and adverse 
human health or environmental effects'' of their actions on minority 
populations and low-income populations to the greatest extent 
practicable and permitted by law. The EPA defines environmental justice 
(EJ) as ``the fair treatment and meaningful involvement

[[Page 3951]]

of all people regardless of race, color, national origin, or income 
with respect to the development, implementation, and enforcement of 
environmental laws, regulations, and policies.'' The EPA further 
defines the term fair treatment to mean that ``no group of people 
should bear a disproportionate burden of environmental harms and risks, 
including those resulting from the negative environmental consequences 
of industrial, governmental, and commercial operations or programs and 
policies,'' (https://www.epa.gov/environmentaljustice/learn-about-environmental-justice).
    The EPA believes that this proposed action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples. The EPA has determined that this proposed action 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because the 
petitioned wastes do not meet the criteria that determines what 
constitutes a hazardous waste and there are no additional constituents 
or factors which could cause the waste to be hazardous. The EPA's risk 
assessment, as described in section III.E above, 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, the EPA believes that any populations in 
proximity of the landfill(s) used by the Baytown facility should not be 
adversely affected by common waste management practices for this 
delisted waste.

L. Congressional Review Act

    This proposed action is exempt from the Congressional Review Act (5 
U.S.C. 801 et seq.) because it is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

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

    Dated: January 9, 2023.
Ronald Crossland,
Director, Land, Chemicals and Redevelopment Division.

    For the reasons set out in the preamble, the EPA proposes to amend 
40 CFR part 261 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. Amend Table 1 of Appendix IX to Part 261 by adding the entry for 
``ExxonMobil Baytown Refinery-Baytown, TX'' in alphabetical order to 
read as follows:

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

* * * * *

----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
ExxonMobil Baytown Refinery..........  Baytown, Texas.........  API Separator Sludge (the EPA Hazardous Waste
                                                                 No. K051) maximum delisted amount of 2,409
                                                                 cubic yards per calendar year after (date rule
                                                                 finalized) and disposed in a Subtitle D
                                                                 landfill. ExxonMobil must implement a
                                                                 verification program that meets the following
                                                                 Paragraphs:
                                                                (1) Delisting Levels: All leachable constituent
                                                                 concentrations must not exceed the following
                                                                 levels. The petitioner must use the method
                                                                 specified in 40 CFR 261.24 to measure
                                                                 constituents in the waste leachate (mg/L). API
                                                                 Separator Solids Leachate: Acenaphthene-33.1;
                                                                 Aniline-6.15; Anthracene-80.7; Antimony-0.381;
                                                                 Arsenic-0.0402; Barium-100; Benz(a) anthracene-
                                                                 1.59; Benzene-0.24; Benzo(a)pyrene-599;
                                                                 Benzo(b)fluoranthene-5100; Beryllium 0.445;
                                                                 Cadmium-0.337; Chromium (III)-5.0; Chrysene-
                                                                 159; Cobalt-0.84; Copper-27.4; Cresol (total)-
                                                                 200; Dibenzofuran-1.84; 2,4-Dimethylphenol-
                                                                 35.3; Endosulfan-11.2; Endrin-0.02;
                                                                 Ethylbenzene-2.45; Fluoranthrene-7.67; Fluorene-
                                                                 15.3; Beta HCH-0.0197; Heptachlor-0.008;
                                                                 Heptachlor epoxide-0.008; Lead-2.22; Mercury-
                                                                 0.2; 2-Methylnapthalene-2.26; Naphthalene-
                                                                 0.294; Nickel-42.1; Phenol-540; Pyrene-13.9;
                                                                 Selenium-1.0; Silver-5.0; TCDD-145; Thallium-
                                                                 0.0214; Toluene-47.1; Vanadium-12.9; Xylenes
                                                                 (total)-26.7; Zinc-614.
                                                                (2) Waste Holding and Handling:
                                                                (A) API Separator sludge must be tested annually
                                                                 to assure they have met the concentrations
                                                                 described in Paragraph (1). Solids that do not
                                                                 meet the concentrations in the original and
                                                                 retest representative sample must be disposed
                                                                 of as hazardous waste.
                                                                (B) Levels of constituents measured in the
                                                                 samples of the solids that do not exceed the
                                                                 levels set forth in Paragraph (1) are non-
                                                                 hazardous. ExxonMobil can manage and dispose
                                                                 the non-hazardous API solids according to all
                                                                 applicable solid waste regulations.
                                                                (C) ExxonMobil must maintain a record of the
                                                                 actual volume of the API solids to be disposed
                                                                 in the Subtitle D landfill according to the
                                                                 requirements in Paragraph (4).
                                                                (3) Testing Requirements:
                                                                (A) ExxonMobil must test a representative sample
                                                                 of the API separator sludge for all
                                                                 constituents listed in paragraph (1) at least
                                                                 once per calendar year. If any measured
                                                                 constituent concentration exceeds the delisting
                                                                 levels set forth in paragraph (1), ExxonMobil
                                                                 must collect an additional representative
                                                                 sample within 10 business days of being made
                                                                 aware of the exceedance and test it
                                                                 expeditiously for the constituent(s) which
                                                                 exceeded delisting levels in the original
                                                                 annual sample.
                                                                (B) The annual testing report should include the
                                                                 total amount of delisted waste in cubic yards
                                                                 disposed during the calendar year.
                                                                (4) Changes in Operating Conditions: If
                                                                 ExxonMobil significantly changes the process
                                                                 described in its petition or starts any
                                                                 processes that may or could affect the
                                                                 composition or type of waste generated as
                                                                 established under Paragraph (1) (by
                                                                 illustration, but not limitation, changes in
                                                                 equipment or operating conditions of the
                                                                 treatment process), they must notify the EPA in
                                                                 writing during the annual report.

[[Page 3952]]

 
                                                                (5) 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, the EPA, at its
                                                                 discretion, will consider this sufficient basis
                                                                 to reopen the exclusion as described in
                                                                 Paragraph 5. ExxonMobil must:
                                                                (A) Submit the data obtained through Paragraph 3
                                                                 to the Chief, RCRA Permits & Solid Waste
                                                                 Section, Mail Code, (6LCR-RP) US EPA Region 6,
                                                                 1201 Elm Street, Suite 500, Dallas, TX 75270
                                                                 within the time specified. Data may be
                                                                 submitted via email to the technical contact
                                                                 for the delisting program.
                                                                (B) Compile records of operating conditions and
                                                                 analytical data from Paragraph (3), summarized,
                                                                 and maintained on-site for a minimum of five
                                                                 years.
                                                                (C) Furnish these records and data when the EPA
                                                                 or the State of Texas request 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 the
                                                                 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 the EPA and that the company will
                                                                 be liable for any actions taken in
                                                                 contravention of the company's RCRA and CERCLA
                                                                 obligations premised upon the company's
                                                                 reliance on the void exclusion.''
                                                                (6) Reopener:
                                                                (A) If, any time after disposal of the delisted
                                                                 waste, ExxonMobil possesses or is otherwise
                                                                 made aware of any environmental data (including
                                                                 but not limited to leachate data or ground
                                                                 water monitoring data) or any other data
                                                                 relevant to the delisted waste indicating that
                                                                 any constituent identified for the delisting
                                                                 verification testing is at level higher than
                                                                 the delisting level allowed by the Division
                                                                 Director in granting the petition, then the
                                                                 facility must report the data, in writing, to
                                                                 the Division Director within 10 business days
                                                                 of first possessing or being made aware of that
                                                                 data.
                                                                (B) If the annual or retest verification testing
                                                                 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 business 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 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 does require EPA action,
                                                                 the Division Director will notify the facility,
                                                                 in writing, of the actions the Division
                                                                 Director believes are necessary to protect
                                                                 human health and the environment. The notice
                                                                 shall include a statement of the proposed
                                                                 action and a statement providing the facility
                                                                 with an opportunity to present information as
                                                                 to why the proposed EPA action is not
                                                                 necessary. The facility shall have 10 business
                                                                 days from the date of the Division Director's
                                                                 notice to present such information.
                                                                (E) Following the receipt of information from
                                                                 the facility described in paragraph (6)(D) or
                                                                 (if no information is presented under paragraph
                                                                 (6)(D)) the initial receipt of information
                                                                 described in paragraphs (5), (6)(A) or (6)(B),
                                                                 the Division Director will issue a final
                                                                 written determination describing the EPA
                                                                 actions that are necessary to protect human
                                                                 health or the environment. Any required action
                                                                 described in the Division Director's
                                                                 determination shall become effective
                                                                 immediately, unless the Division Director
                                                                 provides otherwise.
                                                                (7) 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 they will transport the delisted
                                                                 waste described above for disposal, 60 days
                                                                 before beginning such activities. If ExxonMobil
                                                                 transports the excluded 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 nonhazardous in the state.
                                                                (B) Update the one-time written notification if
                                                                 they ship the delisted waste to a different
                                                                 disposal facility.
                                                                (C) Failure to provide the notification will
                                                                 result in a violation of the delisting variance
                                                                 and a possible revocation of the exclusion.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 3953]]

[FR Doc. 2023-00685 Filed 1-20-23; 8:45 am]
BILLING CODE 6560-50-P