
[Federal Register: October 1, 2010 (Volume 75, Number 190)]
[Rules and Regulations]               
[Page 60632-60640]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc10-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2010-0066; SW FRL-9208-7]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is proposing to grant a petition submitted by ExxonMobil 
Refining and Supply Company--Beaumont Refinery (Beaumont Refinery) to 
exclude (or delist) a certain solid waste generated by its Beaumont, 
Texas, facility from the lists of hazardous wastes. EPA used the 
Delisting Risk Assessment Software (DRAS) Version 3.0 in the evaluation 
of the impact of the petitioned waste on human health and the 
environment.

DATES: This rule is effective on November 30, 2010. Comments must be 
received by November 1, 2010. Your requests for a hearing must reach 
EPA by October 18, 2010. The request must contain the information 
described in Sec.  260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2010-0066 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov: Follow 
the on-line instructions for submitting comments.
    2. E-mail: peace.michelle@epa.gov.
    3. Mail: Michelle Peace, Environmental Protection Agency, 
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code: 
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier. Deliver your comments to: Michelle 
Peace, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, 
Dallas, TX 75202.
    Requests for a hearing should be made to: Ben Banipal, Section 
Chief of the Corrective Action and Waste Minimization Section, 
Multimedia Planning and Permitting Division (6PD-C), Environmental 
Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2010-0066. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, 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: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. 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. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The 
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2010-0066, is available for viewing from 8 a.m. to 5 p.m., Monday 
through Friday, excluding Federal holidays. The public may copy 
material from any regulatory docket at no cost for the first 100 pages 
and at a cost of $0.15 per page for additional copies. EPA requests 
that you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The interested persons 
wanting to examine these documents should make an appointment with the 
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket or the 
Beaumont Refinery petition, contact Michelle Peace, Environmental 
Protection Agency, Multimedia Planning and Permitting Division, RCRA 
Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by 
calling (214) 665-7430 or by e-mail at peace.michelle@epa.gov.

SUPPLEMENTARY INFORMATION: Beaumont Refinery 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

[[Page 60633]]

waste on a ``generator specific'' basis from the hazardous waste lists.
    The Agency bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed 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, we would conclude the petitioned waste from this 
facility is non-hazardous with respect to the original listing criteria 
and that the waste process used will substantially reduce the 
likelihood of migration of hazardous constituents from this waste. We 
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the 
environment.

Table of Contents

I. Overview Information
    A. What action is EPA approving?
    B. Why is EPA approving this delisting?
    C. How will Beaumont Refinery manage the wastes, if it is 
delisted?
    D. When would the 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 wastes did Beaumont Refinery petition EPA to delist?
    B. Who is Beaumont Refinery and what process do they use to 
generate the petitioned wastes?
    C. What information did Beaumont Refinery submit to support this 
petition?
    D. What were the results of Beaumont Refinery's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Beaumont Refinery'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 Beaumont Refinery violates the terms and 
conditions?
V. Final Action
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA approving?

    EPA is approving the delisting petition submitted by Beaumont 
Refinery to have centrifuge solids generated from treatment of Tank 
Bottoms from its Lower Park Tank Farm excluded, or delisted, from the 
definition of a hazardous waste. The centrifuge solids are derived from 
the management and treatment of several F- and K-waste codes. These 
waste codes are F037, F038, K048, K049, K051, K052, K169, and K170.

B. Why is EPA approving this delisting?

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

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

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

D. When would the delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion unless and 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 after EPA addresses public 
comments 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 the 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

[[Page 60634]]

establish the status of their wastes under the State law. Delisting 
petitions approved by EPA Administrator under 40 CFR 260.22 are 
effective in the State of Texas only after the final rule has been 
published in the Federal Register.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific 
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 Sec. Sec.  261.31 
and 261.32. EPA lists these wastes as hazardous because: (1) They 
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) or (2) they meet 
the criteria for listing contained in Sec.  261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  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 believe the wastes 
should be 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 EPA lists a waste 
are in part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics 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 Sec.  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 to determine 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 Beaumont Refinery petition EPA to delist?

    Beaumont Refinery petitioned EPA on September 9, 2009, to exclude 
from the lists of hazardous wastes contained in Sec. Sec.  261.31, and 
261.32, from its centrifuge solids from the treatment of tank bottoms 
from five tanks from the Lower Park Tank Farm.
    The waste stream was generated from the Beaumont Refinery facility 
located in Beaumont, Texas. The centrifuge solids are listed under EPA 
Hazardous Waste No. F037, F038, K048, K049, K051, K052, K169, and K170. 
Specifically, in its petition, Beaumont Refinery requested that EPA 
grant a one time exclusion for 8,300 cubic yards of the centrifuge 
solids.

B. Who is Beaumont Refinery and what process do they use to generate 
the petitioned waste?

    Beaumont Refinery is a petroleum refinery located at 1795 Burt 
Street in Beaumont, Jefferson County, Texas. The Beaumont Texas 
Facility is situated on approximately 1,200 acres of land. The refinery 
began operations at the current location in 1903 as Magnolia Petroleum 
Company. The facility is operated on a continuous basis with production 
occurring 24 hours per day, 7 days per week, and 365 days per year and 
produces approximately seven petroleum products from crude oil, the 
primary raw material. Significant production processes/units at the 
Beaumont Refinery include crude units, saturated gas plant, fluid 
catalytic cracker, hydrocracker, diesel hydrotreater, coker, jet fuel 
treaters, cogeneration, isomerization, continuous catalytic reformers, 
alkylation, sulfur recovery plants, and wastewater treatment. Tanks 
758, 763, 765, 766 and 771 in the Beaumont Refinery's Lower Park Tank 
Farm were constructed during the early days of the facility, and as the 
tanks aged, the service gradually changed from product storage to slop 
oil storage. The slop oil system at a refinery entails collecting 
materials that have some degree of recoverable hydrocarbon (e.g., crude 
oil, API separator sludge, DAF float, etc.) but also have materials 
that are not readily recoverable (e.g., solids, scale, sediment, etc.). 
Candidate oily streams are routed to slop oil storage tanks from 
collection system piping and/or from smaller tanks prior to being 
reprocessed within the refinery to recovery oil. To initiate the Lower 
Park Tank Farm cleanout project, the Beaumont Refinery determined that 
the five tanks were in slop oil service beginning in the 1960's. Since 
the tank bottoms in the five tanks are historical, the Beaumont 
Refinery has elected to conservatively assume that the solids from the 
tanks may bear K- and F-waste codes associated with petroleum refining. 
Tank 758 was selected as the first tank to clean and sample since it is 
expected to have the highest concentrations of chemicals and hazardous 
constituents. The Beaumont Refinery's subcontractor Superall Products 
LLP has developed a proprietary chemical (Superall 38), which acts as a 
chemical agent for treating wastes from oil-related clean-up activities 
that, when coupled with centrifuging, reduces the volume and toxicity 
of historical tank bottoms from the refinery's Lower Park Tank Farm. 
The primary function of Superall 38 is to facilitate recovery of as 
much oil and associated constituents of concern as possible for 
reintroduction into the refinery process. The proprietary mixture does 
not contain RCRA Part 261 Appendix VIII or Part 264 Appendix IX 
constituents. Historical tank bottoms in Tank 758 served as the worst-
case representation of the five tanks and the biggest challenge for 
performance of the Superall 38 treatment process and passing delisting 
criteria.
    The Beaumont Refinery intends to dispose of the delisted centrifuge 
solids at an authorized municipal solid waste or commercial industrial 
solid waste

[[Page 60635]]

landfill. Treatment of historical tank bottoms from Tanks 758, 763, 
765, 766 and 771 in the Beaumont Refinery's Lower Park Tank Farm 
generate centrifuge solids that are classified as F037, F038, K048, 
K049, K051, K052, K169 and K170 listed hazardous wastes pursuant to 40 
CFR 261.31 and 261.32. The 40 CFR part 261 hazardous constituents which 
are the basis for listing can be found in Table 1.

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

C. What information did Beaumont Refinery submit to support this 
petition?

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

D. What were the results of Beaumont Refinery's analysis?

    EPA believes that the descriptions of Beaumont Refinery's waste, 
and the analytical data submitted in support of the petition show that 
the centrifuge solids are non-hazardous. Analytical data from Beaumont 
Refinery's centrifuge solid samples were used in the Delisting Risk 
Assessment Software (DRAS). The data summaries for detected 
constituents are presented in Table 2. EPA has reviewed the sampling 
procedures used by Beaumont Refinery and has determined that they 
satisfy EPA's criteria for collecting representative samples of the 
variations in constituent concentrations in the Centrifuge solids. The 
data submitted in support of the petition show that constituents in 
Beaumont Refinery's wastes are presently below health-based risk levels 
used in the delisting decision-making. EPA believes that Beaumont 
Refinery has successfully demonstrated that the Centrifuge solids are 
non-hazardous.

     Table 2--Analytical Results and Maximum Allowable Delisting Concentrations of the Centrifuge Solids\1\
----------------------------------------------------------------------------------------------------------------
                                                   Maximum total (mg/ Maximum TCLP (mg/  Maximum allowable  TCLP
                   Constituent                            kg)                 l)         delisting level  (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony.........................................               5.38             0.0224                     1.87
Arsenic..........................................               26.9             0.0353                      5.0
Acetone..........................................              < 0.5               0.65                     9080
Acenaphthene.....................................                 26              0.009                      185
Anthracene.......................................                 32              0.006                      452
Beryllium........................................              0.289             <0.001                    20.44
Butyl benzene phthalate..........................                3.7            0.00026                      698
Barium...........................................                823               1.94                      100
Benzene..........................................                0.8              0.046                      0.5
Bis(2-ethylhexyl)phthalate.......................              < 0.5             0.0058                   0.0522
Benzo(a) anthracene..............................                 72            < 0.001                     1.22
Benzo(a) pyrene..................................                 67            < 0.001                   461.44
Benzo(b) fluoranthene............................                 28            < 0.001                   3916.8
Benzo(k) fluoranthene............................                 10            < 0.001                     11.6
m,p cresol.......................................                  6               0.16                      200
Cadmium..........................................              0.837            < 0.001                      1.0
Chromium.........................................                608              0.122                      5.0
Cobalt...........................................               20.5             0.0735                     3.64
Copper...........................................                302            < 0.001                    417.3
o-cresol.........................................                1.5             0.0091                      200
Chrysene.........................................                120            0.00014                      122
2,4 Dimethyl phenol..............................                9.8              0.066                      198
Di-n-butyl phthalate.............................              < 0.5             0.0012                      429
7,12 dimethylbenz(a)anthracene...................                 53            < 0.001                  0.08176
Dibenz(a,h)anthracene............................                1.7            < 0.001                     4.41
Ethylbenzene.....................................              < 0.5              0.073                      189
Fluorene.........................................                 54             0.0033                     85.6
Fluoranthrene....................................                 17            < 0.001                    42.96
Lead.............................................               1290               1.44                      5.0

[[Page 60636]]


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

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

    The worst case scenario for management of the centrifuge solids was 
modeled for disposal in a landfill. EPA used such information gathered 
to identify plausible exposure routes (i.e., ground water, surface 
water, soil, air) for hazardous constituents present in the Centrifuge 
solids. EPA determined that disposal in a Subtitle D landfill is the 
most reasonable, worst-case disposal scenario for Beaumont Refinery's 
centrifuge solids. EPA applied the DRAS described in 65 FR 58015 
(September 27, 2000), 65 FR 75637 (December 4, 2000) and 73 FR 28768 
(May 19, 2008), to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned wastes 
after disposal and determined the potential impact of the disposal of 
Beaumont Refinery's petitioned wastes on human health and the 
environment. In assessing potential risks to ground water, EPA used the 
maximum estimated waste volumes and the maximum reported extract 
concentrations as inputs to the DRAS program to estimate the 
constituent concentrations in the ground water 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 0.1), the DRAS program can back-calculate the acceptable receptor 
well concentrations (referred to as compliance-point concentrations) 
using standard risk assessment algorithms and Agency health-based 
numbers. Using the maximum compliance-point concentrations and EPA 
Composite Model for Leachate 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 ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from disposal of the petitioned waste in a landfill for the 
centrifuge solids. 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 ensured that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health and/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 or 
wind-blown particulate from the landfill). As in the above ground water 
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'').
    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.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, the 
disposal will occur in an offsite Landfill, so no ground water 
monitoring data for disposal of this waste stream in the landfill is 
available.
    EPA believes that the descriptions of Beaumont Refinery's 
Centrifuge solids and analytical characterizations of these wastes 
illustrate the presence of toxic constituents at lower concentrations 
in these waste streams. Therefore, it is reasonable to conclude that 
the likelihood of migration of hazardous constituents from the 
petitioned waste will be substantially reduced so that short-term and 
long-term threats to human health and the environment are minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the Centrifuge solids are 
presented in Table 2. Based on the comparison of the DRAS results and 
maximum TCLP concentrations found in Table 2, the

[[Page 60637]]

petitioned wastes should be delisted because no constituents of concern 
are likely to be present or formed as reaction products or byproducts 
in Beaumont Refinery's wastes as long as they are disposed of in a 
Subtitle D Landfill.

F. What did EPA conclude about Beaumont Refinery's analysis?

    EPA concluded, after reviewing Beaumont Refinery's processes that 
no other hazardous constituents of concern, other than those for which 
Beaumont Refinery tested, are likely to be present or formed as 
reaction products or by-products in Beaumont Refinery's wastes. In 
addition, on the basis of explanations and analytical data provided by 
Beaumont Refinery, pursuant to Sec.  260.22, EPA concludes that the 
petitioned wastes: Centrifuge solids do not exhibit any of the 
characteristics of ignitability, corrosivity, reactivity, or toxicity. 
See Sec. Sec.  261.21, 261.22, 261.23, and 261.24 respectively.

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

    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the Centrifuge 
solids. With regard to airborne dispersion in particular, EPA believes 
that exposure to airborne contaminants from the petitioned waste is 
unlikely. No appreciable air releases are likely from the centrifuge 
solids under any likely disposal conditions. EPA evaluated the 
potential hazards resulting from the unlikely scenario of airborne 
exposure to hazardous constituents released from the solids 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 the centrifuge 
solids.

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

    The descriptions by Beaumont Refinery of the hazardous waste 
process and analytical characterization, with the proposed verification 
testing requirements (as discussed later in this notice), provide a 
reasonable basis for EPA to grant the petition. The data submitted in 
support of the petition show that constituents in the waste are below 
the maximum allowable concentrations (See Table 2). EPA believes that 
the Centrifuge solids generated by Beaumont Refinery contain hazardous 
constituents at levels which will present minimal short-term and long-
term threats from the petitioned wastes to human health and the 
environment.
    Thus, EPA believes that it should grant to Beaumont Refinery an 
exclusion from the list of hazardous wastes for the Centrifuge solids. 
EPA believes that the data submitted in support of the petition show 
the Beaumont Refinery's Centrifuge solids to be non-hazardous.
    EPA has reviewed the sampling procedures used by Beaumont Refinery 
and has determined they satisfy EPA's criteria for collecting 
representative samples of variable constituent concentrations in the 
Centrifuge solids. The data submitted in support of the petition show 
that constituents in Beaumont Refinery's wastes are presently below the 
compliance-point concentrations used in the delisting decision-making 
process and would not pose a substantial hazard to the environment and 
the public. EPA believes that Beaumont Refinery has successfully 
demonstrated that the Centrifuge solids are non-hazardous.
    EPA, therefore, proposes to grant an exclusion to Beaumont Refinery 
for the Centrifuge solids described in its September 2009 petition. 
EPA's decision to exclude these wastes is based on analysis performed 
on samples taken of the Centrifuge solids.
    If EPA finalizes the rule, EPA will no longer regulate 8,300 cubic 
yards of centrifuge solids from Beaumont Refinery's Beaumont facility 
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, Beaumont Refinery, must comply with the 
requirements in 40 CFR Part 261, Appendix IX, Tables 1 and 2 as amended 
by this notice. The text below gives the rationale and details of those 
requirements.
(1) Data Submittals
    To provide appropriate documentation that the Beaumont Refinery 
facility is correctly managing the Centrifuge solids, Beaumont Refinery 
must compile, summarize, and keep delisting records on-site for a 
minimum of five years. Beaumont Refinery must keep all delisting 
records for five years. Paragraph (1) requires that Beaumont Refinery 
furnish these data upon request for inspection by any employee or 
representative of EPA or the State of Texas.
    If the exclusion is made final, then it will apply only to 8,300 
cubic yards of centrifuge solids generated at the Beaumont Refinery 
facility after successful initial verification testing.
    EPA would require Beaumont Refinery to submit additional 
verification data under any of the following circumstances:
    (a) Beaumont Refinery must submit a modification to the petition 
complete with full sampling and analysis for circumstances where the 
waste volume changes and/or additional waste codes are added to the 
waste stream. EPA will publish an amendment to the exclusion if the 
changes are acceptable.
    Beaumont Refinery must manage waste volumes greater than 8,300 
cubic yards of centrifuge solids as hazardous waste until EPA grants a 
revised exclusion. When this exclusion becomes final, the management by 
Beaumont Refinery of the Centrifuge solids covered in this petition 
would be relieved from Subtitle C jurisdiction. Beaumont Refinery may 
not classify the waste as non-hazardous until the revised exclusion is 
finalized.
(2) Reopener
    The purpose of paragraph (2) is to require Beaumont Refinery 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. 
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 it 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 Beaumont Refinery 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.
    It is EPA's position 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 delisting is 
merited in light of EPA's experience. See the Federal

[[Page 60638]]

Register notice regarding Reynolds Metals Company at 62 FR 37694 (July 
14, 1997) and 62 FR 63458 (December 1, 1997) where the delisted waste 
leached at greater concentrations into the environment than the 
concentrations predicted when conducting the TCLP, 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)(3)(B).

B. What happens, if Beaumont Refinery violates the terms and 
conditions?

    If Beaumont Refinery 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 Beaumont Refinery to conduct the appropriate waste 
analysis and comply with the criteria explained above in paragraph (1) 
of the exclusion.

V. Final Action

    EPA is approving the delisting petition for the centrifuge solids 
generated at Beaumont Refinery's Beaumont--Texas facility.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial exclusion and anticipate no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register, we are publishing a separate document that will serve as the 
proposed rule to approve the petition if relevant adverse comments are 
received on this direct final rule. We will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. For further information about commenting on 
this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. We would address all public comments in a 
subsequent final rule based on the proposed rule. Please note that if 
we receive adverse comment on a paragraph, or section of this rule and 
if that provision may be severed from the remainder of the rule, we may 
adopt as final those provisions of the rule that are not the subject of 
an adverse comment.

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 addressed by 
this action present a disproportionate risk to children. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
maximum allowable concentrations for this rule. This rule is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules: (1) Rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: September 20, 2010.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.

0
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, and 6938.


0
2. In Tables 1 and 2 of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

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

[[Page 60639]]



                                                    Table 1--Waste Excluded From Non-Specific Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Facility                              Address                                            Waste description
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
ExxonMobil Refining and Supply Company-   Beaumont, TX...................  Centrifuge Solids (EPA Hazardous Waste Numbers F037, F038, K048, K049, K051,
 Beaumont Refinery.                                                         K052, K169, and K170.) generated at a maximum rate of 8,300 cubic yards
                                                                            after November 30, 2010 and disposed of in a Subtitle D Landfill.
                                                                           (1) Reopener V
                                                                           (A) If, anytime after disposal of the delisted waste Beaumont Refinery
                                                                            possesses or is otherwise made aware of any environmental data (including
                                                                            but not limited to leachate data or ground water monitoring data) or any
                                                                            other data relevant to the delisted waste indicating that any constituent
                                                                            identified for the delisting verification testing is at level higher than
                                                                            the delisting level allowed by the Division Director in granting the
                                                                            petition, then the facility must report the data, in writing, to the
                                                                            Division Director within 10 days of first possessing or being made aware of
                                                                            that data.
                                                                           (B) If testing data (and retest, if applicable) of the waste does not meet
                                                                            the delisting requirements in paragraph 1, Beaumont Refinery must report the
                                                                            data, in writing, to the Division Director within 10 days of first
                                                                            possessing or being made aware of that data.
                                                                           (C) If Beaumont Refinery fails to submit the information described in
                                                                            paragraphs (1)(A) or (1)(B) or if any other information is received from any
                                                                            source, the Division Director will make a preliminary determination as to
                                                                            whether the reported information requires EPA action to protect human health
                                                                            and/or the environment. Further action may include suspending, or revoking
                                                                            the exclusion, or other appropriate response necessary to protect human
                                                                            health and the environment.
                                                                           (D) If the Division Director determines that the reported information
                                                                            requires action by EPA, the Division Director will notify the facility in
                                                                            writing of the actions the Division Director believes are necessary to
                                                                            protect human health and the environment. The notice shall include a
                                                                            statement of the proposed action and a statement providing the facility with
                                                                            an opportunity to present information as to why the proposed EPA action is
                                                                            not necessary. The facility shall have 10 days from receipt of the Division
                                                                            Director's notice to present such information.
                                                                           (E) Following the receipt of information from the facility described in
                                                                            paragraph (1)(D) or (if no information is presented under paragraph (1)(D))
                                                                            the initial receipt of information described in paragraphs (1)(A) or (1)(B),
                                                                            the Division Director will issue a final written determination describing
                                                                            EPA actions that are necessary to protect human health and/or the
                                                                            environment. Any required action described in the Division Director's
                                                                            determination shall become effective immediately, unless the Division
                                                                            Director provides otherwise.
                                                                           (2) Notification Requirements:
                                                                           Beaumont Refinery must do the following before transporting the delisted
                                                                            waste. Failure to provide this notification will result in a violation of
                                                                            the delisting petition and a possible revocation of the decision.
                                                                           (A) Provide a one-time written notification to any State Regulatory Agency to
                                                                            which or through which it will transport the delisted waste described above
                                                                            for disposal, 60 days before beginning such activities.
                                                                           (B) Update one-time written notification, if it ships the delisted waste into
                                                                            a different disposal facility.

[[Page 60640]]


                                                                           (C) Failure to provide this notification will result in a violation of the
                                                                            delisting variance and a possible revocation of the decision.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                      Table 2--Waste Excluded From Specific Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Facility                              Address                                            Waste description
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
ExxonMobil Refining and Supply Company--  Beaumont, TX...................  Centrifuge Solids (EPA Hazardous Waste Numbers F037, F038, K048, K049, K051,
 Beaumont Refinery.                                                         K052, K169, and K170.) generated at a maximum rate of 8,300 cubic yards
                                                                            after November 30, 2010 and disposed of in a Subtitle D Landfill.
                                                                           Beaumont Refinery must implement the requirements in Table 1. Wastes Excluded
                                                                            from Non-Specific Sources for the petition to be valid.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

[FR Doc. 2010-24571 Filed 9-30-10; 8:45 am]
BILLING CODE 6560-50-P

