[Federal Register Volume 86, Number 34 (Tuesday, February 23, 2021)]
[Proposed Rules]
[Pages 10911-10918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02939]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2020-0379; FRL-10017-28--Region 6]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed amendment.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
modify an exclusion from the lists of hazardous waste previously 
granted to American Chrome and Chemical (Petitioner), in Corpus 
Christi, Texas. This action responds to a petition for amendment to 
exclude (or ``delist'') up to 1,450 cubic yards per year of K006 
chromic oxide solids from the list of federal hazardous wastes when 
disposed of in an on-site surface impoundment in lieu of disposal in a 
Subtitle D Landfill. The Agency is proposing to grant the petition 
based on an evaluation of waste-specific information provided by the 
petitioner.

DATES: Comments on this proposed amendment must be received by March 
25, 2021.

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: shah.harry@epa.gov.
    Instructions: EPA must receive your comments by March 25, 2021. 
Direct your comments to Docket ID Number EPA-R06-RCRA-2020-0379. 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 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 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, EPA recommends that you include your name and other 
contact information in the body of your comment with any CD 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: 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 
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. We 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, 
shah.harry@epa.gov. Out of an abundance of caution for members of the 
public and our staff, the EPA Region 6 office will be closed to the 
public to reduce the risk of transmitting COVID-19. We 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 laws and regulations give EPA the authority to delist 
waste?
    B. What is currently delisted at the Petitioner's Corpus 
Christi, TX facility?
    C. What does Petitioner request in its petition for amendment?
III. Disposition of the Petition Amendment
    A. What information did the Petitioner submit to support its 
petition for amendment?
    B. What factors did EPA consider in deciding whether to grant a 
delisting petition?
    C. How did EPA evaluate the risk of delisting this waste?
    D. What did 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?
    F. What must the Petitioner do if the process changes?
V. When would the EPA finalize the proposed delisting amendment?
VI. How would this action affect the States?

[[Page 10912]]

VII. Statutory and Executive Order Reviews

I. Overview Information

    The EPA is proposing to grant an amendment to the petition 
submitted by American Chrome and Chemical (Petitioner), in Corpus 
Christi, Texas to exclude (or ``delist'') up to 1,450 cubic yards per 
year of K006 chromic oxide solids from the list of federal hazardous 
waste set forth in 40 Code of Federal Regulations CFR 261.32. The 
Petitioner claims that the petitioned waste 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. 
The original delisting petition was submitted to EPA in April 17, 2002 
and made final on September 21, 2004. Full facility descriptions and 
information are provided in the proposed rulemaking (68 FR 64834, 
November 17, 2003). Based on our review described in Section III, we 
propose to approve the amendment, and allow the delisted waste to be 
disposed in the on-site surface impoundment in addition to an off-site 
Subtitle D landfill.

II. Background

A. What laws and regulations give EPA the authority to delist waste?

    EPA published amended lists 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. These 
lists have been amended several times and are found at 40 CFR 261.31 
and 261.32.
    We list 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 40 CFR part 261 (i.e., ignitability, 
corrosivity, reactivity, and toxicity), or (2) they meet the criteria 
for listing contained in 40 CFR 261.11(a)(2) or (3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure which allows a person to demonstrate that a specific listed 
waste from a particular generating facility should not be regulated as 
a hazardous waste, and should, therefore, be delisted.
    According to 40 CFR 260.22(a)(1), in order to have these wastes 
excluded a petitioner must first show that wastes generated at its 
facility do not meet any of the criteria for which the wastes were 
listed. The criteria which we use to list wastes are found in 40 CFR 
261.11. An explanation of how these criteria apply to a particular 
waste is contained in the background document for that listed waste.
    In addition to the criteria that we considered when we originally 
listed the waste, we are also required by the provisions of 40 CFR 
260.22(a)(2) to consider any other factors (including additional 
constituents), if there is a reasonable basis to believe that these 
factors could cause the waste to be hazardous.
    In a delisting petition, the petitioner must demonstrate that the 
waste does not exhibit any of the hazardous waste characteristics 
defined in Subpart C of 40 CFR part 261 (i.e., ignitability, 
corrosivity, reactivity, and toxicity), and must present sufficient 
information for EPA to determine whether the waste contains any other 
constituents at hazardous levels
    A generator remains obligated under RCRA to confirm that its waste 
remains non-hazardous based on the hazardous waste characteristics 
defined in Subpart C of 40 CFR part 261 even if EPA has delisted its 
waste.
    We also define residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), 
referred to as the ``mixture'' and ``derived-from'' rules, 
respectively.) These wastes are also eligible for exclusion but remain 
hazardous wastes until delisted.

B. What is currently delisted at the Petitioner's Corpus Christi, TX 
facility?

    On April 17, 2002, American Chrome and Chemical petitioned the EPA 
to exclude from the list of hazardous waste contained in Sec. 261.32, 
the dewatered sludge generated from its facility located in Corpus 
Christi, Texas. The waste, the EPA Hazardous Waste No. K006, falls 
under the classification of listed waste because of the ``derived-
from'' rule in Sec. 261.3.
    Specifically, in its petition, the Petitioner requested that the 
EPA grant an exclusion for 1,450 cubic yards per year of dewatered 
sludge resulting from its process of manufacturing chromic oxide. The 
resulting waste is listed, in accordance with the ``derived-from'' 
rule.
    The Petitioner's wastewater sludge contains approximately 11% 
solids. The petitioned waste is only the dewatered portion of the 
sludge, not the entire sludge (solids and wastewater) that is generated 
from the current wastewater treatment process. Currently, the 
Petitioner discharges the wastewater through Outfall 201, into an on-
site storage tank. The discharge is permitted by Texas Commission on 
Environmental Quality (TCEQ) through a Texas Pollution Discharges 
Elimination System (TPDES) Permit No. 003490 (EPA NPDES Permit No. 
TX0004685).
    In support of its petition, the Petitioner submitted sufficient 
information to EPA to allow us to determine that the waste was not 
hazardous based upon the criteria for which it was listed and that no 
other hazardous constituents were present in the waste at levels of 
regulatory concern.
    A full description of these wastes and the Agency's evaluation of 
the 2002 petition are contained in the Proposed Rule and Request for 
Comments published in the Federal Register on November 17, 2003 (68 FR 
64834).
    After evaluating public comment on the Proposed Rule, we published 
a final decision in the Federal Register on September 21, 2004, (69 FR 
56357) to exclude the Petitioner's dewatered chromic oxide sludge 
derived from the treatment of EPA Hazardous Waste No. K006 from the 
list of hazardous wastes found in 40 CFR 261.31.
    EPA's final decision in 2004 was conditioned on the disposal of the 
material in an off-site Subtitle C landfill at an annual waste volume 
generation of 1,450 cubic yards of K006 dewatered sludge. Any 
additional waste volume in excess of this limit generated by Petitioner 
in a calendar year was to have been managed as hazardous waste. The 
waste could not be managed in any other waste unit.

C. What does Petitioner request in its petition for amendment?

    In an effort to reduce disposal costs and the administrative 
burdens of waste tracking, notification, and recording requirements, 
Petitioner petitioned EPA on December 3, 2019 for an amendment to its 
September 21, 2004 final exclusion. In its petition, Petitioner 
requested to add the disposal scenario of surface impoundment as a 
management option for the chromic oxide wastes. The volume of waste is 
set at a maximum annual generation of 1,450 cubic yards.

III. Disposition of Petition Amendment

A. What information did the Petitioner submit to support its petition 
for amendment?

    The exclusion which we granted to the Petitioner on September 21, 
2004, is

[[Page 10913]]

a conditional exclusion. No more than 1,450 cubic yards of waste per 
year can be disposed of in an off-site Subtitle D Landfill. Disposal in 
the on-site Surface Impoundment #3 (Texas Notice of Registration Waste 
Unit 22) was not approved.
    In order to support its Petition for Amendment, the Petitioner 
submitted four new samples of the waste material and the disposal 
scenario of the surface impoundment was modeled using the Delisting 
Risk Assessment Software. The worst-case scenario of the constituents' 
concentrations for the K006 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 constituents which were found in the analytical data provided 
by Petitioner are presented in Table 1.

             Table 1--Maximum Total and TCLP Concentrations
------------------------------------------------------------------------
                                           Maximum total   Maximum TCLP
              Chemical name                concentration   concentration
                                              (mg/kg)         (mg/l)
------------------------------------------------------------------------
Arsenic.................................            9.54          <0.005
Barium..................................            20.8           0.034
Chromium................................         350,836           0.563
Thallium................................           <6.72           <0.05
Zinc....................................             136           0.020
------------------------------------------------------------------------

B. What factors did EPA consider in deciding whether to grant a 
delisting petition?

    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the 
petitioned wastes against the listing criteria and factors cited in 
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, EPA also considered any factors (including additional 
constituents) other than those for which we listed the waste if these 
additional factors could cause the waste to be hazardous.
    Our proposed decision to grant the amendment to the 2004 petition 
to delist the waste from Petitioner's facility in Corpus Christi, 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.

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

    For this delisting determination, we evaluated the risk that the 
waste would be disposed of as a non-hazardous waste in a surface 
impoundment. We considered transport of waste constituents through 
groundwater, surface water and air. We evaluated Petitioner's analysis 
of petitioned waste using the DRAS software 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.
    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 
ground water, 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.

D. What did EPA conclude?

    The Petitioner does not believe that the petitioned waste meets the 
criteria of K006 for which the EPA listed it. The Petitioner also 
believes no additional constituents or factors could cause the waste to 
be hazardous. The Petitioner also believes that disposal in the on-site 
surface impoundment 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 40 CFR 260.22 (d)(1) through 
(4) (hereinafter all sectional references are to 40 CFR unless 
otherwise indicated). In making the initial delisting determination, 
the EPA evaluated the petitioned waste against the listing criteria and 
factors cited in Sec.  261.11(a)(2) and (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 have

[[Page 10914]]

proposed 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 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 Corpus Christi, Texas facility.

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 or in the 
on-site surface impoundment.

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

    EPA notes that in multiple 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 Petitioners 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 introduction of this waste stream will be 
conducted in a graduated approach. During the first thirty days of 
sending the delisted waste to the surface impoundment, The Petitioner 
will collect slurry samples from the influent to the surface 
impoundment to determine compliance with the delisting parameters. The 
Petitioner will prepare a monthly report to determine if the delisted 
waste in compliance with the delisting parameters. If compliance with 
the delisting parameters is demonstrated with analytical testing for 
thirty days, the Petitioner may decrease its sampling frequency for 
this exclusion to quarterly sampling reporting on the delisting 
exclusion. This does not supercede the discharge permit requirements, 
it gives only requirements for the submission of delisted waste related 
data. If two consecutive quarterly delisting reports show compliance 
with the delisting parameters, the Petitioner may request to move to 
annual sampling for the purposes of the delisting. The annual sampling 
report shall include the volume of chromic oxide solids disposed of in 
the surface impoundment as well as an annual testing event data. The 
petitioner should monitor and report increasing trends of constituents 
which will affect the overall compliance with the discharge permit.
    Thirty days after disposal in the on-site surface impoundment 
begins, wastewater samples should be taken at Outfall 101 as prescribed 
by the discharge permit issued by the Texas Commission on Environmental 
Quality (TCEQ) through a Texas Pollution Discharge Elimination System 
(TPDES) Permit No. 003490 (EPA NPDES Permit No. TX0004685). Discharge 
from Outfall 101 is intermittent to control freeboard. At a minimum, an 
annual sampling event should be conducted at Outfall 101. A summary of 
the Outfall 101 discharge data shall be included in the annual report.

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, 1201 Elm Street, Suite 500, M/C 6LCR-RP, Dallas, Texas 
75270-2102. within 10 days after receiving the final results from the 
laboratory. These results may be submitted electronically to Harry 
Shah, shah.harry@epa.gov. 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 Agency 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 verification 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 5, the Petitioner must notify the Agency within 
10 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 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.
    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 we 
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 EPA in accordance with 
Condition VI. of the exclusion language.

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

    HSWA specifically requires EPA to provide notice and an opportunity 
for comment before granting or denying a final exclusion. Thus, EPA 
will not make a final decision or grant an exclusion until it has 
addressed all timely public comments on today's proposal, including any 
at public hearings. Upon receipt and consideration of all comments, 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

[[Page 10915]]

section 3010 of RCRA as amended by HSWA.

VI. How would this action affect the states?

    Because 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 
under section 3009 of RCRA. These more stringent requirements may 
include a provision that prohibits a federally issued exclusion from 
taking effect in the state. We urge petitioners to contact the state 
regulatory authority to establish the status of their wastes under the 
state law.
    EPA has also authorized some states 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 http://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 12866.

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 12866, 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 Agency'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 
12866.

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

    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 it 
does not affect the level of protection provided to human health or the 
environment. The Agency'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.) or the on-site 
surface impoundment. Therefore, the EPA believes that any populations 
in proximity of the landfills used by this facility or the Corpus 
Christi 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 13, 2021.
Ronald D. Crossland,
Director, Land, Chemicals and Redevelopment Division, Region 6.

    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 Appendix IX to Part 261 by revising the entry for ``American 
Chrome and Chemical--Corpus Christi,

[[Page 10916]]

TX'' to Table 2--Wastes Excluded From Specific Sources to read as 
follows:

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

* * * * *

                                 Table 2--Wastes Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
American Chrome and Chemical (ACC)...  Corpus Christi, Texas..  Slurry (the EPA Hazardous Waste No. K006)
                                                                 generated at a maximum generation of 1,450
                                                                 cubic yards on a dry weight basis per calendar
                                                                 year after (effective date of final rule) and
                                                                 disposed in an on-site surface impoundment. ACC
                                                                 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).
                                                                 Slurry leachate: Arsenic-0.0377; Barium-100.0;
                                                                 Chromium-5.0; Thallium-0.355; Zinc-1130.0.
                                                                Chromium may not exceed 400,000 mg/kg.
                                                                (2) Waste Holding and Handling:
                                                                   (A) If the delisted material causes
                                                                    violations of the Discharge permit, ACC must
                                                                    discontinue disposing of the chromic oxide
                                                                    solids in the impoundment and dispose of it
                                                                    in accordance with the delisting exclusion
                                                                    issued September 21, 2004, until they have
                                                                    completed verification testing described in
                                                                    Paragraph (3), as appropriate, and valid
                                                                    analyses show that paragraph (1) is
                                                                    satisfied.
                                                                   (B) Levels of constituents measured in the
                                                                    samples of the slurry that do not exceed the
                                                                    levels set forth in Paragraph (1) are non-
                                                                    hazardous. ACC can manage and dispose the
                                                                    non-hazardous slurry according to all
                                                                    applicable solid waste regulations.
                                                                   (C) If constituent levels in a sample exceed
                                                                    any of the delisting levels set in Paragraph
                                                                    (1), ACC must retreat the batches of waste
                                                                    used to generate the representative sample
                                                                    until it meets the levels. ACC must repeat
                                                                    the analyses of the treated waste.
                                                                   (D) If the facility does not treat the waste
                                                                    or retreat it until it meets the delisting
                                                                    levels in Paragraph (1), ACC must manage and
                                                                    dispose the waste generated under Subtitle C
                                                                    of RCRA.
                                                                   (E) ACC must maintain a record of the actual
                                                                    volume of the slurry to be disposed in the
                                                                    on-site impoundment according to the
                                                                    requirements in Paragraph (5).
                                                                (3) Verification Testing Requirements: ACC must
                                                                 perform sample collection and analyses,
                                                                 including quality control procedures, according
                                                                 to appropriate methods such as those found in
                                                                 SW-846 or other reliable sources (with the
                                                                 exception of analyses requiring the use of SW-
                                                                 846 methods incorporated by reference in 40 CFR
                                                                 260.11, which must be used without
                                                                 substitution).
                                                                   (A) During the first thirty days of sending
                                                                    the slurry to the surface impoundment, ACC
                                                                    will collect slurry samples from the
                                                                    influent to the surface impoundment to
                                                                    determine compliance with the delisting
                                                                    levels in Paragraph (1).
                                                                   (B) Thirty days after disposal in the on-site
                                                                    surface impoundment begins, ACC will take
                                                                    samples of the wastewater from Outfall 101
                                                                    as prescribed by the discharge permit issued
                                                                    by the Texas Commission on Environmental
                                                                    Quality (TCEQ) through a Texas Pollution
                                                                    Discharge Elimination System (TPDES) Permit
                                                                    No. 003490 (EPA NPDES Permit No. TX0004685).
                                                                    Wastewater samples will be analyzed for the
                                                                    constituents in the TPDES Permit 003490 and
                                                                    in Paragraph (1). Discharge from Outfall 101
                                                                    is intermittent. At a minimum, an annual
                                                                    sampling event for the constituents listed
                                                                    in Paragraph (1), will be conducted at
                                                                    Outfall 101.
                                                                   (C) ACC may decrease its sampling frequency
                                                                    for this exclusion to quarterly sampling
                                                                    reporting on the delisting exclusion after
                                                                    compliance with the delisting levels in
                                                                    Paragraph (1) is demonstrated with
                                                                    analytical testing for thirty days. This
                                                                    does not supercede the discharge permit
                                                                    requirements, it gives only requirements for
                                                                    the submission of delisted waste related
                                                                    data.
                                                                   (D) If two consecutive quarterly delisting
                                                                    reports show no exceedances of the delisting
                                                                    levels in Paragraph (1), ACC may request to
                                                                    move to annual sampling for the purposes of
                                                                    the delisting. The annual sampling report
                                                                    shall include the volume of chromic oxide
                                                                    solids disposed of in the surface
                                                                    impoundment as well as an annual testing
                                                                    data for Outfall 101.
                                                                   (E) ACC should monitor and report increasing
                                                                    trends of constituents which will affect the
                                                                    overall compliance with the discharge
                                                                    permit. ACC shall analyze the verification
                                                                    samples according to the constituent list
                                                                    specified in Paragraph (1) and submit the
                                                                    analytical results to EPA within 10 days of
                                                                    receiving the analytical results. If the EPA
                                                                    determines that the data collected under
                                                                    this Paragraph do not support the data
                                                                    provided for the petition, the exclusion
                                                                    will not cover the generated wastes. The EPA
                                                                    will notify ACC the decision in writing
                                                                    within two weeks of receiving this
                                                                    information.
                                                                (4) Changes in Operating Conditions: If ACC
                                                                 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; they may no longer handle the
                                                                 wastes generated from the new process as
                                                                 nonhazardous until the test results of the
                                                                 wastes meet the delisting levels set in
                                                                 Paragraph (1) and they have received written
                                                                 approval to do so from the EPA.

[[Page 10917]]

 
                                                                (5) Data Submittals: ACC must submit the
                                                                 information described below. If ACC 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 6. ACC 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, anytime after disposal of the
                                                                    delisted waste, ACC 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 the verification testing of the waste
                                                                    does not meet the delisting requirements in
                                                                    Paragraph 1, ACC 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 ACC 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 Agency 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 Agency
                                                                    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 Agency
                                                                    action is not necessary. The facility shall
                                                                    have 10 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 Agency 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: ACC 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
                                                                    ACC transports the excluded waste to or
                                                                    manages the waste in any state with
                                                                    delisting authorization, ACC 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.

[[Page 10918]]

 
                                                                   (C) Failure to provide the notification will
                                                                    result in a violation of the delisting
                                                                    variance and a possible revocation of the
                                                                    exclusion.
 
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[FR Doc. 2021-02939 Filed 2-22-21; 8:45 am]
BILLING CODE 6560-50-P


