[Federal Register Volume 87, Number 225 (Wednesday, November 23, 2022)]
[Proposed Rules]
[Pages 71532-71539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25213]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2022-0653; FRL-10104-01-R6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant an exclusion from the list of hazardous wastes to WRB Refining LP 
(Petitioner) located in Borger, Texas. This action responds to a 
petition to exclude (or ``delist'') up to 7,000 cubic yards per year of 
solids removed from four stormwater tanks from the list of federal 
hazardous wastes when disposed of in a Subtitle D Landfill. Resource 
Conservation Recovery Act (RCRA). The EPA is proposing to grant the 
petition based on an evaluation of waste-specific information provided 
by Petitioner.

DATES: Comments on this proposed exclusion must be received by December 
23, 2022.

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
    Instructions: The EPA must receive your comments by December 23, 
2022. Direct your comments to Docket ID Number EPA-R06-RCRA-2022-0653. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI), or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal regulations.gov website is 
an ``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through regulations.gov, your email address will be automatically 
captured and included as part of the comment that is placed in the 
public docket and made available on the internet. If you submit an 
electronic comment, the EPA recommends that you include your name and 
other contact information in the body of your comment with any CBI you 
submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption and be free of any 
defects or viruses.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy.
    You can view and copy the delisting petition and associated 
publicly available docket materials either through www.regulations.gov 
or at: EPA, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270. 
The EPA facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays and facility closures due to COVID-
19. 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, 
[email protected]. Out of an abundance of caution for members of the 
public and our staff, the EPA Region 6 office may be closed to the 
public to reduce the risk of transmitting COVID-19. 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 is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must the EPA consider in deciding whether to 
grant a delisting petition?
    D. Environmental Justice evaluation.
III. The EPA's Evaluation of the Waste Information and Data
    A. What waste did the Petitioner petition the EPA to delist?
    B. How did the Petitioner generate the waste?
    C. How did the Petitioner sample and analyze the petitioned 
waste?
    D. What factors did the EPA consider in deciding whether to 
grant the delisting petition?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What did the EPA conclude?
IV. Conditions for Exclusion
    A. How will the Petitioner manage the waste if it is delisted?
    B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?
    C. How frequently must the Petitioner test the waste?
    D. What data must the Petitioner submit?
    E. What happens if the Petitioner fails to meet the conditions 
of the exclusion?
    F. What must the Petitioner do if the process changes?

[[Page 71533]]

V. When would the EPA Finalize the Proposed Delisting Exclusion?
VI. How would this Action Affect States?
VII. Statutory and Executive Order Reviews

I. Overview Information

    The EPA is proposing to grant a May 2020 petition (``Delisting 
Petition for Stormwater Solids'') request submitted by WRB Refining LP 
in Borger, Texas to exclude (or ``delist'') up to 7,000 cubic yards per 
year of F037 stormwater solids from the list of federal hazardous waste 
set forth in 40 CFR 261.3 (hereinafter, all sectional references are to 
40 CFR unless otherwise indicated). The Petitioner claims that the 
petitioned wastes do not meet the criteria for which the EPA listed it, 
and that there are no additional constituents or factors which could 
cause the waste to be hazardous. Based on our review described in 
Section III, we propose to approve the petition request, and allow the 
delisted waste to be disposed in a Subtitle D landfill. A copy of the 
May 2020 petition is located in the docket to this proposal action.

II. Background

A. What is the history of the delisting program?

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

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

    A delisting petition is a request from a facility to the EPA or an 
authorized state to exclude wastes from the list of hazardous wastes. 
The facility petitions the EPA because it does not consider the waste 
as hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which the EPA lists a 
waste are in 40 CFR part 261 and further explained in the background 
documents for the listed waste in the June 30, 1992 publication of the 
``Final Best Demonstrated Available Technology (BDAT) Background 
Document for Newly Listed Refinery Wastes F037 and F038'' (https://nepis.epa.gov/Exe/ZyNET.exe/P100VUGS.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1991+Thru+1994&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C91thru94%5CTxt%5C00000035%5CP100VUGS.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL).
    In addition, under 40 CFR 260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and must 
present sufficient information for EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

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

    Besides considering the criteria in 40 CFR 260.22(a) and Sec.  
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) aside from those for which EPA listed the waste, if a 
reasonable basis exists that these additional factors could cause the 
waste to be hazardous.
    The EPA must also consider hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii and iv) 
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

D. Environmental Justice Evaluation

    To better meet EPA's ``responsibilities related to the protection 
of public health and the environment, EPA has developed a new 
environmental justice (EJ) mapping and screening tool called EJ 
Screen'' that reports values as a percentile when compared to a state 
or the nation. ``It is based on nationally consistent data and an 
approach that combines environmental and demographic indicators in maps 
and reports,'' (https://www.epa.gov/ejscreen). EPA is providing 
analysis of environmental justice associated with this action. We are 
doing so for the purpose of providing information to the public, not as 
a basis of our final action.
    EPA utilized EJ Screen to evaluate potential environmental justice 
concerns in communities at one-,& three-, and five-mile radiuses 
around the Borger facility. EPA considers the potential for EJ concerns 
in a community when one or more of the 12 EJ indices is at or above the 
80th percentile when compared to the rest of the USA. At all three 
radial measurements, none of the 12 EJ indices exceeded the 80th 
percentile. However, six different individual block groups clustered 
south/southwest of the facility within the one-, three-, and five-mile 
radiuses exceeded the 80th percentile for one or more indices. This 
information is provided in Table 1. More information on EJ Screen, 
including an explanation of the 12 EJ indices can be found at 
www.epa.gov/ejscreen/what-ejscreen.

[[Page 71534]]



              Table 1--Block Groups With EJ Indices at or Above the 80th Percentile for the USA \1\
----------------------------------------------------------------------------------------------------------------
                                                                                   EJ index for
                                                   EJ index for    EJ index for     underground    EJ index for
                                                    lead paint     RMP facility    storage tanks    wastewater
                                                       (USA       proximity (USA       (USA       discharge (USA
                                                    percentile)     percentile)     percentile)     percentile)
----------------------------------------------------------------------------------------------------------------
Block Group 482339506001........................              80              83               -               -
Block Group 482339507001........................              85              87               -               -
Block Group 482339507002........................              82              90               -               -
Block Group 482339508001........................              81              87               -               -
Block Group 482339509001........................               -              84               -               -
Block Group 482339509004........................              86              94              82              80
----------------------------------------------------------------------------------------------------------------
\1\ A dash indicates the EJ index is below the 80th percentile.

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

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

    In May 2020, WRB Refining LP petitioned the EPA to exclude from the 
list of hazardous wastes contained in Sec.  261.31, stormwater tank 
solids (F037) generated from its facility located in Borger, Texas. The 
waste falls under the classification of listed waste pursuant to 
Sec. Sec.  261.31. Specifically, in its petition, WRB Refining 
requested that the EPA grant a standard exclusion for 7,000 cubic yards 
per year of the stormwater tank solids.

B. How did the Petitioner generate the waste?

    The principal products manufactured at the Refinery are gasoline, 
diesel, aviation fuel, natural gas liquids (NGL), petroleum coke, and 
solvents. The stormwater tanks are active and have been in operation 
for approximately 25 years. To restore capacity in the stormwater 
tanks, the Borger Refinery will be removing accumulated solids. The 
solids removal process will typically occur within a calendar year and 
will be an ongoing operational item for the refinery in the future.
    The solids are removed from the four stormwater tanks. These tanks 
are listed as the North Stormwater Tank, West Stormwater Tank, North 
Dropout Basin, and West Grit Trap (hereafter collectively referred to 
as ``the stormwater tanks''). The four stormwater tanks are identified 
as solid waste management unit (SWMU) No. 50 on the facility's notice 
of registration (NOR) with the Texas Commission on Environmental 
Quality (TCEQ).
    The stormwater tanks solids originated from both historical and 
current operation of the wastewater treatment system at the refinery. 
To the extent possible, hydrocarbons present in refinery wastewaters 
have been recovered. However, historically more hydrocarbons passed 
through the ``oil recovery system'' and flowed into the stormwater 
tanks. Hydrocarbons in the wastewater can result from various sources 
(e.g., crude oil). Over time, more of the oily streams were routed to 
storage tanks from collection system piping and/or smaller tanks for 
interception and recovery instead of into the stormwater tanks. 
Recovered oil from the oil recovery system is stored in tanks prior to 
being reintroduced into the refining process. Historically, these oily 
flows occurred in conjunction with facility operations, were relatively 
routine in nature, and not directly associated with precipitation. As 
such, they were classified by the EPA as ``dry weather'' flows. By 
contrast, wastewater directly associated with precipitation (i.e., 
stormwater) is referred to as ``wet weather'' flows. The EPA listing 
criteria for F037 generally encompasses primary solids associated with 
dry-weather, oily flows.
    Since the stormwater tanks receive what could be classified as dry-
weather, oily flows as specified in the November 2, 1990, Federal 
Register rule publication (55 FR 46354, Nov. 2, 1990), the solids 
within the four tanks are believed to be classified as F037 when 
generated. WRB Refining assumes that solids removed from the stormwater 
tanks bear the F037 (primary oil/water/solids separation sludge) 
listing when generated.

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

    A total of eight acceptable sample results were provided by 
Petitioner to support the petition. The EPA considered all 8 samples of 
the stormwater tank solids and the disposal scenario of the landfill 
was modeled using the Delisting Risk Assessment Software. The worst-
case scenario of the constituents' concentrations for the F037 solids 
were used as input in the model to determine if it would meet the 
hazardous waste criteria for which it was listed. The maximum total and 
leachate concentrations for the inorganic and organic constituents 
which were found in the analytical data provided by Petitioner are 
presented in Table 2.

             Table 2--Maximum Total and TCLP Concentrations
------------------------------------------------------------------------
                                      Maximum total       Maximum TCLP
           Chemical name            concentration (mg/ concentration (mg/
                                           kg)                 l)
------------------------------------------------------------------------
Acenaphthene......................               0.04           <0.00030
Anthracene........................               0.18           <0.00030
Antimony..........................               6.93             0.0293
Arsenic...........................               10.5             0.0277
Barium............................                732                3.1
Benz(a)anthracene.................               0.26           <0.00030
Benzo(a)pyrene....................               0.19           <0.00040
Benzo(b)fluoranthene..............               0.17           <0.00040
Benzo(k)fluoranthene..............               0.16           <0.00070
Benzene...........................               0.19             <0.012
Beryllium.........................               0.91             <0.002

[[Page 71535]]

 
Bis(2-ethylhexyl)phthalate........                1.2           <0.00080
2-Butanone........................              0.092             <0.020
Cadmium...........................               1.03            0.00689
Carbon disulfide..................              0.026             <0.018
Chromium..........................               80.8            0.00495
Chrysene..........................               0.34           <0.00080
Cobalt............................               13.3             0.0355
Di-n-butyl-phthalate..............             0.0057           <0.00080
Dibenz(a,h)anthracene.............              0.061           <0.00060
Dimethyl phthalate................              0.034           <0.00050
Ethylbenzene......................             0.0063             <0.010
Fluoranthrene.....................               0.84           <0.00040
Fluorene..........................               0.17           <0.00050
Indeno(1,2,3-cd)pyrene............               0.12           <0.00060
Lead..............................                301              0.102
Mercury...........................               1.58          <0.000030
Naphthalene.......................               0.18             0.0047
Nickel............................                439              0.142
Phenanthrene......................                1.2           <0.00040
Pyrene............................               0.92           <0.00030
Selenium..........................                2.8            <0.0110
Silver............................               0.08           <0.00200
Toluene...........................              0.036             <0.010
Vanadium..........................               50.4           <0.00600
Xylenes, Total....................              0.087             <0.010
Zinc..............................                930               2.76
------------------------------------------------------------------------

D. What factors did the EPA consider in deciding whether to grant the 
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 Sec.  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, the EPA also considered factors (including additional 
constituents) other than those for which EPA listed the waste if these 
additional factors could cause the waste to be hazardous (See the 
background documents).
    Our proposed decision to grant the May 2020 petition to delist the 
waste from Petitioner's facility in Borger, Texas is based on our 
evaluation of the wastes for factors or criteria which could cause the 
waste to be hazardous. These factors included: (1) Whether the waste is 
considered acutely toxic; (2) the toxicity of the constituents; (3) the 
concentration of the constituents in the waste; (4) the tendency of the 
constituents to migrate and to bioaccumulate; (5) the persistence in 
the environment of any constituents once released from the waste; (6) 
plausible and specific types of management of the petitioned waste; (7) 
the quantity of waste produced; and (8) waste variability.
    The EPA must also consider as hazardous wastes mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and 
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

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

    For this proposed delisting determination, we evaluated the risk 
that the waste would be disposed of as a non-hazardous waste in a 
landfill. We considered transport of waste constituents through 
groundwater, surface water and air. We evaluated Petitioner's analysis 
of the petitioned waste using the Delisting Risk Assessment Software 
(DRAS) to predict the concentration of hazardous constituents that 
might be released from the petitioned waste and to determine if the 
waste would pose a threat to human health and the environment. The DRAS 
software and associated documentation can be found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
    To predict the potential for release to groundwater from landfilled 
wastes and subsequent routes of exposure to a receptor, the DRAS uses 
dilution attenuation factors derived from the EPA's Composite Model for 
leachate migration with transformation products. From a release to 
groundwater, the DRAS considers routes of exposure to a human receptor 
through ingestion of contaminated groundwater, inhalation from 
groundwater while showering and dermal contact from groundwater while 
bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water run-off, DRAS evaluates the exposure to a 
human receptor by fish ingestion and ingestion of drinking water. From 
a release of waste particles and volatile emissions to air from the 
surface of an open landfill, DRAS considers routes of exposure of 
inhalation of volatile constituents, inhalation of particles, and air 
deposition of particles on residential soil and subsequent ingestion of 
the contaminated soil by a child. The technical support document and 
the user's guide to DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.

[[Page 71536]]

F. What did the EPA conclude?

    Petitioner stated in its petition that the petitioned waste meets 
the criteria of F037 for which the EPA listed it. Petitioner also 
stated that no additional constituents or factors could cause the waste 
to be hazardous. Petitioner also stated that disposal in a landfill 
will not adversely impact human health or the environment. The EPA's 
review of this petition included consideration of the original listing 
criteria, and the additional factors required by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 
U.S.C. 6921(f), and CFR 260.22 (d)(1)-(4). In making the initial 
delisting determination, the EPA evaluated the petitioned waste against 
the listing criteria and factors cited in Sec.  261.11(a)(2) and 
(a)(3). Based on this review, the EPA agrees with the Petitioner that 
the petitioned waste is nonhazardous with respect to the original 
listing criteria. (If the EPA had found, based on this review, that the 
waste remained hazardous based on the factors for which the waste was 
originally listed, the EPA would propose to deny the petition.) The EPA 
evaluated the waste with respect to other factors or criteria to assess 
whether there is a reasonable basis to believe that such additional 
factors could cause the waste to be hazardous. The EPA considered 
whether the waste is acutely toxic, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. The 
EPA believes that the petitioned waste does not meet the listing 
criteria and thus, should not be a listed waste. The EPA's proposed 
decision to delist the waste from Petitioner's facility is based on the 
information submitted in support of this rule, including descriptions 
of the wastes and analytical data from the Borger, Texas facility, and 
that is contained in the Petition and attachments, all of which are 
included in the docket to this action.

IV. Conditions for Exclusion

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

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

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

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

C. How frequently must the Petitioner test the waste?

    The testing approach for this waste stream will be conducted as 
generated. Prior to disposal of any future tank cleanouts, Petitioner 
must conduct sampling and analysis as described in the delisting 
sampling and analysis plan and ensure that the wastes do not exceed the 
delisting parameters. If compliance with the delisting parameters is 
demonstrated with analytical testing (TCLP analysis), the Petitioner 
may dispose of the tank cleanouts. The annual amount of solids 
generated from the tank clean outs may not exceed 7,000 cubic yards. 
The annual sampling report shall include the volume of solids disposed 
of in the landfill, as well as annual testing event data. The 
petitioner should monitor and report increasing trends of constituents 
which will affect the overall compliance with the stormwater discharge 
permit.

D. What data must the Petitioner submit?

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

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

    If this Petitioner violates the terms and conditions established in 
the exclusion, the 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 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 1, 
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.
    The EPA has the authority under RCRA and the Administrative 
Procedures Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting 
decision if 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 the EPA in accordance 
with Condition VI. of the exclusion language.

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

    HSWA specifically requires the EPA to provide notice and an 
opportunity for public comment before granting or denying a final 
exclusion. Thus, the EPA will not make a final decision or grant an 
exclusion until it has addressed all timely public comments, including 
any at public hearings. Upon receipt and consideration of all comments, 
the EPA will publish its final determination as a final rule. Since 
this rule would reduce the existing requirements for

[[Page 71537]]

persons generating hazardous wastes, the regulated community does not 
need a six-month period to come into compliance in accordance with 
Sec.  3010 of RCRA, as amended by HSWA.

VI. How would this action affect States?

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

VII. Statutory and Executive Order Reviews

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

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

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

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

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

C. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) because it only applies to a particular facility.

D. Regulatory Flexibility Act

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

E. Unfunded Mandates Reform Act

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

F. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.

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

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

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

    This proposed action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 13045 and because the EPA does not believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This proposed action's health and 
risk assessments using the 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 
13211.

J. National Technology Transfer and Advancement Act

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

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

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs federal 
agencies to identify and address ``disproportionately high and adverse 
human health or environmental effects'' of their actions on minority 
populations and low-income populations to the greatest extent 
practicable and permitted by law. The EPA defines environmental justice 
(EJ) as ``the fair treatment and meaningful involvement of all people 
regardless of race, color, national origin, or income with respect to 
the development, implementation, and enforcement of environmental laws, 
regulations, and policies.'' The EPA further defines the term fair 
treatment to mean that ``no group of people should bear a 
disproportionate burden of environmental harms and risks, including 
those resulting from the negative environmental consequences of 
industrial, governmental, and commercial operations or programs and 
policies,'' (https://www.epa.gov/environmentaljustice/learn-about-environmental-justice).
    The EPA believes that this proposed action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples. The EPA has determined that this proposed action 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because 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 
landfill. Therefore, the EPA believes that any populations in proximity 
of the landfills used by the Borger facility should not be adversely 
affected by common waste management practices for this delisted waste.

[[Page 71538]]

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: November 14, 2022.
Ronald Crossland,
Director, Land, Chemicals and Redevelopment Division.

    For the reasons set out in the preamble, the EPA proposes to amend 
40 CFR part 261 as follows:

PART 261 IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

0
2. Amend table 1 of Appendix IX to part 261, by adding an entry for 
``WRB Refining LP'' at the end of the table to read as follows:

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

* * * * *

----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
WRB Refining LP......................  Borger, Texas..........  Stormwater Solids (the EPA Hazardous Waste No.
                                                                 F037) generated at a maximum generation of
                                                                 7,000 cubic yards per calendar year after (date
                                                                 rule finalized) and disposed in a landfill. WRB
                                                                 Refining 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).
                                                                 Stormwater Solids Leachate: Acenaphthene-10.6;
                                                                 Anthracene-25.9; Antimony-0.109; Arsenic-0.01;
                                                                 Barium-36.0; Benz(a) anthracene-0.07;
                                                                 Benzo(a)pyrene-26.3; Benzo(b)fluoranthene-224;
                                                                 Benzene-0.077; 2-Butanone-200; Cadmium--0.0911;
                                                                 Carbon disulfide-56.4; Chromium-2.27; Chrysene-
                                                                 7.01; Cobalt--587; Di-n-butyl-phthalate-24.6;
                                                                 Ethylbenzene-10.8; Fluoranthrene-2.46; Fluorene-
                                                                 4.91; Indeno(1,2,3-cd)pyrene-129; Lead-5.0;
                                                                 Mercury-0.068; Naphthalene-0.0327; Nickel-13.5;
                                                                 Pyrene-4.45; Selenium-1.0; Silver-5.0; Toluene-
                                                                 15.1; Vanadium-3.77; Xylenes, Total-9.56; Zinc-
                                                                 197.
                                                                (2) Waste Holding and Handling:
                                                                (A) All stormwater solids from tank clean outs
                                                                 must be tested to assure they have met the
                                                                 concentrations described in Paragraph (1).
                                                                 Solids that do not meet the concentrations must
                                                                 be disposed of as hazardous waste.
                                                                (B) Levels of constituents measured in the
                                                                 samples of the solids that do not exceed the
                                                                 levels set forth in Paragraph (1) are non-
                                                                 hazardous. WRB Refining can manage and dispose
                                                                 the non-hazardous stormwater solids according
                                                                 to all applicable solid waste regulations.
                                                                (C) WRB Refining must maintain a record of the
                                                                 actual volume of the stormwater solids to be
                                                                 disposed in the Subtitle D or on-site landfill
                                                                 according to the requirements in Paragraph (4).
                                                                (3) Changes in Operating Conditions: If WRB
                                                                 Refining 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.
                                                                (4) Data Submittals: WRB Refining must submit
                                                                 the information described below. If WRB
                                                                 Refining fails to submit the required data
                                                                 within the specified time or maintain the
                                                                 required records on-site for the specified
                                                                 time, the EPA, at its discretion, will consider
                                                                 this sufficient basis to reopen the exclusion
                                                                 as described in Paragraph 5. WRB Refining 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.''
                                                                (5) Reopener:

[[Page 71539]]

 
                                                                (A) If, any time after disposal of the delisted
                                                                 waste, WRB Refining 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, WRB Refining 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 WRB Refining fails to submit the
                                                                 information described in paragraphs (4), (5)(A)
                                                                 or (5)(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 (5)(D) or
                                                                 (if no information is presented under paragraph
                                                                 (5)(D)) the initial receipt of information
                                                                 described in paragraphs (4), (5)(A) or (5)(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.
                                                                (6) Notification Requirements: WRB Refining 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 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 WRB Refining
                                                                 transports the excluded waste to or manages the
                                                                 waste in any state with delisting
                                                                 authorization, WRB Refining must obtain
                                                                 delisting authorization from that state before
                                                                 it can manage the waste as nonhazardous in the
                                                                 state.
                                                                (B) Update the one-time written notification if
                                                                 they ship the delisted waste to a different
                                                                 disposal facility.
                                                                (C) Failure to provide the notification will
                                                                 result in a violation of the delisting variance
                                                                 and a possible revocation of the exclusion.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2022-25213 Filed 11-22-22; 8:45 am]
BILLING CODE 6560-50-P


