
[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Proposed Rules]
[Pages 76677-76684]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31533]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FDMS Docket No.: EPA-R08-RCRA-2011-0823; FRL-9502-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (``EPA,'' ``the Agency'' 
or ``we'' in this preamble) is proposing to grant a petition submitted 
by the ConocoPhillips Billings, Montana Refinery (``ConocoPhillips'' or 
``Petitioner'') to exclude or ``delist,'' from the list of hazardous 
wastes, residual solids from sludge removed from two storm water tanks 
at its Billings, Montana refinery and processed in accordance with the 
petition. The EPA used the Delisting Risk Assessment Software (DRAS) in 
the evaluation of the potential impact of the petitioned waste on human 
health and the environment.
    The EPA's proposed decision to grant the petition is based on an 
evaluation of waste-specific information provided by ConocoPhillips. 
This proposed decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of the hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).
    This exclusion would be valid only when sludge from the two storm 
water tanks is dewatered and de-oiled using a filter press and/or 
portable centrifuge, and the resulting residual solids are disposed of 
in a RCRA Subtitle D landfill that is permitted, licensed, or 
registered by a state to manage industrial solid waste. If finalized, 
the EPA would conclude that ConocoPhillips' petitioned waste is 
nonhazardous with respect to the original listing criteria and that 
there are no other factors that would cause the waste to be hazardous.

DATES: The EPA will accept public comments on this proposed decision 
until January 9, 2012 the EPA will stamp comments received after the 
close of the comment period as late. These late comments may not be 
considered in formulating a final decision. Any person may request an 
informal hearing on this proposed decision by filing a request to the 
EPA by December 22, 2011. The request must contain the information 
prescribed in 40 CFR 260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No.: EPA-R08-
RCRA-2011-0823, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: cosentini.christina@epa.gov.
    3. Fax: (303) 312-6341.
    4. Mail, Hand Delivery or Courier: Deliver your comments to 
Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8, 
Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. 
Courier or hand deliveries are only accepted during the EPA Region 8's 
normal hours of operation from 8 a.m. to 4 p.m. The public is advised 
to call in advance to verify the business hours. Special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No.: EPA-R08-RCRA-
2011-0823. 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 http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site 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 http://www.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 and with any disk or CD-ROM 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 not include special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about the EPA's public docket visit the EPA Docket Center 
home page at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at: EPA Region 8, from 8 a.m. to 4 
p.m., 1595 Wynkoop Street, Denver, Colorado, contact: Christina 
Cosentini, phone number (303) 312-6231.

FOR FURTHER INFORMATION CONTACT: Christina Cosentini, Solid and 
Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Mail Code 
8P-HW, Denver, Colorado 80202, (303) 312-6231, 
cosentini.christina@epa.gov.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is the EPA approving?
    B. Why is the EPA approving this delisting?
    C. How will ConocoPhillips Billings Refinery manage the waste, 
if it is delisted?
II. Background
    A. What is a listed waste?
    B. What is a delisting petition?

[[Page 76678]]

    C. What factors must the EPA consider in deciding whether to 
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
    A. What waste did ConocoPhillips petition the EPA to delist?
    B. How does ConocoPhillips generate the waste?
    C. How did ConocoPhillips sample and analyze the waste?
    D. What were the results of the ConocoPhillips waste analysis?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What did the EPA conclude about the ConocoPhillips waste?
IV. Conditions for Exclusion
    A. When would the EPA finalize the proposed delisting exclusion?
    B. How will ConocoPhillips manage the waste if it is delisted?
    C. What are the maximum allowable concentrations of hazardous 
constituents in the waste?
    D. How frequently must ConocoPhillips test the waste?
    E. What data must ConocoPhillips submit?
    F. What happens if ConocoPhillips waste fails to meet the 
conditions of the exclusion?
    G. What must ConocoPhillips do if the process changes?
V. How would this action affect states?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is the EPA approving?

    The EPA is proposing to grant a petition submitted by the 
ConocoPhillips Billings Refinery to have residual solids from 
processing sludge removed from two storm water tanks at its Billings, 
Montana Refinery excluded or delisted from the RCRA definition of a 
hazardous waste, contingent upon such waste being dewatered and de-
oiled using a filter press and/or portable centrifuge and the resulting 
solids disposed in a RCRA Subtitle D Landfill.

B. Why is the EPA approving this delisting?

    The ConocoPhillips petition requested the residual solids from 
processed storm water tank sludge be excluded from the F037 waste 
listing. F037 wastes are wastes that are generated in the separation of 
oil/water/solids from petroleum refinery process wastewaters and oily 
cooling wastewaters. This exclusion will apply to an annual maximum of 
200 cubic yards of residual solids. ConocoPhillips claims that the 
petitioned waste does 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 agree with the 
petitioner that the waste is nonhazardous. The EPA reviewed the 
description of the process which generates the waste and the analytical 
data submitted by ConocoPhillips. We believe that the petitioned waste 
does not meet the criteria for the F037 waste listing, and that there 
are no other factors which might cause the residual solids to be 
hazardous.

C. How will ConocoPhillips Billings Refinery manage the waste if it is 
delisted?

    ConocoPhillips will dispose of the residual solids from the 
processed storm water tank sludge in a RCRA Subtitle D landfill which 
is regulated by the State of Montana, or other state subject to Federal 
RCRA delisting, to manage industrial waste.

II. Background

A. What is a listed waste?

    The EPA published an amended list of hazardous wastes from 
nonspecific and specific sources on January 16, 1981, as part of its 
final and interim final regulations implementing section 3001 of RCRA. 
The EPA has amended this list several times and published it at 40 CFR 
261.31 and 261.32. The EPA lists these wastes as hazardous because: (1) 
They typically and frequently exhibit one or more of the 
characteristics of hazardous wastes identified in subpart C of part 261 
(that is, ignitability, corrosivity, reactivity, and toxicity); (2) 
they meet the criteria for listing contained in 40 CFR 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 40 CFR 261.3(a)(2)(iv) or (c)(2)(i), 
known as the ``mixture'' or ``derived-from'' rules respectively.

B. What is a delisting petition?

    Individual waste streams may vary depending on raw materials, 
industrial processes, and other factors. Thus, while a waste described 
in the regulations generally is hazardous, a specific waste from an 
individual facility meeting the listing description may not be. A 
procedure to exclude or delist a waste is provided in 40 CFR 260.20 and 
260.22, which allows a person, or a facility, to submit a petition to 
the EPA, or an authorized state, demonstrating that a specific waste 
from a particular generating facility is not hazardous.
    In a delisting petition, the petitioner must show that a waste does 
not meet any of the criteria for listed wastes in 40 CFR 261.11 and 
that the waste does not exhibit any of the hazardous waste 
characteristics of ignitability, reactivity, corrosivity, or toxicity. 
The petitioner must present sufficient information for the EPA to 
decide whether any factors, in addition to those for which the waste 
was listed, warrant retaining it as a hazardous waste. (See 40 CFR 
260.22; 42 U.S.C. 6921(f).)
    If a delisting petition is granted, the generator remains obligated 
under RCRA to confirm that the waste remains nonhazardous.

C. What factors must the 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 HSWA Sec.  222, 42 U.S.C. 6921(f); 
40 CFR 260.22(d)(1)-(4). We evaluated the petitioned waste against the 
listing criteria and factors cited in Sec. Sec.  261.11(a)(2) and (3).
    In addition to considering the criteria in 40 CFR 260.22(a) and 
261.11(a)(2) and (3), 42 U.S.C. 6921(f), and information in the 
background documents for the listed waste, the EPA must consider any 
factors (including additional constituents) other than those for which 
the EPA listed the waste, if these additional factors could cause the 
waste to be hazardous.
    The EPA's tentative decision to delist waste from the 
ConocoPhillips Billings Refinery is based on our evaluation of the 
waste for factors or criteria that could cause the waste to be 
hazardous. These factors include: (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) (referred to as the ``mixture'' and ``derived-from'' rules, 
respectively). Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

[[Page 76679]]

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

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

    On December 3, 2010, ConocoPhillips petitioned the EPA to exclude a 
maximum annual volume of 200 cubic yards of F037 residual solids from 
processing (for oil recovery) the sludge removed from the two storm 
water tanks at the Billings, Montana refinery from the lists of 
hazardous waste contained in 40 CFR 261.31 and 261.32. The F037 listing 
includes residuals from the processing of oil-bearing hazardous 
secondary materials (i.e., the sludge in the storm water tanks) 
excluded under 40 CFR 261.4(a)(12)(i). Sediment in the storm water 
tanks accumulates from storm water runoff from the Refinery's process 
area, as well as some dry-weather flow consisting of water from wash-
down, maintenance, and cleaning activities, steam condensate and heat 
exchanger back-flushing. This sediment is processed by the refinery for 
the recovery of oil and the residual solids are classified as hazardous 
waste due a conservative interpretation for the assignment of hazardous 
waste code F037. The waste conservatively falls under the 
classification of listed waste under 40 CFR 261.3.

B. How does ConocoPhillips generate the waste?

    ConocoPhillips generates the waste through periodically removing 
and processing sludge accumulated in two storm water tanks through oil 
recovery and dewatering. The sludge in the storm water tanks is 
accumulated storm water runoff from the Refinery's process area, and 
some dry-weather flow consisting of water from wash-down, maintenance, 
and cleaning activities as well as steam condensate and heat exchanger 
back-flushing. The sludge in not accumulated at a constant rate and is 
currently removed from the tanks at approximately 18 month intervals 
and processed via centrifuge and/or filter press for oil recovery and 
dewatering. Recovered oil is reinserted into the refining process and 
water from dewatering is routed to the Refinery's on-site wastewater 
treatment plant.

C. How did ConocoPhillips sample and analyze the waste?

    ConocoPhillips collected sample sludge from 16 locations in each 
tank, the sludge was composited and processed for oil recovery and 
dewatering through a filter press, and submission of the filter pressed 
residual solid material for analysis. A total of eight composite 
samples, one duplicate and one matrix spike/matrix duplicate were 
analyzed for both total and Toxicity Characteristic Leaching Procedure 
(TCLP) analyses of constituents of concern (COC). The COC list was 
comprised of a subset of the Appendix IX constituent list in 40 CFR 
264, and was based on: (1) Knowledge of the refinery processes and 
wastes; (2) the evaluation of available references, including Exhibit 3 
of the March 23, 2000 USEPA RCRA Delisting Program Guidance manual for 
the Petitioner entitled Constituents of Concern for Wastes from 
Petroleum Processes; (3) the U.S. EPA Region 5 ``Skinner List'' 
constituents and (4) the basis for the F037 listing per 40 CFR 261 
Appendix VII. Each sample was also analyzed for pH, oil & grease, total 
cyanide and total sulfide. Two samples of the filter pressed material 
(one from each tank) were analyzed using both neutral and alkaline pH 
TCLP extraction fluids as presented in the delisting guidance.

D. What were the results of the ConocoPhillips waste analysis?

    The table below presents the maximum observed total concentrations 
and the TCLP concentrations for all the COC. Total concentrations are 
expressed in milligrams per kilogram (mg/kg) and leachate 
concentrations are expressed in milligrams per liter (mg/L). 
ConocoPhillips submitted a signed statement certifying accuracy and 
responsibility of the results. See 40 CFR 260.22(i)(12)).

       Table I--Maximum Total and TCLP Concentrations and Maximum Allowable Delisting Concentration Levels
      [Storm Water Tank--Filter Press residual solids, ConocoPhillips Billings Refinery, Billings, Montana]
----------------------------------------------------------------------------------------------------------------
                                                                                              Maximum allowable
                                                      Maximum total         Maximum TCLP        TCLP delisting
                   Constituent                    constituent analysis      constituent      concentration level
                                                         (mg/kg)          analysis  (mg/L)          (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene....................................               8.0                  <.0051                37.9
Antimony........................................               1.89                  .0074                  .97
Anthracene......................................              18.0                   .0017                50
Arsenic.........................................              60.1                   .157                   .301
Barium..........................................             196                    1.12                 100
Benz(a)anthracene...............................               3.6                  <.005                   .25
Benzene.........................................                .031                <.01                    .5
Benzo(a)pyrene..................................               1.5                  <.006                  1.1
Benzo(b)fluoranthene............................                .6                  <.008                  8.7
Benzo(k)fluoranthene............................                .66                 <.008                 50
Beryllium.......................................               <.13                 <.003                  2.78
Bis(2-ethylhexyl)phthalate......................               1.8                  <.0033                50
2-Butanone......................................                .12                 <.02                  50
Butyl Benzyl phthalate..........................               <.11                 <.0007                46.5
Cadmium.........................................               1.46                 <.006                  1.0
Carbon disulfide................................                .0083J              <.02                  36
Chromium........................................             152                    <.006                  5.0
Chrysene........................................               4.2                  <.008                 25.0
Chlorobenzene...................................              <0.13                 <.01                  16.4
Chloroform......................................               <.013                <.01                    .286
Cobalt..........................................              24.4                   .0074                  .763
Cyanide(total)..................................               7.72                 <.003                 41.2
Dibenz(a,h)anthrancene..........................                .17                <0.008                  1.16
1,2-Dichlorobenzene.............................               <.0013               <.01                  50
1,3-Dichlorobenzene.............................               <.0013               <.01                  18.5
1,4-Dichlorobenzene.............................               <.0011               <.01                   1.69

[[Page 76680]]

 
1, 2-Dichloroethane.............................               <.0013               <.01                    .375
1,1-Dichloroethane..............................               <.0013               <.01                  50
1,1-Dichloroethylene............................               <.0013               <.01                    .7
Diethyl phthalate...............................               <.11                 <.0005                50
Dimethyl phthalate..............................               <.11                 <.0005                50
2, 4-Dimethylphenol.............................               <.13                 <.0019                40.4
Di-n-butyl phthalate............................               <.11                 <.0005                50
2, 4-Dintrophenol...............................               <.23                 <.0014                 4.12
2, 4-Dinitrotoluene.............................               <.22                 <.001                   .059
Di-n-octyl phthalate............................                .19                 <.0006                50
1,4-Dioxane.....................................               <.43                <2                     36.5
Ethylbenzene....................................                .660                <.01                  12
Ethylene Dibromide..............................               <.0013               <.01                   2.74
Fluoranthene....................................               3.8                 <0.0035J                8.78
Fluorene........................................              19.0                 <0.0085                17.5
Indeno(1,2,3-cd)pyrene..........................                .440               <0.0013                27.3
Lead............................................              43.1                  0.0053                 5.0
Mercury.........................................               1.46                 0.00005                0.2
MTBE............................................               <.013                <.01                  50
m&p -Cresol.....................................               1.60                  .024                 10.3
Naphthalene.....................................              90.0                  0.086                  1.17
Nickel..........................................             212                    0.173                 48.2
Nitrobenzene....................................               <.12                 <.0008                 1.03
4-Nitrophenol...................................               <.22                 <.0019                50
o-Cresol........................................                .170                <.001                 50
Phenanthrene....................................              62.0                  <.180                 50
Phenol..........................................                .320J                .0032                50
Pyrene..........................................               9.7                 <0.0026J               15.9
Pyridine........................................               <.11                 <.002                  2.06
Quinoline.......................................               <.11                 <.0006                50
Selenium........................................             100                     .18                   1.0
Silver..........................................                .16J               <0.007                  5.0
Styrene.........................................               <.013                <.01                  50
Sulfide (total).................................             145                  N/A                    500
Tetrachloroethene...............................                .073                <.012                   .7
Toluene.........................................                .630                 .02J                 26
1,1,1-Trichloroethane...........................               <.0013               <.01                  50
Trichloroethene.................................                .0076               <.01                    .403
Vanadium........................................             114                     .13                  12.3
Xylenes, Total..................................               7.60                  .071                 22
Zinc............................................            1140                     .227                500
----------------------------------------------------------------------------------------------------------------
Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
(B) Based on lowest level of: nominal upper limit, land disposal restriction limit, RCRA hazardous level; or
  DRAS modeling with a target risk of 10-6 and a target HI of 0.1 with the exception of: arsenic, naphthalene
  and 1,4-Dioxane TCLP set at 10-5 and HI of 1.0.

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

    For this delisting determination, the EPA applied the Delisting 
Risk Assessment Software (DRAS) described in various EPA rulemakings. 
See, e.g., 65 FR 58,015 (Sept. 27, 2000); 65 FR 75,637 (Dec. 4, 2000) 
and 73 FR 28,768 (May 19, 2008). We used the most recent version of 
DRAS, v.3.0.34 updated in September 2010. DRAS calculates the potential 
risks associated with disposing a given waste stream to a landfill or 
surface impoundment. For a given waste stream, DRAS calculates both the 
waste's aggregate risks and also back-calculates each waste 
constituent's maximum allowable concentration permissible for 
delisting. DRAS requires the user to assign a target cancer risk and 
hazard index.
    For this analysis, DRAS was used to predict the maximum allowable 
concentrations of hazardous constituents that may be released from 
ConocoPhillips's storm water tank filter press solids after landfill 
disposal, and determined the potential impact of disposal on human 
health and the environment. In assessing potential risks to ground 
water, the EPA used the maximum estimated waste volumes and the maximum 
reported extract concentrations as inputs to the DRAS program to 
estimate the constituent concentrations in ground water at a 
hypothetical receptor well down gradient from the disposal site. The 
EPA used two risk levels to evaluate the ConocoPhillips waste: 
carcinogenic risk of 10-6 and non-cancer hazard index of 0.1 and; 
carcinogenic risk of 10-5 and non-cancer hazard index of 1.0. The DRAS 
program can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and the EPA

[[Page 76681]]

health-based numbers. Using the maximum compliance-point concentrations 
and the EPA Composite Model for Leachate Migration with Transformation 
Products (EPACMTP) fate and transport modeling factors, DRAS further 
back-calculates the maximum permissible waste constituent 
concentrations not expected to exceed the compliance-point 
concentrations in ground water.
    The EPA believes the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from disposal of the petitioned waste in a landfill, and that 
a reasonable worst-case scenario is appropriate when evaluating whether 
a waste should be relieved of the protective management constraints of 
RCRA Subtitle C. The use of some reasonable worst-case scenarios 
resulted in conservative values for the compliance-point concentrations 
and ensures that the waste, once removed from hazardous waste 
regulation, will not pose a significant threat to human health or the 
environment.
    DRAS also uses the maximum estimated waste volumes and the maximum 
reported total concentrations to predict possible risks associated with 
releases of waste constituents through surface pathways (e.g., 
volatilization or wind-blown particulate from the landfill). As in the 
above ground water analyses, DRAS uses the risk level, the health-based 
data and standard risk assessment and exposure algorithms to predict 
maximum compliance-point concentrations of waste constituents at a 
hypothetical point of exposure. Using fate and transport equations, 
DRAS uses the maximum compliance-point concentrations and back-
calculates the maximum allowable waste constituent concentrations, also 
known as delisting levels. In most cases, because a delisted waste is 
no longer subject to hazardous waste control, the EPA is generally 
unable to predict, and does not presently control, how a petitioner 
will manage a waste after delisting. Therefore, the EPA currently 
believes that it is inappropriate to consider extensive site specific 
factors when applying the fate and transport model.
    DRAS results, which calculate the maximum allowable concentration 
of chemical constituents in the waste, are presented in Table I. Based 
on the comparison of DRAS results and the maximum TCLP and Totals 
concentrations found in Table I, the petitioned waste should be 
delisted because no constituents of concern tested are likely to be 
present or formed as reaction products or by-products above the 
delisting levels.

F. What did the EPA conclude about the ConocoPhillips waste?

    ConocoPhillips's petition requests a delisting of the residual 
solids from processed sludge from the two storm water tanks from being 
considered a F037 waste. ConocoPhillips believes that the storm water 
tank sludge does not meet the original criteria for the hazardous waste 
listing. ConocoPhillips also believes no additional constituents or 
factors could cause the waste to be hazardous. 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 RCRA 3001(f), 42 U.S.C. 6921(f); 40 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 40 CFR 261.11(a)(2) and (a)(3). Based on this review, 
the EPA agrees with the petitioner that the waste is nonhazardous with 
respect to the original listing criteria. If the EPA, based on this 
review, had found that the waste remained hazardous based on the 
factors for which the waste was originally listed, the EPA would have 
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 the ConocoPhillips Billings 
Refinery is based on the information submitted in support of this rule, 
including descriptions of the wastes and analytical chemistry data of 
the residual solids from the storm water tank clean-out.
    The maximum reported concentrations of hazardous constituents found 
in the filter press solids and the filter press solids TCLP extracts 
are presented in Table I above. The table also presents the maximum 
allowable concentrations in a TCLP extract of the residual solids from 
storm water tank sludge processing, calculated by the DRAS program. The 
concentrations of all constituents in leachate from the filter press 
solids are below the allowable concentrations. We, therefore, conclude 
that the ConocoPhillips waste does not pose a potential substantial 
hazard to human health and the environment when disposed of in a RCRA 
Subtitle D landfill.
    We, therefore, propose to grant exclusion for this waste. If this 
exclusion is finalized, ConocoPhillips must dispose of the residual 
solids from the processed storm water tank sludge in a RCRA Subtitle D 
landfill regulated by the State of Montana, or other state subject to 
Federal RCRA delisting, to manage industrial waste. Prior to disposal 
ConocoPhillips must verify that the concentrations of the constituents 
of concern in the residual solids do not exceed the allowable levels 
set forth in this exclusion. The list of constituents for verification 
is based on the concentration and frequency of occurrence, as presented 
in the ConocoPhillips petition.

IV. Conditions for Exclusion

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

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

B. How will ConocoPhillips manage the waste if it is delisted?

    ConocoPhillips must dispose of the residual solids from the 
processed storm water tank sludge in a RCRA Subtitle D landfill that is 
regulated by the State of

[[Page 76682]]

Montana, or other state subject to Federal RCRA delisting, to manage 
industrial waste. ConocoPhillips must verify prior to disposal that the 
concentrations of the COC in the residual solids do not exceed the 
allowable levels set forth in this exclusion.

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

    Concentrations measured in the TCLP extract of the waste must not 
exceed the values given in Table I.

D. How frequently must ConocoPhillips test the waste?

    During the period of cleanout, ConocoPhillips must collect two 
composite samples of the residual solids from the filter pressed sludge 
to account for potential variability in each tank. Composite samples 
from the storm water tanks processed residuals must be collected each 
time cleanout occurs and residuals are generated. TCLP analyses for the 
standard acid extraction for trace elements and organic COC listed in 
Table I must be conducted. Concentrations of all constituents must be 
below the delisting limits in Table I above.

E. What data must ConocoPhillips submit?

    Whenever tank cleanout is conducted, ConocoPhillips must verify 
that the filter press solids meet the delisting levels in 40 CFR 261, 
Appendix IX, Table 1, as amended by this notice. ConocoPhillips must 
submit the verification data to U.S. EPA Region 8, 1595 Wynkoop Street, 
RCRA Delisting Program, Mail code 8P-HW, Denver, CO 80202. 
ConocoPhillips must compile, summarize and maintain, onsite, records of 
operating conditions and analytical data for a period of five years.

F. What happens if ConocoPhillips waste fails to meet the conditions of 
the exclusion?

    If ConocoPhillips violates the terms and conditions established in 
this exclusion, the EPA will initiate procedures to withdraw the 
exclusion. Where there is an immediate threat to human health and the 
environment, the EPA will evaluate the need for enforcement activities 
on a case-by-case basis. The EPA expects ConocoPhillips to conduct the 
appropriate waste analysis and comply with the criteria detailed in 40 
CFR 261, Appendix IX, Table 1, as amended by this notice.

G. What must ConocoPhillips do if the process changes?

    ConocoPhillips must notify the EPA in writing if the manufacturing 
process, the chemicals used in the manufacturing process, the treatment 
process, or the chemicals used in the treatment process significantly 
change. ConocoPhillips must handle wastes generated after the process 
change as hazardous until it has: demonstrated that the wastes continue 
to meet the delisting concentrations in paragraph (1); Demonstrated 
that no new hazardous constituents listed in Appendix VIII of 40 CFR 
261 have been introduced; and it has received written approval from the 
EPA.

V. How would this action affect states?

    Because the EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states who have 
received authorization from the EPA to make their own delisting 
decisions.
    The EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than the EPA's, under RCRA 3009, 
42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a federally-issued exclusion from taking 
effect in the state. Because a dual system (that is, both federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, the EPA urges petitioners to contact the state regulatory 
authority to establish the status of their wastes under applicable 
state law. Delisting petitions approved by the EPA Administrator or his 
delegate pursuant to 40 CFR 260.22 are effective in the State of 
Montana after the final rule has been published in the Federal 
Register.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review,'' 
(58 FR 51735, Oct. 4, 1993) this rule is not of general applicability 
and, therefore, is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this final rule does not have federalism implications. It 
will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132, ``Federalism'', (64 
FR 43255, Aug. 10, 1999). Thus, Executive Order 13132 does not apply to 
this rule. Similarly, because this rule will apply to a particular 
facility, this final rule does not have tribal implications, as 
specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments,'' (65 FR 67249, Nov. 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks,'' (62 FR. 19885, Apr. 23, 
1997) because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. The basis for this 
belief is that the Agency used DRAS, which considers health and safety 
risks to children, to calculate the maximum allowable concentrations 
for this rule. This rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) because it 
is not a significant regulatory action under Executive Order 12866. 
This rule does not involve technical standards; thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988, ``Civil Justice Reform'', (61 FR 4729, 
February 7, 1996), in issuing this rule, the EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct.

List of Subjects in 40 CFR Part 261

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


[[Page 76683]]


    Dated: November 18, 2011.

James B. Martin,
Regional Administrator, Region 8.
    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

    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.

    2. In Table 1 of Appendix IX to part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under 40 CFR 260.20 and 260.22

                                Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                                 Address                         Waste description
----------------------------------------------------------------------------------------------------------------
ConocoPhillips Billings Refinery......  Billings, Montana.....................  Residual solids from centrifuge
                                                                                 and/or filter press processing
                                                                                 of storm water tank sludge
                                                                                 (F037) generated at a maximum
                                                                                 annual rate of 200 cubic yards
                                                                                 per year must be disposed in a
                                                                                 lined Subtitle D landfill,
                                                                                 licensed, permitted or
                                                                                 otherwise authorized by a state
                                                                                 to accept the delisted
                                                                                 processed storm water tank
                                                                                 sludge. The exclusion becomes
                                                                                 effective December 8, 2011.
                                                                                For the exclusion to be valid,
                                                                                 the ConocoPhillips Billings
                                                                                 Refinery must implement a
                                                                                 verification testing program
                                                                                 that meets the following
                                                                                 Paragraphs:
                                                                                1. Delisting levels: The
                                                                                 constituent concentrations in a
                                                                                 leachate extract of the waste
                                                                                 measured in any sample must not
                                                                                 exceed the following
                                                                                 concentrations (mg/L TCLP):
                                                                                 Acenaphthene-37.9; Antimony-
                                                                                 .97; Anthracene-50; Arsenic-
                                                                                 .301; Barium-100;
                                                                                 Benz(a)anthracene-.25; Benzene-
                                                                                 .5; Benzo(a)pyrene-1.1;
                                                                                 Benzo(b)fluoranthene-8.7;
                                                                                 Benzo(k) fluoranthene-50; Bis(2-
                                                                                 ethylhexyl)phthalate-50; 2-
                                                                                 Butanone-50; Cadmium-1.0;
                                                                                 Carbon disulfide-36; Chromium-
                                                                                 5.0; Chrysene-25.0; Cobalt-
                                                                                 .763; Cyanide(total)-41.2;
                                                                                 Dibenz(a,h)anthrancene-1.16; Di-
                                                                                 n-octyl phthalate-50; 1,4-
                                                                                 Dioxane-36.5; Ethylbenzene-12;
                                                                                 Fluoranthene-8.78; Fluorene-
                                                                                 17.5; Indeno(1,2,3-cd)pyrene-
                                                                                 27.3; Lead-5.0; Mercury-.2; m&p-
                                                                                 Cresol-10.3; Naphthalene-1.17;
                                                                                 Nickel-48.2; o-Cresol-50;
                                                                                 Phenanthrene-50; Phenol-50;
                                                                                 Pyrene-15.9; Selenium-1.0;
                                                                                 Silver-5.0; Tetrachloroethene-
                                                                                 0.7; Toluene-26;Trichloroethene-
                                                                                 .403; Vanadium-12.3; Xylenes
                                                                                 (total)-22; Zinc-500.
                                                                                2. Verification Testing: To
                                                                                 verify that the waste does not
                                                                                 exceed the specified delisting
                                                                                 levels, ConocoPhillips must
                                                                                 collect and analyze two
                                                                                 composite samples of the
                                                                                 residual solids from the
                                                                                 processed sludge to account for
                                                                                 potential variability in each
                                                                                 tank. Composite samples must be
                                                                                 collected each time cleanout
                                                                                 occurs and residuals are
                                                                                 generated. Sample collection
                                                                                 and analyses, including quality
                                                                                 control procedures, must be
                                                                                 performed using appropriate
                                                                                 methods. If oil and grease
                                                                                 comprise less than 1 percent of
                                                                                 the waste, SW-846 Method 1311
                                                                                 must be used for generation of
                                                                                 the leachate extract used in
                                                                                 the testing for constituents of
                                                                                 concern listed above. SW-846
                                                                                 Method 1330A must be used for
                                                                                 generation of the leaching
                                                                                 extract if oil and grease
                                                                                 comprise 1 percent or more of
                                                                                 the waste. SW-846 Method 9071B
                                                                                 must be used for determination
                                                                                 of oil and grease. SW-846
                                                                                 Methods 1311, 1330A, and 9071B
                                                                                 are incorporated by reference
                                                                                 in 40 CFR 260.11. As
                                                                                 applicable, the SW-846 methods
                                                                                 might include Methods 1311,
                                                                                 3010, 3510, 6010, 6020, 7470,
                                                                                 7471, 8260, 8270, 9014, 9034,
                                                                                 9213, and 9215. If leachate
                                                                                 concentrations measured in
                                                                                 samples do not exceed the
                                                                                 levels set forth in paragraph
                                                                                 1, ConocoPhillips can dispose
                                                                                 of the filter pressed sludge in
                                                                                 a lined Subtitle D landfill
                                                                                 which is permitted, licensed,
                                                                                 or registered by the state of
                                                                                 Montana or other state which is
                                                                                 subject to Federal RCRA
                                                                                 delisting. If constituent
                                                                                 levels in any sample and any
                                                                                 retest sample for any
                                                                                 constituent exceed the
                                                                                 delisting levels set in
                                                                                 paragraph (1) ConocoPhillips
                                                                                 must do the following: (A)
                                                                                 notify the EPA in accordance
                                                                                 with paragraph (5) and; (B)
                                                                                 manage and dispose of the
                                                                                 process residual solids as F037
                                                                                 hazardous waste generated under
                                                                                 Subtitle C of RCRA.
                                                                                3. Changes in Operating
                                                                                 Conditions: ConocoPhillips must
                                                                                 notify the EPA in writing if
                                                                                 the manufacturing process, the
                                                                                 chemicals used in the
                                                                                 manufacturing process, the
                                                                                 treatment process, or the
                                                                                 chemicals used in the treatment
                                                                                 process significantly change.
                                                                                 ConocoPhillips must handle
                                                                                 wastes generated after the
                                                                                 process change as hazardous
                                                                                 until it has: demonstrated that
                                                                                 the wastes continue to meet the
                                                                                 delisting concentrations in
                                                                                 paragraph (1); demonstrated
                                                                                 that no new hazardous
                                                                                 constituents listed in appendix
                                                                                 VIII of part 261 have been
                                                                                 introduced; and it has received
                                                                                 written approval from the EPA.
                                                                                4. Data Submittal: Whenever tank
                                                                                 cleanout is conducted
                                                                                 ConocoPhillips must verify that
                                                                                 the residual solids from the
                                                                                 processed storm water tank
                                                                                 sludge meet the delisting
                                                                                 levels in 40 CFR 261 Appendix
                                                                                 IX Table 1, as amended by this
                                                                                 notice. ConocoPhillips must
                                                                                 submit the verification data to
                                                                                 U.S. EPA Region 8, 1595 Wynkoop
                                                                                 Street, RCRA Delisting Program,
                                                                                 Mail code 8P-HW, Denver, CO
                                                                                 80202. ConocoPhillips must
                                                                                 compile, summarize and maintain
                                                                                 onsite records of operating
                                                                                 conditions and analytical data
                                                                                 for a period of five years.
                                                                                5. Reopener Language: (A) If,
                                                                                 anytime after final approval of
                                                                                 this exclusion, ConocoPhillips
                                                                                 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
                                                                                 EPA in granting the petition,
                                                                                 then the facility must report
                                                                                 the data, in writing to the EPA
                                                                                 at the address above, within 10
                                                                                 days of first possessing or
                                                                                 being made aware of that data.

[[Page 76684]]

 
                                                                                (B) If ConocoPhillips fails to
                                                                                 submit the information
                                                                                 described in paragraph (A) or
                                                                                 if any other information is
                                                                                 received from any source, the
                                                                                 EPA will make a preliminary
                                                                                 determination as to whether the
                                                                                 reported information requires
                                                                                 EPA action to protect human
                                                                                 health or the environment.
                                                                                 Further action may include
                                                                                 suspending, or revoking the
                                                                                 exclusion, or other appropriate
                                                                                 response necessary to protect
                                                                                 human health and the
                                                                                 environment.
                                                                                (C) If the EPA determines that
                                                                                 the reported information
                                                                                 requires the EPA action, the
                                                                                 EPA will notify the facility in
                                                                                 writing of the actions the
                                                                                 agency 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 the EPA action is not
                                                                                 necessary. The facility shall
                                                                                 have 30 days from the date of
                                                                                 the notice to present such
                                                                                 information.
                                                                                (D) If after 30 days
                                                                                 ConocoPhillips presents no
                                                                                 further information or after a
                                                                                 review of any submitted
                                                                                 information, the EPA 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 EPAs
                                                                                 determination shall become
                                                                                 effective immediately, unless
                                                                                 the EPA provides otherwise.
                                                                                (E) Notification Requirements:
                                                                                 ConocoPhillips 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. (1) Provide a one-
                                                                                 time written notification to
                                                                                 any State Regulatory Agency to
                                                                                 which or through which it will
                                                                                 transport the delisted waste
                                                                                 described above for disposal,
                                                                                 60 days before beginning such
                                                                                 activities. (2) Update the
                                                                                 onetime written notification,
                                                                                 if it ships the delisted waste
                                                                                 to a different disposal
                                                                                 facility. (3) Failure to
                                                                                 provide this notification will
                                                                                 result in a violation of the
                                                                                 delisting variance and a
                                                                                 possible revocation of the
                                                                                 decision.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-31533 Filed 12-7-11; 8:45 am]
BILLING CODE 6560-50-P


