[Federal Register Volume 74, Number 130 (Thursday, July 9, 2009)]
[Proposed Rules]
[Pages 32838-32846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16261]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FDMS Docket No.: EPA-R04-RCRA-2008-0900; FRL-8922-2]
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: EPA is proposing to grant a petition submitted by The Valero
Refining Company--Tennessee, L.L.C. (Valero) to exclude or ``delist'' a
certain sediment generated by its Memphis Refinery in Memphis,
Tennessee from the lists of hazardous wastes. 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. EPA
bases its proposed decision to grant the petition based on an
evaluation of waste-specific information provided by Valero (the
petitioner). 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 the Storm Water Basin
Sediment is disposed of in a Subtitle D landfill that is permitted,
licensed, or registered by a State to manage industrial solid waste.
If finalized, EPA would conclude that Valero's 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: EPA will accept public comments on this proposed decision until
August 10, 2009. 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 a hearing on
this proposed decision by filing a request to EPA by July 24, 2009. The
request must contain
[[Page 32839]]
the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
RCRA-2008-0900, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (404) 562-8566.
4. Mail: EPA-R04-RCRA-2008-0900, RCRA/OPA Enforcement and
Compliance Branch, RCRA Division, U.S. Environmental Protection Agency
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303.
5. Hand Delivery or Courier: Kristin Lippert, RCRA/OPA Enforcement
and Compliance Branch, RCRA Division, U.S. Environmental Protection
Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, Georgia 30303. Such deliveries are only accepted during
the Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through Friday, 8:30 to 4:30,
excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-RCRA-
2008-0900. 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 e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage 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 in http://www.regulations.gov or in hard copy at the RCRA/OPA Enforcement and
Compliance Branch, RCRA Division, U.S. Environmental Protection Agency,
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kristin Lippert, North Enforcement and
Compliance Section, (Mail Code 4WD-RCRA), RCRA/OPA Enforcement and
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia
30303 or call (404) 562-8605 or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. What are the terms for disposal of Valero's Storm Water Basin
Sediment pursuant to this exclusion?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect States?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What regulations allow a waste to be delisted?
D. What factors must the EPA consider in deciding whether to
grant a delisting petition?
III. Valero's Petition to Delist Its Waste
A. What waste did Valero petition EPA to delist?
B. How is the petitioned waste generated?
C. What information did Valero submit in support of its
petition?
IV. EPA's Evaluation of Valero's Petition
A. How did EPA evaluate the information submitted?
B. What did EPA conclude about this waste?
C. What other factors did EPA consider in its evaluation?
V. Conditions
A. With what conditions must Valero comply for its Storm Water
Basin Sediment to be delisted?
B. What happens if Valero is unable to meet the terms and
conditions of this delisting?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What action is EPA proposing?
Today EPA is proposing to grant the petition submitted by Valero to
have its Storm Water Basin sediment generated at its Memphis Refinery
in Tennessee excluded or delisted from the definition of a hazardous
waste, contingent upon its disposal in a Subtitle D Landfill. This is a
one-time exclusion for 2,700 cubic yards of sediment.
B. Why is EPA proposing to approve this delisting?
Valero's petition requests a delisting for the Storm Water Basin
sediment from being considered a F037 waste. Valero believes that the
Storm Water Basin sediment does not meet the original criteria for the
hazardous waste listing. Valero also believes no additional
constituents or factors could cause the waste to be hazardous. EPA's
review of this petition included consideration of the original listing
criteria, and the additional factors required by the Hazardous and
Solid Waste Amendments of 1984 (HSWA). See Section 3001(f) of RCRA at
42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the initial
delisting determination, EPA evaluated the petitioned waste against the
listing criteria and factors cited in 40 CFR 261.11(a)(2) and (a)(3).
Based on this review, EPA agrees with the petitioner that the waste is
nonhazardous with respect to the original listing criteria. If EPA had
found, based on this review, that the waste remained hazardous based on
the factors for which the waste was originally listed, EPA would have
proposed to deny the petition. EPA evaluated the waste with respect to
other factors or criteria to assess
[[Page 32840]]
whether there is a reasonable basis to believe that such additional
factors could cause the waste to be hazardous. EPA considered whether
the waste is acutely toxic, the concentration of the constituents in
the waste, their tendency to migrate and to bioaccumulate, their
persistence in the environment once released from the waste, plausible
and specific types of management of the petitioned waste, the
quantities of waste generated, and waste variability. EPA believes that
the petitioned waste does not meet the listing criteria and thus should
not be a listed waste. EPA's proposed decision to delist waste from
Valero's facility is based on the information submitted in support of
this rule, including descriptions of the wastes and analytical data
from the Memphis Refinery at the Tennessee facility.
C. What are the terms for disposal of Valero's Storm Water Basin
Sediment pursuant to this exclusion?
If the petitioned waste is delisted, Valero must dispose of it in a
Subtitle D landfill which is permitted, licensed, or registered by a
State to manage industrial waste.
D. When would the proposed delisting exclusion be finalized?
RCRA Section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA Section 3010(b)(1) at 42 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.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of RCRA Section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How would this action affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude States who have
received authorization from EPA to make their own delisting decisions.
We allow States to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under RCRA Section
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, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law. Delisting
petitions approved by the EPA Administrator or his delegate under 40
CFR 260.22 are effective in the State of Tennessee after the final rule
has been published in the Federal Register.
II. Background
A. What is the history of the delisting program?
EPA published an amended list of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing Section 3001 of RCRA. EPA has
amended this list several times and published it in the 40 CFR 261.31
and 261.32. EPA lists these wastes as hazardous because: (1) They
typically and frequently exhibit one or more of the characteristics of
hazardous wastes identified in Subpart C of 40 CFR part 261 (that is,
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet
the criteria for listing contained in 40 CFR 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations 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, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What is a delisting petition, and what does it require of a
petitioner?
A delisting petition is a request from a facility to the EPA or an
authorized State to exclude waste from the list of hazardous wastes
pursuant to RCRA. The facility petitions EPA because it does not
consider the wastes hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that the waste,
generated at a particular facility, does not meet any of the criteria
for which EPA listed the waste as set forth in 40 CFR 261.11 and the
background documents for the listed waste. In addition, a petitioner
must demonstrate pursuant to 40 CFR 260.22 that the waste does not
exhibit any of the hazardous waste characteristics (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
(see 40 CFR 260.22, 42 U.S.C. 6921(f), and the background documents for
the listed waste).
Generators remain obligated under RCRA to confirm that their waste
remains nonhazardous based on the hazardous waste characteristics even
if the EPA has ``delisted'' the waste.
C. What regulations allow a waste to be delisted?
Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), a generator may
petition the EPA to remove its waste from the lists of hazardous wastes
contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20
allows any person to petition the Administrator to modify or revoke any
provisions of 40 CFR parts 260 through 266, 268, and 273 of 40 CFR.
D. What factors must EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in 40 CFR 260.22(a) and Section
3001(f) of RCRA, 42 U.S.C. 6921(f), and information in the background
documents for the listed waste, EPA must consider any factors
(including additional constituents) other than those for which EPA
listed the waste if a reasonable basis exists that the additional
factors could cause the waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste (see 40 CFR 261.3(a)(2)(iii) and
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively). These wastes are also eligible for exclusion and remain
hazardous wastes until excluded (see 66 FR 27266, May 16, 2001).
III. Valero's Petition To Delist Its Waste
A. What waste did Valero petition EPA to delist?
On July 25, 2008, Valero petitioned EPA to exclude from the lists
of
[[Page 32841]]
hazardous waste contained in 40 CFR 261.31 and 261.32, F037 Storm Water
Basin sediment generated from its facility located in Memphis,
Tennessee. The F037 listing is for a petroleum refinery primary oil/
water/solids separation sludge. This sediment has collected in the
bottom of the Storm Water Basin since 1993 and is between three (3) to
four (4) feet deep. The sediment originates from storm water flows
(i.e., wet weather flows) and may have occurred from flows during non-
storm events (i.e., dry weather flows). This sediment waste stream is
classified as hazardous waste due to ``carry over'' of waste codes
resulting from the RCRA's ``mixture'' and ``derived-from'' rules and/or
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. Specifically, in its petition, Valero
requested that EPA grant a one-time exclusion for 2,700 cubic yards of
the F037 Storm Water Basin sediment.
B. How is the petitioned waste generated?
Valero generates hazardous and nonhazardous industrial solid wastes
as a result of refinery and chemical processes, wastewater treatment,
refinery/chemical plant feed, product storage and distribution. The
sediment in the Storm Water Basin originates from storm water flow
associated with the Memphis Refinery as well as Martin Luther King Jr.
Park that is north of and upgradient to the refinery. Accounting for
the existing sediment depth of three to four feet, the basin has a
remaining capacity of roughly 600,000 gallons with overall dimensions
of approximately 200 feet by 100 feet.
In addition to storm water (i.e., wet weather flows) entering the
Storm Water Basin, some flows during non-storm events (i.e., dry
weather flows) may have occurred from sources that could be viewed as
``oily''. Therefore, the sediment could carry the EPA hazardous waste
code of F037. In the absence of definitive information regarding these
dry weather flows and their classification, Valero has elected to
conservatively assume that sediment in the Storm Water Basin bears EPA
hazardous waste code F037.
C. What information did Valero submit in support of its petition?
To support its petition, Valero submitted: (1) Facility information
on production processes and waste generation processes including
analytical data from twelve (12) samples collected on August 7, 2007,
in the Storm Water Basin; (2) Results of the total constituent list for
40 CFR part 264 Appendix IX volatiles, semivolatiles, metals,
pesticides, herbicides, dioxins and PCB for the sampling on August 7,
2007; (3) Results of the constituent list for Appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract for volatiles,
semivolatiles, and metals for the sampling on August 7, 2007; (4)
Analytical constituents of concern for F037 for the sampling on August
7, 2007; (5) Results from total oil and grease analyses for the
sampling on August 7, 2007; and (6) Summary of the July 2006 Sediment
Data (Highest Results from Detections).
EPA believes that the Valero analytical characterization
demonstrates that the Storm Water Basin sediment is nonhazardous.
Analytical data for the F037 Storm Water Basin sediment samples were
used in the Delisting Risk Assessment Software. The data summaries for
detected constituents are presented in Table I. EPA has reviewed the
sampling procedures used by Valero and has determined that they satisfy
EPA criteria for collecting representative samples of the variations in
constituent concentrations in the F037 Storm Water Basin sediment. The
data submitted in support of the petition show that constituents in
Valero's waste are presently below health-based levels used in the
delisting decision-making. EPA believes that Valero has successfully
demonstrated that the F037 Storm Water Basin sediment is nonhazardous.
Table I--Maximum Total and TCLP Concentrations and Maximum
[Allowable Delisting Concentration Levels, Storm Water Basin F037 Sediment, Valero's Memphis Refinery, Memphis,
Tennessee]
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Maximum
Maximum total Maximum TCLP allowable
Constituent constituent constituent delisting
analysis (mg/kg) analysis (mg/L) concentration
level (mg/L)
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Acenaphthene.............................................. 0.464 <0.008 N/A
Antimony.................................................. 7.86 0.309 1.13
Anthracene................................................ 0.833 <0.008 N/A
Arsenic................................................... 26 0.092 0.205
Barium.................................................... 236 1.53 160
Benz(a)anthracene......................................... 5.79 <0.008 N/A
Benzo(a)pyrene............................................ 5.32 <0.008 0.00177
Benzo(b)fluoranthene...................................... 2.73 <0.008 0.016
Benzo(g,h,i)perylene...................................... 2.22 J <0.008 N/A
Benzo(k)fluoranthene...................................... 3.26 <0.008 N/A
Beryllium................................................. 0.358 <0.01 9.12
Bis(2-ethylhexyl)phthalate................................ 1.7 J 0.406 2.5
Cadmium................................................... 0.908 <0.005 1.23
Chromium\+6\.............................................. 34.0 <0.01 3.82
Chromium.................................................. N/A <0.01 8,440
Chrysene.................................................. 11.2 <0.008 3.04
Chloroform................................................ 0.0182 0.0182 5.33
Cobalt.................................................... 11.0 0.069 N/A
Copper.................................................... 45.5 N/A 23,100
Cyanide................................................... <1 N/A 29.6
Dibenz(a,h)anthrancene.................................... 1.2 J <0.008 0.000833
Hepta-dioxins (totals).................................... 6.12E-04 N/A N/A
Hexa-dioxins (totals)..................................... 1.3E-04 N/A N/A
Penta-dioxins (totals).................................... 2.8E-05 N/A N/A
[[Page 32842]]
Tetra-dioxins (totals).................................... 1.16E-05 N/A N/A
Ethylbenzene.............................................. 1.56 0.0133 N/A
Fluoranthene.............................................. 1.52 <0.008 3.53
Fluorene.................................................. 1.01 <0.008 12.2
Hepta-furans.............................................. 2.08E-04 N/A N/A
Hexa-furans............................................... 1.83E-04 N/A N/A
Penta-furans (totals)..................................... 2.05E-04 N/A N/A
Tetra-furans (totals)..................................... 4.01E-05 N/A N/A
1,2,3,4,6,7,8-HpCDD....................................... 0.242E-03 B N/A N/A
1,2,3,4,6,7,8-HpCDF....................................... 6.67E-05 N/A N/A
1,2,3,4,7,8,9-HpCDF....................................... 2.11E-05 N/A N/A
1,2,3,4,7,8-HxCDD......................................... 5.38E-06 N/A N/A
1,2,3,6,7,8-HxCDD......................................... 1.16E-05 N/A N/A
1,2,3,7,8,9-HxCDD......................................... 1.39E-05 N/A N/A
1,2,3,4,7,8-HxCDF......................................... 1.62E-05 N/A N/A
1,2,3,6,7,8-HxCDF......................................... 8.55E-06 N/A N/A
1,2,3,7,8,9-HxCDF......................................... 0.577E-06 J N/A N/A
2,3,4,6,7,8-HxCDF......................................... 6.1E-06 N/A N/A
Indeno(1,2,3-cd)pyrene.................................... 0.749 <0.008 N/A
Lead...................................................... 46.8 0.015 1,640
Mercury................................................... 1.04 <0.001 0.178
2-Methylnaphthalene....................................... 5.89 <0.008 N/A
Naphthalene............................................... 1.36 <0.008 N/A
Nickel.................................................... 57.9 0.248 61.9
OCDD...................................................... 4.34E-03 EB N/A N/A
OCDF...................................................... 1.45E-04 N/A N/A
1,2,3,7,8-PeCDD........................................... 3.44E-06 J N/A N/A
1,2,3,7,8-PeCDF........................................... 3.25E-06 JK N/A N/A
2,3,4,7,8-PeCDF........................................... 4.63E-06 N/A N/A
Phenanthrene.............................................. 4.24 <0.008 N/A
n-propylbenzene........................................... 1.04 <0.01 N/A
Pyrene.................................................... 7.40 <0.008 2.71
Selenium.................................................. <5.0 <0.05 4.77
Silver.................................................... <2.5 <0.005 8.41
Sulfide................................................... 736 N/A N/A
2,3,7,8-TCDD.............................................. 0.847E-06 J N/A 4.48E-08
2,3,7,8-TCDF.............................................. 3.69E-06 C N/A N/A
Thallium.................................................. <2 N/A 0.29
Tin....................................................... 6.16 N/A N/A
1,3,5-Trimethylbenzene.................................... 8.10 0.0282 N/A
Vanadium.................................................. 94.6 0.391 46.3
Xylenes, Total............................................ 8.99 0.0737 N/A
Zinc...................................................... 742 2.34 615
----------------------------------------------------------------------------------------------------------------
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 DRAS modeling with a target risk of 10-5 and a target HI of 0.1. One-time sediment volume of 2,700
cy.
IV. EPA's Evaluation of Valero's Petition
A. How did EPA evaluate the information submitted?
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., ground water,
surface water, air) for hazardous constituents present in the
petitioned waste. EPA determined that disposal in an unlined Subtitle D
landfill is the most reasonable, worst-case disposal scenario for
Valero's petitioned waste. EPA applied the Delisting Risk Assessment
Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR
75637 (December 4, 2000) to predict the maximum allowable
concentrations of hazardous constituents that may be released from the
petitioned waste after disposal and determined the potential impact of
the disposal of Valero's petitioned waste on human health and the
environment. A copy of this software can be found on the Internet at
http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. In assessing
potential risks to ground water, EPA used the maximum estimated waste
volumes and the maximum reported extract concentrations as inputs to
the DRAS program to estimate the constituent concentrations in the
ground water at a hypothetical receptor well down gradient from the
disposal site. Using the risk level (carcinogenic risk of 10-5 and non-
cancer hazard index of 0.1), the DRAS program can back-calculate the
acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and EPA
health-based numbers. Using the
[[Page 32843]]
maximum compliance-point concentrations and the EPA Composite Model for
Leachate Migration with Transformation Products (EPACMTP) fate and
transport modeling factors, the DRAS further back-calculates the
maximum permissible waste constituent concentrations not expected to
exceed the compliance-point concentrations in ground water.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in an unlined 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.
The DRAS also uses the maximum estimated waste volumes and the
maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-based data and standard risk assessment and exposure algorithms
to predict maximum compliance-point concentrations of waste
constituents at a hypothetical point of exposure. Using fate and
transport equations, the DRAS uses the maximum compliance-point
concentrations and back-calculates the maximum allowable waste
constituent concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
EPA believes that the descriptions of Valero hazardous waste
process and analytical characterization, which illustrate the presence
of toxic constituents at lower concentrations in these waste streams,
provide a reasonable basis to conclude that the likelihood of migration
of hazardous constituents from the petitioned waste will be
substantially reduced so that short-term and long-term threats to human
health and the environment are minimized.
The DRAS results which calculate the maximum allowable
concentration of chemical constituents in the waste are presented in
Table I. Based on the comparison of the DRAS results and 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.
B. What did EPA conclude about this waste?
The descriptions of Valero's hazardous waste process and analytical
characterization provide a reasonable basis for EPA to grant the
exclusion. The data submitted in support of the petition show that
constituents in the waste are below the maximum allowable leachable
concentrations (see Table I). We believe the short-term and long-term
threats posed to human health and the environment are minimized from
the petitioned waste due to the low levels of hazardous constituents
present in the waste.
It is EPA's position that we should grant Valero an exclusion for
the F037 Storm Water Basin sediment. The data submitted to EPA in
support of the petition show Valero's F037 Storm Water Basin sediment
is nonhazardous.
We have reviewed the sampling procedures used by Valero and have
determined they satisfy EPA criteria for collecting representative
samples of variable constituent concentrations in the F037 Storm Water
Basin sediment. The data submitted in support of the petition show that
constituents in Valero's waste are presently below the compliance point
concentrations used in the delisting decision-making and would not pose
a substantial hazard to the environment. EPA believes that Valero has
successfully demonstrated that the F037 Storm Water Basin sediment is
nonhazardous.
EPA therefore proposes to grant an exclusion to Valero Memphis
Refinery Memphis, Tennessee, for the F037 Storm Water Basin sediment
described in its petition. EPA's decision to exclude this waste is
based on descriptions of the treatment activities associated with the
petitioned waste and characterization of the F037 Storm Water Basin
sediment.
If we finalize the proposed rule, EPA will no longer regulate the
petitioned waste under 40 CFR parts 262 through 268 and the permitting
standards of part 270.
EPA concluded, after reviewing Valero's processes, that no other
hazardous constituents of concern, other than those for which Valero
tested, are likely to be present or formed as reaction products or by-
products in the wastes. In addition, on the basis of explanations and
analytical data provided by Valero, pursuant to 40 CFR 260.22, EPA
concludes that the petitioned waste does not exhibit any of the
characteristics of ignitability, corrosivity, or reactivity. See 40 CFR
261.21, 261.22 and 261.23, respectively. Neither did it show the
toxicity characteristic.
C. What other factors did EPA consider in its evaluation?
During the evaluation of Valero's petition, EPA also considered the
potential impact of the petitioned waste via non-ground water routes
(i.e., air emissions and surface runoff). EPA evaluated the potential
hazards resulting from the unlikely scenario of airborne exposure to
hazardous constituents released from Valero's waste in an open
landfill. The results of this worst-case analysis indicated that there
is no substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from Valero's F037
Storm Water Basin sediment. With regard to airborne dispersion in
particular, EPA believes that exposure to airborne contaminants from
Valero's petitioned waste is unlikely. Therefore, no appreciable air
releases are likely from Valero's waste under the modeled disposal
conditions. EPA also considered the potential impact of the petitioned
waste via a surface water route. EPA believes that containment
structures at Class I Landfills can effectively control surface water
runoff, as the Subtitle D regulations (See 56 FR 50978, October 9,
1991) prohibit pollutant discharges into surface waters. Furthermore,
the concentrations of any hazardous constituents dissolved in the
runoff will tend to be lower than the levels in the TCLP leachate
analyses reported in this notice due to the aggressive acidic medium
used for extraction in the TCLP. EPA believes that, in general, the
F037 Storm Water Basin sediment is unlikely to directly enter a surface
water body without first traveling through the saturated subsurface
where dilution and attenuation of hazardous constituents will also
occur.
Based on the reasons discussed above, EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, EPA evaluated the
[[Page 32844]]
potential impacts on surface water if Valero's waste were released from
a Class I Landfill through runoff and erosion. The estimated levels of
the hazardous constituents of concern in surface water would be well
below health-based levels for human health, as well as below EPA
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS,
1987). EPA therefore concluded that Valero's F037 Storm Water Basin
sediment is not a present or potential substantial hazard to human
health and the environment via the surface water exposure pathway.
V. Conditions
A. With what conditions must Valero comply for its Storm Water Basin
Sediment to be delisted?
The petitioner, Valero, must comply with the requirements in 40 CFR
part 261, Appendix IX, Table 1. The text below gives the rationale and
details of those requirements. (1) Reopener: The purpose of Paragraph 1
is to require Valero to disclose new or different information related
to a condition at the facility or disposal of the waste, if it is
pertinent to the delisting. This provision will allow EPA to reevaluate
the exclusion, if a source provides new or additional information to
EPA. EPA will evaluate the information on which we based the decision
to see if it is still correct, or if circumstances have changed so that
the information is no longer correct or would cause EPA to deny the
petition, if presented.
This provision expressly requires Valero to report differing site
conditions or assumptions used in the petition (i.e., if the wastes
begin to leach at higher concentrations than predicted) within 10 days
of discovery. If EPA discovers such information itself or from a third
party, it can act on it as appropriate. The language being proposed is
similar to those provisions found in RCRA regulations governing no-
migration petitions at 40 CFR 268.6.
It is EPA's position that we have the authority under RCRA and the
Administrative Procedure Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. We may reopen a delisting decision when we
receive new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delistings is
merited in light of EPA experience. See Reynolds Metals Company at 62
FR 37694 and 62 FR 63458, where the delisted waste leached at greater
concentrations in the environment than the concentrations predicted
when conducting the TCLP, thus leading EPA to repeal the delisting. If
an immediate threat to human health and the environment presents
itself, EPA will continue to address these situations case by case.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA Sec. 553 (b). (2) Notification
Requirements: In order to adequately track wastes that have been
delisted, EPA is requiring that Valero provide a one-time notification
to any State regulatory agency through which or to which the delisted
waste is being carried. Valero must provide this notification within 60
days of commencing this activity.
B. What happens if Valero is unable to meet the terms and conditions of
this delisting?
If Valero violates the terms and conditions established in the
exclusion, EPA will initiate procedures to withdraw the exclusion.
Where there is an immediate threat to human health and the environment,
EPA will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Valero to conduct the appropriate waste analysis and
comply with the criteria explained above in Paragraph (1) of the
exclusion.
VI. Regulatory Impact
Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This exclusion may not be effective in
States that have received EPA's authorization to make their own
delisting decisions.
Under Section 3009 of RCRA, EPA allows States to impose their own
non-RCRA regulatory requirements that are more stringent than EPA's.
These more stringent requirements may include a provision that
prohibits a federally issued exclusion from taking effect in the State.
EPA urges petitioners to contact the State regulatory authority to
establish the status of their wastes under the State law.
EPA has also authorized some States to administer a delisting
program in place of the Federal program, that is, to make State
delisting decisions. Therefore, this exclusion does not apply in those
authorized States. If Valero manages the Storm Water Basin Sediment in
any State with delisting authorization, Valero must obtain delisting
authorization from the State before it can manage the Storm Water Basin
Sediment as nonhazardous in that State.
Under Executive Order 12866, the EPA must conduct an ``assessment
of the potential costs and benefits'' for all ``significant''
regulatory actions. The proposal to grant an exclusion is not
significant, since its effect, if promulgated, would be to reduce the
overall costs and economic impact of EPA's hazardous waste management
regulations. This reduction would be achieved by excluding waste
generated at a specific facility from EPA's lists of hazardous wastes,
thus enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this
proposal would not be a significant regulation, and no cost/benefit
assessment is required. The Office of Management and Budget (OMB) has
also exempted this rule from the requirement for OMB review under
Section (6) of Executive Order 12866.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a general notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis which describes the impact of
the rule on small entities (that is, small businesses, small
organizations, and small governmental jurisdictions). No regulatory
flexibility analysis is required, however, if the Administrator or
delegated representative certifies that the rule will not have any
impact on small entities.
This rule, if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, EPA hereby certifies that this proposed
regulation, if promulgated, will not have a significant economic impact
on a substantial number of small entities. This regulation, therefore,
does not require a regulatory flexibility analysis.
VIII. Paperwork Reduction Act
Information collection and record keeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Pub. L. 96-511, 44 U.S.C. Section 3501 et seq.) and have been
assigned OMB Control Number 2050-0053.
IX. Unfunded Mandates Reform Act
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
the EPA generally must prepare a written statement for rules with
Federal
[[Page 32845]]
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year.
When such a statement is required for the EPA rules, under Section
205 of the UMRA the EPA must identify and consider alternatives,
including the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The EPA must
select that alternative, unless the Administrator explains in the final
rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, EPA must develop under Section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, giving them meaningful and timely input in
the development of EPA's regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising them
on compliance with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon State, local, or
tribal governments or the private sector.
EPA finds that this delisting decision is deregulatory in nature
and does not impose any enforceable duty on any State, local, or tribal
governments or the private sector. In addition, the proposed delisting
decision does not establish any regulatory requirements for small
governments and so does not require a small government agency plan
under UMRA Section 203.
X. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that the EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA. This proposed rule is not
subject to Executive Order 13045 because this is not an economically
significant regulatory action as defined by Executive Order 12866.
XI. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments.
If the mandate is unfunded, EPA must provide to the Office of
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation.
In addition, Executive Order 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments to have ``meaningful and timely input'' in
the development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
action does not involve or impose any requirements that affect Indian
Tribes. Accordingly, the requirements of Section 3(b) of Executive
Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under Section 12(d) of the National Technology Transfer and
Advancement Act, EPA is directed to use voluntary consensus standards
in its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (for example, materials specifications, test
methods, sampling procedures, business practices, etc.) developed or
adopted by voluntary consensus standard bodies. Where available and
potentially applicable voluntary consensus standards are not used by
EPA, the Act requires that EPA provide Congress, through the OMB, an
explanation of the reasons for not using such standards.
This rule does not establish any new technical standards and thus,
EPA has no need to consider the use of voluntary consensus standards in
developing this final rule.
XIII. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that 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.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless EPA
consults with State and local officials early in the process of
developing the proposed regulation.
This action does not have federalism implications. It will not have
a substantial direct effect on 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, because it affects only one facility.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f)
Dated: January 21, 2009.
G. Alan Farmer,
Director, RCRA Division, Region 4.
Editorial Note: This document was received in the Office of the
Federal Register on July 6, 2009.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
[[Page 32846]]
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 1 of Appendix IX of Part 261, it is proposed to add the
following wastes in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under 40 CFR Sec. Sec. 260.20
and 260.22
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * *
The Valero Refining Company-- Memphis, TN................... Storm Water Basin sediment (EPA
Tennessee, L.L.C. Hazardous Waste No. F037) generated one
time at a volume of 2,700 cubic yards
[insert publication date of the final
rule] and disposed in a Subtitle D
landfill. This is a one time exclusion
and applies to 2,700 cubic yards of
Storm Water Basin sediment. (1)
Reopener. (A) If, anytime after
disposal of the delisted waste, Valero
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 Valero fails to submit the
information described in paragraph (A)
or if any other information is received
from any source, the Division Director
will make a preliminary determination
as to whether the reported information
requires EPA action to protect human
health or the environment. Further
action may include suspending, or
revoking the exclusion, or other
appropriate response necessary to
protect human health and the
environment. (C) If the Division
Director determines that the reported
information does require EPA action,
the Division Director will notify the
facility in writing of the actions the
Division Director believes are
necessary to protect human health and
the environment. The notice shall
include a statement of the proposed
action and a statement providing the
facility with an opportunity to present
information as to why the proposed EPA
action is not necessary. The facility
shall have 10 days from the date of the
Division Director's notice to present
such information. (D) Following the
receipt of information from the
facility described in paragraph (C) or
(if no information is presented under
paragraph initial receipt of
information described in paragraphs (A)
or (B), the Division Director will
issue a final written determination
describing EPA actions that are
necessary to protect human health or
the environment. Any required action
described in the Division Director's
determination shall become effective
immediately, unless the Division
Director provides otherwise. (2)
Notification Requirements: Valero must
do the following before transporting
the delisted waste: Failure to provide
this notification will result in a
violation of the delisting petition and
a possible revocation of the decision.
(A) Provide a one-time written
notification to any State Regulatory
Agency to which or through which they
will transport the delisted waste
described above for disposal, 60 days
before beginning such activities. (B)
Update the one-time written
notification, if they ship the delisted
waste to a different disposal facility.
(C) Failure to provide this
notification will result in a violation
of the delisting variance and a
possible revocation of the decision.
* * * * * *
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[FR Doc. E9-16261 Filed 7-8-09; 8:45 am]
BILLING CODE 6560-50-P