Hazardous Waste Management System; Identification and Listing of Hazardous Waste

Federal Register, Volume 82 Issue 209 (Tuesday, October 31, 2017)

Federal Register Volume 82, Number 209 (Tuesday, October 31, 2017)

Proposed Rules

Pages 50348-50358

From the Federal Register Online via the Government Publishing Office www.gpo.gov

FR Doc No: 2017-23683

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

EPA-R06-RCRA-2017-0556; FRL-9970-10-Region 6

Hazardous Waste Management System; Identification and Listing of Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to grant a petition submitted by Blanchard Refining Company LLC--

(Blanchard) to exclude (or delist) the residual solids generated from the reclamation of oil bearing hazardous secondary materials (OBSMs) on-site at Blanchard's Galveston Bay Refinery (GBR), located in Texas City, Texas from the lists of hazardous wastes. EPA used the Delisting Risk Assessment Software (DRAS) Version 3.0.35 in the evaluation of the impact of the petitioned waste on human health and the environment.

DATES: We will accept comments until November 30, 2017. We will stamp comments received after the close of the comment period as late. These late comments may or may not be considered in formulating a final decision. Your requests for a hearing must reach EPA by November 15, 2017. The request must contain the information prescribed in 40 CFR 260.20(d) (hereinafter all CFR cites refer to 40 CFR unless otherwise stated).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-

RCRA-2017-0556, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia

Page 50349

submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For technical information regarding the Blanchard Refinery petition, contact Michelle Peace at 214-665-7430 or by email at peace.michelle@epa.gov.

Your requests for a hearing must reach EPA by November 15, 2017. The request must contain the information described in 40 CFR 260.20(d).

SUPPLEMENTARY INFORMATION: Blanchard submitted a petition under 40 CFR 260.20 and 260.22(a). Section 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268 and 273. Section 260.22(a) specifically provides generators the opportunity to petition the Administrator to exclude a waste on a ``generator specific'' basis from the hazardous waste lists. EPA bases its proposed decision to grant the petition on an evaluation of waste-

specific information provided by the petitioner. This decision, if finalized, would conditionally exclude the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).

If finalized, EPA would conclude that Blanchard's petitioned waste is non-hazardous with respect to the original listing criteria. EPA would also conclude that Blanchard's reclamation process minimizes short-term and long-term threats from the petitioned waste to human health and the environment.

Table of Contents

The information in this section is organized as follows:

  1. Overview Information

    1. What action is EPA proposing?

    2. Why is EPA proposing to approve this delisting?

    3. How will Blanchard manage the waste if it is delisted?

    4. When would the proposed delisting exclusion be finalized?

    5. How would this action affect the states?

  2. Background

    1. What is the history of the delisting program?

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

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

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

    1. What wastes did Blanchard petition EPA to delist?

    2. Who is Blanchard and what process does it use to generate the petitioned waste?

    3. How did Blanchard sample and analyze the data in this petition?

    4. What were the results of Blanchard's sample analysis?

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

    6. What did EPA conclude about Blanchard's analysis?

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

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

  4. Next Steps

    1. With what conditions must the petitioner comply?

    2. What happens if Blanchard violates the terms and conditions?

  5. Public Comments

    1. How can I as an interested party submit comments?

    2. How may I review the docket or obtain copies of the proposed exclusions?

  6. Statutory and Executive Order Reviews

  7. Overview Information

    1. What action is EPA proposing?

      EPA is proposing to approve the delisting petition submitted by Blanchard to have the residual solids excluded, or delisted from the definition of a hazardous waste. The residual solids are listed as F037. Blanchard's residual solids are listed as a hazardous waste, based on the potential presence of Appendix VII inorganic constituents of concern, lead and chromium, and Appendix VII organic constituents of concern benzene, benzo(a)pyrene and chrysene.

    2. Why is EPA proposing to approve this delisting?

      Blanchard's petition requests an exclusion from the F037 waste listing pursuant to 40 CFR 260.20 and 260.22. Blanchard does not believe that the petitioned waste meets the criteria for which EPA listed it. Blanchard 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, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in Sec. Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's proposed decision to delist waste from Blanchard is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data resulting from Blanchard's delisting demonstration conducted on the petitioned waste.

    3. How will Blanchard manage the waste if it is delisted?

      If the residual solids are delisted, contingent upon approval of the delisting petition, storage containers with Blanchard's delisted residual solids will be transported to an authorized, solid waste landfill (e.g. RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.) for disposal. Any plans for recycling must be addressed through the Hazardous Waste Recycling regulations.

    4. When would the proposed delisting exclusion be finalized?

      RCRA section 3001(f) specifically requires EPA to provide a notice and an opportunity for comment before granting or denying a final exclusion. Thus, EPA will not grant the exclusion until it addresses all timely public comments (including those at public hearings, if any) on this proposal.

      RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to become effective in less than six months when the regulated facility does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.

      EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final

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      publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

    5. How would this action affect the states?

      Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states which have received authorization from EPA to make their own delisting decisions.

      EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the state. Because a dual system (that is, both Federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under the state law.

      EPA has also authorized some states (for example, Louisiana, Oklahoma, Georgia, Illinois) to administer a RCRA 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 unless that state makes the rule part of its authorized program. If Blanchard transports the delisted waste to or manages the delisted waste in any state with delisting authorization, Blanchard must obtain delisting authorization from that state before it can manage the delisted waste as non-hazardous in the state.

  8. Background

    1. What is the history of the delisting program?

      EPA published an amended list of hazardous wastes from non-specific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. EPA has amended this list several times and published it in 40 CFR 261.31 and 261.32.

      EPA lists these wastes as hazardous because: (1) The wastes typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of part 261 (that is, ignitability, corrosivity, reactivity, and toxicity), (2) the wastes meet the criteria for listing contained in Sec. 261.11(a)(2) or (a)(3), or (b) the wastes are mixed with or derived from the treatment, storage or disposal of such characteristic and listed wastes and which therefore become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i), known as the ``mixture'' or ``derived-from'' rules, respectively.

      Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations or resulting from the operation of the mixture or derived-from rules generally is hazardous, a specific waste from an individual facility may not be hazardous.

      For this reason, 40 CFR 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

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

      A delisting petition is a request from a facility to EPA or an authorized state to exclude wastes from the list of hazardous wastes. The facility petitions EPA because it does not consider the wastes hazardous under RCRA regulations.

      In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which EPA lists a waste are in part 261 and further explained in the background documents for the listed waste.

      In addition, under 40 CFR 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See part 261 and the background documents for the listed waste.)

      Generators remain obligated under RCRA to confirm whether their waste remains non-hazardous based on the hazardous waste characteristics, even if EPA has ``delisted'' the waste.

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

      Besides considering the criteria in 40 CFR 260.22(a) and Sec. 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which EPA listed the waste, if a reasonable basis exists that these additional factors could cause the waste to be hazardous.

      EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii and iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

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

    1. What wastes did Blanchard petition EPA to Delist?

      In June 2017, Blanchard petitioned EPA to exclude from the lists of hazardous wastes contained in Sec. Sec. 261.31 and 261.32, residual solids (F037) generated during reclamation activities conducted at its GBR facility located in Texas City, Texas. The waste falls under the classification of listed waste pursuant to Sec. Sec. 261.31 and 261.32. Specifically, in its petition, Blanchard requested that EPA grant a conditional exclusion for the annual generation volume of 20,000 cubic yards of F037 residual solids.

    2. Who is Blanchard and what process does it use to generate the petitioned waste?

      Blanchard owns and operates the GBR facility, located in Texas City, Galveston County, Texas. Blanchard is a wholly-owned subsidiary of Marathon Petroleum Company LP. Blanchard's demonstration evaluated representative samples of its residual solids resulting from the indirect thermal desorption reclamation of OBSMs managed on-site at Blanchard's GBR facility. OBSMs managed on-site at Blanchard's GBR facility result from separate management practices within GBR's petroleum refining operations. Blanchard's approved Sampling and Analysis Plan (SAP) identified three (3) management practices, which result in the generation of three (3) corresponding categories of OBSMs with unique physical properties. The three (3) identified categories of Blanchard's OBSMs include, Category 1, Oil/Water/Solid Separation Sludges (K048 through K052, F037 and F038); Category 2, Crude Oil and Clarified Slurry Oil Sediments (K169 and K170); and Category 3, Stabilized Spent Hydrotreating and Hydrorefining Catalysts (K171 and K172).

      Blanchard's demonstration utilized a commercial indirectly-fired thermal desorption unit (``ITDU'') located at US Ecology Texas' (``USET'') permitted commercial facility in Robstown, Texas. Blanchard considered it prudent to

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      utilize USET's ITDU to avoid having to invest the significant capital and resources required to site and construct a full-scale ITDU on-site at Blanchard's GBR facility, prior to receiving an approved delisting determination. The EPA acknowledged Blanchard's use of USET's commercial ITDU to perform its demonstration, under its approved SAP.

      USET's commercial ITDU was designed and constructed by TD*X Associates LP (``TD*X''), located in Beaumont, Texas. TD*X currently operates the commercial ITDU on-site at USET's Robstown facility, under contract with USET. USET has extensive experience in the management and processing of Blanchard's OBSMs, and is currently contracted with Blanchard to provide such services at USET's Robstown facility.

      Blanchard has entered into a services agreement with US Ecology Thermal Services LLC (``USETS'') to provide and operate an ITDU, on-

      site at its GBR facility. USETS is the refinery services affiliate of USET. Blanchard's proposed ITDU will be designed, constructed and operated by TD*X, as part of USETS's services agreement with Blanchard. The processing capabilities, efficiencies and capacity of Blanchard's proposed ITDU are comparable to USET's commercial ITDU that was utilized under Blanchard's demonstration.

    3. How did Blanchard sample and analyze the data in this petition?

      To support its petition, Blanchard conducted individual sampling events on residual solids resulting from the reclamation of Blanchard's three (3) identified categories of OBSMs. Each separate sampling event consisted of four (4) composite samples taken during a 24-hour period of representative operation. Each composite sample was comprised of individual grab samples (i.e. a minimum of four), obtained during separate six (6) hour periods of the 24-hour sampling event. Compositing of samples and performance of quality control requirements were performed by Blanchard's selected analytical laboratory, TestAmerica Laboratories, Inc. (``TestAmerica''). Blanchard submitted: Historical information on waste generation and management practices; and analytical results from twelve samples for total and TCLP concentrations of constituents of concern (COC)s.

    4. What were the results of Blanchard's sample analyses?

      EPA believes that the descriptions of the Blanchard analytical characterization provide a reasonable basis to grant Blanchard's petition for an exclusion of the residual solids. EPA believes the data submitted in support of the petition show the residual solids is non-

      hazardous. Analytical data for the residual solids samples were used in the DRAS to develop delisting levels. The residual solids from Category 3 can only be delisted if stabilization of the residual solids occur. Data from the stabilized Category 3 residual solids demonstrate the concentrations from the stabilized residuals meet the delisting requirements. The data summaries for COCs are presented in Table I. EPA has reviewed the sampling procedures used by Blanchard and has determined that it satisfies EPA criteria for collecting representative samples of the variations in constituent concentrations in the residual solids. In addition, the data submitted in support of the petition show that COCs in Blanchard's waste are presently below health-based levels used in the delisting decision-making. EPA believes that Blanchard has successfully demonstrated that the residual solids are non-hazardous.

      Table 1--Analytical Results/Maximum Allowable Delisting Concentration

      Residual solids--Blanchard Refining Company LLC, Texas City, Texas

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      Maximum total Maximum TCLP Maximum TCLP

      Constituent concentration concentration delisting

      (mg/kg) (mg/L) level (mg/L)

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      Acetone......................................................... 0.185 0.226 520.0

      Antimony........................................................ 53.7 0.226 0.599

      Anthracene...................................................... 0.488

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