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

Federal Register: July 9, 2009 (Volume 74, Number 130)

Proposed Rules

Page 32838-32846

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr09jy09-16

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.

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: lippert.kristin@epa.gov. 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 lippert.kristin@epa.gov.

SUPPLEMENTARY INFORMATION: 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. What are the terms for disposal of Valero's Storm Water Basin

      Sediment pursuant to this exclusion?

   4. When would the proposed delisting exclusion be finalized?

   5. How would this action affect 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 regulations allow a waste to be delisted?

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

3. Valero's Petition to Delist Its Waste

   1. What waste did Valero petition EPA to delist?

   2. How is the petitioned waste generated?

   3. What information did Valero submit in support of its petition?

4. EPA's Evaluation of Valero's Petition

   1. How did EPA evaluate the information submitted?

   2. What did EPA conclude about this waste?

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

5. Conditions

   1. With what conditions must Valero comply for its Storm Water

      Basin Sediment to be delisted?

   2. What happens if Valero is unable to meet the terms and conditions of this delisting?

6. Regulatory Impact

7. Regulatory Flexibility Act

8. Paperwork Reduction Act

9. Unfunded Mandates Reform Act

10. Executive Order 13045

11. Executive Order 13084

12. National Technology Transfer and Advancements Act

13. Executive Order 13132 Federalism

1. Overview Information

   1. 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.

   2. 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

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      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.

   3. 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.

   4. 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).

   5. 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.

2. Background

   1. 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.

   2. 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.

   3. 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.

   4. 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).

3. Valero's Petition To Delist Its Waste

   1. What waste did Valero petition EPA to delist?

      On July 25, 2008, Valero petitioned EPA to exclude from the lists of

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      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.

   2. 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.

   3. 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

      Maximum

      Maximum total

      Maximum TCLP

      allowable

      Constituent

      constituent

      constituent

      delisting analysis (mg/kg) analysis (mg/L) concentration level (mg/L)

      Acenaphthene..............................................

      0.464