Hazardous Waste Management System; Identification and Listing of Hazardous Waste Exclusion
Federal Register, Volume 77 Issue 41 (Thursday, March 1, 2012)
Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)
Rules and Regulations
Pages 12497-12501
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2012-5006
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
EPA-R08-RCRA-2011-0823; FRL-9640-2
Hazardous Waste Management System; Identification and Listing of Hazardous Waste Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (``EPA,'' ``the Agency'' or ``we'' in this preamble) today is granting a petition submitted by the ConocoPhillips Billings, Montana Refinery (``ConocoPhillips'', ``Refinery'' or ``Petitioner'') to exclude or ``delist,'' from the list of hazardous wastes, a maximum of 200 cubic yards per year of residual solids from sludge removed from two storm water tanks at its Billings, Montana refinery and processed in accordance with the petition.
After careful analysis we have concluded that the petitioned waste is not a hazardous waste. This exclusion conditionally excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when processed in accordance with the petition and disposed in a Subtitle D landfill permitted, licensed, or otherwise authorized by a State to accept the delisted processed storm water tank sludge. This rule also imposes testing conditions for future processed storm water tank residuals to ensure they continue to qualify for delisting.
DATES: This final rule is effective on March 1, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID No.: EPA-R08-RCRA-2011-0823. All documents in the docket are listed on the http://www.regulations.gov web site or in hard copy at the Environmental Protection Agency Region VIII, Office of Partnerships and Regulatory Assistance, Solid & Hazardous Waste Program, Mail Code: 8P-
HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The docket is available for viewing from 8 a.m. to 3 p.m., Monday through Friday excluding Federal holidays. You may
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copy material from any regulatory docket at a cost of $0.15 per page. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. You should make an appointment with the office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Mail Code 8P-HW, Denver, Colorado 80202, (303) 312-6231, cosentini.christina@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized as follows:
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Background
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What is a delisting petition?
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What regulation allow a waste to be delisted?
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ConocoPhillips Petition
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What waste did ConocoPhillips petition to delist?
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What information was submitted in support of this petition?
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EPA's Evaluation and Final Decision
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What decision is EPA finalizing and why?
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What are the terms of this exclusion?
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When is the delisting effective?
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How does this action affect states?
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Statutory and Executive Order Reviews
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Background
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What is a delisting petition?
A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes under RCRA regulations. In a delisting petition, the petitioner must show that waste generated at a particular facility does not meet any of the criteria for which the EPA listed the waste as set forth in 40 CFR 261.11 and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics of ignitability, reactivity, corrosivity, or toxicity and must present sufficient information for the EPA to decide whether any factors, in addition to those for which the waste was listed, warrant retaining it as a hazardous waste. (See 40 CFR 260.22; 42 U.S.C. 6921(f).)
If a delisting petition is granted, the generator remains obligated under RCRA to confirm that future generated waste remains nonhazardous based on hazardous waste characteristics and to ensure that future generated wastes meet the conditions set forth in this final rule.
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What regulations allow a waste to be delisted?
Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may petition the EPA to remove their waste from hazardous waste control by excluding them 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 provision of parts 260 through 266, 268 and 273 of 40 CFR. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste from the lists of hazardous wastes on a ``generator-specific'' basis.
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ConocoPhillips Petition
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What waste did ConocoPhillips petition to delist?
On December 3, 2010, ConocoPhillips petitioned the EPA to exclude a maximum annual volume of 200 cubic yards of F037 residual solids from processing (for oil recovery) sludge removed from two storm water tanks at the Billings, Montana refinery, from the lists of hazardous waste contained in 40 CFR 261.31, because it believed that the petitioned wastes did not meet any of the criteria for which the waste was listed and there were no additional constituents or factors that would cause the waste to be hazardous. ConocoPhillips generates the waste through periodically removing and processing sludge accumulated in two storm water tanks through oil recovery and dewatering. The sludge is not accumulated at a constant rate and is currently removed from the tanks at approximately 18 month intervals and processed via centrifuge and/or filter press for oil recovery and dewatering. Recovered oil is reinserted into the refining process and water from dewatering is routed to the Refinery's on-site wastewater treatment plant.
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What information was submitted in support of this petition?
ConocoPhillips submitted detailed descriptions of the process generating the waste and other information regarding the makeup of materials contributing to the sludge. ConocoPhillips asserted that the waste does not meet the criteria for the F037 waste code listing and that there are no other factors that might cause the waste to be hazardous.
To support its assertion that the waste is not hazardous, ConocoPhillips collected samples of the waste for analysis. Sample collection and chemical analysis were conducted in accordance with a pre-approved sampling and analysis plan. Details of the sampling and analysis plan and the analytical results are contained in the docket for the December 8, 2011 proposed rule.
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EPA's Evaluation and Final Decision
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What decision is EPA finalizing and why?
Today the EPA is finalizing an exclusion for up to 200 cubic yards of residual solids, generated annually, from processing (for oil recovery) sludge removed from two storm water tanks at the ConocoPhillips Billings, Montana Refinery from the lists of hazardous waste contained in 40 CFR 261.31. Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).
On December 8, 2011, the EPA proposed to exclude or delist the storm water tank process residual generated at the ConocoPhillips Billings, Montana Refinery from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (76 FR 76677). No public comments were received, and for reasons stated in both the proposed rule and this document, we believe that the storm water tank process residual from the ConocoPhillips Billings, Montana Refinery should be excluded from hazardous waste control.
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What are the terms of this exclusion?
This exclusion applies only to a maximum annual generation of 200 cubic yards of process residual from treatment of sludge in two storm water tanks at the ConocoPhillips Billings, Montana Refinery. This exclusion is effective only if the storm water sludge is processed in accordance with this rule, and the accompanying petition, and if all conditions contained in this rule are satisfied. ConocoPhillips must dispose of this waste in a Subtitle D landfill permitted, licensed or regulated by the State of Montana, or other state subject to Federal RCRA delisting, to accept the delisted processed storm water tank sludge. ConocoPhillips must verify prior to disposal that the constituent concentrations in the residual solids do not exceed the allowable levels set forth in this exclusion.
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When is the delisting effective?
This rule is effective March 1, 2012. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to become effective in less than six months when
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the regulated community does not need the six-month period to come into compliance. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).
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How does this action affect states?
Because the EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states who have received authorization from the EPA to make their own delisting decisions.
The EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than the EPA's, under RCRA 3009, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a federally-issued exclusion from taking effect in the state. Because a dual system (that is, both Federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under applicable state law. Delisting petitions approved by the EPA Administrator or his delegate pursuant to 40 CFR 260.22 are effective in the State of Montana after the final rule has been published in the Federal Register.
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Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review,'' (58 FR 51735, Oct. 4, 1993) this rule is not of general applicability and, therefore, is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, this final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, ``Federalism'', (64 FR 43255, Aug. 10, 1999). Thus, Executive Order 13132 does not apply to this rule.
Similarly, because this rule will apply to a particular facility, this final rule does not have tribal implications, as specified in Executive Order 13175, ``Consultation and Coordination with Indian Tribal Governments,'' (65 FR 67249, Nov. 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule also is not subject to Executive Order 13045, ``Protection of Children from Environmental Health Risks and Safety Risks,'' (62 FR. 19885, Apr. 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used DRAS, which considers health and safety risks to children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, ``Civil Justice Reform'', (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report which includes a copy of the rule to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Authority: RCRA 3001(f), 42 U.S.C. 6921(f).
Dated: February 14, 2012.
James B. Martin,
Regional Administrator, Region 8.
For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
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1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
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2. In Table 1 of Appendix IX to part 261 add the following waste stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and 260.22
Table 1--Waste Excluded From Non-Specific Sources
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Facility Address Waste description
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ConocoPhillips Billings Refinery........ Billings, Montana.......... Residual solids from centrifuge and/or
filter press processing of storm water
tank sludge (F037) generated at a
maximum annual rate of 200 cubic yards
per year must be disposed in a lined
Subtitle D landfill, licensed, permitted
or otherwise authorized by a state to
accept the delisted processed storm
water tank sludge. The exclusion becomes
effective March 1, 2012.
Page 12500
For the exclusion to be valid, the
ConocoPhillips Billings Refinery must
implement a verification testing program
that meets the following Paragraphs:
1. Delisting levels: The constituent
concentrations in a leachate extract of
the waste measured in any sample must
not exceed the following concentrations
(mg/L TCLP): Acenaphthene-37.9; Antimony-
.97; Anthracene-50; Arsenic-.301; Barium-
100; Benz(a)anthracene-.25; Benzene-.5;
Benzo(a)pyrene-1.1; Benzo(b)fluoranthene-
8.7; Benzo(k) fluoranthene-50; Bis(2-
ethylhexyl)phthalate-50; 2-Butanone-50;
Cadmium-1.0; Carbon disulfide-36;
Chromium-5.0; Chrysene-25.0; Cobalt-
.763; Cyanide(total)-41.2;
Dibenz(a,h)anthrancene-1.16; Di-n-octyl
phthalate-50; 1,4-Dioxane-36.5;
Ethylbenzene-12; Fluoranthene-8.78;
Fluorene-17.5; Indeno(1,2,3-cd)pyrene-
27.3; Lead-5.0; Mercury-.2; m&p -Cresol-
10.3; Naphthalene-1.17; Nickel-48.2; o-
Cresol-50; Phenanthrene-50; Phenol-50;
Pyrene-15.9; Selenium-1.0; Silver-5.0;
Tetrachloroethene-0.7; Toluene-26;
Trichloroethene-.403; Vanadium-12.3;
Xylenes (total)-22; Zinc-500.
2. Verification Testing: To verify that
the waste does not exceed the specified
delisting levels, ConocoPhillips must
collect and analyze two composite
samples of the residual solids from the
processed sludge to account for
potential variability in each tank.
Composite samples must be collected each
time cleanout occurs and residuals are
generated. Sample collection and
analyses, including quality control
procedures, must be performed using
appropriate methods. If oil and grease
comprise less than 1 percent of the
waste, SW-846 Method 1311 must be used
for generation of the leachate extract
used in the testing for constituents of
concern listed above. SW-846 Method
1330A must be used for generation of the
leaching extract if oil and grease
comprise 1 percent or more of the waste.
SW-846 Method 9071B must be used for
determination of oil and grease. SW-846
Methods 1311, 1330A, and 9071B are
incorporated by reference in 40 CFR
260.11. As applicable, the SW-846
methods might include Methods 1311,
3010, 3510, 6010, 6020, 7470, 7471,
8260, 8270, 9014, 9034, 9213, and 9215.
If leachate concentrations measured in
samples do not exceed the levels set
forth in paragraph 1, ConocoPhillips can
dispose of the processed sludge in a
lined Subtitle D landfill which is
permitted, licensed, or registered by
the state of Montana or other state
which is subject to Federal RCRA
delisting. If constituent levels in any
sample and any retest sample for any
constituent exceed the delisting levels
set in paragraph (1) ConocoPhillips must
do the following:
(A) Notify the EPA in accordance with
paragraph (5) and;
(B) Manage and dispose of the process
residual solids as F037 hazardous waste
generated under Subtitle C of RCRA.
3. Changes in Operating Conditions:
ConocoPhillips must notify the EPA in
writing if the manufacturing process,
the chemicals used in the manufacturing
process, the treatment process, or the
chemicals used in the treatment process
significantly change. ConocoPhillips
must handle wastes generated after the
process change as hazardous until it
has: Demonstrated that the wastes
continue to meet the delisting
concentrations in paragraph (1);
demonstrated that no new hazardous
constituents listed in appendix VIII of
part 261 have been introduced; and it
has received written approval from the
EPA.
4. Data Submittal: Whenever tank cleanout
is conducted ConocoPhillips must verify
that the residual solids from the
processed storm water tank sludge meet
the delisting levels in 40 CFR part 261
Appendix IX Table 1, as amended by this
notice. ConocoPhillips must submit the
verification data to U.S. EPA Region 8,
1595 Wynkoop Street, RCRA Delisting
Program, Mail code 8P-HW, Denver, CO
80202. ConocoPhillips must compile,
summarize and maintain onsite records of
tank cleanout and process operating
conditions and analytical data for a
period of five years.
5. Reopener Language: (A) If, anytime
after final approval of this exclusion,
ConocoPhillips possesses or is otherwise
made aware of any environmental data
(including but not limited to leachate
data or ground water monitoring data) or
any other data relevant to the delisted
waste indicating that any constituent
identified for the delisting
verification testing is at level higher
than the delisting level allowed by the
EPA in granting the petition, then the
facility must report the data, in
writing to the EPA at the address above,
within 10 days of first possessing or
being made aware of that data.
(B) If ConocoPhillips fails to submit the
information described in paragraph (A)
or if any other information is received
from any source, the EPA will make a
preliminary determination as to whether
the reported information requires EPA
action to protect human health or the
environment. Further action may include
suspending, or revoking the exclusion,
or other appropriate response necessary
to protect human health and the
environment.
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(C) If the EPA determines that the
reported information requires the EPA
action, the EPA will notify the facility
in writing of the actions the agency
believes are necessary to protect human
health and the environment. The notice
shall include a statement of the
proposed action and a statement
providing the facility with an
opportunity to present information as to
why the proposed the EPA action is not
necessary. The facility shall have 30
days from the date of the notice to
present such information.
(D) If after 30 days ConocoPhillips
presents no further information or after
a review of any submitted information,
the EPA will issue a final written
determination describing the Agency
actions that are necessary to protect
human health or the environment. Any
required action described in the EPAs
determination shall become effective
immediately, unless the EPA provides
otherwise.
(E) Notification Requirements:
ConocoPhillips must do the following
before transporting the delisted waste:
Failure to provide this notification
will result in a violation of the
delisting petition and a possible
revocation of the decision.
(1) Provide a one-time written
notification to any State Regulatory
Agency to which or through which it will
transport the delisted waste described
above for disposal, 60 days before
beginning such activities.
(2) Update the onetime written
notification, if it ships the delisted
waste to a different disposal facility.
(3) Failure to provide this notification
will result in a violation of the
delisting variance and a possible
revocation of the decision.
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FR Doc. 2012-5006 Filed 2-29-12; 8:45 am
BILLING CODE 6560-50-P