[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Rules and Regulations]
[Pages 11002-11005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5097]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R04-RCRA-2008-0900; FRL-9124-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Rule
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Environmental Protection Agency (EPA) is granting the petition
submitted by The Valero Refining Company--Tennessee, LLC (Valero) to
exclude or ``delist'' a certain sediment generated by its Memphis
Refinery in Memphis, Tennessee from the lists of hazardous wastes. This
final rule responds to a petition submitted by Valero to delist F037
waste. The F037 waste is sediment generated in the Storm Water Basin.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS), EPA has concluded the petitioned waste is not
hazardous waste. The F037 exclusion is a one-time exclusion for 2,700
cubic yards of the F037 Storm Water Basin sediment. Accordingly, this
final rule excludes the petitioned waste from the requirements of
hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA).
DATES: Effective Date: March 10, 2010.
ADDRESSES: The public docket for this final rule is available either
electronically at http://www.regulations.gov or in hard copy at the
RCRA and 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 and is available
for viewing through the EPA Freedom of Information Act (FOIA) from 9
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call
the FOIA Officer at (404) 562-8028 for appointments. The public may
copy material from any regulatory docket at no cost for the first 100
pages and at a cost of $0.15 per page for additional copies.
[[Page 11003]]
FOR FURTHER INFORMATION CONTACT: Kristin Lippert, North Enforcement and
Compliance Section, (Mail Code 4WD-RCRA), RCRA and 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 Finalizing?
B. Why Is EPA Approving This Action?
C. What Are the Limits of This Exclusion?
D. How Will Valero Manage the Waste, When Delisted?
E. When Is the Final Delisting Exclusion Effective?
F. How Does This Final Rule Affect States?
II. Background
A. What Is a Delisting?
B. What Regulations Allow Facilities To Delist a Waste?
C. What Information Must the Generator Supply?
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Valero Petition EPA To Delist?
B. How Much Waste Did Valero Propose To Delist?
C. How did Valero Sample and Analyze the Waste Data in This
Petition?
IV. Public Comments Received on the Proposed Exclusions
A. Who Submitted Comments on the Proposed Rules?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What Action Is EPA Finalizing?
After evaluating the petition for Valero, EPA proposed, on July 9,
2009, to exclude the waste from the lists of hazardous waste under
Sec. 261.31. EPA is finalizing the decision to grant Valero's
delisting petition to have its F037 Storm Water Basin Sediment
excluded, or delisted, from the definition of a hazardous waste, once
it is disposed in a Subtitle D landfill.
B. Why Is EPA Approving This Action?
Valero's petition requests a delisting from the F037 waste listing
under 40 CFR 260.20 and 260.22. Valero does not believe that the
petitioned waste meets the criteria for which EPA listed it. 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, 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 final delisting
determination, EPA evaluated the petitioned waste against the listing
criteria and factors cited in Sec. 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 whether there is a reasonable basis
to believe that such additional factors could cause the wastes to be
hazardous. EPA considered whether the waste is acutely toxic, the
concentrations 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 final
decision to delist the waste from Valero's facility is based on the
information submitted in support of this rule, including description of
the waste and analytical data from the Memphis, Tennessee facility.
C. What Are the Limits of This Exclusion?
This exclusion applies to the waste described in Valero's petition
only if the requirements described in 40 CFR part 261, Appendix IX,
Table 1 and the conditions contained herein are satisfied.
D. How Will Valero Manage the Waste, When Delisted?
The delisted F037 Storm Water Basin Sediment will be dispose of in
a Subtitle D landfill which is permitted, licensed, or registered by a
State to manage industrial waste.
E. When Is the Final Delisting Exclusion Effective?
This rule is effective March 10, 2010. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C.
6930(b)(1), allow rules to become effective in less than six months
after the rule is published when the regulated community does not need
the six-month period to come into compliance. That is the case here
because this rule reduces, rather than increases, the existing
requirements for persons generating hazardous waste. This reduction in
existing requirements also provides a basis for making this rule
effective immediately, upon publication, under the Administrative
Procedure Act, pursuant to 5 U.S.C. 553(d).
F. How Does This Final Rule 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 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. 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 Valero transports the petitioned waste to or manages the waste in
any State with delisting authorization, Valero must obtain delisting
authorization from that State before it can manage the waste as
nonhazardous in the State.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a request from a generator to EPA or
another agency with jurisdiction to exclude or delist, from the RCRA
list of hazardous waste, waste the generator believes should not be
considered hazardous under RCRA.
B. What Regulations Allow Facilities To Delist a Waste?
Under 40 CFR 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically,
[[Page 11004]]
Sec. 260.20 allows any person to petition the Administrator to modify
or revoke any provision of 40 CFR parts 260 through 265 and 268.
Section 260.22 provides generators the opportunity to petition the
Administrator to exclude a waste from a particular generating facility
from the hazardous waste lists.
C. What Information Must the Generator Supply?
Petitioners must provide sufficient information to EPA to allow EPA
to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste and that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Valero Petition EPA To Delist?
On July 25, 2008, Valero petitioned EPA to exclude from the lists
of hazardous waste contained in Sec. 261.31 and 261.32, F037 Storm
Water Basin Sediment.
B. How Much Waste Did Valero Propose To Delist?
Valero requested that EPA grant a one-time exclusion for 2,700
cubic yards of the F037 Storm Water Basin Sediment.
C. How did Valero Sample and Analyze the Waste Data in This 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).
IV. Public Comments Received on the Proposed Exclusions
A. Who Submitted Comments on the Proposed Rules?
No comments were received on the proposed rule for the F037 waste.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 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). 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,
August 10, 1999). Thus, Executive Order 13132 does not apply to this
rule. Similarly, because this rule will affect only a particular
facility, this final rule does not have Tribal implications, as
specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 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, April 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 the DRAS program, which considers health
and safety risks to infants and 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,
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: Section 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: March 1, 2010.
G. Alan Farmer,
Director, RCRA Division, Region 4.
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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 of part 261 add the following waste stream
in alphabetical order by facility to read as follows:
[[Page 11005]]
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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* * * * * * *
The Valero Refining Company-- Memphis, TN................... Storm Water Basin sediment (EPA
Tennessee, LLC. Hazardous Waste No. F037) generated one-
time at a volume of 2,700 cubic yards
March 10, 2010 and disposed in 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. 2010-5097 Filed 3-9-10; 8:45 am]
BILLING CODE 6560-50-P