Daily Rules, Proposed Rules, and Notices of the Federal Government
After careful analysis and evaluation of comments submitted by the public, the EPA has concluded that the petitioned wastes are not hazardous waste when disposed of in Subtitle D landfills. This exclusion applies to 7,427 cubic yards per year of the F039 underflow water. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when disposed of in Subtitle D landfills but imposes testing conditions to ensure that the future-generated wastes remain qualified for delisting.
The information in this section is organized as follows:
After evaluating the petition, EPA proposed on June 19, 2012, to exclude the underflow water from the lists of hazardous wastes under 40 CFR 261.31 and 261.32 (see 73 FR 54760). EPA is finalizing the decision to grant ExxonMobil's delisting petition to have the underflow water excluded, or delisted from the definition of hazardous waste subject to certain continued verification and monitoring conditions.
ExxonMobil's petition requests a delisting for the underflow water listed as F039. ExxonMobil does not believe that the petitioned waste meet the criteria for which EPA listed them. ExxonMobil 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). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in §§ 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 wastes do not meet the listing criteria and thus should not be a listed waste. EPA's decision to delist wastes from the facility is based on the information submitted in support of this rule, including descriptions of the waste and analytical data from the ExxonMobil, Beaumont, Texas facility.
This exclusion applies to the waste described in the petition only if the requirements described in Table 1 and 2 of part 261, Appendix IX and the conditions contained herein are satisfied.
ExxonMobil will either: (1) Continue to accumulate the underflow water in a holding tank, sample the water once each calendar year, analyze the annual sample for target constituents and submit the results to the EPA for review; or (2) route the underflow to the underflow collection system and then to the series of ditches to the underground Baytown Refinery East sewer. In the latter case, samples of the underflow water would be collected from the underflow sump once each calendar year, analyzed for target constituents and the results submitted to the EPA for review. Ultimately, the underflow will enter the waste water treatment system where it is commingled with other wastewaters from the Baytown Chemical Plant and Baytown Olefins Plant.
This rule is effective September 20, 2012. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA 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 reduces, rather than increases, the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).
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 two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. 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, we urge 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, Georgia, Illinois) 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 ExxonMobil transports the petitioned waste to or manages the waste in any State with delisting authorization, ExxonMobil must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.
A delisting petition is a request from a generator to EPA or another agency
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of Parts 260 through 266, 268 and 273 of Title 40 of the Code of Federal Regulations. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste on a “generator-specific” basis from the hazardous waste lists.
Petitioners must provide sufficient information to EPA to allow the 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, that such factors do not warrant retaining the waste as a hazardous waste.
In August 2010, ExxonMobil petitioned EPA to exclude from the lists of hazardous wastes contained in §§ 261.31 and 261.32, underflow water (F039) generated from its facility located in Baytown, Texas. The waste falls under the classification of listed waste pursuant to §§ 261.31 and 261.32.
Specifically, in its petition, ExxonMobil requested that EPA grant a standard exclusion for 7,427 cubic yards (1,500,000 gallons) per year of the underflow water.
To support its petition, ExxonMobil submitted:
(1) Historical information on waste generation and management practices; and
(2) Analytical results from five samples for total concentrations of compounds of concern (COC)s.
The EPA received public comments on the June 2012, proposed rule from two citizens. The comments and responses are addressed below.
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
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.