[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Proposed Rules]
[Pages 76677-76684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31533]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FDMS Docket No.: EPA-R08-RCRA-2011-0823; FRL-9502-4]
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: The Environmental Protection Agency (``EPA,'' ``the Agency''
or ``we'' in this preamble) is proposing to grant a petition submitted
by the ConocoPhillips Billings, Montana Refinery (``ConocoPhillips'' or
``Petitioner'') to exclude or ``delist,'' from the list of hazardous
wastes, residual solids from sludge removed from two storm water tanks
at its Billings, Montana refinery and processed in accordance with the
petition. The 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.
The EPA's proposed decision to grant the petition is based on an
evaluation of waste-specific information provided by ConocoPhillips.
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 sludge from the two storm
water tanks is dewatered and de-oiled using a filter press and/or
portable centrifuge, and the resulting residual solids are disposed of
in a RCRA Subtitle D landfill that is permitted, licensed, or
registered by a state to manage industrial solid waste. If finalized,
the EPA would conclude that ConocoPhillips' 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: The EPA will accept public comments on this proposed decision
until January 9, 2012 the 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 an
informal hearing on this proposed decision by filing a request to the
EPA by December 22, 2011. The request must contain the information
prescribed in 40 CFR 260.20(d).
ADDRESSES: Submit your comments, identified by Docket ID No.: EPA-R08-
RCRA-2011-0823, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (303) 312-6341.
4. Mail, Hand Delivery or Courier: Deliver your comments to
Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8,
Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
Courier or hand deliveries are only accepted during the EPA Region 8's
normal hours of operation from 8 a.m. to 4 p.m. The public is advised
to call in advance to verify the business hours. Special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No.: EPA-R08-RCRA-
2011-0823. The 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 email, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through http://www.regulations.gov, your email 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, the 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 the EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should not include special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about the EPA's public docket visit the EPA Docket Center
home page 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 through http://www.regulations.gov or in hard copy at: EPA Region 8, from 8 a.m. to 4
p.m., 1595 Wynkoop Street, Denver, Colorado, contact: Christina
Cosentini, phone number (303) 312-6231.
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,
[email protected].
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is the EPA approving?
B. Why is the EPA approving this delisting?
C. How will ConocoPhillips Billings Refinery manage the waste,
if it is delisted?
II. Background
A. What is a listed waste?
B. What is a delisting petition?
[[Page 76678]]
C. What factors must the EPA consider in deciding whether to
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did ConocoPhillips petition the EPA to delist?
B. How does ConocoPhillips generate the waste?
C. How did ConocoPhillips sample and analyze the waste?
D. What were the results of the ConocoPhillips waste analysis?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude about the ConocoPhillips waste?
IV. Conditions for Exclusion
A. When would the EPA finalize the proposed delisting exclusion?
B. How will ConocoPhillips manage the waste if it is delisted?
C. What are the maximum allowable concentrations of hazardous
constituents in the waste?
D. How frequently must ConocoPhillips test the waste?
E. What data must ConocoPhillips submit?
F. What happens if ConocoPhillips waste fails to meet the
conditions of the exclusion?
G. What must ConocoPhillips do if the process changes?
V. How would this action affect states?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is the EPA approving?
The EPA is proposing to grant a petition submitted by the
ConocoPhillips Billings Refinery to have residual solids from
processing sludge removed from two storm water tanks at its Billings,
Montana Refinery excluded or delisted from the RCRA definition of a
hazardous waste, contingent upon such waste being dewatered and de-
oiled using a filter press and/or portable centrifuge and the resulting
solids disposed in a RCRA Subtitle D Landfill.
B. Why is the EPA approving this delisting?
The ConocoPhillips petition requested the residual solids from
processed storm water tank sludge be excluded from the F037 waste
listing. F037 wastes are wastes that are generated in the separation of
oil/water/solids from petroleum refinery process wastewaters and oily
cooling wastewaters. This exclusion will apply to an annual maximum of
200 cubic yards of residual solids. ConocoPhillips claims that the
petitioned waste does not meet the criteria for which the EPA listed
it, and that there are no additional constituents or factors which
could cause the waste to be hazardous.
Based on our review described in section III, we agree with the
petitioner that the waste is nonhazardous. The EPA reviewed the
description of the process which generates the waste and the analytical
data submitted by ConocoPhillips. We believe that the petitioned waste
does not meet the criteria for the F037 waste listing, and that there
are no other factors which might cause the residual solids to be
hazardous.
C. How will ConocoPhillips Billings Refinery manage the waste if it is
delisted?
ConocoPhillips will dispose of the residual solids from the
processed storm water tank sludge in a RCRA Subtitle D landfill which
is regulated by the State of Montana, or other state subject to Federal
RCRA delisting, to manage industrial waste.
II. Background
A. What is a listed waste?
The 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.
The EPA has amended this list several times and published it at 40 CFR
261.31 and 261.32. The 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 part 261
(that is, ignitability, corrosivity, reactivity, and toxicity); (2)
they meet the criteria for listing contained in 40 CFR 261.11(a)(2) or
(a)(3); or (3) 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 40 CFR 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules respectively.
B. What is a delisting petition?
Individual waste streams may vary depending on raw materials,
industrial processes, and other factors. Thus, while a waste described
in the regulations generally is hazardous, a specific waste from an
individual facility meeting the listing description may not be. A
procedure to exclude or delist a waste is provided in 40 CFR 260.20 and
260.22, which allows a person, or a facility, to submit a petition to
the EPA, or an authorized state, demonstrating that a specific waste
from a particular generating facility is not hazardous.
In a delisting petition, the petitioner must show that a waste does
not meet any of the criteria for listed wastes in 40 CFR 261.11 and
that the waste does not exhibit any of the hazardous waste
characteristics of ignitability, reactivity, corrosivity, or toxicity.
The petitioner 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 the waste remains nonhazardous.
C. What factors must the EPA consider in deciding whether to grant a
delisting petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See HSWA Sec. 222, 42 U.S.C. 6921(f);
40 CFR 260.22(d)(1)-(4). We evaluated the petitioned waste against the
listing criteria and factors cited in Sec. Sec. 261.11(a)(2) and (3).
In addition to considering the criteria in 40 CFR 260.22(a) and
261.11(a)(2) and (3), 42 U.S.C. 6921(f), and information in the
background documents for the listed waste, the EPA must consider any
factors (including additional constituents) other than those for which
the EPA listed the waste, if these additional factors could cause the
waste to be hazardous.
The EPA's tentative decision to delist waste from the
ConocoPhillips Billings Refinery is based on our evaluation of the
waste for factors or criteria that could cause the waste to be
hazardous. These factors include: (1) Whether the waste is considered
acutely toxic; (2) the toxicity of the constituents; (3) the
concentration of the constituents in the waste; (4) the tendency of the
constituents to migrate and to bioaccumulate; (5) the persistence in
the environment of any constituents once released from the waste; (6)
plausible and specific types of management of the petitioned waste; (7)
the quantity of waste produced; and (8) waste variability.
The EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i) (referred to as the ``mixture'' and ``derived-from'' rules,
respectively). Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
[[Page 76679]]
III. EPA's Evaluation of the Waste Information and Data
A. What waste did ConocoPhillips petition the EPA 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) the sludge removed from the two storm
water tanks at the Billings, Montana refinery from the lists of
hazardous waste contained in 40 CFR 261.31 and 261.32. The F037 listing
includes residuals from the processing of oil-bearing hazardous
secondary materials (i.e., the sludge in the storm water tanks)
excluded under 40 CFR 261.4(a)(12)(i). Sediment in the storm water
tanks accumulates from storm water runoff from the Refinery's process
area, as well as some dry-weather flow consisting of water from wash-
down, maintenance, and cleaning activities, steam condensate and heat
exchanger back-flushing. This sediment is processed by the refinery for
the recovery of oil and the residual solids are classified as hazardous
waste due 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.
B. How does ConocoPhillips generate the waste?
ConocoPhillips generates the waste through periodically removing
and processing sludge accumulated in two storm water tanks through oil
recovery and dewatering. The sludge in the storm water tanks is
accumulated storm water runoff from the Refinery's process area, and
some dry-weather flow consisting of water from wash-down, maintenance,
and cleaning activities as well as steam condensate and heat exchanger
back-flushing. The sludge in 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.
C. How did ConocoPhillips sample and analyze the waste?
ConocoPhillips collected sample sludge from 16 locations in each
tank, the sludge was composited and processed for oil recovery and
dewatering through a filter press, and submission of the filter pressed
residual solid material for analysis. A total of eight composite
samples, one duplicate and one matrix spike/matrix duplicate were
analyzed for both total and Toxicity Characteristic Leaching Procedure
(TCLP) analyses of constituents of concern (COC). The COC list was
comprised of a subset of the Appendix IX constituent list in 40 CFR
264, and was based on: (1) Knowledge of the refinery processes and
wastes; (2) the evaluation of available references, including Exhibit 3
of the March 23, 2000 USEPA RCRA Delisting Program Guidance manual for
the Petitioner entitled Constituents of Concern for Wastes from
Petroleum Processes; (3) the U.S. EPA Region 5 ``Skinner List''
constituents and (4) the basis for the F037 listing per 40 CFR 261
Appendix VII. Each sample was also analyzed for pH, oil & grease, total
cyanide and total sulfide. Two samples of the filter pressed material
(one from each tank) were analyzed using both neutral and alkaline pH
TCLP extraction fluids as presented in the delisting guidance.
D. What were the results of the ConocoPhillips waste analysis?
The table below presents the maximum observed total concentrations
and the TCLP concentrations for all the COC. Total concentrations are
expressed in milligrams per kilogram (mg/kg) and leachate
concentrations are expressed in milligrams per liter (mg/L).
ConocoPhillips submitted a signed statement certifying accuracy and
responsibility of the results. See 40 CFR 260.22(i)(12)).
Table I--Maximum Total and TCLP Concentrations and Maximum Allowable Delisting Concentration Levels
[Storm Water Tank--Filter Press residual solids, ConocoPhillips Billings Refinery, Billings, Montana]
----------------------------------------------------------------------------------------------------------------
Maximum allowable
Maximum total Maximum TCLP TCLP delisting
Constituent constituent analysis constituent concentration level
(mg/kg) analysis (mg/L) (mg/L)
----------------------------------------------------------------------------------------------------------------
Acenaphthene.................................... 8.0 <.0051 37.9
Antimony........................................ 1.89 .0074 .97
Anthracene...................................... 18.0 .0017 50
Arsenic......................................... 60.1 .157 .301
Barium.......................................... 196 1.12 100
Benz(a)anthracene............................... 3.6 <.005 .25
Benzene......................................... .031 <.01 .5
Benzo(a)pyrene.................................. 1.5 <.006 1.1
Benzo(b)fluoranthene............................ .6 <.008 8.7
Benzo(k)fluoranthene............................ .66 <.008 50
Beryllium....................................... <.13 <.003 2.78
Bis(2-ethylhexyl)phthalate...................... 1.8 <.0033 50
2-Butanone...................................... .12 <.02 50
Butyl Benzyl phthalate.......................... <.11 <.0007 46.5
Cadmium......................................... 1.46 <.006 1.0
Carbon disulfide................................ .0083J <.02 36
Chromium........................................ 152 <.006 5.0
Chrysene........................................ 4.2 <.008 25.0
Chlorobenzene................................... <0.13 <.01 16.4
Chloroform...................................... <.013 <.01 .286
Cobalt.......................................... 24.4 .0074 .763
Cyanide(total).................................. 7.72 <.003 41.2
Dibenz(a,h)anthrancene.......................... .17 <0.008 1.16
1,2-Dichlorobenzene............................. <.0013 <.01 50
1,3-Dichlorobenzene............................. <.0013 <.01 18.5
1,4-Dichlorobenzene............................. <.0011 <.01 1.69
[[Page 76680]]
1, 2-Dichloroethane............................. <.0013 <.01 .375
1,1-Dichloroethane.............................. <.0013 <.01 50
1,1-Dichloroethylene............................ <.0013 <.01 .7
Diethyl phthalate............................... <.11 <.0005 50
Dimethyl phthalate.............................. <.11 <.0005 50
2, 4-Dimethylphenol............................. <.13 <.0019 40.4
Di-n-butyl phthalate............................ <.11 <.0005 50
2, 4-Dintrophenol............................... <.23 <.0014 4.12
2, 4-Dinitrotoluene............................. <.22 <.001 .059
Di-n-octyl phthalate............................ .19 <.0006 50
1,4-Dioxane..................................... <.43 <2 36.5
Ethylbenzene.................................... .660 <.01 12
Ethylene Dibromide.............................. <.0013 <.01 2.74
Fluoranthene.................................... 3.8 <0.0035J 8.78
Fluorene........................................ 19.0 <0.0085 17.5
Indeno(1,2,3-cd)pyrene.......................... .440 <0.0013 27.3
Lead............................................ 43.1 0.0053 5.0
Mercury......................................... 1.46 0.00005 0.2
MTBE............................................ <.013 <.01 50
m&p -Cresol..................................... 1.60 .024 10.3
Naphthalene..................................... 90.0 0.086 1.17
Nickel.......................................... 212 0.173 48.2
Nitrobenzene.................................... <.12 <.0008 1.03
4-Nitrophenol................................... <.22 <.0019 50
o-Cresol........................................ .170 <.001 50
Phenanthrene.................................... 62.0 <.180 50
Phenol.......................................... .320J .0032 50
Pyrene.......................................... 9.7 <0.0026J 15.9
Pyridine........................................ <.11 <.002 2.06
Quinoline....................................... <.11 <.0006 50
Selenium........................................ 100 .18 1.0
Silver.......................................... .16J <0.007 5.0
Styrene......................................... <.013 <.01 50
Sulfide (total)................................. 145 N/A 500
Tetrachloroethene............................... .073 <.012 .7
Toluene......................................... .630 .02J 26
1,1,1-Trichloroethane........................... <.0013 <.01 50
Trichloroethene................................. .0076 <.01 .403
Vanadium........................................ 114 .13 12.3
Xylenes, Total.................................. 7.60 .071 22
Zinc............................................ 1140 .227 500
----------------------------------------------------------------------------------------------------------------
Notes:
(A) These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
(B) Based on lowest level of: nominal upper limit, land disposal restriction limit, RCRA hazardous level; or
DRAS modeling with a target risk of 10-6 and a target HI of 0.1 with the exception of: arsenic, naphthalene
and 1,4-Dioxane TCLP set at 10-5 and HI of 1.0.
E. How did the EPA evaluate the risk of delisting this waste?
For this delisting determination, the EPA applied the Delisting
Risk Assessment Software (DRAS) described in various EPA rulemakings.
See, e.g., 65 FR 58,015 (Sept. 27, 2000); 65 FR 75,637 (Dec. 4, 2000)
and 73 FR 28,768 (May 19, 2008). We used the most recent version of
DRAS, v.3.0.34 updated in September 2010. DRAS calculates the potential
risks associated with disposing a given waste stream to a landfill or
surface impoundment. For a given waste stream, DRAS calculates both the
waste's aggregate risks and also back-calculates each waste
constituent's maximum allowable concentration permissible for
delisting. DRAS requires the user to assign a target cancer risk and
hazard index.
For this analysis, DRAS was used to predict the maximum allowable
concentrations of hazardous constituents that may be released from
ConocoPhillips's storm water tank filter press solids after landfill
disposal, and determined the potential impact of disposal on human
health and the environment. In assessing potential risks to ground
water, the EPA used the maximum estimated waste volumes and the maximum
reported extract concentrations as inputs to the DRAS program to
estimate the constituent concentrations in ground water at a
hypothetical receptor well down gradient from the disposal site. The
EPA used two risk levels to evaluate the ConocoPhillips waste:
carcinogenic risk of 10-6 and non-cancer hazard index of 0.1 and;
carcinogenic risk of 10-5 and non-cancer hazard index of 1.0. The DRAS
program can back-calculate the acceptable receptor well concentrations
(referred to as compliance-point concentrations) using standard risk
assessment algorithms and the EPA
[[Page 76681]]
health-based numbers. Using the maximum compliance-point concentrations
and the EPA Composite Model for Leachate Migration with Transformation
Products (EPACMTP) fate and transport modeling factors, DRAS further
back-calculates the maximum permissible waste constituent
concentrations not expected to exceed the compliance-point
concentrations in ground water.
The EPA believes the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensures that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health or the
environment.
DRAS also uses the maximum estimated waste volumes and the maximum
reported total concentrations to predict possible risks associated with
releases of waste constituents through surface pathways (e.g.,
volatilization or wind-blown particulate from the landfill). As in the
above ground water analyses, DRAS uses the risk level, the health-based
data and standard risk assessment and exposure algorithms to predict
maximum compliance-point concentrations of waste constituents at a
hypothetical point of exposure. Using fate and transport equations,
DRAS uses the maximum compliance-point concentrations and back-
calculates the maximum allowable waste constituent concentrations, also
known as delisting levels. In most cases, because a delisted waste is
no longer subject to hazardous waste control, the EPA is generally
unable to predict, and does not presently control, how a petitioner
will manage a waste after delisting. Therefore, the EPA currently
believes that it is inappropriate to consider extensive site specific
factors when applying the fate and transport model.
DRAS results, which calculate the maximum allowable concentration
of chemical constituents in the waste, are presented in Table I. Based
on the comparison of DRAS results and the maximum TCLP and Totals
concentrations found in Table I, the petitioned waste should be
delisted because no constituents of concern tested are likely to be
present or formed as reaction products or by-products above the
delisting levels.
F. What did the EPA conclude about the ConocoPhillips waste?
ConocoPhillips's petition requests a delisting of the residual
solids from processed sludge from the two storm water tanks from being
considered a F037 waste. ConocoPhillips believes that the storm water
tank sludge does not meet the original criteria for the hazardous waste
listing. ConocoPhillips also believes no additional constituents or
factors could cause the waste to be hazardous. The 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 RCRA 3001(f), 42 U.S.C. 6921(f); 40 CFR
260.22(d)(1)-(4). In making the initial delisting determination, the
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,
the EPA agrees with the petitioner that the waste is nonhazardous with
respect to the original listing criteria. If the EPA, based on this
review, had found that the waste remained hazardous based on the
factors for which the waste was originally listed, the EPA would have
proposed to deny the petition. The 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. The 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. The EPA believes that the petitioned waste does not meet
the listing criteria and thus should not be a listed waste. The EPA's
proposed decision to delist waste from the ConocoPhillips Billings
Refinery is based on the information submitted in support of this rule,
including descriptions of the wastes and analytical chemistry data of
the residual solids from the storm water tank clean-out.
The maximum reported concentrations of hazardous constituents found
in the filter press solids and the filter press solids TCLP extracts
are presented in Table I above. The table also presents the maximum
allowable concentrations in a TCLP extract of the residual solids from
storm water tank sludge processing, calculated by the DRAS program. The
concentrations of all constituents in leachate from the filter press
solids are below the allowable concentrations. We, therefore, conclude
that the ConocoPhillips waste does not pose a potential substantial
hazard to human health and the environment when disposed of in a RCRA
Subtitle D landfill.
We, therefore, propose to grant exclusion for this waste. If this
exclusion is finalized, ConocoPhillips must dispose of the residual
solids from the processed storm water tank sludge in a RCRA Subtitle D
landfill regulated by the State of Montana, or other state subject to
Federal RCRA delisting, to manage industrial waste. Prior to disposal
ConocoPhillips must verify that the concentrations of the constituents
of concern in the residual solids do not exceed the allowable levels
set forth in this exclusion. The list of constituents for verification
is based on the concentration and frequency of occurrence, as presented
in the ConocoPhillips petition.
IV. Conditions for Exclusion
A. When would the EPA finalize the proposed delisting exclusion?
RCRA 3001(f) specifically requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, the EPA will not grant the exclusion unless and until it
addresses all timely public comments on this proposal, including any at
public hearings.
RCRA 3010(b)(1), 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.
The EPA believes that this exclusion should be effective
immediately upon publication of the final rule because a six-month
deadline is not necessary to achieve the purpose of RCRA 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).
B. How will ConocoPhillips manage the waste if it is delisted?
ConocoPhillips must dispose of the residual solids from the
processed storm water tank sludge in a RCRA Subtitle D landfill that is
regulated by the State of
[[Page 76682]]
Montana, or other state subject to Federal RCRA delisting, to manage
industrial waste. ConocoPhillips must verify prior to disposal that the
concentrations of the COC in the residual solids do not exceed the
allowable levels set forth in this exclusion.
C. What are the maximum allowable concentrations of hazardous
constituents in the waste?
Concentrations measured in the TCLP extract of the waste must not
exceed the values given in Table I.
D. How frequently must ConocoPhillips test the waste?
During the period of cleanout, ConocoPhillips must collect two
composite samples of the residual solids from the filter pressed sludge
to account for potential variability in each tank. Composite samples
from the storm water tanks processed residuals must be collected each
time cleanout occurs and residuals are generated. TCLP analyses for the
standard acid extraction for trace elements and organic COC listed in
Table I must be conducted. Concentrations of all constituents must be
below the delisting limits in Table I above.
E. What data must ConocoPhillips submit?
Whenever tank cleanout is conducted, ConocoPhillips must verify
that the filter press solids meet the delisting levels in 40 CFR 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
operating conditions and analytical data for a period of five years.
F. What happens if ConocoPhillips waste fails to meet the conditions of
the exclusion?
If ConocoPhillips violates the terms and conditions established in
this exclusion, the EPA will initiate procedures to withdraw the
exclusion. Where there is an immediate threat to human health and the
environment, the EPA will evaluate the need for enforcement activities
on a case-by-case basis. The EPA expects ConocoPhillips to conduct the
appropriate waste analysis and comply with the criteria detailed in 40
CFR 261, Appendix IX, Table 1, as amended by this notice.
G. What must ConocoPhillips do if the process changes?
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 40 CFR
261 have been introduced; and it has received written approval from the
EPA.
V. How would 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.
VI. 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.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
[[Page 76683]]
Dated: November 18, 2011.
James B. Martin,
Regional Administrator, Region 8.
For the reasons set out in the preamble, the EPA proposes to amend
40 CFR part 261 as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
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 40 CFR 260.20 and 260.22
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
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 December 8, 2011.
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 filter pressed 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 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 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.
[[Page 76684]]
(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.
(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.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2011-31533 Filed 12-7-11; 8:45 am]
BILLING CODE 6560-50-P