Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations 38109 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. This rule applies to one 

facility and withdraws a rule that was 

not implemented. 

K. The Congressional Review Act 

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 it is a rule of particular 

applicability and does not impose any 

new requirements. 

List of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Waste treatment and 

disposal. 

Dated: July 24, 2009. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons set forth in the 

preamble, part 261 of chapter I of title 

40 of the Code of Federal Regulations is 

amended 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. Section 261.4 paragraph (b)(18) is 

removed. 

[FR Doc. E9–18390 Filed 7–30–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2008–0418; SW–FRL– 

8933–3] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Direct Final Rule 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final rule. 

SUMMARY: Environmental Protection 

Agency (EPA) is granting a petition 

submitted by WRB Refining, LLC 

Company to exclude (or delist) the 

sludge from its wastewater treatment 

plant generated by WRB Refining, LLC 

Company in Borger, Texas from the lists 

of hazardous wastes. This direct final 

rule responds to the petition submitted 

by WRB Refining, LLC Company to 

delist the thermal desorber residual 

solids with Hazardous Waste Numbers: 

F037, F038, K048, K049, K050, and 

K051. 

After careful analysis and use of the 

Delisting Risk Assessment Software 

(DRAS), EPA has concluded the 

petitioned waste is not hazardous waste. 

This exclusion applies to 5,000 cubic 

yards per year of the thermal desorber 

residual solids with Hazardous Waste 

Numbers: F037, F038, K048, K049, 

K050, and K051. Accordingly, this final 

rule excludes the petitioned waste from 

the requirements of hazardous waste 

regulations under the Resource 

Conservation and Recovery Act (RCRA) 

when it is disposed in a Subtitle D 

Landfill. 

DATES: This direct final rule will be 

effective September 29, 2009 without 

further notice, unless EPA receives 

relevant adverse comments by August 

31, 2009. If EPA receives such comment, 

EPA will publish a timely withdrawal of 

the direct final rule in the Federal 

Register informing the public that this 

rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

RCRA–2008–0418 by one of the 

following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov: Follow the online 

instructions for submitting comments. 

2. E-mail: peace.michelle@epa.gov. 

3. Mail: Michelle Peace, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–C, 1445 Ross Avenue, Dallas, TX 

75202. 

4. Hand Delivery or Courier. Deliver 

your comments to: Michelle Peace, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–C, 1445 Ross Avenue, Dallas, TX 

75202. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–RCRA–2008– 

0418. 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 information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the internet. If you 

submit an electronic comment, EPA 

recommends that you include your 


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38110 Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

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, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

RCRA Branch, 1445 Ross Avenue, 

Dallas, TX 75202. The hard copy RCRA 

regulatory docket for this rule, EPA– 

R06–RCRA–2008–0418, is available for 

viewing from 8 a.m. to 5 p.m., Monday 

through Friday, excluding Federal 

holidays. The public may copy material 

from the regulatory docket at $0.15 per 

page. EPA requests that you contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The 

interested persons wanting to examine 

these documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: Ben 

Banipal, Section Chief of the Corrective 

Action and Waste Minimization 

Section, Multimedia Planning and 

Permitting Division (6PD–C), 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202 at (214) 665–7324. For 

technical information concerning this 

rule, contact Young Moo Kim, 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, (6PD–C), 

Dallas, Texas 75202, at (214) 665–6788, 

or kim.youngmoo@epa.gov. 

SUPPLEMENTARY INFORMATION: 

The information in this section is 

organized as follows: 

I. Overview Information 

A. What action is EPA taking? 

B. Why is EPA approving this action? 

C. What are the limits of this exclusion? 

D. How will WRB Refining, LLC Company 

manage the waste if it is delisted? 

E. When is the final delisting exclusion 

effective? 

F. How does this direct 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 WRB Refining, LLC 

Company petition EPA to delist? 

B. How much waste did WRB Refining, 

LLC Company propose to delist? 

C. How did WRB Refining, LLC Company 

sample and analyze the waste data in 

this petition? 

IV. Public comments received on the 

proposed exclusion 

A. Who submitted comments on the 

proposed rule? 

V. Statutory and Executive Order Reviews 

I. Overview Information 

A. What action is EPA taking? 

After evaluating the petition, EPA 

proposed, on May 19, 2008, to exclude 

the thermal desorber residual solids 

from the lists of hazardous waste under 

40 CFR 261.31 and 261.32 (see 73 FR 

28768). After the comment period ended 

for the proposed rule, EPA received a 

request from WRB Refining to increase 

the volume of waste that may be 

disposed of by the facility. The original 

petition requested that 1,500 cubic 

yards of the residual solids be delisted. 

On September 19, 2008, a request was 

made to increase this volume to 5,000 

cubic yards. The risk assessment has 

been run to insure that the waste does 

not exceed any delisting limits. The 

waste meets the criteria for 5,000 cubic 

yards. Therefore, EPA conditionally 

grants WRB Refining, LLC Company’s 

delisting petition to have its thermal 

desorber residual solids managed and 

disposed as non-hazardous waste. EPA 

is opening a 30-day comment period to 

allow comment on the decision to grant 

the change in waste volume. If there are 

no adverse comments regarding this 

change, EPA’s decision will become 

effective in 60 days. 

B. Why is EPA approving this action? 

WRB Refining, LLC Company’s 

petition requests a delisting from the 

F019 waste listing under 40 CFR 260.20 

and 260.22. WRB Refining, LLC 

Company does not believe that the 

petitioned waste meets the criteria for 

which EPA listed it. WRB Refining, LLC 

Company 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. 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 

§ 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 waste does 

not meet the listing criteria and thus 

should not be a listed waste. EPA’s final 

decision to delist waste from WRB 

Refining, LLC Company’s facility is 

based on the information submitted in 

support of this rule, including 

descriptions of the wastes and analytical 

data from the Borger, Texas facility. 

C. What are the limits of this exclusion? 

This exclusion applies to the waste 

described in the 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 WRB Refining, LLC 

Company manage the waste if it is 

delisted? 

The sludge from WRB Refining, LLC 

Company will be disposed of in a RCRA 

Subtitle D landfill. 

E. When is the final delisting exclusion 

effective? 

This direct final rule will be effective 

September 29, 2009 without further 

notice, unless EPA receives relevant 

adverse comments by August 31, 2009. 

F. How does this direct 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 


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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. Because a dual system 

(that is, both Federal (RCRA) and State 

(non-RCRA) programs) may regulate a 

petitioner’s waste, EPA urges petitioners 

to contact the State regulatory authority 

to establish the status of their wastes 

under the State law. 

EPA has also authorized some states 

(for example, Louisiana, Oklahoma, 

Georgia, and 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 WRB Refining, LLC Company 

transports the petitioned waste to or 

manages the waste in any state with 

delisting authorization, WRB Refining, 

LLC Company must obtain delisting 

authorization from that state before it 

can manage the waste as non-hazardous 

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, 

certain wastes the generator believes 

should not be considered hazardous 

under RCRA. 

B. What regulations allow facilities to 

delist a waste? 

Under §§ 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 

§§ 261.31 and 261.32. Specifically, 

§ 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. Based on the 

information supplied by the generator, 

the Administrator must determine 

whether factors (including additional 

constituents) other than those for which 

the waste was listed could cause the 

waste to be a hazardous waste. The 

generator must also supply information 

to demonstrate that the waste does not 

exhibit any of the characteristics 

defined in § 261.21–§ 261.24. 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did WRB Refining, LLC 

Company petition EPA to delist? 

On August 26, 2005, WRB Refining 

LLC(formerly ConocoPhillips Company) 

petitioned EPA to exclude from the lists 

of hazardous wastes contained in 

§§ 261.31 and 261.32, thermal desorber 

residual solids from processing oilbearing hazardous secondary materials 

including F037, F038, K048, K049, K050 

and K051 generated by its facility 

located in Borger, Texas. The waste falls 

under the classification of listed waste 

pursuant to §§ 261.31 and 261.32. 

B. How much waste did WRB Refining, 

LLC Company propose to delist? 

Specifically, in its petition, WRB 

Refining LLC requested that EPA grant 

a conditional exclusion for 1500 cubic 

yards per year of thermal desorber 

residual solids for a period of 10 years. 

On September 19, 2008, the facility 

requested that the amount of waste 

delisted be increased from 1,500 to 

5,000 cubic yards of waste a year. 

C. How did WRB Refining, LLC 

Company sample and analyze the waste 

data in this petition? 

To support its petition, WRB Refining, 

LLC Company submitted: 

• Historical information on waste 

generation and management practices; 

• Results of the total constituents list 

for 40 CFR part 264, Appendix IX 

volatile and semi-volatile organic 

compounds and metals. These wastes 

are also analyzed for cyanide, and 

sulfide. 

• Results of the constituent list for 

appendix IX on Toxicity Characteristic 

Leaching Procedure (TCLP) extract for 

volatiles, semevolatiles, and metals. 

• Results from total oil and grease 

analyses and multiple pH 

measurements, and 

• Results from a total of ten 

composite samples including two 

duplicates, representing 60 discrete 

thermal desorber residual solid samples. 

IV. Public Comments Received on the 

Proposed Exclusion 

A. Who submitted comments on the 

proposed rule? 

No comments were received on the 

Proposed Rule during the comment 

period. However after the comment 

period closed, the facility requested an 

increase in the volume of waste 

excluded by the delisting petition. 

Based on the application of the DRAS 

model with the requested increase, the 

Agency has decided to allow the 

increase in volume requested by WRB 

Refining. The sample results provided 

by the petitioner meet the maximum 

allowable waste concentrations at 1,500 

cubic yards and at the increased volume 

of 5,000 cubic yards. The delisting 

limits in the final exclusion will be 

revised to cover the additional waste 

volume. The delisting concentration 

limits are lower than the values 

originally proposed in the May 19, 2008 

proposed rule. 

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) (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, 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 


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specified in Executive Order 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, 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. 

Lists of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements. 

Authority: Sec. 3001(f) RCRA, 42 U.S.C. 

6921(f). 

Dated: July 9, 2009. 

William N. Rhea, 

Acting Division Director, Multimedia 

Planning and Permitting Division, Region 6. 

■ For the reasons set out in the 

preamble, 40 CFR part 261 is amended 

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, and 6938. 

■ 2. In Table 1 of Appendix IX of Part 

261 add the following waste stream in 

alphabetical order by facility to read as 

follows: 

Appendix IX to Part 261—Waste 

Excluded Under §§ 260.20 and 260.22 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * * 

WRB Refining, LLC ............ Borger, TX ........ Thermal desorber residual solids (Hazardous Waste Nos. F037, F038, K048, K049, K050, and 

K051) generated at a maximum annual rate of 5,000 cubic yards per calendar year after 

September 29, 2009 and disposed in Subtitle D Landfill. 

For the exclusion to be valid, WRB Refining LLC must implement a verification testing program 

that meets the following Paragraphs: 

(1) Delisting Levels: All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph. 

Thermal Desorber Residual Solid Leachable Concentrations (mg/l): Antimony–0.165; Arsenic– 

0.0129; Barium–54.8; Beryllium–0.119; Cadmium–0.139; Chromium–3.23; Chromium, 

Hexavalent–3.23; Cobalt–20.7; Copper–38.6; Cyanide–4.69; Lead–1.07; Mercury–0.104; 

Nickel–20.6; Selenium–1.0; Silver–5.0; Tin–3790.00; Vanadium–1.46; Zinc–320.0; 

Acenapthene–16.2; Anthracene–39.5; Benzene–0.117; Carbon Disulfide–86.0; 2- 

chlorophenol–4.41; Dibenzofuran–0.0226; 1,4-Dichlororbenzene–0.518; Ethylbenzene–16.5; 

Fluoranthene–3.75; Methylene Chloride–0.077; Naphthalene–0.0498; Phenol–264.0; Pyrene– 

6.78; Toluene–23.0; 1,2,4-Trichlorobenzene–1.51; Trichlorofluoromethane–23.5; Xylenes– 

14.6. 

(2) Waste Holding and Handling: 

(A) Waste classification as non-hazardous can not begin until compliance with the limits set in 

paragraph (1) for thermal desorber residual solids has occurred for two consecutive quarterly 

sampling events. 

(B) If constituent levels in any sample taken by WRB Refining LLC exceed any of the delisting 

levels set in paragraph (1) for the thermal desorber residual solids, WRB Refining LLC must 

do the following: 

(i) Notify EPA in accordance with paragraph (6) and 

(ii) Manage and dispose the thermal desorber residual solids as hazardous waste generated 

under Subtitle C of RCRA. 

(3) Testing Requirements: 

Upon this exclusion becoming final, WRB Refining LLC may perform quarterly analytical testing 

by sampling and analyzing the desorber residual solids as follows: 

(A) Quarterly Testing: 


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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(i) Collect two representative composite samples of the sludge at quarterly intervals after EPA 

grants the final exclusion. The first composite samples may be taken at any time after EPA 

grants the final approval. Sampling should be performed in accordance with the sampling 

plan approved by EPA in support of the exclusion. 

(ii) Analyze the samples for all constituents listed in paragraph (1). Any composite sample 

taken that exceeds the delisting levels listed in paragraph (1) for the sludge must be disposed as hazardous waste in accordance with the applicable hazardous waste requirements. 

(iii) Within thirty (30) days after taking its first quarterly sample, WRB Refining LLC will report its 

first quarterly analytical test data to EPA. If levels of constituents measured in the samples of 

the sludge do not exceed the levels set forth in paragraph (1) of this exclusion for two consecutive quarters, WRB Refining LLC can manage and dispose the non-hazardous thermal 

desorber residual solids according to all applicable solid waste regulations. 

(B) Annual Testing: (i) If WRB Refining LLC completes the quarterly testing specified in paragraph (3) above and no sample contains a constituent at a level which exceeds the limits set 

forth in paragraph (1), WRB Refining LLC may begin annual testing as follows: WRB Refining 

LLC must test two representative composite samples of the thermal desorber residual solids 

for all constituents listed in paragraph (1) at least once per calendar year. 

(ii) The samples for the annual testing shall be a representative composite sample according to 

appropriate methods. As applicable to the method-defined parameters of concern, analyses 

requiring the use of SW–846 methods incorporated by reference in 40 CFR 260.11 must be 

used without substitution. As applicable, the SW–846 methods might include Methods 0010, 

0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B,1110A, 

1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA 

Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the WRB Refining thermal desorber residual solids are representative for all constituents listed in paragraph (1). 

(iii) The samples for the annual testing taken for the second and subsequent annual testing 

events shall be taken within the same calendar month as the first annual sample taken. 

(iv) The annual testing report should include the total amount of delisted waste in cubic yards 

disposed as non-hazardous waste during the calendar year. 

(4) Changes in Operating Conditions: If WRB Refining LLC significantly changes the process 

described in its petition or starts any processes that generate(s) the waste that may or could 

affect the composition or type of waste generated (by illustration, but not limitation, changes 

in equipment or operating conditions of the treatment process), it must notify EPA in writing 

and it may no longer handle the wastes generated from the new process as non-hazardous 

until the wastes meet the delisting levels set in paragraph (1) and it has received written approval to do so from EPA. 

WRB Refining LLC must submit a modification to the petition, complete with full sampling and 

analysis, for circumstances where the waste volume changes and/or additional waste codes 

are added to the waste stream, if it wishes to dispose of the material as non-hazardous. 

(5) Data Submittals: 

WRB Refining LLC must submit the information described below. If WRB Refining LLC fails to 

submit the required data within the specified time or maintain the required records on-site for 

the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph (6). WRB Refining LLC must: 

(A) Submit the data obtained through paragraph (3) to the Chief, Corrective Action and Waste 

Minimization Section, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas, 75202, within the time specified. All 

supporting data can be submitted on CD–ROM or comparable electronic media. 

(B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site 

for a minimum of five years. 

(C) Furnish these records and data when either EPA or the State of Texas requests them for 

inspection. 

(D) Send along with all data a signed copy of the following certification statement, to attest to 

the truth and accuracy of the data submitted: 

‘‘Under civil and criminal penalty of law for the making or submission of false or fraudulent 

statements or representations (pursuant to the applicable provisions of the Federal Code, 

which include, but may not be limited to, 18 U.S.C. § 1001 and 42 U.S.C. § 6928), I certify 

that the information contained in or accompanying this document is true, accurate and complete. 

As to the (those) identified section(s) of this document for which I cannot personally verify its 

(their) truth and accuracy, I certify as the company official having supervisory responsibility 

for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete. 

If any of this information is determined by EPA in its sole discretion to be false, inaccurate or 

incomplete, and upon conveyance of this fact to the company, I recognize and agree that this 

exclusion of waste will be void as if it never had effect or to the extent directed by EPA and 

that the company will be liable for any actions taken in contravention of the company’s RCRA 

and CERCLA obligations premised upon the company’s reliance on the void exclusion.’’ 

(6) Re-opener 


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38114 Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations 

1 Increased CMPS are applicable only to 

violations occurring after the increase takes effect. 

2The CPI defined in the FCPIAA is the U.S. 

Department of Labor’s Consumer Price Index for allurban consumers (‘‘CPI–U’’). 28 U.S.C. 2461 note 

(3)(3). 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(A) If, anytime after disposal of the delisted waste WRB Refining LLC 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 either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph 1, WRB Refining LLC must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. 

(C) If WRB Refining LLC fails to submit the information described in paragraphs (5), (6)(A) or 

(6)(B) 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 and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and 

the environment. 

(D) If the Division Director determines that the reported information requires action by EPA, 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. 

(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no 

information is presented under paragraph (6)(D)) the initial receipt of information described in 

paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination 

describing EPA actions that are necessary to protect human health and/or the environment. 

Any required action described in the Division Director’s determination shall become effective 

immediately, unless the Division Director provides otherwise. 

(7) Notification Requirements 

WRB Refining LLC 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 it will transport the delisted waste described above for disposal, 60 days before beginning such activities. 

(B) Update the one-time written notification if it ships the delisted waste into 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. 

* * * * * * * 

[FR Doc. E9–18389 Filed 7–30–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 506 

[Docket No. 09–04] 

RIN 3072–AC36 

Inflation Adjustment of Civil Monetary 

Penalties 

July 28, 2009. 

AGENCY: Federal Maritime Commission. 

ACTION: Final rule. 

SUMMARY: This rule implements the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Debt Collection Improvement Act of 

1996. The rule adjusts for inflation the 

maximum amount of each statutory civil 

penalty subject to Federal Maritime 

Commission (‘‘Commission’’) 

jurisdiction in accordance with the 

requirements of that Act. 

DATES: Effective Date: July 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Vern W. Hill, Director, Bureau of 

Enforcement, Federal Maritime 

Commission, 800 North Capitol Street, 

NW., Room 900, Washington, DC 20573, 

(202) 523–5783. 

SUPPLEMENTARY INFORMATION: This rule 

implements the Debt Collection 

Improvement Act of 1996 (‘‘DCIA’’), 

Public Law 104–134, Title III, section 

31001(s)(1), April 26, 1996, 110 Stat. 

1321–373. The DCIA amended the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (‘‘FCPIAA’’), 

Public Law 101–410, Oct. 5, 1990, 104 

Stat. 890, 28 U.S.C. 2461 note, to require 

the head of each executive agency to 

adopt regulations that adjust the 

maximum civil monetary penalties 

(‘‘CMPs’’) assessable under its agency’s 

jurisdiction at least every four years to 

ensure that they continue to maintain 

their deterrent value.1 The Commission 

last adjusted each CMP subject to its 

jurisdiction effective August 15, 2000. 

(65 FR 49741). 

The inflation adjustment under the 

FCPIAA is to be determined by 

increasing the maximum CMP by the 

cost-of-living, rounded off as set forth in 

section 5(a) of that Act. The cost-ofliving adjustment is the percentage (if 

any) for each CMP by which the 

Consumer Price Index (‘‘CPI’’) 2 for the 

month of June of the calendar year 

preceding the adjustment, exceeds the 

CPI for the month of June of the 

calendar year in which the amount of 

such CMP was last set or adjusted 

pursuant to law. 


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