66742 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

Major Facilities without an Operating 

Permit),’’ section 8.1, ‘‘Definitions;’’ 

subchapter 16, ‘‘Control and Prohibition 

of Air Pollution by Volatile Organic 

Compounds;’’ subchapter 17, ‘‘Control 

and Prohibition of Air Pollution by 

Toxic Substances;’’ subchapter 19, 

‘‘Control and Prohibition of Air 

Pollution by Oxides of Nitrogen;’’ 

subchapter 21, ‘‘Emission Statements;’’ 

and Chapter 27A, subchapter 3.10, 

‘‘Civil Administrative Penalties for 

Violations of Rules Adopted Pursuant to 

the Act,’’ with State effective dates of 

January 16, 2018. The EPA is soliciting 

public comments on the issues 

discussed in this document. These 

comments will be considered before 

taking final action. 

V. Incorporation by Reference 

In this document, the EPA is 

proposing to include regulatory text that 

includes incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, the EPA is proposing to 

incorporate by reference revisions to 

N.J.A.C. 7:27 subchapter 8, ‘‘Permits and 

Certificates for Minor Facilities (and 

Major Facilities without an Operating 

Permit),’’ section 8.1, ‘‘Definitions;’’ 

subchapter 16, ‘‘Control and Prohibition 

of Air Pollution by Volatile Organic 

Compounds;’’ subchapter 17, ‘‘Control 

and Prohibition of Air Pollution by 

Toxic Substances;’’ subchapter 18, 

‘‘Control and Prohibition of Air 

Pollution from New or Altered Sources 

Affecting Ambient Air Quality 

(Emission Offset Rules);’’ subchapter 19, 

‘‘Control and Prohibition of Air 

Pollution by Oxides of Nitrogen;’’ 

subchapter 21, ‘‘Emission Statements;’’ 

and Chapter 27A, subchapter 3.10, 

‘‘Civil Administrative Penalties for 

Violations of Rules Adopted Pursuant to 

the Act’’ as described in section II, of 

this preamble. The EPA has made, and 

will continue to make, these materials 

generally available through 

www.regulations.gov and at the EPA 

Region 2 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law(s) 

as meeting federal requirements and 

does not impose additional 

requirements beyond those imposed by 

state law(s). For that reason, this 

proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 14094 (88 FR 

21879, April 11, 2023); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not subject to Executive Order 

13045 (62 FR 19885, April 23, 1997) 

because it approves a state program; 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act. 

In addition, this proposed SIP will not 

apply on any Indian reservation land or 

in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rules do not have 

Tribal implications and will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

Feb. 16, 1994) directs Federal agencies 

to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ EPA further 

defines the term fair treatment to mean 

that ‘‘no group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The NJDEP evaluated environmental 

justice as part of its SIP submittal even 

though the CAA and applicable 

implementing regulations neither 

prohibit nor require an evaluation. The 

EPA’s evaluation of the NJDEP’s 

environmental justice considerations is 

described above in the section titled, 

‘‘Environmental Justice 

Considerations.’’ The analysis was done 

for the purpose of providing additional 

context and information about this 

rulemaking to the public, not as a basis 

of the action. The EPA is taking action 

under the CAA on bases independent of 

New Jersey’s evaluation of 

environmental justice. Due to the nature 

of the action being taken here, this 

action is expected to have a neutral to 

positive impact on the air quality of the 

affected area. In addition, there is no 

information in the record upon which 

this decision is based that is 

inconsistent with the stated goal of E.O. 

12898 of achieving environmental 

justice for people of color, low-income 

populations, and Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ammonia, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Lisa Garcia, 

Regional Administrator, Region 2. 

[FR Doc. 2023–21138 Filed 9–27–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2023–0040; FRL–11286– 

01–R6] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste;Proposed Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66743 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to grant an 

exclusion from the list of hazardous 

wastes to WRB Refining LP (Petitioner) 

located in Borger, Texas. This action 

responds to a petition to exclude (or 

‘‘delist’’) up to 7,000 cubic yards per 

year of solids removed from four 

stormwater tanks from the list of federal 

hazardous wastes when disposed of in 

a Resource Conservation Recovery Act 

(RCRA) Subtitle D Landfill. The EPA is 

proposing to grant the petition based on 

an evaluation of waste-specific 

information provided by the Petitioner. 

A previous proposed action was 

published in the Federal Register on 

November 23, 2022, that proposed to 

grant this petition (see Docket ID 

Number EPA–R06–RCRA–2022–0653). 

However, after the proposed rule was 

published, EPA received notification 

during the public comment period from 

the Petitioner that the table detailing the 

delisting constituents and levels was 

incorrect. After review, EPA agreed that 

the information contained in the table in 

question was incorrect. EPA has 

corrected the table to reflect the 

appropriate constituents and values and 

is withdrawing the previously 

published proposed rule from 

November 23, 2022. EPA is issuing a 

new action proposing to grant the 

petition, which will include a new 30- 

day comment period. 

DATES: Comments on this proposed 

exclusion must be received by October 

30, 2023. 

ADDRESSES: Submit your comments by 

one of the following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Email: shah.harry@epa.gov. 

Instructions: The EPA must receive 

your comments by October 30, 2023. 

Direct your comments to Docket ID 

Number EPA–R06–RCRA–2023–0040. 

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 https://

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 https://

www.regulations.gov, or email. The 

Federal regulations.gov website 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 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 with any CBI 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 avoid 

the use of special characters, any form 

of encryption and be free of any defects 

or viruses. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov. 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. 

You can view and copy the delisting 

petition and associated publicly 

available docket materials either 

through www.regulations.gov or at: EPA, 

Region 6, 1201 Elm Street, Suite 500, 

Dallas, Texas 75270. The EPA facility is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

Federal holidays and facility closures 

due to COVID–19. We recommend that 

you telephone Harry Shah, at (214) 665– 

6457, before visiting the Region 6 office. 

Interested persons wanting to examine 

these documents should make an 

appointment with the office. 

FOR FURTHER INFORMATION CONTACT: 

Harry Shah, (214) 665–6457, 

shah.harry@epa.gov. Out of an 

abundance of caution for members of 

the public and our staff, the EPA Region 

6 office may be closed to the public to 

reduce the risk of transmitting COVID– 

19. We encourage the public to submit 

comments via https://

www.regulations.gov, as there will be a 

delay in processing mail and no courier 

or hand deliveries will be accepted. 

Please call or email the contact listed 

above if you need alternative access to 

material indexed but not provided in 

the docket. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Overview Information 

II. Background 

A. What is the history of the delisting 

program? 

B. What is a delisting petition, and what 

does it require of a petitioner? 

C. What factors must the EPA consider in 

deciding whether to grant a delisting 

petition? 

D. Environmental Justice Evaluation 

III. The EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did the Petitioner petition 

the EPA to delist? 

B. How did the Petitioner generate the 

waste? 

C. How did the Petitioner sample and 

analyze the petitioned waste? 

D. What factors did the EPA consider in 

deciding whether to grant the delisting 

petition? 

E. How did the EPA evaluate the risk of 

delisting this waste? 

F. What did the EPA conclude? 

IV. Conditions for Exclusion 

A. How will the Petitioner manage the 

waste if it is delisted? 

B. What are the maximum allowable 

concentrations of hazardous constituents 

in the waste? 

C. How frequently must the Petitioner test 

the waste? 

D. What data must the Petitioner submit? 

E. What happens if the Petitioner fails to 

meet the conditions of the exclusion? 

F. What must the Petitioner do if the 

process changes? 

V. When would the EPA finalize the 

proposed delisting exclusion? 

VI. How would this action affect states? 

VII. Public Comments Received From the 

Previous Proposed Exclusion 

A. Who submitted comments on the 

previous proposed rule? 

B. Comments Submitted on the November 

23, 2022, Proposed Rule (Docket ID 

Number EPA–R06–RCRA–2022–0653) 

VIII. Statutory and Executive Order Reviews 

I. Overview Information 

The EPA is proposing to grant a May 

2020 petition (‘‘Delisting Petition for 

Stormwater Solids’’) request submitted 

by WRB Refining LP in Borger, Texas to 

exclude (or ‘‘delist’’) up to 7,000 cubic 

yards per year of F037 stormwater solids 

from the list of federal hazardous waste 

set forth in 40 CFR 261.3 (hereinafter, 

all sectional references are to 40 CFR 

unless otherwise indicated). The 

Petitioner claims that the petitioned 

wastes do 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 propose to 

approve the petition request, and allow 

the delisted waste to be disposed in a 

Subtitle D landfill. A copy of the May 

2020 petition is located in the docket to 

this proposal action. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66744 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

II. Background 

A. What is the history of the delisting 

program? 

The EPA published an amended list 

of hazardous wastes from non-specific 

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 codifies the 

list in §§ 261.31 and 261.32. 

The EPA lists the Petitioner’s wastes 

as hazardous because: (1) the wastes 

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) the wastes 

meet the criteria for listing contained in 

§ 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 § 261.3(a)(2)(iv) or (c)(2)(i), 

known as the ‘‘mixture’’ or ‘‘derivedfrom’’ rules, respectively. 

Individual waste streams may vary, 

however, depending on raw materials, 

industrial processes, and other factors. 

Thus, while a waste described in these 

part 261 regulations or resulting from 

the operation of the mixture or derivedfrom rules generally is hazardous, a 

specific waste from an individual 

facility may not be hazardous. 

For this reason, 40 CFR 260.20 and 

260.22 provide an exclusion procedure, 

called delisting, which allows persons 

to prove that the EPA should not 

regulate a specific waste from a 

particular generating facility as a 

hazardous waste. 

B. What is a delisting petition, and what 

does it require of a petitioner? 

A delisting petition is a request from 

a facility to the EPA or an authorized 

state to exclude wastes from the list of 

hazardous wastes. The facility petitions 

the EPA because it does not consider the 

waste as hazardous under RCRA 

regulations. 

In a delisting petition, the petitioner 

must show that wastes generated at a 

particular facility do not meet any of the 

criteria for which the waste was listed. 

The criteria for which the EPA lists a 

waste are in 40 CFR part 261 and further 

explained in the background documents 

for the listed waste in the June 30, 1992 

publication of the ‘‘Final Best 

Demonstrated Available Technology 

(BDAT) Background Document for 

Newly Listed Refinery Wastes F037 and 

F038’’ (https://nepis.epa.gov/Exe/ 

ZyNET.exe/

P100VUGS.TXT?ZyActionD=

ZyDocument&

Client=EPA&Index=1991+Thru+1994&

Docs=&Query=&Time=&EndTime=&

SearchMethod=1&TocRestrict=n&

Toc=&TocEntry=&QField=&

QFieldYear=&QFieldMonth=&

QFieldDay=&IntQFieldOp=0&

ExtQFieldOp=0&XmlQuery=&

File=D%3A%5Czyfiles%5CIndex%20

Data%5C91thru94%5CTxt%5

C00000035%5CP100VUGS.txt&

User=ANONYMOUS&

Password=anonymous&SortMethod=

h%7C-&MaximumDocuments=

1&FuzzyDegree=0&ImageQuality=

r75g8/r75g8/x150y150g16/

i425&Display=hpfr&DefSeekPage=x&

SearchBack=ZyActionL&Back=

ZyActionS&

BackDesc=Results%20page&

MaximumPages=1&

ZyEntry=1&SeekPage=x&ZyPURL). 

In addition, under 40 CFR 260.22, a 

petitioner must prove that the waste 

does not exhibit any of the hazardous 

waste characteristics (that is, 

ignitability, reactivity, corrosivity, and 

toxicity) and must present sufficient 

information for EPA to decide whether 

factors other than those for which the 

waste was listed warrant retaining it as 

a hazardous waste. 

Generators remain obligated under 

RCRA to confirm whether their waste 

remains non-hazardous based on the 

hazardous waste characteristics even if 

EPA has ‘‘delisted’’ the waste. 

C. What factors must the EPA consider 

in deciding whether to grant a delisting 

petition? 

Besides considering the criteria in 40 

CFR 260.22(a) and § 3001(f) of RCRA, 42 

U.S.C. 6921(f), and in the background 

documents for the listed wastes, EPA 

must consider any factors (including 

additional constituents) aside from 

those for which EPA listed the waste, if 

a reasonable basis exists that these 

additional factors could cause the waste 

to be hazardous. 

The EPA must also consider 

hazardous waste mixtures containing 

listed hazardous wastes and wastes 

derived from treating, storing, or 

disposing of listed hazardous waste. See 

§ 261.3(a)(2)(iii and iv) and (c)(2)(i), 

called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. These wastes 

are also eligible for exclusion and 

remain hazardous wastes until 

excluded. See 66 FR 27266 (May 16, 

2001). 

D. Environmental Justice Evaluation 

To better meet EPA’s ‘‘responsibilities 

related to the protection of public health 

and the environment, EPA has 

developed a new environmental justice 

(EJ) mapping and screening tool called 

EJ Screen’’ that reports values as a 

percentile when compared to a state or 

the nation. ‘‘It is based on nationally 

consistent data and an approach that 

combines environmental and 

demographic indicators in maps and 

reports,’’ (https://www.epa.gov/ 

ejscreen). EPA is providing analysis of 

environmental justice associated with 

this action. We are doing so for the 

purpose of providing information to the 

public, not as a basis of our final action. 

EPA utilized EJScreen to evaluate 

potential environmental justice 

concerns in communities at one-, 

three-, and five-mile radiuses around 

the Borger facility. EPA considers the 

potential for EJ concerns in a 

community when one or more of the 13 

supplemental EJ indices is at or above 

the 80th percentile when compared to 

the rest of the USA. At the one-mile 

radial measurement, six supplemental 

EJ indices exceeded the 80th percentile, 

at the three-mile radial measurement, 

five supplemental EJ indices exceeded 

the 80th percentile, and at the five-mile 

radial measurement, three supplemental 

EJ indices exceeded the 80th percentile. 

This information is provided below in 

Table 1. More information on EJ Screen, 

including an explanation of the 13 EJ 

indices can be found at www.epa.gov/ 

ejscreen/what-ejscreen. 

TABLE 1—SUPPLEMENTAL EJ INDICES AT ONE-, THREE-, AND FIVE-MILE RADIUSES AROUND THE FACILITY

Supplemental EJ index 

(USA percentile) 

1 Mile radius 

around the facility 

3 Mile radius 

around the facility 

5 Mile radius 

around the facility 

Particulate Matter 2.5 Supplemental Index ............................................................... 13 12 11 

Ozone Supplemental Index ....................................................................................... 81 79 75 

Diesel Particulate Matter Supplemental Index .......................................................... 62 60 53 

Air Toxics Cancer Risk Supplemental Index ............................................................. 44 43 40 

Air Toxics Respiratory HI Supplemental Index ......................................................... 27 26 25 

Toxic Releases to Air Supplemental Index ............................................................... 92 89 86 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66745 

TABLE 1—SUPPLEMENTAL EJ INDICES AT ONE-, THREE-, AND FIVE-MILE RADIUSES AROUND THE FACILITY—Continued 

Supplemental EJ index 

(USA percentile) 

1 Mile radius 

around the facility 

3 Mile radius 

around the facility 

5 Mile radius 

around the facility 

Traffic Proximity Supplemental Index ........................................................................ 68 61 57 

Lead Paint Supplemental Index ................................................................................ 84 83 79 

Superfund Proximity Supplemental Index ................................................................. 44 42 39 

RMP Facility Proximity Supplemental Index ............................................................. 92 91 88 

Hazardous Waste Proximity Supplemental Index ..................................................... 79 71 65 

Underground Storage Tanks Supplemental Index .................................................... 84 80 75 

Wastewater Discharge Supplemental Index ............................................................. 85 83 81 

III. The EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did the Petitioner 

petition the EPA to delist? 

In May 2020, WRB Refining LP 

petitioned the EPA to exclude from the 

list of hazardous wastes contained in 

§ 261.31, stormwater tank solids (F037) 

generated from its facility located in 

Borger, Texas. The waste falls under the 

classification of listed waste pursuant to 

§ 261.31. Specifically, in its petition, 

WRB Refining requested that the EPA 

grant a standard exclusion for 7,000 

cubic yards per year of the stormwater 

tank solids. 

B. How did the Petitioner generate the 

waste? 

The principal products manufactured 

at the Refinery are gasoline, diesel, 

aviation fuel, natural gas liquids (NGL), 

petroleum coke, and solvents. The 

stormwater tanks are active and have 

been in operation for approximately 25 

years. To restore capacity in the 

stormwater tanks, the Borger Refinery 

will be removing accumulated solids. 

The solids removal process will 

typically occur within a calendar year 

and will be an ongoing operational item 

for the refinery in the future.C 

The solids are removed from the four 

stormwater tanks. These tanks are listed 

as the North Stormwater Tank, West 

Stormwater Tank, North Dropout Basin, 

and West Grit Trap (hereafter 

collectively referred to as ‘‘the 

stormwater tanks’’). The four 

stormwater tanks are identified as solid 

waste management unit (SWMU) No. 50 

on the facility’s notice of registration 

(NOR) with the Texas Commission on 

Environmental Quality (TCEQ). 

The stormwater tanks solids 

originated from both historical and 

current operation of the wastewater 

treatment system at the refinery. To the 

extent possible, hydrocarbons present in 

refinery wastewaters have been 

recovered. However, historically more 

hydrocarbons passed through the ‘‘oil 

recovery system’’ and flowed into the 

stormwater tanks. Hydrocarbons in the 

wastewater can result from various 

sources (e.g., crude oil). Over time, more 

of the oily streams were routed to 

storage tanks from collection system 

piping and/or smaller tanks for 

interception and recovery instead of 

into the stormwater tanks. Recovered oil 

from the oil recovery system is stored in 

tanks prior to being reintroduced into 

the refining process. Historically, these 

oily flows occurred in conjunction with 

facility operations, were relatively 

routine in nature, and not directly 

associated with precipitation. As such, 

they were classified by the EPA as ‘‘dry 

weather’’ flows. By contrast, wastewater 

directly associated with precipitation 

(i.e., stormwater) is referred to as ‘‘wet 

weather’’ flows. The EPA listing criteria 

for F037 generally encompasses primary 

solids associated with dry-weather, oily 

flows. 

Since the stormwater tanks receive 

what could be classified as dry-weather, 

oily flows as specified in the November 

2, 1990, Federal Register rule 

publication (55 FR 46354, Nov. 2, 1990), 

the solids within the four tanks are 

believed to be classified as F037 when 

generated. WRB Refining assumes that 

solids removed from the stormwater 

tanks bear the F037 (primary oil/water/ 

solids separation sludge) listing when 

generated. 

C. How did the Petitioner sample and 

analyze the petitioned waste? 

A total of eight acceptable sample 

results were provided by Petitioner to 

support the petition. The EPA 

considered all 8 samples of the 

stormwater tank solids and the disposal 

scenario of the landfill was modeled 

using the Delisting Risk Assessment 

Software. The worst-case scenario of the 

constituents’ concentrations for the 

F037 solids were used as input in the 

model to determine if it would meet the 

hazardous waste criteria for which it 

was listed. The maximum total and 

leachate concentrations for the 

inorganic and organic constituents 

which were found in the analytical data 

provided by Petitioner are presented in 

Table 2. 

TABLE 2—MAXIMUM TOTAL AND TCLP CONCENTRATIONS

Chemical name 

Maximum total 

concentration 

(mg/kg) 

Maximum TCLP 

concentration 

(mg/l) 

Acenaphthene .............................................................................................................................................. 0.04 <0.00030 

Acetone ........................................................................................................................................................ <0.0033 <0.040 

Anthracene ................................................................................................................................................... 0.18 <0.00030 

Antimony ...................................................................................................................................................... 6.93 0.0293 

Arsenic ......................................................................................................................................................... 10.5 0.0277 

Barium .......................................................................................................................................................... 732 3.1 

Benz(a)anthracene ...................................................................................................................................... 0.26 <0.00030 

Benzene ....................................................................................................................................................... 0.19 <0.012 

Benzo(a)pyrene ........................................................................................................................................... 0.19 <0.00040 

Benzo(b)fluoranthene .................................................................................................................................. 0.17 <0.00040 

Benzo(k)fluoranthene ................................................................................................................................... 0.16 <0.00070 

Beryllium ...................................................................................................................................................... 0.91 <0.0020 

Bis(2-ethylhexyl)phthalate ............................................................................................................................ 1.2 <0.00080 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66746 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

TABLE 2—MAXIMUM TOTAL AND TCLP CONCENTRATIONS—Continued 

Chemical name 

Maximum total 

concentration 

(mg/kg) 

Maximum TCLP 

concentration 

(mg/l) 

Cadmium ...................................................................................................................................................... 1.03 0.00689 

Carbon disulfide ........................................................................................................................................... 0.026 <0.018 

Chlorobenzene ............................................................................................................................................. <0.00098 <0.0080 

Chloroform ................................................................................................................................................... <0.00082 <0.012 

Chromium .................................................................................................................................................... 80.8 0.00495 

Chrysene ...................................................................................................................................................... 0.34 <0.00080 

Cobalt ........................................................................................................................................................... 13.3 0.0355 

Dibenz(a,h)anthracene ................................................................................................................................ 0.061 <0.00060 

1,2-Dichlorobenzene .................................................................................................................................... <0.0099 <0.00040 

1,3-Dichlorobenzene .................................................................................................................................... <0.0099 <0.00050 

1,4-Dichlorobenzene .................................................................................................................................... <0.017 <0.00040 

1,1-Dichloroethane ....................................................................................................................................... <0.00082 <0.0080 

1,2-Dichloroethane ....................................................................................................................................... <0.00098 <0.010 

1,1-Dichloroethylene .................................................................................................................................... <0.00082 <0.010 

Diethyl phthalate .......................................................................................................................................... <0.017 <0.00070 

Dimethyl phthalate ....................................................................................................................................... 0.034 <0.00050 

2,4-Dimethylphenol ...................................................................................................................................... <0.054 <0.00040 

Di-n-butyl-phthalate ...................................................................................................................................... 0.0057 <0.00080 

2,4-Dinitrophenol .......................................................................................................................................... <0.074 <0.00050 

1,4-Dioxane .................................................................................................................................................. <0.033 <0.82 

Ethylbenzene ............................................................................................................................................... 0.0063 <0.010 

Fluoranthrene ............................................................................................................................................... 0.84 <0.00040 

Fluorene ....................................................................................................................................................... 0.17 <0.00050 

Indeno(1,2,3-cd)pyrene ................................................................................................................................ 0.12 <0.00060 

Lead ............................................................................................................................................................. 301 0.974 

Mercury ........................................................................................................................................................ 1.58 <0.000030 

Methyl ethyl ketone ...................................................................................................................................... 0.092 <0.020 

Naphthalene ................................................................................................................................................. 0.18 0.0047 

Nickel ........................................................................................................................................................... 439 0.142 

4-Nitrophenol ............................................................................................................................................... <0.031 <0.00060 

Phenanthrene .............................................................................................................................................. 1.2 <0.00040 

Phenol .......................................................................................................................................................... <0.018 <0.00040 

Pyrene .......................................................................................................................................................... 0.92 <0.00030 

Pyridine ........................................................................................................................................................ <0.015 <0.00030 

Selenium ...................................................................................................................................................... 2.8 <0.0110 

Silver ............................................................................................................................................................ 0.08 <0.00200 

Styrene ......................................................................................................................................................... <0.0011 <0.010 

Tetrachloroethylene ..................................................................................................................................... <0.0011 <0.012 

Toluene ........................................................................................................................................................ 0.036 <0.010 

1,1,1-Trichloroethane ................................................................................................................................... <0.00082 <0.010 

Trichloroethylene (1,1,2-Trichloroethylene) ................................................................................................. <0.00098 0.010 

Vanadium ..................................................................................................................................................... 50.4 <0.00600 

Xylenes, Total .............................................................................................................................................. 0.087 <0.010 

Zinc .............................................................................................................................................................. 930 2.76 

D. What factors did the EPA consider in 

deciding whether to grant the 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 

§ 222 of HSWA, 42 U.S.C. 6921(f), and 

40 CFR 260.22(d)(2) through (4). We 

evaluated the petitioned wastes against 

the listing criteria and factors cited in 

§ 261.11(a)(2) and (3). 

In addition to the criteria in 40 CFR 

260.22(a), 261.11(a)(2) and (3), 42 U.S.C. 

6921(f), and in the background 

documents for the listed wastes, the 

EPA also considered factors (including 

additional constituents) other than those 

for which EPA listed the waste if these 

additional factors could cause the waste 

to be hazardous (See the background 

documents). 

Our proposed decision to grant the 

May 2020 petition to delist the waste 

from Petitioner’s facility in Borger, 

Texas is based on our evaluation of the 

wastes for factors or criteria which 

could cause the waste to be hazardous. 

These factors included: (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), 

called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. Mixture and 

derived-from wastes are also eligible for 

exclusion but remain hazardous until 

excluded. 

E. How did the EPA evaluate the risk of 

delisting this waste? 

For this proposed delisting 

determination, we evaluated the risk 

that the waste would be disposed of as 

a non-hazardous waste in a landfill. We 

considered transport of waste 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66747 

constituents through groundwater, 

surface water and air. We evaluated 

Petitioner’s analysis of the petitioned 

waste using the Delisting Risk 

Assessment Software (DRAS) to predict 

the concentration of hazardous 

constituents that might be released from 

the petitioned waste and to determine if 

the waste would pose a threat to human 

health and the environment. The DRAS 

software and associated documentation 

can be found at www.epa.gov/hw/ 

hazardous-waste-delisting-riskassessment-software-dras. 

To predict the potential for release to 

groundwater from landfilled wastes and 

subsequent routes of exposure to a 

receptor, the DRAS uses dilution 

attenuation factors derived from the 

EPA’s Composite Model for leachate 

migration with transformation products. 

From a release to groundwater, the 

DRAS considers routes of exposure to a 

human receptor through ingestion of 

contaminated groundwater, inhalation 

from groundwater while showering and 

dermal contact from groundwater while 

bathing. 

From a release to surface water by 

erosion of waste from an open landfill 

into storm water run-off, DRAS 

evaluates the exposure to a human 

receptor by fish ingestion and ingestion 

of drinking water. From a release of 

waste particles and volatile emissions to 

air from the surface of an open landfill, 

DRAS considers routes of exposure of 

inhalation of volatile constituents, 

inhalation of particles, and air 

deposition of particles on residential 

soil and subsequent ingestion of the 

contaminated soil by a child. The 

technical support document and the 

user’s guide to DRAS are available at 

https://www.epa.gov/hw/hazardouswaste-delisting-risk-assessmentsoftware-dras. 

F. What did the EPA conclude? 

Petitioner stated in its petition that 

the petitioned waste meets the criteria 

of F037 for which the EPA listed it. 

Petitioner also stated that no additional 

constituents or factors could cause the 

waste to be hazardous. Petitioner also 

stated that disposal in a landfill will not 

adversely impact human health or the 

environment. 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 

section 3001(f) of RCRA, 42 U.S.C. 

6921(f), and 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 

§ 261.11(a)(2) and (a)(3). Based on this 

review, the EPA agrees with the 

Petitioner that the petitioned waste is 

nonhazardous with respect to the 

original listing criteria. (If the EPA had 

found, based on this review, that the 

waste remained hazardous based on the 

factors for which the waste was 

originally listed, the EPA would 

propose 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 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 the waste from 

Petitioner’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, and that is 

contained in the Petition and 

attachments, all of which are included 

in the docket to this action. 

IV. Conditions for Exclusion 

A. How will the Petitioner manage the 

waste if it is delisted? 

If the petitioned wastes are delisted as 

proposed, the Petitioner must dispose of 

them in a Subtitle D landfill which is 

permitted, licensed, or registered by a 

state to manage industrial waste or in 

the on-site landfill. 

B. What are the maximum allowable 

concentrations of hazardous 

constituents in the waste? 

The EPA notes that in some instances 

the maximum allowable total 

constituent concentrations provided by 

the DRAS model exceed 100% of the 

waste—these DRAS results are an 

artifact of the risk calculations that do 

not have physical meaning. In instances 

where DRAS predicts a maximum 

constituent greater than 100 percent of 

the waste (that is, greater than 1,000,000 

mg/kg or mg/L, respectively, for total 

and TCLP concentrations), the EPA is 

not proposing to require the Petitioner 

to perform sampling and analysis for 

that constituent and sampling type (total 

or TCLP). 

C. How frequently must the Petitioner 

test the waste? 

The testing approach for this waste 

stream will be conducted as generated. 

Prior to disposal of any future tank 

cleanouts, Petitioner must conduct 

sampling and analysis as described in 

the delisting sampling and analysis plan 

and ensure that the wastes do not 

exceed the delisting parameters. If 

compliance with the delisting 

parameters is demonstrated with 

analytical testing (TCLP analysis), the 

Petitioner may dispose of the tank 

cleanouts. The annual amount of solids 

generated from the tank clean outs may 

not exceed 7,000 cubic yards. The 

annual sampling report shall include 

the volume of solids disposed of in the 

landfill, as well as annual testing event 

data. The petitioner should monitor and 

report increasing trends of constituents 

which will affect the overall compliance 

with the stormwater discharge permit. 

D. What data must the Petitioner 

submit? 

The Petitioner must submit the data 

obtained through verification testing to 

U.S. EPA Region 6, Office of Land, 

Chemicals and Redevelopment Division, 

1201 Elm Street, Suite 500, M/C 6LCR– 

RP, Dallas, Texas 75270–2102, within 

30 days after receiving the final results 

from the laboratory. These results may 

be submitted electronically to Harry 

Shah, shah.harry@epa.gov. The 

Petitioner must make those records 

available for inspection. All data must 

be accompanied by a signed copy of the 

certification statement in 40 CFR 

260.22(i)(12). 

E. What happens if the Petitioner fails 

to meet the conditions of the exclusion? 

If this Petitioner violates the terms 

and conditions established in the 

exclusion, the Agency may start 

procedures to withdraw the exclusion. 

Additionally, the terms of the exclusion 

provide that ‘‘[a]ny waste volume for 

which representative composite 

sampling does not reflect full 

compliance with the exclusion criteria 

must continue to be managed as 

hazardous.’’ 

If the testing of the waste does not 

demonstrate compliance with the 

delisting concentrations described in 

section IV.C above, or other data 

(including but not limited to leachate 

data or groundwater monitoring data 

from the final land disposal facility) 

relevant to the delisted waste indicates 

that any constituent is at a 

concentration in waste above specified 

delisting verification concentrations in 

Table 1, the Petitioner must notify the 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66748 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

Agency within 10 days, or such later 

date as the EPA may agree to in writing, 

after receiving the final verification 

testing results from the laboratory or of 

first possessing or being made aware of 

other relevant data. The EPA may 

require the Petitioner to conduct 

additional verification sampling to 

better define the particular volume of 

wastes within the affected unit that does 

not fully satisfy delisting criteria. For 

any volume of wastes for which the 

corresponding representative sample(s) 

do not reflect full compliance with 

delisting exclusion levels, the exclusion 

by its terms does not apply, and the 

waste must be managed as hazardous. 

The EPA has the authority under 

RCRA and the Administrative 

Procedures Act, 5 U.S.C. 551 (1978) et 

seq. to reopen a delisting decision if we 

receive new information indicating that 

the conditions of this exclusion have 

been violated or, are otherwise not being 

met. 

F. What must the Petitioner do if the 

process changes? 

Any process changes or additions 

implemented at Petitioner’s facility 

which would significantly impact the 

constituent concentrations of the waste 

must be reported to the EPA in 

accordance with Condition VI. of the 

exclusion language. 

V. When would the EPA finalize the 

proposed delisting exclusion? 

HSWA specifically requires the EPA 

to provide notice and an opportunity for 

public comment before granting or 

denying a final exclusion. Thus, the 

EPA will not make a final decision or 

grant an exclusion until it has addressed 

all timely public comments, including 

any at public hearings. Upon receipt 

and consideration of all comments, the 

EPA will publish its final determination 

as a final rule. Since this rule would 

reduce the existing requirements for 

persons generating hazardous wastes, 

the regulated community does not need 

a six-month period to come into 

compliance in accordance with § 3010 

of RCRA, as amended by HSWA. 

VI. How would this action affect states? 

Because the EPA is proposing to issue 

this exclusion under the federal RCRA 

delisting regulations, only states subject 

to federal RCRA delisting provisions 

will be affected. This exclusion may not 

be effective in states which have 

received authorization from the EPA to 

make their own delisting decisions. 

RCRA allows states to impose more 

stringent regulatory requirements than 

RCRA’s under § 3009 of RCRA. These 

more stringent requirements may 

include a provision that prohibits a 

federally-issued exclusion from taking 

effect in the state. We urge Petitioners 

to contact the state regulatory authority 

to establish the status of its wastes 

under the state law. 

The EPA has also authorized some 

states 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 states. If the Petitioner manages 

the wastes in any state with delisting 

authorization, the Petitioner must obtain 

delisting authorization or other 

determination from the receiving state 

before it can manage the waste as 

nonhazardous in that state. 

VII. Public Comments Received From 

the Previous Proposed Exclusion 

A. Who submitted comments on the 

previous proposed rule? 

The EPA received four public 

comments on the November 23, 2022 

(87 FR 71532), proposed rule via 

regulations.gov and email submittal. 

The previous proposed rule has since 

been withdrawn due to a discrepancy 

with information contained in the 

Federal Register publication, which was 

brought to EPA’s attention by the 

Petitioner. The Petitioner subsequently 

submitted a public comment via email 

during the public comment period to 

the EPA Region 6 office identifying the 

discrepancy regarding the delisting 

constituents and values listed in the 

table titled ‘‘Appendix IX to Part 261 

Wastes Excluded Under §§ 260.2 and 

260.22’’ (see comment 4). Since the 

previous proposed rule was withdrawn, 

the four previously submitted public 

comments will be addressed under a 

new proposed rule at the conclusion of 

a new 30-day comment period. 

B. Comments Submitted on the 

November 23, 2022, Proposed Rule 

(Docket ID Number EPA–R06–RCRA– 

2022–0653) 

Comment 1. ‘‘Although I am not sure 

where I stand overall on delisting the 

waste in question, I do believe that the 

processes in which this decision was 

made were appropriate. I trust the EPA 

in its decision to approve delisting the 

waste and removal of solids at WRB 

Refining LP in Borger, Texas. The how 

this decision was made could have been 

a lot more careless. However, the EPA 

took a lot into consideration and tested 

multiple samples from the petitioner’s 

facility and agreed with the petitioner 

that the wastes are nonhazardous. It also 

did an environmental justice evaluation. 

Environmental justice is often 

overlooked when it comes to making 

decisions concerning discarding waste. 

This proposed rule is a great example of 

how to go about making such decisions 

while taking caution.’’ 

Comment 2. ‘‘I appose this rule/ 

exception being passed through. When 

you take the table and look at some of 

the chemicals that make up this storm 

drain runoff products there are some 

very hazardous chemicals that make up 

these products. One chemical that 

makes up this product is Beryllium. 

Beryllium can be lethal in humans and 

cause a variety of health concerns. 

According to the EPA website 

‘‘beryllium is toxic at 0.002 milligrams 

per kilogram body weight per day (mg/ 

kg/d)’’ (Beryllium compounds—US 

EPA). Using this equation the average 

size man weighing 200lbs can only be 

exposed to .4mg a day. That is roughly 

only 146mg a year. The refinery is 

requesting that they be allowed to dump 

.91mg per kg a year into a nonhazardous 

waste landfill. That would mean that 

they would be dumping enough 

material (Beryllium) to lethally infect 

50,000 people per year.’’ 

Comment 3. ‘‘I believe that to not 

consider stormwater as a hazardous 

waste is a bold statement, but since a lot 

of measures are taken to ensure this is 

not a health hazard for animals and for 

humans. I think if it keeps being 

measured how many toxic chemicals 

this stormwater has before being 

disposed somewhere else. Since the 

stormwater waste is going to be 

disposed in a landfill that is permitted 

to manage industrial waste, this can give 

a sense of safety, but it is not truly 

known how this landfill will manage 

and treat this waste, and if it will do it 

correctly to ensure that no animals have 

contact or do not get poisoned by the 

stormwater. Stormwater usually has 

many toxic chemicals that can pollute 

water sources such as oil, pesticides, 

antifreeze, grease and other types of 

chemicals that can be dangerous and 

poisonous to the environment and the 

wildlife that inhabit these water 

sources. Also, one of the consequences 

is that they can cause toxic algae blooms 

that sink and decompose in the water 

removing oxygen from it. Animals and 

other organisms can’t live in water with 

low dissolved oxygen levels. It can also 

contaminate drinking water supplies if 

not treated properly. These 

consequences should be kept in mind 

before agreeing, as the public, to these 

types of petitions. If stormwater is 

treated properly in a treatment plant 

this can reduce how hazardous this 

might be. Since the stormwater that the 

petitioner wants to delist as a possible 

hazard has such small amounts of these 

toxic chemicals, it makes sense why the 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66749 

EPA thinks to delist this waste. One of 

the examples of this small amounts is 

Arsenic, which is a solid that occurs 

naturally in water and soil but that is 

also produced industrially in big 

quantities. The amount of Arsenic that 

is considered as a hazard is 6.1 while 

the amount of arsenic that the 

stormwater in this facility has it’s 0.1. 

However, all these amounts need to be 

tested each time that the facility wants 

to dispose of them, to ensure that it is 

still not considered a hazard, which is 

one of the rules of EPA to consider the 

petition of the facility. I think if it is 

proved that the stormwater waste from 

this facility is treated properly in this 

landfills, it is safe to say that this would 

not be a hazard for humans or wildlife. 

Comment 4. ‘‘On November 23, 2022, 

EPA published the draft delisting 

petition for WRB Refining LP 

(Petitioner), which was submitted in 

May 2020. On behalf of WRB Refining 

LP and Big Star Consulting LLC, please 

accept the comments to the draft 

publication that are contained herein. 

The delisting levels calculated using 

EPA’s Delisting Risk Assessment 

Software (DRAS) were presented in the 

2020 petition request and subsequently 

updated in March 2022 using DRAS 

Version 4.0. The delisting values 

reflected in the Federal Register are not 

in agreement with the calculated values. 

Specifically, it appears that the delisting 

values published on November 23rd 

were inadvertently carried forward from 

a prior delisting petition. We 

respectfully request that Item (1) in the 

table found on Page 71538 of the 

Federal Register be revised to reflect the 

following desilting levels: 

Stormwater Solids Leachate: 

Acenapthene—219; Anthracene—534; 

Antimony—2.52; Arsenic—0.266; 

Barium—100; Benz(a)anthracene—10.5; 

Benzo(a)pyrene—3,960; 

Benzo(b)fluoranthene—33,700; 

Benzene—1.59; 2-Butanone—7,150; 

Cadmium—1.0; Carbondisulfide—1,150; 

Chromium—1.56; Chrysene—1,050; 

Cobalt—5.56; Di-n-butyl-phthalate— 

507; Ethylbenzene—16.2; 

Fluoranthrene—50.7; Fluorene—101; 

Indeno(1,2,3-cd)pyrene—3.71; Lead— 

5.0; Mercury—0.2; Napthalene—1.95; 

Nickel—279; Pyrene—91.7; Selenium— 

1.0; Silver—5.0; Toluene—311; 

Vanadium—85.6; Xylenes, Total—177; 

Zinc—4,060. 

VIII. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This proposed action is exempt from 

review by the Office of Management and 

Budget because it is a rule of particular 

applicability, not general applicability. 

The proposed action approves a 

delisting petition under RCRA for the 

petitioned waste at a particular facility. 

B. Paperwork Reduction Act 

This proposed action 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 only applies to a 

particular facility. 

C. Regulatory Flexibility Act 

Because this rule is of particular 

applicability relating to a particular 

facility, it is not subject to the regulatory 

flexibility provision of the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

D. Unfunded Mandates Reform Act 

This proposed action does not contain 

any unfunded mandate as described in 

the Unfunded Mandates Reform Act (2 

U.S.C. 1531–1538) and does not 

significantly or uniquely affect small 

governments. The action imposes no 

new enforceable duty on any state, 

local, or tribal governments or the 

private sector. 

E. Executive Order 13132: Federalism 

This proposed action 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action does not have 

tribal implications as specified in 

Executive Order 13175. This proposed 

action applies only to a particular 

facility on non-tribal land. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This proposed action is not subject to 

Executive Order 13045 because it is not 

economically significant as defined in 

Executive Order 13045 and because the 

EPA does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. This proposed action’s health 

and risk assessments using the Agency’s 

Delisting Risk Assessment Software 

(DRAS), which considers health and 

safety risks to children, are described in 

section III.E above. The technical 

support document and the user’s guide 

for DRAS are included in the docket. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This proposed action is not subject to 

Executive Order 13211, because it is not 

a significant regulatory action under 

Executive Order 13211. 

I. National Technology Transfer and 

Advancement Act 

This proposed action does not involve 

technical standards as described by the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note). 

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) directs federal agencies to 

identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies,’’ (https://www.epa.gov/ 

environmentaljustice/learn-aboutenvironmental-justice). 

The EPA believes that this proposed 

action does not have disproportionately 

high and adverse human health or 

environmental effects on minority 

populations, low-income populations, 

and/or indigenous peoples. The EPA 

has determined that this proposed 

action 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66750 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

provided to human health or the 

environment. The Agency’s risk 

assessment, as described in section III.E 

above, did not identify risks from 

management of this material in an 

authorized, solid waste landfill (e.g., 

RCRA Subtitle D landfill, commercial/ 

industrial solid waste landfill, etc.) or 

the on-site landfill. Therefore, the EPA 

believes that any populations in 

proximity of the landfills used by the 

Borger facility should not be adversely 

affected by common waste management 

practices for this delisted waste. 

K. Congressional Review Act 

This proposed action is exempt from 

the Congressional Review Act (5 U.S.C. 

801 et seq.) because it is a rule of 

particular applicability. 

List of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, and Reporting and 

recordkeeping requirements. 

Dated: September 14, 2023. 

Monica Smith, 

Acting Director, Land, Chemicals and 

Redevelopment Division. 

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. Amend table 1 of Appendix IX to 

part 261, by adding an entry for ‘‘WRB 

Refining LP’’ at the end of the table to 

read as follows: 

Appendix IX to Part 261 Wastes 

Excluded Under §§ 260.20 and 260.22 

*******

Facility Address Waste description 

WRB Refining LP .... Borger, Texas ...... Stormwater Solids (the EPA Hazardous Waste No. F037) generated at a maximum generation of

7,000 cubic yards per calendar year after (date rule finalized) and disposed in a landfill. WRB Refining must implement a verification program that meets the following Paragraphs: 

(1) Delisting Levels: All leachable constituent concentrations must not exceed the following levels. 

The petitioner must use the method specified in 40 CFR 261.24 to measure constituents in the 

waste leachate (mg/L). Stormwater Solids Leachate: Acenaphthene—219; Anthracene—534; Antimony 2.52; Arsenic—0.266; Barium—100; Benz(a)anthracene—10.5; Benzene—0.5; 

Benzo(a)pyrene—3,960; Beryllium—2.95; Cadmium—1; Carbon disulfide—1,150; Chlorobenzene—31.1; Chloroform—1.64; Chromium—1.56; Chrysene—1,050; Cobalt—5.56; Di-n-butyl 

phthalate—507; 1,2-Dichlorobenzene—192; 1,4-Dichlorobenzene—4.26; 1,1-Dichloroethane— 

1,080; 1,2-Dichloroethane—0.5; 1,1-Dichloroethylene—0.7; 2,4-Dimethylphenol—234; 2,4- 

Dinitrophenol—23.8; 1,4-Dioxane—2.32; Ethylbenzene—16.2; Fluoranthene—50.7; Fluorene— 

101; Lead—5; Mercury—0.2; Methyl ethyl ketone—200; Napthalene—1.95; Nickel—279; Phenol—3,580; Pyrene—91.7; Pyridine—5; Selenium—1; Silver—5; Styrene—31.1; 

Tetrachloroethylene—0.7; Toluene—311; Trichloroethylene—0.5; Vanadium—85.6; Xylenes—177; 

Zinc—4,060 

(2) Waste Holding and Handling: 

(A) All stormwater solids from tank clean outs must be tested to assure they have met the concentrations described in Paragraph (1). Solids that do not meet the concentrations must be 

disposed of as hazardous waste. 

(B) Levels of constituents measured in the samples of the solids that do not exceed the levels 

set forth in Paragraph (1) are non-hazardous. WRB Refining can manage and dispose the 

non-hazardous stormwater solids according to all applicable solid waste regulations. 

(C) WRB Refining must maintain a record of the actual volume of the stormwater solids to be 

disposed in the Subtitle D or on-site landfill according to the requirements in Paragraph (4). 

(3) Changes in Operating Conditions: If WRB Refining significantly changes the process described in its petition or starts any processes that may or could affect the composition or type 

of waste generated as established under Paragraph (1) (by illustration, but not limitation, 

changes in equipment or operating conditions of the treatment process), they must notify the 

EPA in writing; they may no longer handle the wastes generated from the new process as 

nonhazardous until the test results of the wastes meet the delisting levels set in Paragraph 

(1) and they have received written approval to do so from the EPA. 

(4) Data Submittals: WRB Refining must submit the information described below. If WRB Refining fails to submit the required data within the specified time or maintain the required records 

on-site for the specified time, the EPA, at its discretion, will consider this sufficient basis to 

reopen the exclusion as described in Paragraph 5. WRB Refining must: 

(A) Submit the data obtained through Paragraph 3 to the Chief, RCRA Permits & Solid Waste 

Section, Mail Code, (6LCR–RP) US EPA Region 6, 1201 Elm Street, Suite 500, Dallas, TX 

75270 within the time specified. Data may be submitted via email to the technical contact for 

the delisting program. 

(B) Compile records of operating conditions and analytical data from Paragraph (3), summarized, and maintained on-site for a minimum of five years. 

(C) Furnish these records and data when the EPA or the State of Texas request them for inspection. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66751 

Facility 

(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 the 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 the 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.’’ 

(5) Reopener: 

(A) If, any time after disposal of the delisted waste, WRB Refining 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 the verification testing of the waste does not meet the delisting requirements in Paragraph 

1, WRB Refining 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 fails to submit the information described in paragraphs (4), (5)(A) or (5)(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 Agency 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. 

(D) If the Division Director determines that the reported information does require Agency action, 

the Division Director will notify the facility, in writing, of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a 

statement of the proposed action and a statement providing the facility with an opportunity to 

present information as to why the proposed Agency 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 (5)(D) or (if no 

information is presented under paragraph (5)(D)) the initial receipt of information described in 

paragraphs (4), (5)(A) or (5)(B), the Division Director 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 Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. 

(6) Notification Requirements: WRB Refining 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 written notification to any State Regulatory Agency to which, or through which 

they will transport the delisted waste described above for disposal, 60 days before beginning 

such activities. If WRB Refining transports the excluded waste to or manages the waste in 

any state with delisting authorization, WRB Refining must obtain delisting authorization from 

that state before it can manage the waste as nonhazardous in the state. 

(B) Update the one-time written notification if they ship the delisted waste to a different disposal 

facility. 

(C) Failure to provide the notification will result in a violation of the delisting variance and a 

possible revocation of the exclusion. 

[FR Doc. 2023–20408 Filed 9–27–23; 8:45 am] 

BILLING CODE 6560–50–P 


ddrumheller on DSK120RN23PROD with PROPOSALS1