[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66742-66751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20408]


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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.

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[[Page 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:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#44372c252c6a2c2536363d042134256a232b32"><span class="__cf_email__" data-cfemail="c2b1aaa3aaecaaa3b0b0bb82a7b2a3eca5adb4">[email protected]</span></a>.
    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, 
<a href="/cdn-cgi/l/email-protection#b8cbd0d9d096d0d9cacac1f8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="0a79626b6224626b7878734a6f7a6b246d657c">[email protected]</span></a>. 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.

[[Page 66744]]

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 
Sec. Sec.  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 Sec.  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 Sec.  261.3(a)(2)(iv) or (c)(2)(i), 
known as the ``mixture'' or ``derived-from'' 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 derived-from 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'' (<a href="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%20Data%5C91thru94%5CTxt%5C00000035%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">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%20Data%5C91thru94%5CTxt%5C00000035%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</a>).
    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 Sec.  
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 Sec.  261.3(a)(2)(iii and iv) 
and (c)(2)(i), called the ``mixture'' and ``derived-from'' 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
----------------------------------------------------------------------------------------------------------------
                                                           1 Mile radius      3 Mile radius      5 Mile radius
         Supplemental EJ index (USA percentile)              around the         around the         around the
                                                              facility           facility           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

[[Page 66745]]

 
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 Sec.  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 Sec.  
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
------------------------------------------------------------------------
                                      Maximum total       Maximum TCLP
           Chemical name            concentration (mg/ concentration (mg/
                                           kg)                 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

[[Page 66746]]

 
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-                    <0.00098              0.010
 Trichloroethylene)...............
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 Sec.  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 
Sec.  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 ``derived-from'' 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

[[Page 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-risk-assessment-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/hazardous-waste-delisting-risk-assessment-software-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 Sec.  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, <a href="/cdn-cgi/l/email-protection#5f2c373e3771373e2d2d261f3a2f3e71383029"><span class="__cf_email__" data-cfemail="16657e777e387e7764646f5673667738717960">[email protected]</span></a>. 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

[[Page 66748]]

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 Sec.  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 Sec.  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 Sec. Sec.  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

[[Page 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/laws-regulations/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-about-environmental-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

[[Page 66750]]

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

0
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.

0
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 Sec. Sec.  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.

[[Page 66751]]

 
                                                                    (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


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