Federal Register / Vol. 77, No. 118 / Tuesday, June 19, 2012 / Proposed Rules 36447 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994), establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

We have determined that this 

proposed rule, if finalized, will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it disapproves a possible 

relaxation of Utah’s rule where 

increases in emissions are possible. 

In addition, this proposed action does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP 

being disapproved would not apply in 

Indian country located in the state, and 

it would not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by August 20, 2012. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2) of the CAA.) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: June 6, 2012. 

James B. Martin, 

Regional Administrator, Region 8. 

[FR Doc. 2012–14943 Filed 6–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2012–0138; FRL–9685–6] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to grant a 

petition submitted by ExxonMobil 

Refining and Supply Company 

(ExxonMobil) Baytown Refinery (BTRF) 

to exclude (or delist) the underflow 

water generated at the North Landfarm 

(NLF) in Baytown, Texas from the lists 

of hazardous wastes. EPA used the 

Delisting Risk Assessment Software 

(DRAS) Version 3.0 in the evaluation of 

the impact of the petitioned waste on 

human health and the environment. 

DATES: We will accept comments until 

July 19, 2012. Your requests for a 

hearing must reach EPA by July 5, 2012. 

See the FOR FURTHER INFORMATION

CONTACT section for details. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

RCRA–2012–0138 by one of the 

following methods: 

1. Federal eRulemaking Portal: 

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

on-line instructions for submitting 

comments. 

2. Email: jacques.wendy@epa.gov. 

3. Mail: Wendy Jacques, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–F, 1445 Ross Avenue, Dallas, TX 

75202. 

4. Hand Delivery or Courier: Deliver 

your comments to: Wendy Jacques, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–F, 1445 Ross Avenue, Dallas, TX 

75202. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–RCRA–2012– 

0138. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. The 

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

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 


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available docket materials may be 

available either electronically in http:// 

www.regulations.gov or in electronic or 

hard copy at the Environmental 

Protection Agency, RCRA Branch, 1445 

Ross Avenue, Dallas, TX 75202. The 

hard copy RCRA regulatory docket for 

this proposed rule, EPA–R06–RCRA– 

2012–0138, is available for viewing from 

8 a.m. to 5 p.m., Monday through 

Friday, excluding Federal holidays. The 

public may copy material from any 

regulatory docket at no cost for the first 

100 pages, and at fifteen cents per page 

for additional copies. EPA requests that 

you contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The 

interested persons wanting to examine 

these documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: For 

technical information regarding the 

ExxonMobil Baytown Refinery petition, 

contact Wendy Jacques at 214–665–7395 

or by email at jacques.wendy@epa.gov. 

Comments are due by the date 

specified in the DATES section. We will 

stamp comments received after the close 

of the comment period as late. These 

comments may or may not be 

considered in formulating a final 

decision. Your requests for a hearing 

must reach EPA by July 5, 2012. The 

request must contain the information 

described in 40 CFR 260.20(d). 

SUPPLEMENTARY INFORMATION: 

ExxonMobil submitted a petition under 

40 CFR 260.20 and 260.22(a). Section 

260.20 allows any person to petition the 

EPA Administrator to modify or revoke 

any provision of parts 260 through 266, 

268 and 273. Section 260.22(a) 

specifically provides generators the 

opportunity to petition the 

Administrator to exclude a waste on a 

‘‘generator specific’’ basis from the 

hazardous waste lists. 

EPA bases its proposed decision to 

grant the petition on an evaluation of 

waste-specific information provided by 

the petitioner. This decision, if 

finalized, would conditionally exclude 

the petitioned waste from the 

requirements of hazardous waste 

regulations under the Resource 

Conservation and Recovery Act (RCRA). 

If finalized, EPA would conclude that 

ExxonMobil’s petitioned waste is nonhazardous with respect to the original 

listing criteria. EPA would also 

conclude that ExxonMobil’s process 

minimizes short-term and long-term 

threats from the petitioned waste to 

human health and the environment. 

Table of Contents 

The information in this section is 

organized as follows: 

I. Overview Information 

A. What action is EPA proposing? 

B. Why is EPA proposing to approve this 

delisting? 

C. How will ExxonMobil manage the 

waste, if it is delisted? 

D. When would the proposed delisting 

exclusion be finalized? 

E. How would this action affect states? 

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 EPA consider in 

deciding whether to grant a delisting 

petition? 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What wastes did ExxonMobil petition 

EPA to delist? 

B. Who is ExxonMobil and what process 

does it use to generate the petitioned 

waste? 

C. How did ExxonMobil sample and 

analyze the data in this petition? 

D. What were the results of ExxonMobil’s 

sample analysis? 

E. How did EPA evaluate the risk of 

delisting this waste? 

F. What did EPA conclude about 

ExxonMobil’s analysis? 

G. What other factors did EPA consider in 

its evaluation? 

H. What is EPA’s evaluation of this 

delisting petition? 

IV. Next Steps 

A. With what conditions must the 

petitioner comply? 

B. What happens if ExxonMobil violates 

the terms and conditions? 

V. Public Comments 

A. How may I as an interested party submit 

comments? 

B. How may I review the docket or obtain 

copies of the proposed exclusions? 

VI. Statutory and Executive Order Reviews 

I. Overview Information 

A. What action is EPA proposing? 

EPA is proposing to approve the 

delisting petition submitted by 

ExxonMobil to have the underflow 

water excluded, or delisted from the 

definition of a hazardous waste upon 

issuance of notification to the Texas 

Commission of Environmental Quality 

(TCEQ) that ExxonMobil will initiate 

closure activities of the North Landfarm. 

The underflow water is an aqueous 

solution which seeps through the 

treatment zone (soils) of the North 

Landfarm, making it an F039 waste. 

B. Why is EPA proposing to approve this 

delisting? 

ExxonMobil’s petition requests an 

exclusion from the F039 waste listings 

pursuant to 40 CFR 260.20 and 260.22. 

ExxonMobil does not believe that the 

petitioned waste meets the criteria for 

which EPA listed it. ExxonMobil also 

believes no additional constituents or 

factors could cause the waste to be 

hazardous. EPA’s review of this petition 

included consideration of the original 

listing criteria and the additional factors 

required by the Hazardous and Solid 

Waste Amendments of 1984 (HSWA). 

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

6921(f), and 40 CFR 260.22 (d)(1)–(4) 

(hereinafter all sectional references are 

to 40 CFR unless otherwise indicated). 

In making the initial delisting 

determination, EPA evaluated the 

petitioned waste against the listing 

criteria and factors cited in 

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

review, EPA agrees with the petitioner 

that the waste is non-hazardous with 

respect to the original listing criteria. If 

EPA had found, based on this review, 

that the waste remained hazardous 

based on the factors for which the waste 

was originally listed, EPA would have 

proposed to deny the petition. EPA 

evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

EPA considered whether the waste is 

acutely toxic, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 

generated, and waste variability. EPA 

believes that the petitioned waste does 

not meet the listing criteria and thus 

should not be a listed waste. EPA’s 

proposed decision to delist waste from 

ExxonMobil is based on the information 

submitted in support of this rule, 

including descriptions of the wastes and 

analytical data from the Baytown, Texas 

facility. 

C. How will Exxonmobil manage the 

waste, if it is delisted? 

If the underflow water is delisted, 

ExxonMobil will either: (1) Continue to 

accumulate the underflow water in a 

holding tank, sample the water once 

each calendar year, analyze the annual 

sample for target constituents and 

submit the results to the EPA for review; 

or (2) route the underflow to the 

underflow collection system and then to 

the series of ditches to the underground 

Baytown Refinery East sewer. In the 

latter case, samples of the underflow 

water would be collected from the 

underflow sump once each calendar 

year, analyzed for target constituents 

and the results submitted to the EPA for 


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review. Ultimately, the underflow will 

enter the waste water treatment system 

where it is commingled with other 

wastewaters from the Baytown 

Chemical Plant and Baytown Olefins 

Plant. 

D. When would the proposed delisting 

exclusion be finalized? 

RCRA section 3001(f) specifically 

requires EPA to provide a notice and an 

opportunity for comment before 

granting or denying a final exclusion. 

Thus, EPA will not grant the exclusion 

until it addresses all timely public 

comments (including those at public 

hearings, if any) on this proposal. 

RCRA section 3010(b)(1) at 42 U.S.C. 

6930(b)(1), allows rules to become 

effective in less than six months when 

the regulated facility does not need the 

six-month period to come into 

compliance. That is the case here, 

because this rule, if finalized, would 

reduce the existing requirements for 

persons generating hazardous wastes. 

EPA believes that this exclusion 

should be effective immediately upon 

final publication because a six-month 

deadline is not necessary to achieve the 

purpose of section 3010(b), and a later 

effective date would impose 

unnecessary hardship and expense on 

this petitioner. These reasons also 

provide good cause for making this rule 

effective immediately, upon final 

publication, under the Administrative 

Procedure Act, 5 U.S.C. 553(d). 

E. How would this action affect the 

states? 

Because EPA is issuing this exclusion 

under the Federal RCRA delisting 

program, only states subject to Federal 

RCRA delisting provisions would be 

affected. This would exclude states 

which have received authorization from 

EPA to make their own delisting 

decisions. 

EPA allows states to impose their own 

non-RCRA regulatory requirements that 

are more stringent than EPA’s, under 

section 3009 of RCRA, 42 U.S.C. 6929. 

These more stringent requirements may 

include a provision that prohibits a 

Federally issued exclusion from taking 

effect in the state. Because a dual system 

(that is, both Federal (RCRA) and state 

(non-RCRA) programs) may regulate a 

petitioner’s waste, EPA urges petitioners 

to contact the state regulatory authority 

to establish the status of their wastes 

under the state law. 

EPA has also authorized some states 

(for example, Louisiana, Oklahoma, 

Georgia, Illinois) to administer a RCRA 

delisting program in place of the Federal 

program, that is, to make state delisting 

decisions. Therefore, this exclusion 

does not apply in those authorized 

states unless that state makes the rule 

part of its authorized program. If 

ExxonMobil transports the petitioned 

waste to or manages the waste in any 

state with delisting authorization, 

ExxonMobil must obtain delisting 

authorization from that state before it 

can manage the waste as non-hazardous 

in the state. 

II. Background 

A. What is the history of the delisting 

program? 

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. EPA has amended this list 

several times and published it in 40 CFR 

261.31 and 261.32. 

EPA lists these 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 

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 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 EPA or an authorized state 

to exclude wastes from the list of 

hazardous wastes. The facility petitions 

EPA because it does not consider the 

wastes 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 EPA lists a waste 

are in part 261 and further explained in 

the background documents for the listed 

waste. 

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 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. (See part 261 and the 

background documents for the listed 

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 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) other than those 

for which EPA listed the waste, if a 

reasonable basis exists that these 

additional factors could cause the waste 

to be hazardous. 

EPA must also consider as 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). 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did ExxonMobil petition 

EPA to delist? 

In August 2010, ExxonMobil 

petitioned EPA to exclude from the lists 

of hazardous wastes contained in 

§§ 261.31 and 261.32, underflow water 

(F039) generated from its facility located 

in Baytown, Texas. The waste falls 

under the classification of listed waste 

pursuant to §§ 261.31 and 261.32. 

Specifically, in its petition, ExxonMobil 

requested that EPA grant a standard 

exclusion for 7,427 cubic yards 

(1,500,000 gallons) per year of the 

underflow water. 


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B. Who is ExxonMobil and what process 

does it use to generate the petitioned 

waste? 

ExxonMobil Baytown Refinery 

processes crude oil in the production of 

a number of petroleum products, 

including fuels, solvents and chemical 

feedstocks. The petitioned waste is 

generated by downward vertical 

migration of liquid through the North 

Landfarm. The North Landfarm does not 

prepare or process materials. The 

underflow is transported by the 

collection system to the North Landfarm 

underflow sump which is the point of 

waste generation. 

C. How did ExxonMobil sample and 

analyze the data in this petition? 

To support its petition, ExxonMobil 

submitted: 

(1) Historical information on waste 

generation and management practices; 

and 

(2) analytical results from five 

samples for total concentrations of 

compounds of concern (COC)s; 

D. What were the results of 

ExxonMobil’s analyses? 

EPA believes that the descriptions of 

the ExxonMobil analytical 

characterization provide a reasonable 

basis to grant ExxonMobil’s petition for 

an exclusion of the North Landfarm 

underflow water. EPA believes the data 

submitted in support of the petition 

show the North Landfarm underflow 

water is non-hazardous. Analytical data 

for the North Landfarm underflow water 

samples were used in the DRAS to 

develop delisting levels. The data 

summaries for COCs are presented in 

Table I. EPA has reviewed the sampling 

procedures used by ExxonMobil and has 

determined that it satisfies EPA criteria 

for collecting representative samples of 

the variations in constituent 

concentrations in the landfill underflow 

water. In addition, the data submitted in 

support of the petition show that 

constituents in ExxonMobil’s waste are 

presently below health-based levels 

used in the delisting decision-making. 

EPA believes that ExxonMobil has 

successfully demonstrated that the 

landfill underflow water is nonhazardous. 

TABLE 1—ANALYTICAL RESULTS/MAXIMUM ALLOWABLE DELISTING CONCENTRATION

[North Landfarm Underflow Water ExxonMobil Baytown Refinery, Baytown, Texas] 

Constituent 

Maximum total 

concentration 

(mg/L) 

Maximum allowable TCLP 

delisting level 

(mg/L) 

Arsenic ............................................................................................................................................................... ND .................... 1.64E–01 

Barium ................................................................................................................................................................ 2.99E–02 .......... 1.00E+02 

Benzene ............................................................................................................................................................. ND .................... 5.00E–01 

Benzo(a)anthracene .......................................................................................................................................... ND .................... 1.36E+00 

Benzo(b)fluoranthene ........................................................................................................................................ ND .................... 1.03E+03 

Benzo(k)fluoranthene ......................................................................................................................................... ND .................... 1.22E+04 

Benzo(a)pyrene ................................................................................................................................................. ND .................... 1.03E+02 

Cadmium ............................................................................................................................................................ ND .................... 5.00E+00 

Carbon tetrachloride .......................................................................................................................................... ND .................... 5.00E–01 

Chlorobenzene ................................................................................................................................................... ND .................... 2.94E+01 

Chloroform ......................................................................................................................................................... ND .................... 1.56E+00 

Chromium .......................................................................................................................................................... ND .................... 5.00E+00 

Chrysene ............................................................................................................................................................ ND .................... 1.36E+02 

Cobalt ................................................................................................................................................................. 9.53E–04 .......... 4.05E+00 

Copper ............................................................................................................................................................... 2.23E–03 .......... 4.60E+02 

o-Cresol ............................................................................................................................................................. ND .................... 2.00E+02 

m-Cresol ............................................................................................................................................................ ND .................... 2.00E+02 

p-Cresol ............................................................................................................................................................. ND .................... 2.00E+02 

1,2-Dichloroethane ............................................................................................................................................. ND .................... 5.00E–01 

1,1-Dichloroethylene .......................................................................................................................................... ND .................... 7.00E–01 

2,4-Dinitrotoluene ............................................................................................................................................... ND .................... 1.30E–01 

Fluoride .............................................................................................................................................................. 7.20E–01 .......... 7.65E+02 

Hexachlorobenzene ........................................................................................................................................... ND .................... 1.30E–01 

Hexachloroethane .............................................................................................................................................. ND .................... 3.00E+00 

Lead ................................................................................................................................................................... 9.47E–04 .......... 1.04E+01 

Manganese ........................................................................................................................................................ 6.66E–01 .......... 3.11E+02 

Mercury .............................................................................................................................................................. ND .................... 2.00E–01 

Methyl ethyl ketone ............................................................................................................................................ ND .................... 2.00E+00 

Molybdenum ...................................................................................................................................................... 1.66E–02 .......... 6.38E+01 

Nitrobenzene ...................................................................................................................................................... ND .................... 2.00E+00 

Pentachlorophenol ............................................................................................................................................. ND .................... 3.03E–01 

Pyridine .............................................................................................................................................................. ND .................... 5.00E+00 

Selenium ............................................................................................................................................................ 5.16E–03 .......... 1.00E+00 

Silver .................................................................................................................................................................. ND .................... 5.00E+00 

Total-TCDD ........................................................................................................................................................ 2.14E–09 .......... 3.74E–05 

Tetrachloroethylene ........................................................................................................................................... ND .................... 3.98E–01 

Trichloroethylene ............................................................................................................................................... ND .................... 5.00E–01 

2,4,6-Trichlorophenol ......................................................................................................................................... ND .................... 2.00E+00 

Vinyl chloride ..................................................................................................................................................... ND .................... 1.56E–01 

Zinc .................................................................................................................................................................... 6.05E–02 .......... 3.93E+03 

Notes: These levels represent the highest constituent concentration found in any one sample and does not necessarily represent the specific 

level found in one sample. 

ND—Constituent was not detected in any of the delisting samples collected for the petition but was in waste(s) historically applied to the North 

Landfarm and could reasonably be expected to be present in underflow water. 


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E. How did EPA evaluate the risk of 

delisting the waste? 

For this delisting determination, EPA 

used such information gathered to 

identify plausible exposure routes (i.e., 

groundwater, surface water, air) for 

hazardous constituents present in the 

petitioned waste. EPA determined that 

disposal in a surface impoundment is 

the most reasonable, worst-case disposal 

scenario for ExxonMobil’s petitioned 

waste. EPA applied the Delisting Risk 

Assessment Software (DRAS) described 

in 65 FR 58015 (September 27, 2000) 

and 65 FR 75637 (December 4, 2000), to 

predict the maximum allowable 

concentrations of hazardous 

constituents that may be released from 

the petitioned waste after disposal and 

determined the potential impact of the 

disposal of ExxonMobil’s petitioned 

waste on human health and the 

environment. A copy of this software 

can be found on the world wide web at 

http://www.epa.gov/reg5rcra/wptdiv/ 

hazardous/delisting/dras-software.html. 

In assessing potential risks to 

groundwater, EPA used the maximum 

waste volumes and the maximum 

reported extract concentrations as 

inputs to the DRAS program to estimate 

the constituent concentrations in the 

groundwater at a hypothetical receptor 

well down gradient from the disposal 

site. Using the risk level (carcinogenic 

risk of 10¥5 and non-cancer hazard 

index of 1.0), the DRAS program can 

back-calculate the acceptable receptor 

well concentrations (referred to as 

compliance-point concentrations) using 

standard risk assessment algorithms and 

EPA health-based numbers. Using the 

maximum compliance-point 

concentrations and EPA’s Composite 

Model for Underflow water Migration 

with Transformation Products 

(EPACMTP) fate and transport modeling 

factors, the DRAS further backcalculates the maximum permissible 

waste constituent concentrations not 

expected to exceed the compliancepoint concentrations in groundwater. 

EPA believes that the EPACMTP fate 

and transport model represents a 

reasonable worst-case scenario for 

possible groundwater contamination 

resulting from disposal of the petitioned 

waste in a surface impoundment, and 

that a reasonable worst-case scenario is 

appropriate when evaluating whether a 

waste should be relieved of the 

protective management constraints of 

RCRA Subtitle C. The use of some 

reasonable worst-case scenarios resulted 

in conservative values for the 

compliance-point concentrations and 

ensures that the waste, once removed 

from hazardous waste regulation, will 

not pose a significant threat to human 

health or the environment. 

The DRAS also uses the maximum 

estimated waste volumes and the 

maximum reported total concentrations 

to predict possible risks associated with 

releases of waste constituents through 

surface pathways (e.g., volatilization 

from the impoundment). As in the 

above groundwater analyses, the DRAS 

uses the risk level, the health-based data 

and standard risk assessment and 

exposure algorithms to predict 

maximum compliance-point 

concentrations of waste constituents at 

a hypothetical point of exposure. Using 

fate and transport equations, the DRAS 

uses the maximum compliance-point 

concentrations and back-calculates the 

maximum allowable waste constituent 

concentrations (or ‘‘delisting levels’’). 

In most cases, because a delisted 

waste is no longer subject to hazardous 

waste control, EPA is generally unable 

to predict, and does not presently 

control, how a petitioner will manage a 

waste after delisting. Therefore, EPA 

currently believes that it is 

inappropriate to consider extensive sitespecific factors when applying the fate 

and transport model. EPA does control 

the type of unit where the waste is 

disposed. The waste must be disposed 

in the type of unit the fate and transport 

model evaluates. 

The DRAS results which calculate the 

maximum allowable concentration of 

chemical constituents in the waste are 

presented in Table I. Based on the 

comparison of the DRAS and TCLP 

Analyses results found in Table I, the 

petitioned waste should be delisted 

because no constituents of concern 

tested are likely to be present or formed 

as reaction products or by-products in 

ExxonMobil waste. 

F. What did EPA conclude about 

ExxonMobil’s waste analysis? 

EPA concluded, after reviewing 

ExxonMobil’s processes that no other 

hazardous constituents of concern, other 

than those for which tested, are likely to 

be present or formed as reaction 

products or by-products in the waste. In 

addition, on the basis of explanations 

and analytical data provided by 

ExxonMobil, pursuant to § 260.22, EPA 

concludes that the petitioned waste do 

not exhibit any of the characteristics of 

ignitability, corrosivity, reactivity or 

toxicity. See §§ 261.21, 261.22 and 

261.23, respectively. 

G. What other factors did EPA consider 

in its evaluation? 

During the evaluation of 

ExxonMobil’s petition, EPA also 

considered the potential impact of the 

petitioned waste via non-groundwater 

routes (i.e., air emission and surface 

runoff). With regard to airborne 

dispersion in particular, EPA believes 

that exposure to airborne contaminants 

from ExxonMobil’s petitioned waste is 

unlikely. Therefore, no appreciable air 

releases are likely from ExxonMobil’s 

waste under any likely disposal 

conditions. EPA evaluated the potential 

hazards resulting from the unlikely 

scenario of airborne exposure to 

hazardous constituents released from 

ExxonMobil’s waste in an open 

impoundment. The results of this worstcase analysis indicated that there is no 

substantial present or potential hazard 

to human health and the environment 

from airborne exposure to constituents 

from ExxonMobil’s North Landfarm 

underflow water. 

H. What is EPA’s evaluation of this 

delisting petition? 

The descriptions of ExxonMobil’s 

hazardous waste process and analytical 

characterization provide a reasonable 

basis for EPA to grant the exclusion. The 

data submitted in support of the petition 

show that constituents in the waste are 

below the leachable concentrations (see 

Table I). EPA believes that 

ExxonMobil’s North Landfarm 

underflow water will not impose any 

threat to human health and the 

environment. 

Thus, EPA believes ExxonMobil 

should be granted an exclusion for the 

North Landfarm underflow water. EPA 

believes the data submitted in support 

of the petition show ExxonMobil’s 

North Landfarm underflow water is 

non-hazardous. The data submitted in 

support of the petition show that 

constituents in ExxonMobil’s waste are 

presently below the compliance point 

concentrations used in the delisting 

decision and would not pose a 

substantial hazard to the environment. 

EPA believes that ExxonMobil has 

successfully demonstrated that the 

North Landfarm underflow water is 

non-hazardous. 

EPA therefore, proposes to grant an 

exclusion to ExxonMobil in Baytown, 

Texas, for the North Landfarm 

underflow water described in its 

petition. EPA’s decision to exclude this 

waste is based on descriptions of the 

treatment activities associated with the 

petitioned waste and characterization of 

the North Landfarm underflow water. 

If EPA finalizes the proposed rule, 

EPA will no longer regulate the 

petitioned waste under Parts 262 

through 268 and the permitting 

standards of Part 270. 


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IV. Next Steps 

A. With what conditions must the 

petitioner comply? 

The petitioner, ExxonMobil, must 

comply with the requirements in 40 

CFR Part 261, Appendix IX, Table 1. 

The text below gives the rationale and 

details of those requirements. 

(1) Delisting Levels 

This paragraph provides the levels of 

constituents for which ExxonMobil 

must test the North Landfarm underflow 

water, below which these wastes would 

be considered non-hazardous. EPA 

selected the set of inorganic and organic 

constituents specified in paragraph (1) 

of 40 CFR Part 261, Appendix IX, Table 

1, (the exclusion language) based on 

information in the petition. EPA 

compiled the inorganic and organic 

constituents list from the composition of 

the waste, descriptions of ExxonMobil’s 

treatment process, previous test data 

provided for the waste, and the 

respective health-based levels used in 

delisting decision-making. These 

delisting levels correspond to the 

allowable levels measured in the TCLP 

concentrations. 

(2) Waste Holding and Handling 

The purpose of this paragraph is to 

ensure that ExxonMobil manages and 

disposes of any North Landfarm 

underflow water that contains 

hazardous levels of inorganic and 

organic constituents according to 

Subtitle C of RCRA. Managing the North 

Landfarm underflow water as a 

hazardous waste until initial 

verification testing is performed will 

protect against improper handling of 

hazardous material. If EPA determines 

that the data collected under this 

paragraph do not support the data 

provided for in the petition, the 

exclusion will not cover the petitioned 

waste. The exclusion is effective upon 

publication in the Federal Register but 

the disposal as non-hazardous cannot 

begin until the verification sampling is 

completed. 

(3) Verification Testing Requirements 

ExxonMobil must complete a rigorous 

verification testing program on the 

North Landfarm underflow water to 

assure that the water does not exceed 

the maximum levels specified in 

paragraph (1) of the exclusion language. 

This verification program operates on 

two levels. The first part of the 

verification testing program consists of 

testing the North Landfarm underflow 

water for specified indicator parameters 

as per paragraph (1) of the exclusion 

language. ExxonMobil will test 

underflow water within the first 30 days 

after notifying the TCEQ of its intention 

to initiate closure activities for the 

North Landfarm. Once ExxonMobil 

notifies TCEQ that it will begin closure 

activities, wastes (including underflow 

water) will no longer be applied to the 

North Landfarm. 

If EPA determines that the data 

collected under this paragraph do not 

support the data provided for the 

petition, the exclusion will not cover 

the generated wastes. If the data from 

the initial verification testing program 

demonstrate that the North Landfarm 

underflow water meets the delisting 

levels, ExxonMobil may commence 

verification testing. EPA will notify 

ExxonMobil in writing, if and when it 

may replace the testing conditions in 

paragraph (3)(A) with the testing 

conditions in (3)(B) of the exclusion 

language. 

The second part of the verification 

testing program is the testing of 

representative samples of North 

Landfarm underflow water for all 

constituents specified in paragraph (1) 

of the exclusion language. EPA believes 

that the concentrations of the 

constituents of concern in the North 

Landfarm underflow water may vary 

over time. Consequently, this program 

will ensure that the North Landfarm 

underflow water is evaluated in terms of 

variation in constituent concentrations 

in the waste over time. 

The proposed subsequent testing 

would verify that the constituent 

concentrations of the North Landfarm 

underflow water do not exhibit 

unacceptable temporal and spatial 

levels of toxic constituents. EPA is 

proposing to require ExxonMobil to 

analyze representative samples of the 

North Landfarm underflow water twice 

during the first six months of waste 

generation. ExxonMobil would begin 

sampling after confirmation that the 

results from the initial verification 

sampling are less than the Maximum 

Allowable Delisting Concentrations for 

the indicator parameters included in 

paragraph (1) of the exclusion language 

as described in paragraph (3)(A) of the 

exclusion language. 

EPA, per paragraph 3(B) of the 

exclusion language, is proposing to end 

the subsequent testing conditions after 

the first six months, if ExxonMobil has 

demonstrated that the waste 

consistently meets the delisting levels. 

To confirm that the characteristics of the 

waste do not change significantly over 

time, ExxonMobil must continue to 

analyze a representative sample of the 

waste on an annual basis. Annual 

testing requires analyzing the full list of 

components in paragraph (1) of the 

exclusion language. If operating 

conditions change as described in 

paragraph (4) of the exclusion language; 

ExxonMobil must reinstate all testing in 

paragraph (1) of the exclusion language. 

ExxonMobil must prove through a 

new demonstration that their waste 

meets the conditions of the exclusion. If 

the annual testing of the waste does not 

meet the delisting requirements in 

paragraph (1), ExxonMobil must notify 

EPA according to the requirements in 

paragraph (6) of the exclusion language. 

The facility must provide sampling 

results that support the rationale that 

the delisting exclusion should not be 

withdrawn. 

(4) Changes in Operating Conditions 

Paragraph (4) of the exclusion 

language would allow ExxonMobil the 

flexibility of modifying its processes (for 

example, changes in equipment or 

change in operating conditions). 

However, ExxonMobil must prove the 

effectiveness of the modified process 

and request approval from EPA. 

ExxonMobil must manage wastes 

generated during the new process 

demonstration as hazardous waste until 

it has obtained written approval and 

paragraph (3) of the exclusion language 

is satisfied. 

(5) Data Submittals 

To provide appropriate 

documentation that ExxonMobil’s North 

Landfarm underflow water is meeting 

the delisting levels, ExxonMobil must 

compile, summarize, and keep delisting 

records on-site for a minimum of five 

years. It should keep all analytical data 

obtained through paragraph (3) of the 

exclusion language including quality 

control information for five years. 

Paragraph (5) of the exclusion language 

requires that ExxonMobil furnish these 

data upon request for inspection by any 

employee or representative of EPA or 

the State of Texas. 

If the proposed exclusion is made 

final, it will apply only to 7,427 cubic 

yards per year of North Landfarm 

underflow water generated at the 

ExxonMobil Baytown Refinery after 

successful verification testing. EPA 

would require ExxonMobil to file a new 

delisting petition under any of the 

following circumstances and treat the 

underflow water as hazardous waste: 

(a) If it significantly alters the process 

or treatment system except as described 

in paragraph (4) of the exclusion 

language; 

(b) If it significantly changes from the 

current process(es) described in their 

petition; or 


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(c) If it makes any changes that could 

affect the composition or type of waste 

generated. 

ExxonMobil must manage waste 

volumes greater than 7,427 cubic yards 

per year of North Landfarm underflow 

water as hazardous until EPA grants a 

new exclusion. 

When this exclusion becomes final, 

ExxonMobil’s management of the wastes 

covered by this petition would be 

relieved from Subtitle C jurisdiction, the 

North Landfarm underflow water from 

ExxonMobil will be treated and 

discharged to the Houston Ship 

Channel. 

(6) Reopener 

The purpose of paragraph (6) of the 

exclusion language is to require 

ExxonMobil to disclose new or different 

information related to a condition at the 

facility or disposal of the waste, if it is 

pertinent to the delisting. ExxonMobil 

must also use this procedure, if the 

waste sample in the annual testing fails 

to meet the levels found in paragraph 

(1). This provision will allow EPA to 

reevaluate the exclusion, if a source 

provides new or additional information 

to EPA. EPA will evaluate the 

information on which EPA based the 

decision to see if it is still correct, or if 

circumstances have changed so that the 

information is no longer correct or 

would cause EPA to deny the petition, 

if presented. This provision expressly 

requires ExxonMobil to report differing 

site conditions or assumptions used in 

the petition in addition to failure to 

meet the annual testing conditions 

within 10 days of discovery. If EPA 

discovers such information itself or 

from a third party, it can act on it as 

appropriate. The language being 

proposed is similar to those provisions 

found in RCRA regulations governing 

no-migration petitions at § 268.6. 

EPA believes that it has the authority 

under RCRA and the Administrative 

Procedures Act (APA), 5 U.S.C. 551 

(1978) et seq., to reopen a delisting 

decision. EPA may reopen a delisting 

decision when it receives new 

information that calls into question the 

assumptions underlying the delisting. 

EPA believes a clear statement of its 

authority in delistings is merited in light 

of EPA’s experience. See Reynolds 

Metals Company at 62 FR 37694 (July 

14, 1997) and 62 FR 63458 (December 

1, 1997) where the delisted waste 

leached at greater concentrations in the 

environment than the concentrations 

predicted when conducting the TCLP, 

thus leading EPA to repeal the delisting. 

If an immediate threat to human health 

and the environment presents itself, 

EPA will continue to address these 

situations on a case-by-case basis. 

Where necessary, EPA will make a good 

cause finding to justify emergency 

rulemaking. See APA § 553 (b). 

(7) Notification Requirements 

In order to adequately track wastes 

that have been delisted, EPA is 

requiring that ExxonMobil provide a 

one-time notification to any state 

regulatory agency through which or to 

which the delisted waste is being 

carried. ExxonMobil must provide this 

notification 60 days before commencing 

this activity. 

B. What happens if ExxonMobil violates 

the terms and conditions? 

If ExxonMobil violates the terms and 

conditions established in the exclusion, 

EPA will start procedures to withdraw 

the exclusion. Where there is an 

immediate threat to human health and 

the environment, EPA will evaluate the 

need for enforcement activities on a 

case-by-case basis. EPA expects 

ExxonMobil to conduct the appropriate 

waste analysis and comply with the 

criteria explained above in paragraph (1) 

of the exclusion. 

V. Public Comments 

A. How can I as an interested party 

submit comments? 

EPA is requesting public comments 

on this proposed decision. Please send 

three copies of your comments. Send 

two copies to Section Chief of the 

Corrective Action and Waste 

Minimization Section (6PD–C), 

Multimedia Planning and Permitting 

Division, Environmental Protection 

Agency (EPA), 1445 Ross Avenue, 

Dallas, Texas 75202. Identify your 

comments at the top with this regulatory 

docket number: ‘‘EPA–R6–RCRA–2012– 

0138 ExxonMobil Baytown Refinery, 

North Landfarm underflow water 

delisting.’’ You may submit your 

comments electronically to Wendy 

Jacques at jacques.wendy@epa.gov. 

You should submit requests for a 

hearing to Section Chief of the 

Corrective Action and Waste 

Minimization Section (6PD–C), 

Multimedia Planning and Permitting 

Division, U.S. Environmental Protection 

Agency, 1445 Ross Avenue, Dallas, 

Texas 75202. 

B. How may I review the docket or 

obtain copies of the proposed 

exclusion? 

You may review the RCRA regulatory 

docket for this proposed rule at the 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202. It is available for viewing 

in EPA Freedom of Information Act 

Review Room from 9:00 a.m. to 4:00 

p.m., Monday through Friday, excluding 

Federal holidays. Call (214) 665–6444 

for appointments. The public may copy 

material from any regulatory docket at 

no cost for the first 100 pages, and at 

fifteen cents per page for additional 

copies. Docket materials may be 

available both electronically in http:// 

www.regulations.gov and you may also 

request the electronic files of the docket 

which do not appear on regulations.gov. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866, 

‘‘Regulatory Planning and Review’’ (58 

FR 51735, October 4, 1993), this rule is 

not of general applicability and 

therefore is not a regulatory action 

subject to review by the Office of 

Management and Budget (OMB). This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) because it 

applies to a particular facility only. 

Because this rule is of particular 

applicability relating to a particular 

facility, it is not subject to the regulatory 

flexibility provisions of the Regulatory 

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

to sections 202, 204, and 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). Because this 

rule will affect only a particular facility, 

it will not significantly or uniquely 

affect small governments, as specified in 

section 203 of UMRA. 

Because this rule will affect only a 

particular facility, this proposed rule 

does not have federalism implications. 

It will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132, 

‘‘Federalism,’’ (64 FR 43255, August 10, 

1999). Thus, Executive Order 13132 

does not apply to this rule. 

Similarly, because this rule will affect 

only a particular facility, this proposed 

rule does not have tribal implications, 

as specified in Executive Order 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000). Thus, 

Executive Order 13175 does not apply 

to this rule. 

This rule also is not subject to 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 


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the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

basis for this belief is that the Agency 

used the DRAS program, which 

considers health and safety risks to 

infants and children, to calculate the 

maximum allowable concentrations for 

this rule. 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355 (May 22, 2001)), because it is 

not a significant regulatory action under 

Executive Order 12866. 

This rule does not involve technical 

standards; thus, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. 

As required by section 3 of Executive 

Order 12988, ‘‘Civil Justice Reform,’’ (61 

FR 4729, February 7, 1996), in issuing 

this rule, EPA has taken the necessary 

steps to eliminate drafting errors and 

ambiguity, minimize potential litigation, 

and provide a clear legal standard for 

affected conduct. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report which includes a 

copy of the rule to each House of the 

Congress and to the Comptroller General 

of the United States. Section 804 

exempts from section 801 the following 

types of rules (1) rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties 5 U.S.C. 804(3). EPA is not 

required to submit a rule report 

regarding this action under section 801 

because this is a rule of particular 

applicability. 

Lists of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

Waste, Recycling, Reporting and 

recordkeeping requirements. 

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

6921(f) 

Dated: May 24, 2012. 

Carl E. Edlund, 

Director Multimedia Planning and Permitting 

Division, Region 6. 

For the reasons set out in the 

preamble, 40 CFR part 261 is proposed 

to be amended as follows: 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

1. The authority citation for part 261 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921, 

6922, 6924(y) and 6938. 

2. In Tables 1 and 2 of Appendix IX 

to Part 261 add the following entries in 

alphabetical order by facility to read as 

follows: 

Appendix IX to Part 261—Waste 

Excluded Under §§ 260.20 and 260.22 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

*******

ExxonMobil North 

Landfarm.

Baytown, TX ......... North Landfarm underflow water (EPA Hazardous Waste Numbers F039 generated at a maximum 

rate of 1,500,000 gallons (7,427 cubic yards) per calendar year after issuing notice that 

ExxonMobil will initiate closure of the North Landfarm. 

For the exclusion to be valid, ExxonMobil must implement a verification testing program for each of 

the waste streams that meets the following Paragraphs: 

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

North Landfarm underflow water. Leachable Concentrations (mg/l): Arsenic—0.164; Barium—100; 

Benzene—0.5; Benzo(a)anthracene—1.36; Benzo(b)fluoranthene—1030; Benzo(k)fluoranthene— 

12200; Benzo(a)pyrene—103; Cadmium—5; Carbon tetrachloride—0.50; Chlorobenzene—29.4; 

Chloroform—1.56; Chromium—5; Chrysene—136; Cobalt—4.05; Copper—460; o-Cresol—200; mCresol—200; p-Cresol—200; 1,2-Dichloroethane—0.50; 1,1-Dichloroethylene—0.7; 2,4-Dinitrotoluene—0.13; Fluoride—765; Hexachlorobenzene—0.13; Hexachloroethane—3; Lead—10.4; Manganese—311; Mercury—0.2; Methyl ethyl ketone—2; Molybdenum—63.8; Nitrobenzene—2; 

Pentachlorophenol—0.303; Pyridine—5; Selenium—1; Silver—5; Total-TCDD—.0000374; 

Tetrachloroethylene—0.398; Trichloroethylene—0.5; 2,4,6–Trichlorophenol—2; Vinyl Chloride— 

0.156; Zinc-3930. 

(2) Waste Holding and Handling: 

(A) Waste classification as non-hazardous can not begin until compliance with the limits set in paragraph (1) for the North Landfarm underflow water has occurred for two consecutive sampling 

events. 

(B) If constituent levels in any annual sample and retest sample taken by ExxonMobil exceed any of 

the delisting levels set in paragraph (1) for the North Landfarm underflow water, ExxonMobil must 

do the following: 

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

(ii) manage and dispose the North Landfarm underflow water as hazardous waste generated under 

Subtitle C of RCRA. 

(3) Testing Requirements: 

Upon notification that it will initiate closure of the North Landfarm, ExxonMobil must perform analytical testing by sampling and analyzing the North Landfarm underflow water as follows: 

(A) Initial Verification Testing: 

(i) Collect one representative sample of the North Landfarm underflow water for analysis of all constituents listed in paragraph (1) within the first 30 days after notifying the TCEQ of the intention to 

initiate closure activities for the North Landfarm. Sampling must be performed in accordance with 

the sampling plan approved by EPA in support of the exclusion. 


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

Facility Address Waste description 

(ii) If the data from the initial verification testing program demonstrate that the North Landfarm 

underflow water meets the Maximum Allowable Delisting Concentrations for the indicator parameters included in paragraph (1), collect two representative samples of the North Landfarm 

underflow water twice during the first six months of waste generation. Analyze the samples for all 

constituents listed in paragraph (1). Any representative sample taken that exceeds the delisting 

levels listed in paragraph (1) indicates that the North Landfarm underflow water must continue to 

be disposed as hazardous waste in accordance with the applicable hazardous waste requirements 

until such time that two consecutive representative samples indicate compliance with delisting levels listed in paragraph (1). 

(iii) Within sixty (60) days after taking its last representative sample, ExxonMobil will report its analytical test data to EPA. If levels of constituents measured in the samples of the North Landfarm 

underflow water do not exceed the levels set forth in paragraph (1) of this exclusion for six consecutive months, ExxonMobil can manage and dispose the non-hazardous North Landfarm 

underflow water according to all applicable solid waste regulations. 

(B) Annual Testing: 

(i) If ExxonMobil completes the testing specified in paragraph (3) above and no sample contains a 

constituent at a level which exceeds the limits set forth in paragraph (1), ExxonMobil must begin 

annual testing as follows: ExxonMobil must test a representative grab sample of the North 

Landfarm underflow water for all constituents listed in paragraph (1) at least once per calendar 

year. If any measured constituent concentration exceeds the delisting levels set forth in paragraph 

(1), ExxonMobil must collect an additional representative sample within 10 days of being made 

aware of the exceedence and test it expeditiously for the constituent(s) which exceeded delisting 

levels in the original annual sample. 

(ii) The samples for the annual testing shall be a representative grab sample according to appropriate methods. As applicable to the method-defined parameters of concern, analyses requiring the 

use of SW–846 methods incorporated by reference in 40 CFR 260.11 must be used without substitution. As applicable, the SW–846 methods might include Methods 0010, 0011, 0020, 0023A, 

0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B,1110A, 1310B, 1311, 1312, 1320, 

1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B, 

and 9095B. Methods must meet Performance Based Measurement System Criteria in which the 

Data Quality Objectives are to demonstrate that samples of the ExxonMobil North Landfarm 

underflow water are representative for all constituents listed in paragraph (1). 

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

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

(iv) The annual testing report should include the total amount of delisted waste in cubic yards disposed during the calendar year. 

(4) Changes in Operating Conditions: If ExxonMobil significantly changes the process described in its 

petition or starts any processes that generate(s) the waste that may or could affect the composition 

or type of waste generated (by illustration, but not limitation, changes in equipment or operating 

conditions of the treatment process), it must notify EPA in writing and it may no longer handle the 

waste generated from the new process as non-hazardous until the waste meet the delisting levels 

set in paragraph (1) and it has received written approval to do so from EPA. 

ExxonMobil must submit a modification to the petition complete with full sampling and analysis for 

circumstances where the waste volume changes and/or additional waste codes are added to the 

waste stream. 

(5) Data Submittals: 

ExxonMobil must submit the information described below. If ExxonMobil fails to submit the required 

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

at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph(6). ExxonMobil must: 

(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division, U. S. Environmental Protection 

Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the time specified. All supporting 

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

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

minimum of five years. 

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

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

truth and accuracy of the data submitted: 

‘‘Under civil and criminal penalty of law for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. § 1001 and 42 U.S.C. § 6928), I certify that the information contained in or accompanying this document is true, accurate and complete. 

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

truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete. 


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36456 Federal Register / Vol. 77, No. 118 / Tuesday, June 19, 2012 / Proposed Rules 

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

Facility Address Waste description 

If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion 

of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company’s RCRA and CERCLA obligations premised upon the company’s reliance on the void exclusion.’’ 

(6) Reopener 

(A) If, anytime after disposal of the delisted waste ExxonMobil possesses or is otherwise made 

aware of any environmental data (including but not limited to underflow water 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 a level higher than the delisting level allowed by 

the Division Director in granting the petition, then the facility must report the data, in writing, to the 

Division Director within 10 days of first possessing or being made aware of that data. 

(B) If either the annual testing (and retest, if applicable) of the waste does not meet the delisting requirements in paragraph 1, ExxonMobil 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 ExxonMobil fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if any 

other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health and/ 

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

(D) If the Division Director determines that the reported information requires action by EPA, the Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a statement of the 

proposed action and a statement providing the facility with an opportunity to present information as 

to why the proposed EPA action is not necessary. The facility shall have 10 days from receipt of 

the Division Director’s notice to present such information. 

(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination describing 

EPA actions that are necessary to protect human health and/or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless 

the Division Director provides otherwise. 

(7) Notification Requirements: 

ExxonMobil must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision. 

(A) Provide a one-time written notification to any state Regulatory Agency to which or through which 

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

(B) For onsite disposal a notice should be submitted to the State to notify the State that disposal of 

the delisted materials has begun. 

(C) Update one-time written notification, if it ships the delisted waste into a different disposal facility. 

(D) Failure to provide this notification will result in a violation of the delisting exclusion and a possible 

revocation of the decision. 

* * * * * * * 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description 

*******

ExxonMobil North 

Landfarm.

Baytown, TX ......... North Landfarm underflow water (EPA Hazardous Waste Numbers F039 generated at a maximum 

rate of 1,500,000 gallons (7,427 cubic yards) per calendar year after notification that ExxonMobil 

will initiate closure of the North Landfarm. 

* * * * * * * 

[FR Doc. 2012–14780 Filed 6–18–12; 8:45 am] 

BILLING CODE 6560–50–P 


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