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[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36447-36456]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14780]

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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.

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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

[[Page 36448]]

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 non-hazardous 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 Sec. Sec.  
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

[[Page 36449]]

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 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 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 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) 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 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).

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 Sec. Sec.  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 Sec. Sec.  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.

[[Page 36450]]

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 non-hazardous.

  Table 1--Analytical Results/Maximum Allowable Delisting Concentration
  [North Landfarm Underflow Water ExxonMobil Baytown Refinery, Baytown,
                                 Texas]
------------------------------------------------------------------------
                                  Maximum total       Maximum allowable
         Constituent           concentration  (mg/  TCLP delisting level
                                       L)                   (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.

[[Page 36451]]

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 back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point 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 site-specific 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 Sec.  260.22, EPA concludes 
that the petitioned waste do not exhibit any of the characteristics of 
ignitability, corrosivity, reactivity or toxicity. See Sec. Sec.  
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 worst-case 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.

[[Page 36452]]

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

[[Page 36453]]

    (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 Sec.  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 
Sec.  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

[[Page 36454]]

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 Sec. Sec.  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)anthrace
                                                        ne--1.36;
                                                        Benzo(b)fluorant
                                                        hene--1030;
                                                        Benzo(k)fluorant
                                                        hene--12200;
                                                        Benzo(a)pyrene--
                                                        103; Cadmium--5;
                                                        Carbon
                                                        tetrachloride--0
                                                        .50;
                                                        Chlorobenzene--2
                                                        9.4; Chloroform--
                                                        1.56; Chromium--
                                                        5; Chrysene--
                                                        136; Cobalt--
                                                        4.05; Copper--
                                                        460; o-Cresol--
                                                        200; m-Cresol--
                                                        200; p-Cresol--
                                                        200; 1,2-
                                                        Dichloroethane--
                                                        0.50; 1,1-
                                                        Dichloroethylene
                                                        -0.7; 2,4-
                                                        Dinitrotoluene--
                                                        0.13; Fluoride--
                                                        765;
                                                        Hexachlorobenzen
                                                        e--0.13;
                                                        Hexachloroethane
                                                        -3; Lead--10.4;
                                                        Manganese--311;
                                                        Mercury--0.2;
                                                        Methyl ethyl
                                                        ketone--2;
                                                        Molybdenum--63.8
                                                        ; Nitrobenzene--
                                                        2;
                                                        Pentachloropheno
                                                        l--0.303;
                                                        Pyridine--5;
                                                        Selenium--1;
                                                        Silver--5; Total-
                                                        TCDD--.0000374;
                                                        Tetrachloroethyl
                                                        ene--0.398;
                                                        Trichloroethylen
                                                        e--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.

[[Page 36455]]

 
                                                       (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.
                                                        Sec.   1001 and
                                                        42 U.S.C. Sec.
                                                        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.

[[Page 36456]]

 
                                                       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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