[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Rules and Regulations]
[Pages 42440-42447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17985]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2017-0556; FRL-9980-07--Region 6]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting a 
petition submitted by Blanchard Refining Company LLC--(Blanchard) to 
exclude (or delist) the residual solids generated from the reclamation 
of oil bearing hazardous secondary materials (OBSMs) on-site at 
Blanchard's Galveston Bay Refinery (GBR), located in Texas City, Texas 
from the lists of hazardous wastes. EPA used the Delisting Risk 
Assessment Software (DRAS) Version 3.0.35 in the evaluation of the 
impact of the petitioned waste on human health and the environment. The 
residual solids are listed as F037 (primary oil/water/solids separation 
sludge) when they are reclaimed from the OBSMs. After careful analysis 
and evaluation of comments submitted by the public, the EPA has 
concluded that the petitioned wastes are not hazardous waste when 
disposed of in Subtitle D landfills. This exclusion applies to the 
residuals solids generated at Blanchard's Galveston Bay Refinery (GBR), 
located in Texas City, Texas facility. Accordingly, this final rule 
excludes the petitioned waste from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA) 
when disposed of in Subtitle D landfills but imposes testing conditions 
to ensure that the future-generated wastes remain qualified for 
delisting.

DATES: Effective August 22, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-RCRA-2017-0556. All documents in the docket are 
listed on the http://www.regulations.gov website. 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, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For technical information regarding 
the Blanchard Refinery petition, contact Michelle Peace at 214-665-7430 
or by email at <a href="/cdn-cgi/l/email-protection#7b0b1e1a181e55161218131e17171e3b1e0b1a551c140d"><span class="__cf_email__" data-cfemail="b4c4d1d5d7d19ad9ddd7dcd1d8d8d1f4d1c4d59ad3dbc2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this delisting?
    C. What are the limits of this exclusion?
    D. How will Blanchard Refining manage the waste if it is 
delisted?
    E. When is the final delisting exclusion effective?
    F. How does this final rule affect states?
II. Background
    A. What is a delisting?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Data
    A. What waste and how much did Blanchard petition EPA to delist?
    B. How did Blanchard sample and analyze the waste data in this 
petition?
IV. Public Comments Received on the proposed exclusion
    A. Who submitted comments on the proposed rule?
    B. Comments and Responses
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA finalizing?

    The EPA is finalizing:
    (1) the decision to grant GBR's petition to have its surface 
impoundment basin solids excluded, or delisted, from the definition of 
a hazardous waste, subject to certain continued verification and 
monitoring conditions; and

[[Page 42441]]

    (2) to use the Delisting Risk Assessment Software to evaluate the 
potential impact of the petitioned waste on human health and the 
environment. The Agency used this model to predict the concentration of 
hazardous constituents released from the petitioned waste, once it is 
disposed.
    After evaluating the petition, EPA proposed rule, on October 31, 
2017, to exclude GBR's residuals from the treatment of OBSM waste from 
the lists of hazardous wastes under Sec. Sec.  261.31 and 261.32. The 
comments received on this rulemaking will be addressed as part of this 
decision.

B. Why is EPA approving this delisting?

    GBR's petition requests an exclusion from the F037 waste listing 
pursuant to 40 CFR 260.20 and 260.22. GBR does not believe that the 
petitioned waste meets the criteria for which EPA listed it. GBR 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) through 
(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.  261.11(a)(2) and (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 GBR is based on the information submitted in support 
of this rule, including descriptions of the wastes and analytical data 
from the Texas City, Texas facility.

C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in Table 1 of part 261, Appendix IX, and 
the conditions contained herein are satisfied. The exclusion applies to 
20,000 cubic yards of residual solids.

D. How will Blanchard Refining manage the waste if it is delisted?

    Storage containers with OBSM residual solids will be transported to 
an authorized solid waste landfill (e.g., RCRA Subtitle D landfill, 
commercial/industrial solid waste landfill, etc.) for disposal.

E. When is the final delisting exclusion effective?

    This rule is effective August 22, 2018. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here because this rule reduces, rather than increases, the 
existing requirements for persons generating hazardous wastes. These 
reasons also provide a basis for making this rule effective 
immediately, upon publication, under the Administrative Procedure Act, 
pursuant to 5 U.S.C. 553(d).

F. How does this final rule affect states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude two categories of 
States: States having a dual system that includes Federal RCRA 
requirements and their own requirements, and States who have received 
our authorization to make their own delisting decisions.
    Here are the details: We allow states to impose their own non-RCRA 
regulatory requirements that are more stringent than EPA's, under 
section 3009 of RCRA. 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, we urge 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, 
Georgia, Illinois) to administer a delisting program in place of the 
Federal program, that is, to make State delisting decisions. Therefore, 
this exclusion does not apply in those authorized States. If Blanchard 
transports the petitioned waste to or manages the waste in any State 
with delisting authorization, Blanchard must obtain delisting 
authorization from that State before they can manage the waste as 
nonhazardous in the State.

II. Background

A. What is a delisting?

    A delisting petition is a request from a generator to EPA or 
another agency with jurisdiction to exclude from the list of hazardous 
wastes, wastes the generator does not consider hazardous under RCRA.

B. What regulations allow facilities to delist a waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control by excluding them from 
the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 
Section 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow the 
EPA to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste, that such factors do not 
warrant retaining the waste as a hazardous waste.

III. EPA's Evaluation of the Waste Data

A. What waste and how much did Blanchard petition EPA to delist?

    In June 2017, Blanchard petitioned EPA to exclude from the lists of 
hazardous wastes contained in Sec. Sec.  261.31 and 261.32, residual 
solids (F037) generated during reclamation activities conducted at its 
GBR facility located in Texas City, Texas. The waste falls under the 
classification of listed

[[Page 42442]]

waste pursuant to Sec. Sec.  261.31 and 261.32. Specifically, in its 
petition, Blanchard requested that EPA grant a conditional exclusion 
for the annual generation volume of 20,000 cubic yards of F037 residual 
solids.
    The 40 CFR part 261 Appendix VII hazardous constituents which are 
the basis for listing can be found in Table 1.

   Table 1--EPA Waste Codes for OBSM Residual Solids and the Basis for
                                 Listing
------------------------------------------------------------------------
               Waste code                       Basis for listing
------------------------------------------------------------------------
F037...................................  Benzene, benzo(a)pyrene,
                                          chrysene, lead, chromium.
------------------------------------------------------------------------

B. How did Blanchard sample and analyze the waste data in this 
petition?

    To support its petition, Blanchard conducted individual sampling 
events on residual solids resulting from the reclamation of Blanchard's 
three (3) identified categories of OBSMs. Each separate sampling event 
consisted of four (4) composite samples taken during a 24-hour period 
of representative operation. Each composite sample was comprised of 
individual grab samples (i.e., a minimum of four), obtained during 
separate six (6) hour periods of the 24-hour sampling event. 
Compositing of samples and performance of quality control requirements 
were performed by Blanchard's selected analytical laboratory, 
TestAmerica Laboratories, Inc. (``TestAmerica''). Blanchard submitted: 
Historical information on waste generation and management practices; 
and analytical results from twelve samples for total and TCLP 
concentrations of constituents of concern (COC)s.

Table 2--Analytical Results/Maximum Allowable Delisting Concentration Residual Solids Blanchard Refining Company
                                             LLC, Texas City, Texas
----------------------------------------------------------------------------------------------------------------
                                                           Maximum total       Maximum TCLP       Maximum TCLP
                      Constituent                          concentration      concentration     delisting level
                                                              (mg/kg)             (mg/L)             (mg/L)
----------------------------------------------------------------------------------------------------------------
Acetone................................................              0.185              0.226              520.0
Antimony...............................................               53.7              0.226              0.599
Anthracene.............................................              0.488            <0.0125             25.993
Arsenic................................................              222.0              0.277              0.424
Barium.................................................              950.0              0.221               36.0
Benzene................................................               1.25           <0.00280              0.077
Benzo (a) anthracene...................................              0.512            <0.0106              0.070
Benzo(a) pyrene........................................             0.0298            <0.0123              2.634
Benzo (b) flouranthene.................................              0.286            <0.0125              22.43
Beryllium..............................................               8.61              0.235              1.764
Cadmium................................................              0.441           <0.00280              0.217
Chromium...............................................              120.0             0.0550               3.06
Chrysene...............................................              0.272            <0.0103              7.006
Cobalt.................................................              242.0              0.818              0.902
Copper.................................................              639.0            <0.0813             21.527
Cyanide................................................               99.4            <0.0702               3.08
Diethyl Phthalate......................................              0.493            <0.0130                990
Flouranthrene..........................................              0.405            <0.0122              2.462
Flourene...............................................              0.420           <0.00710               4.91
Lead...................................................              963.0            <0.0219              0.984
2, methylphenol........................................               1.31           <0.00710             28.952
3,4 methylphenol.......................................               2.18           <0.00675             28.952
Methylene Chloride.....................................              0.827            0.00756             0.0790
Methyl Naphthalene.....................................              0.365            <0.0129              0.727
Mercury................................................             0.0403           0.000104              0.068
Naphthalene............................................              0.874            <0.0110             0.0327
Nickel.................................................             29,000           <0.00800               13.5
Phenanthrene...........................................               2.16            <0.0112             10.626
Phenol.................................................               6.55            0.00813                173
Pyrene.................................................               1.76            <0.0150              4.446
Pyridine...............................................              0.197            <0.0108             0.5775
Selenium...............................................               13.5             0.0530                1.0
Silver.................................................               1.86            <0.0129                5.0
Toluene................................................              0.670           <0.00275               15.1
Tin....................................................               13.8           <0.00590                387
Thallium...............................................              110.0             0.0220             0.0366
Vanadium...............................................            75, 400              0.215             4.6436
Zinc...................................................             1920.0              0.487                197
----------------------------------------------------------------------------------------------------------------
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.


[[Page 42443]]

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    The EPA received fifteen anonymous public comments on the October 
31, 2017, proposed rule via regulations.gov. There were ten comments 
which had no bearing on the delisting of hazardous waste for Blanchard 
Refining. Two comments: EPA-R06-RCRA-2017-0556-0003 and EPA-R06-RCRA-
2017-0556-0005 were submitted in favor of the issuance of the petition. 
Comments and responses to the three adverse comments (EPA-R06-RCRA-
2017-0556-0009) are addressed below.

B. Comments and Responses

    General Comment: EPA Region 6 received ten comments through 
regulations.gov to which no responses are required. These comments are 
numbered: EPA-R06-RCRA-2017-0556-0002, EPA-R06-RCRA-2017-0556-0004, 
EPA-R06-RCRA-2017-0556-0006, EPA-R06-RCRA-2017-0556-0007, EPA-R06-RCRA-
2017-0556-0009, EPA-R06-RCRA-2017-0556-0010, EPA-R06-RCRA-2017-0556-
0011, EPA-R06-RCRA-2017-0556-0012, EPA-R06-RCRA-2017-0556-0013, and 
EPA-R06-RCRA-2017-0556-0015 in this rulemaking docket. These commenters 
expressed concerns regarding wildfires, wind turbines, climate change, 
car lithium batteries, and opinions on Lead leaching into drinking 
water which are not appropriately addressed as part of the Hazardous 
Waste delisting program. Some comments reflect differences in opinions 
or preferred outcomes, to which an agency response is not appropriate. 
The EPA acknowledges the submission of these comments but notes the 
comments are out of the scope of the current final action regarding the 
delisting of hazardous waste residuals generated at Blanchard Refining.
    Comment 1 (EPA-R06-RCRA-2017-0556-0009): ``I am writing in 
representation of the over 150,000 members of TinyTimmy.org. We are 
against delisting these Blanchard solid hazardous wastes because they 
do not meet the standards stated clearly by the EPA for such delisting 
activity. Many of their own test results show a much higher than 
acceptable levels of some of the most toxic chemicals known to man. 
This attempt to delist byproducts such as Appendix VII inorganic 
constituents of concern, lead and chromium, and Appendix VII organic 
constituents of concern benzene, benzo(a)pyrene and chrysene. The 
levels found by Blanchard's testing does not meet the EPA criteria for 
delistment. Further, doing so violates human safety, groundwater, 
environment and worker health. We strongly urge the EPA to reconsider 
and follow its actual mission of protecting the health of both humans 
and the environment and stop giving out favors to the fossil fuel 
industry on our backs.''
    Response 1 (EPA-R06-RCRA-2017-0556-0009). The Delisting Program 
requires extensive waste sampling and a risk assessment is performed to 
assess a wastes potential harm to human health and the environment. The 
program is designed to insure that the wastes which are deemed excluded 
will not be managed in a manner to harm human health or the 
environment. This waste will be managed in a Subtitle D industrial 
waste landfill as solid waste to prevent releases to groundwater and 
air pathways.
    Comment 2 (EPA-R06-RCRA-2017-0556-0014). ``I oppose the petition 
for delisting and believe delisting would pose a threat to the 
public.''
    Response 2 (EPA-R06-RCRA-2017-0556-0014). The Delisting Program 
requires extensive waste sampling and a risk assessment is performed to 
assess a wastes potential harm to human health and the environment. The 
program is designed to insure that the wastes which are deemed excluded 
will not be managed in a manner to harm human health or the 
environment. This waste will be managed in a Subtitle D industrial 
waste landfill as solid waste to prevent releases to groundwater and 
air pathways.
    Comment 3 (EPA-R06-RCRA-2017-0556-0016). ``I'd like to say thank 
you for opportunity to comment. My concern is regarding the delisting 
mandate of the Blanchard Refinery residual solid waste stream with 
chemicals that are classifiable as known carcinogenicity to human. The 
EPA is basing the ruling on the results from DRAS (Hazardous Waste 
Delisting Risk Assessment Software). Per the EPA, ``the DRAS is a risk 
assessment tool and, therefore, can only provide risk analyses based on 
the information input into the program.'' Therefore, this software is 
not a dynamic simulation of the site's actual contaminates level but 
rather a ``subjective'' user input simulation.
    Also, the criteria for demonstration of health-based levels is the 
Maximum Toxicity Characteristic Leaching Procedure (TCLP) delisting 
level. Does this limit cover worksite exposure limits? Will rate of 
evaporation affect the TCLP concentration? If so, will there be 
continuous monitoring at the site? For example, Cobalt meets the 
Maximum TCLP delisting level criteria of 0.902 (mg/L); however, per a 
New Jersey Department of Health and Senior Services Hazardous Substance 
Fact Sheet, it does not meet the workplace exposure limits.1
    The average airborne permissible exposure limits (PEL) according 
to:

OSHA: The legal PEL is 0.1 mg/m3 (8-hour workshift)
NIOSH: The recommended PEL is 0.05 mg/m3 (10-hour workshift)
ACGIH: The legal PEL is 0.02 mg/m3 (8-hour workshift)

    Based on these limits, the maximum TCLP is, using the most 
conservative case, 900% higher. Also, according to the same study, it 
is stated that cobalt maybe a carcinogen in humans and there may be no 
safe level of exposure of exposure to a carcinogen.
    Within the delisted chemicals, I have identified multiple chemicals 
in addition to Cobalt that are classifiable as known carcinogenicity to 
human, such as benzene and toluene. Since a landfill is considered a 
worksite, the chemicals should be reconsidered or the PEL considered in 
the criteria for demonstration of health-based levels.''
    Response 3 (EPA-R06-RCRA-2017-0556-0016). The requirements of the 
Federal regulations defined in 40 CFR part 260.20, and 260.22, describe 
the process by which wastes may be removed from the list of hazardous 
waste. In addition to extensive quality assurance and quality control 
data for the samples taken, EPA performs a risk assessment using the 
Delisting Risk Assessment Software to ensure that our decision is 
protective of human health and the environment. The constituent 
concentrations found in the residual solids are below the 
concentrations that would pose harm to human health and the 
environment. A waste is eligible for delisting only if that waste, as 
generated at a particular facility, does not meet any of the criteria 
under which the waste was listed as a hazardous waste. In addition, the 
waste may not contain any other Appendix VIII constituents that would 
cause the waste to be hazardous. RCRA Sec.  3001(f) and 40 CFR 260.22. 
A delisting is only intended to address a specific waste stream 
generated at a specific site. Since individual waste streams may vary 
depending on raw materials, industrial processes, and other factors, it 
may be appropriate not to list a specific waste from a specific site. 
Therefore, while a waste described in the 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

[[Page 42444]]

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. A 
risk assessment of the petitioned waste is completed and is a part of 
the decision factors in issuing an exclusion. Specific health 
examinations and worker protection are covered by the facility 
operating plans and overseen by OSHA. Worker safety during the 
management of this waste to avoid contact with this material are 
covered by the Health and Safety plans of the petitioner.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore, is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this 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. This action is considered an Executive Order 13771 deregulatory 
action. This final rule provides meaningful burden reduction by 
allowing the petitioner to manage an estimated 20,000 cubic yards of 
residual solids a year under RCRA Subtitle D management standards 
rather than the more stringent RCRA Subtitle C standards. This action 
will significantly reduce the costs associated with the on-site 
management, transportation and disposal of this wastestream by shifting 
its management from RCRA Subtitle C hazardous waste management to RCRA 
Subtitle D nonhazardous waste management.
    Similarly, because this rule will affect only a particular 
facility, this 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 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 DRAS, which considers health and safety risks to 
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. Executive Order 
(E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it does not affect the level of 
protection provided to human health or the environment. The Agency's 
risk assessment did not identify risks from management of this material 
in an authorized, solid waste landfill (e.g. RCRA Subtitle D landfill, 
commercial/industrial solid waste landfill, etc.). Therefore, EPA 
believes that any populations in proximity of the landfills used by 
this facility should not be adversely affected by common waste 
management practices for this delisted waste.

Lists of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous Waste, Recycling, Reporting and 
record-keeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: July 31, 2018.
Wren Stenger,
Multimedia Division Director, Region 6.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.


0
2. In Table 1 of Appendix IX to Part 261, add an entry for ``Blanchard 
Refining Company LLC'' in alphabetical order by facility to read as 
follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22

[[Page 42445]]



                               Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                Facility                            Address                        Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Blanchard Refining Company LLC..........  Texas City, TX.............  Residual solids (EPA Hazardous Waste
                                                                        Numbers F037) generated at a maximum
                                                                        rate of as 20,000 cubic yards annually.
                                                                       For the exclusion to be valid, Blanchard
                                                                        must implement a verification testing
                                                                        program that meets the following
                                                                        Paragraphs:
                                                                       (1) All leachable concentrations for
                                                                        those constituents must not exceed the
                                                                        following levels measured as mg/L (ppm).
                                                                        The petitioner must use an acceptable
                                                                        leaching method, for example SW-846,
                                                                        Method 1311, to measure constituents in
                                                                        the residual solids leachate:
                                                                       (A) Inorganic Constituents of Concern:
                                                                        Antimony--0.5985; Arsenic--0.424;
                                                                        Barium--36; Beryllium--1.74; Chromium--
                                                                        3.06; Cobalt--0.902; Lead--0.984;
                                                                        Nickel--13.5; Selenium--1.0; Vanadium--
                                                                        4.64, Zinc--197. Mercury--0.068.
                                                                       (B) Organic Constituents of Concern:
                                                                        Acetone--520.0; Anthracene--25.993;
                                                                        Benzene--0.077; Benzo(a)pyrene--2.634,
                                                                        Chrysene--7.006; Methylene Chloride--
                                                                        0.0790; Phenanthrene--10.626; Phenol--
                                                                        173; Pyrene--4.446.
                                                                       (2) Waste Holding and Handling:
                                                                       (A) Blanchard must manage and dispose its
                                                                        residual solids as hazardous waste
                                                                        generated under Subtitle C of RCRA,
                                                                        until they have completed verification
                                                                        testing described in Paragraph (3)(A)
                                                                        and (B), as appropriate, and valid
                                                                        analyses show that paragraph (1) is
                                                                        satisfied.
                                                                       (B) Levels of constituents measured in
                                                                        the samples of the residual solids that
                                                                        do not exceed the levels set forth in
                                                                        Paragraph (1) are nonhazardous.
                                                                        Blanchard can manage and dispose the
                                                                        nonhazardous residual solids according
                                                                        to all applicable solid waste
                                                                        regulations.
                                                                       (C) If constituent levels in a sample
                                                                        exceed any of the delisting levels set
                                                                        in Paragraph (1), Blanchard must retreat
                                                                        or stabilize the residual solids
                                                                        represented by the sample exceeding the
                                                                        delisting levels, until it meets the
                                                                        levels in paragraph (1). Blanchard must
                                                                        repeat the analyses of the retreated
                                                                        residual solids.
                                                                       (3) Verification Testing Requirements:
                                                                       Blanchard must perform analytical testing
                                                                        by sampling and analyzing the Residual
                                                                        solids as follows:
                                                                       (i) Collect representative samples of the
                                                                        Residual solids for analysis of all
                                                                        constituents listed in paragraph (1)
                                                                        prior to disposal.
                                                                       (ii) The samples for verification testing
                                                                        shall be a representative 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
                                                                        Blanchard residual solids are
                                                                        representative for all constituents
                                                                        listed in paragraph (1).
                                                                       Blanchard must perform sample collection
                                                                        and analyses, including quality control
                                                                        procedures, according to SW-846
                                                                        methodologies.
                                                                       (A) Initial Verification Testing:
                                                                       After EPA grants the final exclusion,
                                                                        Blanchard must do the following:
                                                                       (i) Collect four (4) representative
                                                                        composite samples of the residual solids
                                                                        at weekly intervals after EPA grants the
                                                                        final exclusion. The first composite
                                                                        samples may be taken at any time after
                                                                        EPA grants the final approval. Sampling
                                                                        should be performed in accordance with
                                                                        the sampling plan approved by EPA in
                                                                        support of the exclusion.
                                                                       (ii) Analyze the samples for all
                                                                        constituents listed in paragraph (1).
                                                                        Any composite sample taken that exceeds
                                                                        the delisting levels listed in paragraph
                                                                        (1) for the residual solids must be
                                                                        disposed as hazardous waste in
                                                                        accordance with the applicable hazardous
                                                                        waste requirements.
                                                                       (iii) Within thirty (30) days after
                                                                        successfully completing its initial
                                                                        verification testing, Blanchard may
                                                                        report its analytical test data for its
                                                                        initial four (4) weekly composite
                                                                        samples to EPA. If levels of
                                                                        constituents measured in the samples of
                                                                        the residual solids do not exceed the
                                                                        levels set forth in paragraph (1) of
                                                                        this exclusion, Blanchard can manage and
                                                                        dispose the non-hazardous residual
                                                                        solids according to all applicable solid
                                                                        waste regulations.
                                                                       (B) Subsequent Verification Testing:
                                                                       If Blanchard completes initial
                                                                        verification testing requirements,
                                                                        specified in paragraph (3)(A), and no
                                                                        sample contains a constituent at a level
                                                                        which exceeds the limits set forth in
                                                                        paragraph (1), Blanchard may begin
                                                                        subsequent verification testing as
                                                                        follows:
                                                                       (i) Blanchard must test representative
                                                                        composite samples of the residual solids
                                                                        for all constituents listed in paragraph
                                                                        (1) at least once per month.

[[Page 42446]]

 
                                                                       (ii) The samples for the monthly testing
                                                                        shall be a representative composite
                                                                        sample according to appropriate methods.
                                                                       (iii) Within thirty (30) days after
                                                                        completing each monthly sampling,
                                                                        Blanchard will report its analytical
                                                                        test data to EPA.
                                                                       (C) Annual Verification Testing:
                                                                       If levels of constituents measured in the
                                                                        samples of the residual solids do not
                                                                        exceed the levels set forth in paragraph
                                                                        (1) of this exclusion for six (6)
                                                                        consecutive months of subsequent
                                                                        verification testing, Blanchard may
                                                                        begin annual testing as follows:
                                                                       (i) Blanchard must test representative
                                                                        composite samples of the residual solids
                                                                        for all constituents listed in paragraph
                                                                        (1) at least once per calendar year.
                                                                       (ii) The samples for the annual testing
                                                                        shall be a representative composite
                                                                        sample according to appropriate methods.
                                                                       (iii) Within sixty (60) days after
                                                                        completing each annual sampling,
                                                                        Blanchard will report its analytical
                                                                        test data to EPA.
                                                                       (D) Termination of Organic Testing:
                                                                       Blanchard must continue testing as
                                                                        required under Paragraph (3)(B) for
                                                                        organic constituents in Paragraph
                                                                        (1)(B), until the analytical results
                                                                        submitted under Paragraph (3)(B) show a
                                                                        minimum of three (3) consecutive monthly
                                                                        samples below the delisting levels in
                                                                        Paragraph (1). Following receipt of
                                                                        approval from EPA in writing, Blanchard
                                                                        may terminate organic testing.
                                                                       (4) Changes in Operating Conditions:
                                                                       If Blanchard 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
                                                                        as established under Paragraph (1) (by
                                                                        illustration, but not limitation,
                                                                        changes in equipment or operating
                                                                        conditions of the treatment process),
                                                                        they must notify EPA in writing.
                                                                        Blanchard may no longer handle the
                                                                        residual solids generated from the new
                                                                        process as nonhazardous until they have
                                                                        completed verification testing described
                                                                        in Paragraph (3)(A) and (B), as
                                                                        appropriate, documented that valid
                                                                        analyses show that paragraph (1) is
                                                                        satisfied, and received written approval
                                                                        from EPA.
                                                                       (5) Stabilization Operation:
                                                                       Blanchard may periodically elect to
                                                                        modify operating conditions to
                                                                        accommodate the addition of chemical
                                                                        stabilization reagents during indirect
                                                                        thermal desorption processing. In the
                                                                        event that Blanchard initiates the
                                                                        inclusion of stabilization during
                                                                        operation, they may no longer handle the
                                                                        residual solids generated from the
                                                                        modified process as nonhazardous until
                                                                        the residual solids meet the delisting
                                                                        levels set in Paragraph (1) under
                                                                        initial verification testing
                                                                        requirements set in paragraph (3)(A) and
                                                                        verify that the stabilization reagents
                                                                        do not add additional constituents to
                                                                        the residual solid leachate. Following
                                                                        completion of modified operation,
                                                                        Blanchard can resume normal operating
                                                                        conditions and testing requirements
                                                                        under Paragraph (3), which were in place
                                                                        prior to initiating stabilization during
                                                                        operation.
                                                                       (6) Data Submittals:
                                                                       Blanchard must submit the information
                                                                        described below. If Blanchard 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 (7).
                                                                        Blanchard must:
                                                                       (A) Submit the data obtained through
                                                                        paragraph 3 to the Section Chief, 6MM-
                                                                        RP, Multimedia Division, U.S.
                                                                        Environmental Protection Agency Region
                                                                        6, 1445 Ross Ave., Suite 1200, Dallas,
                                                                        Texas 75202, within the time specified.
                                                                        All supporting data can be submitted on
                                                                        CD-ROM or comparable electronic media.
                                                                       (B) Compile records of analytical data
                                                                        from paragraph (3), summarized, and
                                                                        maintained on-site for a minimum of five
                                                                        years.
                                                                       (C) Furnish these records and data when
                                                                        either EPA or the State of Texas
                                                                        requests them for inspection.
                                                                       (D) Send along with all data a signed
                                                                        copy of the following certification
                                                                        statement, to attest to the truth and
                                                                        accuracy of the data submitted:
                                                                       ``Under civil and criminal penalty of law
                                                                        for the making or submission of false or
                                                                        fraudulent statements or representations
                                                                        (pursuant to the applicable provisions
                                                                        of the Federal Code, which include, but
                                                                        may not be limited to, 18 U.S.C. 1001
                                                                        and 42 U.S.C. 6928), I certify that the
                                                                        information contained in or accompanying
                                                                        this document is true, accurate and
                                                                        complete.
                                                                       As to the (those) identified section(s)
                                                                        of this document for which I cannot
                                                                        personally verify its (their) truth and
                                                                        accuracy, I certify as the company
                                                                        official having supervisory
                                                                        responsibility for the persons who,
                                                                        acting under my direct instructions,
                                                                        made the verification that this
                                                                        information is true, accurate and
                                                                        complete.

[[Page 42447]]

 
                                                                       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.''
                                                                       (7) Reopener:
                                                                       (A) If, any time after disposal of the
                                                                        delisted waste Blanchard 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 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 verification testing
                                                                        (and retest, if applicable) of the waste
                                                                        does not meet the delisting requirements
                                                                        in paragraph 1, Blanchard 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 Blanchard fails to submit the
                                                                        information described in paragraphs (6),
                                                                        (7)(A) or (7)(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
                                                                        (7)(D) or (if no information is
                                                                        presented under paragraph (7)(D)) the
                                                                        initial receipt of information described
                                                                        in paragraphs (6), (7)(A) or (7)(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.
                                                                       (8) Notification Requirements:
                                                                       Blanchard 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.
 
                                                  * * * * * * *
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[FR Doc. 2018-17985 Filed 8-21-18; 8:45 am]
 BILLING CODE 6560-50-P


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