32838 Federal Register / Vol. 74, No. 130 / Thursday, July 9, 2009 / Proposed Rules 

TABLE 5 TO SUBPART AAAAAAA OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART AAAAAAA— 

Continued 

Citation Subject Applies to subpart AAAAAAA 

§ 63.4 .............................. Prohibited Activities .................................................................... Yes. 

§ 63.5 .............................. Construction/Reconstruction ....................................................... Yes. 

§ 63.6(a)–(d) ................... Compliance With Standards and Maintenance Requirements .. Yes. 

§ 63.6(e)(1)(i) .................. Operation and Maintenance Requirements ............................... No. 

§ 63.6(e)(1)(ii)-(iii) ........... Operation and Maintenance Requirements ............................... Yes. 

§ 63.6(e)(2) ..................... [Reserved] 

§ 63.6(e)(3) ..................... Startup, Shutdown, and Malfunction Plan .................................. No. Subpart AAAAAAA does not require startup, 

shutdown, and malfunction plans. 

§ 63.6(f)(1) ...................... Compliance with Nonopacity Emission Standards ..................... No. The emission limits apply at all times. 

§ 63.6(f)(2)–(3) ................ Methods for Determining Compliance and Finding of Compliance.Yes. 

§ 63.6(h) ......................... Opacity/Visible Emission (VE) Standards .................................. No. Subpart AAAAAAA does not contain opacity or 

VE standards. 

§ 63.6(i) ........................... Compliance Extension ................................................................ Yes. 

§ 63.6(j) ........................... Presidential Compliance Exemption ........................................... Yes. 

§ 63.7 .............................. Performance Testing Requirements ........................................... Yes. 

§ 63.8(a)(1) ..................... Applicability of Monitoring Requirements ................................... Yes. 

§ 63.8(a)(2) ..................... Performance Specifications ........................................................ Yes, if CEMS used. 

§ 63.8(a)(3) ..................... [Reserved] 

§ 63.8(a)(4) ..................... Monitoring with Flares ................................................................ Yes. 

§ 63.8(b)(1) ..................... Monitoring ................................................................................... Yes. 

§ 63.8(b)(2)–(3) ............... Multiple Effluents and Multiple Monitoring Systems .................. Yes. 

§ 63.8(c)(1) ..................... Monitoring System Operation and Maintenance ........................ Yes. 

§ 63.8(c)(1)(i) .................. CMS maintenance ...................................................................... Yes. 

§ 63.8(c)(1)(ii) ................. Spare Parts for CMS Malfunction .............................................. Yes. 

§ 63.8(c)(1)(iii) ................ Compliance with Operation and Maintenance Requirements .... No. Subpart AAAAAAA does not require startup, 

shutdown, and malfunction plans. 

§ 63.8(c)(2)–(3) ............... Monitoring System Installation ................................................... Yes. 

§ 63.8(c)(4) ..................... CMS Requirements .................................................................... No; § 63.11563 specifies the CMS requirements. 

§ 63.8(c)(5) ..................... COMS Minimum Procedures ...................................................... No. Subpart AAAAAAA does not contain opacity or 

VE standards. 

§ 63.8(c)(6) ..................... CMS Requirements .................................................................... No; § 63.11563 specifies the CMS requirements. 

§ 63.8(c)(7)–(8) ............... CMS Requirements .................................................................... Yes. 

§ 63.8(d) ......................... CMS Quality Control .................................................................. No; § 63.11563 specifies the CMS requirements. 

§ 63.8(e)–(g) ................... CMS Performance Evaluation .................................................... Yes. 

§ 63.9 .............................. Notification Requirements .......................................................... Yes. 

§ 63.10 ............................ Recordkeeping and Reporting Requirements ............................ Yes. 

§ 63.11 ............................ Control Device and Work Practice Requirements ..................... Yes. 

§ 63.12 ............................ State Authority and Delegations ................................................. Yes. 

§ 63.13 ............................ Addresses of State Air Pollution Control Agencies and EPA 

Regional Offices.

Yes. 

§ 63.14 ............................ Incorporations by Reference ...................................................... Yes. 

§ 63.15 ............................ Availability of Information and Confidentiality ............................ Yes. 

§ 63.16 ............................ Performance Track Provisions ................................................... No. 

[FR Doc. E9–16260 Filed 7–8–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[FDMS Docket No.: EPA–R04–RCRA–2008– 

0900; FRL–8922–2] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Proposed Exclusion 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule and request for 

comment. 

SUMMARY: EPA is proposing to grant a 

petition submitted by The Valero 

Refining Company—Tennessee, L.L.C. 

(Valero) to exclude or ‘‘delist’’ a certain 

sediment generated by its Memphis 

Refinery in Memphis, Tennessee from 

the lists of hazardous wastes. EPA used 

the Delisting Risk Assessment Software 

(DRAS) in the evaluation of the 

potential impact of the petitioned waste 

on human health and the environment. 

EPA bases its proposed decision to grant 

the petition based on an evaluation of 

waste-specific information provided by 

Valero (the petitioner). This proposed 

decision, if finalized, would 

conditionally exclude the petitioned 

waste from the requirements of the 

hazardous waste regulations under the 

Resource Conservation and Recovery 

Act (RCRA). 

This exclusion would be valid only 

when the Storm Water Basin Sediment 

is disposed of in a Subtitle D landfill 

that is permitted, licensed, or registered 

by a State to manage industrial solid 

waste. 

If finalized, EPA would conclude that 

Valero’s petitioned waste is 

nonhazardous with respect to the 

original listing criteria and that there are 

no other factors that would cause the 

waste to be hazardous. 

DATES: EPA will accept public 

comments on this proposed decision 

until August 10, 2009. EPA will stamp 

comments received after the close of the 

comment period as late. These late 

comments may not be considered in 

formulating a final decision. Any person 

may request a hearing on this proposed 

decision by filing a request to EPA by 

July 24, 2009. The request must contain 


rmajette on DSK29S0YB1 with PROPOSALS
Federal Register / Vol. 74, No. 130 / Thursday, July 9, 2009 / Proposed Rules 32839 

the information prescribed in 40 CFR 

260.20(d). 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

RCRA–2008–0900, by one of the 

following methods: 

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

the on-line instructions for submitting 

comments. 

2. E-mail: lippert.kristin@epa.gov. 

3. Fax: (404) 562–8566. 

4. Mail: EPA–R04–RCRA–2008–0900, 

RCRA/OPA Enforcement and 

Compliance Branch, RCRA Division, 

U.S. Environmental Protection Agency 

Region 4, Sam Nunn Atlanta Federal 

Center, 61 Forsyth Street, SW., Atlanta, 

Georgia 30303. 

5. Hand Delivery or Courier: Kristin 

Lippert, RCRA/OPA Enforcement and 

Compliance Branch, RCRA Division, 

U.S. Environmental Protection Agency 

Region 4, Sam Nunn Atlanta Federal 

Center, 61 Forsyth Street, SW., Atlanta, 

Georgia 30303. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–RCRA–2008– 

0900. 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 through http:// 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. 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 e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

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. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

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, 

i.e., 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 either electronically in http:// 

www.regulations.gov or in hard copy at 

the RCRA/OPA Enforcement and 

Compliance Branch, RCRA Division, 

U.S. Environmental Protection Agency, 

Region 4, Sam Nunn Atlanta Federal 

Center, 61 Forsyth Street, SW., Atlanta, 

Georgia 30303. EPA requests that if at 

all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday, 8:30 a.m. to 4:30 p.m., 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kristin Lippert, North Enforcement and 

Compliance Section, (Mail Code 4WD– 

RCRA), RCRA/OPA Enforcement and 

Compliance Branch, U.S. Environmental 

Protection Agency, Region 4, Sam Nunn 

Atlanta Federal Center, 61 Forsyth 

Street, SW., Atlanta, Georgia 30303 or 

call (404) 562–8605 or via electronic 

mail at lippert.kristin@epa.gov. 

SUPPLEMENTARY INFORMATION: 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. What are the terms for disposal of 

Valero’s Storm Water Basin Sediment 

pursuant to this exclusion? 

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 regulations allow a waste to be 

delisted? 

D. What factors must the EPA consider in 

deciding whether to grant a delisting 

petition? 

III. Valero’s Petition to Delist Its Waste 

A. What waste did Valero petition EPA to 

delist? 

B. How is the petitioned waste generated? 

C. What information did Valero submit in 

support of its petition? 

IV. EPA’s Evaluation of Valero’s Petition 

A. How did EPA evaluate the information 

submitted? 

B. What did EPA conclude about this 

waste? 

C. What other factors did EPA consider in 

its evaluation? 

V. Conditions 

A. With what conditions must Valero 

comply for its Storm Water Basin 

Sediment to be delisted? 

B. What happens if Valero is unable to 

meet the terms and conditions of this 

delisting? 

VI. Regulatory Impact 

VII. Regulatory Flexibility Act 

VIII. Paperwork Reduction Act 

IX. Unfunded Mandates Reform Act 

X. Executive Order 13045 

XI. Executive Order 13084 

XII. National Technology Transfer and 

Advancements Act 

XIII. Executive Order 13132 Federalism 

I. Overview Information 

A. What action is EPA proposing? 

Today EPA is proposing to grant the 

petition submitted by Valero to have its 

Storm Water Basin sediment generated 

at its Memphis Refinery in Tennessee 

excluded or delisted from the definition 

of a hazardous waste, contingent upon 

its disposal in a Subtitle D Landfill. This 

is a one-time exclusion for 2,700 cubic 

yards of sediment. 

B. Why is EPA proposing to approve this 

delisting? 

Valero’s petition requests a delisting 

for the Storm Water Basin sediment 

from being considered a F037 waste. 

Valero believes that the Storm Water 

Basin sediment does not meet the 

original criteria for the hazardous waste 

listing. Valero 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 at 42 

U.S.C. 6921(f), and 40 CFR 260.22(d)(1)– 

(4). In making the initial delisting 

determination, EPA evaluated the 

petitioned waste against the listing 

criteria and factors cited in 40 CFR 

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

review, EPA agrees with the petitioner 

that the waste is nonhazardous 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 


rmajette on DSK29S0YB1 with PROPOSALS
32840 Federal Register / Vol. 74, No. 130 / Thursday, July 9, 2009 / Proposed Rules 

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 

Valero’s facility is based on the 

information submitted in support of this 

rule, including descriptions of the 

wastes and analytical data from the 

Memphis Refinery at the Tennessee 

facility. 

C. What are the terms for disposal of 

Valero’s Storm Water Basin Sediment 

pursuant to this exclusion? 

If the petitioned waste is delisted, 

Valero must dispose of it in a Subtitle 

D landfill which is permitted, licensed, 

or registered by a State to manage 

industrial waste. 

D. When would the proposed delisting 

exclusion be finalized? 

RCRA Section 3001(f) specifically 

requires EPA to provide notice and an 

opportunity for comment before 

granting or denying a final exclusion. 

Thus, EPA will not grant the exclusion 

unless and 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 community 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 RCRA 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 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 who 

have received authorization from EPA to 

make their own delisting decisions. 

We allow States to impose their own 

non-RCRA regulatory requirements that 

are more stringent than EPA’s, under 

RCRA Section 3009, 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. Delisting petitions approved by the 

EPA Administrator or his delegate 

under 40 CFR 260.22 are effective in the 

State of Tennessee after the final rule 

has been published in the Federal 

Register. 

II. Background 

A. What is the history of the delisting 

program? 

EPA published an amended list of 

hazardous wastes from nonspecific 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 the 40 

CFR 261.31 and 261.32. EPA lists these 

wastes as hazardous because: (1) They 

typically and frequently exhibit one or 

more of the characteristics of hazardous 

wastes identified in Subpart C of 40 CFR 

part 261 (that is, ignitability, corrosivity, 

reactivity, and toxicity) or (2) they meet 

the criteria for listing contained in 40 

CFR 261.11(a)(2) or (a)(3). 

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, §§ 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 the EPA or an authorized 

State to exclude waste from the list of 

hazardous wastes pursuant to RCRA. 

The facility petitions EPA because it 

does not consider the wastes hazardous 

under RCRA regulations. 

In a delisting petition, the petitioner 

must show that the waste, generated at 

a particular facility, does not meet any 

of the criteria for which EPA listed the 

waste as set forth in 40 CFR 261.11 and 

the background documents for the listed 

waste. In addition, a petitioner must 

demonstrate pursuant to 40 CFR 260.22 

that the waste does not exhibit any of 

the hazardous waste characteristics 

(ignitability, reactivity, corrosivity, and 

toxicity) and must present sufficient 

information for EPA to decide whether 

factors other than those for which the 

waste was listed warrant retaining it as 

a hazardous waste (see 40 CFR 260.22, 

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

documents for the listed waste). 

Generators remain obligated under 

RCRA to confirm that their waste 

remains nonhazardous based on the 

hazardous waste characteristics even if 

the EPA has ‘‘delisted’’ the waste. 

C. What regulations allow a waste to be 

delisted? 

Under 40 CFR 260.20, 260.22, and 42 

U.S.C. 6921(f), a generator may petition 

the EPA to remove its waste from the 

lists of hazardous wastes contained in 

40 CFR 261.31 and 261.32. Specifically, 

40 CFR 260.20 allows any person to 

petition the Administrator to modify or 

revoke any provisions of 40 CFR parts 

260 through 266, 268, and 273 of 40 

CFR. 

D. What factors must EPA consider in 

deciding whether to grant a delisting 

petition? 

Besides considering the criteria in 40 

CFR 260.22(a) and Section 3001(f) of 

RCRA, 42 U.S.C. 6921(f), and 

information in the background 

documents for the listed waste, EPA 

must consider any factors (including 

additional constituents) other than those 

for which EPA listed the waste if a 

reasonable basis exists that the 

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 40 CFR 

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

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

are also eligible for exclusion and 

remain hazardous wastes until excluded 

(see 66 FR 27266, May 16, 2001). 

III. Valero’s Petition To Delist Its Waste 

A. What waste did Valero petition EPA 

to delist? 

On July 25, 2008, Valero petitioned 

EPA to exclude from the lists of 


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hazardous waste contained in 40 CFR 

261.31 and 261.32, F037 Storm Water 

Basin sediment generated from its 

facility located in Memphis, Tennessee. 

The F037 listing is for a petroleum 

refinery primary oil/water/solids 

separation sludge. This sediment has 

collected in the bottom of the Storm 

Water Basin since 1993 and is between 

three (3) to four (4) feet deep. The 

sediment originates from storm water 

flows (i.e., wet weather flows) and may 

have occurred from flows during nonstorm events (i.e., dry weather flows). 

This sediment waste stream is classified 

as hazardous waste due to ‘‘carry over’’ 

of waste codes resulting from the 

RCRA’s ‘‘mixture’’ and ‘‘derived-from’’ 

rules and/or a conservative 

interpretation for the assignment of 

hazardous waste code F037. The waste 

conservatively falls under the 

classification of listed waste under 40 

CFR 261.3. Specifically, in its petition, 

Valero requested that EPA grant a onetime exclusion for 2,700 cubic yards of 

the F037 Storm Water Basin sediment. 

B. How is the petitioned waste 

generated? 

Valero generates hazardous and 

nonhazardous industrial solid wastes as 

a result of refinery and chemical 

processes, wastewater treatment, 

refinery/chemical plant feed, product 

storage and distribution. The sediment 

in the Storm Water Basin originates 

from storm water flow associated with 

the Memphis Refinery as well as Martin 

Luther King Jr. Park that is north of and 

upgradient to the refinery. Accounting 

for the existing sediment depth of three 

to four feet, the basin has a remaining 

capacity of roughly 600,000 gallons with 

overall dimensions of approximately 

200 feet by 100 feet. 

In addition to storm water (i.e., wet 

weather flows) entering the Storm Water 

Basin, some flows during non-storm 

events (i.e., dry weather flows) may 

have occurred from sources that could 

be viewed as ‘‘oily’’. Therefore, the 

sediment could carry the EPA 

hazardous waste code of F037. In the 

absence of definitive information 

regarding these dry weather flows and 

their classification, Valero has elected to 

conservatively assume that sediment in 

the Storm Water Basin bears EPA 

hazardous waste code F037. 

C. What information did Valero submit 

in support of its petition? 

To support its petition, Valero 

submitted: (1) Facility information on 

production processes and waste 

generation processes including 

analytical data from twelve (12) samples 

collected on August 7, 2007, in the 

Storm Water Basin; (2) Results of the 

total constituent list for 40 CFR part 264 

Appendix IX volatiles, semivolatiles, 

metals, pesticides, herbicides, dioxins 

and PCB for the sampling on August 7, 

2007; (3) Results of the constituent list 

for Appendix IX on Toxicity 

Characteristic Leaching Procedure 

(TCLP) extract for volatiles, 

semivolatiles, and metals for the 

sampling on August 7, 2007; (4) 

Analytical constituents of concern for 

F037 for the sampling on August 7, 

2007; (5) Results from total oil and 

grease analyses for the sampling on 

August 7, 2007; and (6) Summary of the 

July 2006 Sediment Data (Highest 

Results from Detections). 

EPA believes that the Valero 

analytical characterization demonstrates 

that the Storm Water Basin sediment is 

nonhazardous. Analytical data for the 

F037 Storm Water Basin sediment 

samples were used in the Delisting Risk 

Assessment Software. The data 

summaries for detected constituents are 

presented in Table I. EPA has reviewed 

the sampling procedures used by Valero 

and has determined that they satisfy 

EPA criteria for collecting representative 

samples of the variations in constituent 

concentrations in the F037 Storm Water 

Basin sediment. The data submitted in 

support of the petition show that 

constituents in Valero’s waste are 

presently below health-based levels 

used in the delisting decision-making. 

EPA believes that Valero has 

successfully demonstrated that the F037 

Storm Water Basin sediment is 

nonhazardous. 

TABLE I—MAXIMUM TOTAL AND TCLP CONCENTRATIONS AND MAXIMUM

[Allowable Delisting Concentration Levels, Storm Water Basin F037 Sediment, Valero’s Memphis Refinery, Memphis, Tennessee] 

Constituent 

Maximum total 

constituent 

analysis 

(mg/kg) 

Maximum TCLP 

constituent 

analysis 

(mg/L) 

Maximum 

allowable 

delisting 

concentration 

level 

(mg/L) 

Acenaphthene .................................................................................................................. 0.464 <0.008 N/A 

Antimony .......................................................................................................................... 7.86 0.309 1.13 

Anthracene ....................................................................................................................... 0.833 <0.008 N/A 

Arsenic ............................................................................................................................. 26 0.092 0.205 

Barium .............................................................................................................................. 236 1.53 160 

Benz(a)anthracene .......................................................................................................... 5.79 <0.008 N/A 

Benzo(a)pyrene ............................................................................................................... 5.32 <0.008 0.00177 

Benzo(b)fluoranthene ...................................................................................................... 2.73 <0.008 0.016 

Benzo(g,h,i)perylene ........................................................................................................ 2.22 J <0.008 N/A 

Benzo(k)fluoranthene ....................................................................................................... 3.26 <0.008 N/A 

Beryllium .......................................................................................................................... 0.358 <0.01 9.12 

Bis(2-ethylhexyl)phthalate ................................................................................................ 1.7 J 0.406 2.5 

Cadmium .......................................................................................................................... 0.908 <0.005 1.23 

Chromium+6 ..................................................................................................................... 34.0 <0.01 3.82 

Chromium ........................................................................................................................ N/A <0.01 8,440 

Chrysene .......................................................................................................................... 11.2 <0.008 3.04 

Chloroform ....................................................................................................................... 0.0182 0.0182 5.33 

Cobalt ............................................................................................................................... 11.0 0.069 N/A 

Copper ............................................................................................................................. 45.5 N/A 23,100 

Cyanide ............................................................................................................................ <1 N/A 29.6 

Dibenz(a,h)anthrancene .................................................................................................. 1.2 J <0.008 0.000833 

Hepta-dioxins (totals) ....................................................................................................... 6.12E–04 N/A N/A 

Hexa-dioxins (totals) ........................................................................................................ 1.3E–04 N/A N/A 

Penta-dioxins (totals) ....................................................................................................... 2.8E–05 N/A N/A 


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TABLE I—MAXIMUM TOTAL AND TCLP CONCENTRATIONS AND MAXIMUM—Continued 

[Allowable Delisting Concentration Levels, Storm Water Basin F037 Sediment, Valero’s Memphis Refinery, Memphis, Tennessee] 

Constituent 

Maximum total 

constituent 

analysis 

(mg/kg) 

Maximum TCLP 

constituent 

analysis 

(mg/L) 

Maximum 

allowable 

delisting 

concentration 

level 

(mg/L) 

Tetra-dioxins (totals) ........................................................................................................ 1.16E–05 N/A N/A 

Ethylbenzene ................................................................................................................... 1.56 0.0133 N/A 

Fluoranthene .................................................................................................................... 1.52 <0.008 3.53 

Fluorene ........................................................................................................................... 1.01 <0.008 12.2 

Hepta-furans .................................................................................................................... 2.08E–04 N/A N/A 

Hexa-furans ..................................................................................................................... 1.83E–04 N/A N/A 

Penta-furans (totals) ........................................................................................................ 2.05E–04 N/A N/A 

Tetra-furans (totals) ......................................................................................................... 4.01E–05 N/A N/A 

1,2,3,4,6,7,8-HpCDD ....................................................................................................... 0.242E–03 B N/A N/A 

1,2,3,4,6,7,8-HpCDF ........................................................................................................ 6.67E–05 N/A N/A 

1,2,3,4,7,8,9-HpCDF ........................................................................................................ 2.11E–05 N/A N/A 

1,2,3,4,7,8-HxCDD ........................................................................................................... 5.38E–06 N/A N/A 

1,2,3,6,7,8-HxCDD ........................................................................................................... 1.16E–05 N/A N/A 

1,2,3,7,8,9-HxCDD ........................................................................................................... 1.39E–05 N/A N/A 

1,2,3,4,7,8-HxCDF ........................................................................................................... 1.62E–05 N/A N/A 

1,2,3,6,7,8-HxCDF ........................................................................................................... 8.55E–06 N/A N/A 

1,2,3,7,8,9-HxCDF ........................................................................................................... 0.577E–06 J N/A N/A 

2,3,4,6,7,8-HxCDF ........................................................................................................... 6.1E–06 N/A N/A 

Indeno(1,2,3-cd)pyrene .................................................................................................... 0.749 <0.008 N/A 

Lead ................................................................................................................................. 46.8 0.015 1,640 

Mercury ............................................................................................................................ 1.04 <0.001 0.178 

2-Methylnaphthalene ....................................................................................................... 5.89 <0.008 N/A 

Naphthalene ..................................................................................................................... 1.36 <0.008 N/A 

Nickel ............................................................................................................................... 57.9 0.248 61.9 

OCDD .............................................................................................................................. 4.34E–03 EB N/A N/A 

OCDF ............................................................................................................................... 1.45E–04 N/A N/A 

1,2,3,7,8-PeCDD .............................................................................................................. 3.44E–06 J N/A N/A 

1,2,3,7,8-PeCDF .............................................................................................................. 3.25E–06 JK N/A N/A 

2,3,4,7,8-PeCDF .............................................................................................................. 4.63E–06 N/A N/A 

Phenanthrene .................................................................................................................. 4.24 <0.008 N/A 

n-propylbenzene .............................................................................................................. 1.04 <0.01 N/A 

Pyrene .............................................................................................................................. 7.40 <0.008 2.71 

Selenium .......................................................................................................................... <5.0 <0.05 4.77 

Silver ................................................................................................................................ <2.5 <0.005 8.41 

Sulfide .............................................................................................................................. 736 N/A N/A 

2,3,7,8-TCDD ................................................................................................................... 0.847E–06 J N/A 4.48E–08 

2,3,7,8-TCDF ................................................................................................................... 3.69E–06 C N/A N/A 

Thallium ........................................................................................................................... <2 N/A 0.29 

Tin .................................................................................................................................... 6.16 N/A N/A 

1,3,5-Trimethylbenzene ................................................................................................... 8.10 0.0282 N/A 

Vanadium ......................................................................................................................... 94.6 0.391 46.3 

Xylenes, Total .................................................................................................................. 8.99 0.0737 N/A 

Zinc .................................................................................................................................. 742 2.34 615 

Notes: 

(A) These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent 

the specific levels found in one sample. 

(B) Based on DRAS modeling with a target risk of 10–5 and a target HI of 0.1. One-time sediment volume of 2,700 cy. 

IV. EPA’s Evaluation of Valero’s 

Petition 

A. How did EPA evaluate the 

information submitted? 

For this delisting determination, EPA 

used such information gathered to 

identify plausible exposure routes (i.e., 

ground water, surface water, air) for 

hazardous constituents present in the 

petitioned waste. EPA determined that 

disposal in an unlined Subtitle D 

landfill is the most reasonable, worstcase disposal scenario for Valero’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 Valero’s 

petitioned waste on human health and 

the environment. A copy of this 

software can be found on the Internet at 

http://www.epa.gov/earth1r6/6pd/

rcra_c/pd-o/dras.htm. In assessing 

potential risks to ground water, EPA 

used the maximum estimated waste 

volumes and the maximum reported 

extract concentrations as inputs to the 

DRAS program to estimate the 

constituent concentrations in the 

ground water 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 0.1), 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 


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maximum compliance-point 

concentrations and the EPA Composite 

Model for Leachate 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 

ground water. 

EPA believes that the EPACMTP fate 

and transport model represents a 

reasonable worst-case scenario for 

possible ground water contamination 

resulting from disposal of the petitioned 

waste in an unlined landfill, 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 or 

wind-blown particulate from the 

landfill). As in the above ground water 

analyses, the DRAS uses the risk level, 

the health-based data and standard risk 

assessment and exposure algorithms to 

predict maximum compliance-point 

concentrations of waste constituents at 

a hypothetical point of exposure. Using 

fate and transport equations, the DRAS 

uses the maximum compliance-point 

concentrations and back-calculates the 

maximum allowable waste constituent 

concentrations (or ‘‘delisting levels’’). 

In most cases, because a delisted 

waste is no longer subject to hazardous 

waste control, EPA is generally unable 

to predict, and does not presently 

control, how a petitioner will manage a 

waste after delisting. Therefore, EPA 

currently believes that it is 

inappropriate to consider extensive sitespecific factors when applying the fate 

and transport model. EPA does control 

the type of unit where the waste is 

disposed. 

EPA believes that the descriptions of 

Valero hazardous waste process and 

analytical characterization, which 

illustrate the presence of toxic 

constituents at lower concentrations in 

these waste streams, provide a 

reasonable basis to conclude that the 

likelihood of migration of hazardous 

constituents from the petitioned waste 

will be substantially reduced so that 

short-term and long-term threats to 

human health and the environment are 

minimized. 

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 results and 

maximum TCLP and Totals 

concentrations 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 

above the delisting levels. 

B. What did EPA conclude about this 

waste? 

The descriptions of Valero’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 maximum allowable 

leachable concentrations (see Table I). 

We believe the short-term and long-term 

threats posed to human health and the 

environment are minimized from the 

petitioned waste due to the low levels 

of hazardous constituents present in the 

waste. 

It is EPA’s position that we should 

grant Valero an exclusion for the F037 

Storm Water Basin sediment. The data 

submitted to EPA in support of the 

petition show Valero’s F037 Storm 

Water Basin sediment is nonhazardous. 

We have reviewed the sampling 

procedures used by Valero and have 

determined they satisfy EPA criteria for 

collecting representative samples of 

variable constituent concentrations in 

the F037 Storm Water Basin sediment. 

The data submitted in support of the 

petition show that constituents in 

Valero’s waste are presently below the 

compliance point concentrations used 

in the delisting decision-making and 

would not pose a substantial hazard to 

the environment. EPA believes that 

Valero has successfully demonstrated 

that the F037 Storm Water Basin 

sediment is nonhazardous. 

EPA therefore proposes to grant an 

exclusion to Valero Memphis Refinery 

Memphis, Tennessee, for the F037 

Storm Water Basin sediment 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 F037 Storm 

Water Basin sediment. 

If we finalize the proposed rule, EPA 

will no longer regulate the petitioned 

waste under 40 CFR parts 262 through 

268 and the permitting standards of part 

270. 

EPA concluded, after reviewing 

Valero’s processes, that no other 

hazardous constituents of concern, other 

than those for which Valero tested, are 

likely to be present or formed as 

reaction products or by-products in the 

wastes. In addition, on the basis of 

explanations and analytical data 

provided by Valero, pursuant to 40 CFR 

260.22, EPA concludes that the 

petitioned waste does not exhibit any of 

the characteristics of ignitability, 

corrosivity, or reactivity. See 40 CFR 

261.21, 261.22 and 261.23, respectively. 

Neither did it show the toxicity 

characteristic. 

C. What other factors did EPA consider 

in its evaluation? 

During the evaluation of Valero’s 

petition, EPA also considered the 

potential impact of the petitioned waste 

via non-ground water routes (i.e., air 

emissions and surface runoff). EPA 

evaluated the potential hazards 

resulting from the unlikely scenario of 

airborne exposure to hazardous 

constituents released from Valero’s 

waste in an open landfill. 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 Valero’s F037 

Storm Water Basin sediment. With 

regard to airborne dispersion in 

particular, EPA believes that exposure 

to airborne contaminants from Valero’s 

petitioned waste is unlikely. Therefore, 

no appreciable air releases are likely 

from Valero’s waste under the modeled 

disposal conditions. EPA also 

considered the potential impact of the 

petitioned waste via a surface water 

route. EPA believes that containment 

structures at Class I Landfills can 

effectively control surface water runoff, 

as the Subtitle D regulations (See 56 FR 

50978, October 9, 1991) prohibit 

pollutant discharges into surface waters. 

Furthermore, the concentrations of any 

hazardous constituents dissolved in the 

runoff will tend to be lower than the 

levels in the TCLP leachate analyses 

reported in this notice due to the 

aggressive acidic medium used for 

extraction in the TCLP. EPA believes 

that, in general, the F037 Storm Water 

Basin sediment is unlikely to directly 

enter a surface water body without first 

traveling through the saturated 

subsurface where dilution and 

attenuation of hazardous constituents 

will also occur. 

Based on the reasons discussed above, 

EPA believes that the contamination of 

surface water through runoff from the 

waste disposal area is very unlikely. 

Nevertheless, EPA evaluated the 


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potential impacts on surface water if 

Valero’s waste were released from a 

Class I Landfill through runoff and 

erosion. The estimated levels of the 

hazardous constituents of concern in 

surface water would be well below 

health-based levels for human health, as 

well as below EPA Chronic Water 

Quality Criteria for aquatic organisms 

(USEPA, OWRS, 1987). EPA therefore 

concluded that Valero’s F037 Storm 

Water Basin sediment is not a present or 

potential substantial hazard to human 

health and the environment via the 

surface water exposure pathway. 

V. Conditions 

A. With what conditions must Valero 

comply for its Storm Water Basin 

Sediment to be delisted? 

The petitioner, Valero, 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) Reopener: The 

purpose of Paragraph 1 is to require 

Valero 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. 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 we 

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 

Valero to report differing site conditions 

or assumptions used in the petition (i.e., 

if the wastes begin to leach at higher 

concentrations than predicted) 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 40 CFR 268.6. 

It is EPA’s position that we have the 

authority under RCRA and the 

Administrative Procedure Act (APA), 5 

U.S.C. 551 (1978) et seq., to reopen a 

delisting decision. We may reopen a 

delisting decision when we receive 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 experience. See Reynolds Metals 

Company at 62 FR 37694 and 62 FR 

63458, 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 case by case. Where 

necessary, EPA will make a good cause 

finding to justify emergency rulemaking. 

See APA Sec. 553 (b). (2) Notification 

Requirements: In order to adequately 

track wastes that have been delisted, 

EPA is requiring that Valero provide a 

one-time notification to any State 

regulatory agency through which or to 

which the delisted waste is being 

carried. Valero must provide this 

notification within 60 days of 

commencing this activity. 

B. What happens if Valero is unable to 

meet the terms and conditions of this 

delisting? 

If Valero violates the terms and 

conditions established in the exclusion, 

EPA will initiate 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 Valero 

to conduct the appropriate waste 

analysis and comply with the criteria 

explained above in Paragraph (1) of the 

exclusion. 

VI. Regulatory Impact 

Because EPA is issuing today’s 

exclusion under the Federal RCRA 

delisting program, only States subject to 

Federal RCRA delisting provisions 

would be affected. This exclusion may 

not be effective in States that have 

received EPA’s authorization to make 

their own delisting decisions. 

Under Section 3009 of RCRA, EPA 

allows States to impose their own nonRCRA regulatory requirements that are 

more stringent than EPA’s. These more 

stringent requirements may include a 

provision that prohibits a federally 

issued exclusion from taking effect in 

the State. 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 

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 Valero 

manages the Storm Water Basin 

Sediment in any State with delisting 

authorization, Valero must obtain 

delisting authorization from the State 

before it can manage the Storm Water 

Basin Sediment as nonhazardous in that 

State. 

Under Executive Order 12866, the 

EPA must conduct an ‘‘assessment of 

the potential costs and benefits’’ for all 

‘‘significant’’ regulatory actions. The 

proposal to grant an exclusion is not 

significant, since its effect, if 

promulgated, would be to reduce the 

overall costs and economic impact of 

EPA’s hazardous waste management 

regulations. This reduction would be 

achieved by excluding waste generated 

at a specific facility from EPA’s lists of 

hazardous wastes, thus enabling a 

facility to manage its waste as 

nonhazardous. 

Because there is no additional impact 

from this proposed rule, this proposal 

would not be a significant regulation, 

and no cost/benefit assessment is 

required. The Office of Management and 

Budget (OMB) has also exempted this 

rule from the requirement for OMB 

review under Section (6) of Executive 

Order 12866. 

VII. Regulatory Flexibility Act 

Under the Regulatory Flexibility Act, 

5 U.S.C. 601–612, whenever an agency 

is required to publish a general notice 

of rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis which describes the 

impact of the rule on small entities (that 

is, small businesses, small 

organizations, and small governmental 

jurisdictions). No regulatory flexibility 

analysis is required, however, if the 

Administrator or delegated 

representative certifies that the rule will 

not have any impact on small entities. 

This rule, if promulgated, will not 

have an adverse economic impact on 

small entities since its effect would be 

to reduce the overall costs of EPA’s 

hazardous waste regulations and would 

be limited to one facility. Accordingly, 

EPA hereby certifies that this proposed 

regulation, if promulgated, will not have 

a significant economic impact on a 

substantial number of small entities. 

This regulation, therefore, does not 

require a regulatory flexibility analysis. 

VIII. Paperwork Reduction Act 

Information collection and record 

keeping requirements associated with 

this proposed rule have been approved 

by the Office of Management and 

Budget (OMB) under the provisions of 

the Paperwork Reduction Act of 1980 

(Pub. L. 96–511, 44 U.S.C. Section 3501 

et seq.) and have been assigned OMB 

Control Number 2050–0053. 

IX. Unfunded Mandates Reform Act 

Under Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

Public Law 104–4, which was signed 

into law on March 22, 1995, the EPA 

generally must prepare a written 

statement for rules with Federal 


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mandates that may result in estimated 

costs to State, local, and tribal 

governments in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. 

When such a statement is required for 

the EPA rules, under Section 205 of the 

UMRA the EPA must identify and 

consider alternatives, including the least 

costly, most cost-effective, or least 

burdensome alternative that achieves 

the objectives of the rule. The EPA must 

select that alternative, unless the 

Administrator explains in the final rule 

why it was not selected or it is 

inconsistent with law. 

Before EPA establishes regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including tribal governments, EPA must 

develop under Section 203 of the UMRA 

a small government agency plan. The 

plan must provide for notifying 

potentially affected small governments, 

giving them meaningful and timely 

input in the development of EPA’s 

regulatory proposals with significant 

Federal intergovernmental mandates, 

and informing, educating, and advising 

them on compliance with the regulatory 

requirements. 

The UMRA generally defines a 

Federal mandate for regulatory purposes 

as one that imposes an enforceable duty 

upon State, local, or tribal governments 

or the private sector. 

EPA finds that this delisting decision 

is deregulatory in nature and does not 

impose any enforceable duty on any 

State, local, or tribal governments or the 

private sector. In addition, the proposed 

delisting decision does not establish any 

regulatory requirements for small 

governments and so does not require a 

small government agency plan under 

UMRA Section 203. 

X. Executive Order 13045 

The Executive Order 13045 is entitled 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997). 

This order applies to any rule that the 

EPA determines (1) is economically 

significant as defined under Executive 

Order 12866, and (2) the environmental 

health or safety risk addressed by the 

rule has a disproportionate effect on 

children. If the regulatory action meets 

both criteria, EPA must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by EPA. This proposed rule 

is not subject to Executive Order 13045 

because this is not an economically 

significant regulatory action as defined 

by Executive Order 12866. 

XI. Executive Order 13084 

Under Executive Order 13084, EPA 

may not issue a regulation that is not 

required by statute, that significantly 

affects or uniquely affects the 

communities of Indian tribal 

governments, and that imposes 

substantial direct compliance costs on 

those communities, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by the tribal 

governments. 

If the mandate is unfunded, EPA must 

provide to the Office of Management 

and Budget, in a separately identified 

section of the preamble to the rule, a 

description of the extent of EPA’s prior 

consultation with representatives of 

affected tribal governments, a summary 

of the nature of their concerns, and a 

statement supporting the need to issue 

the regulation. 

In addition, Executive Order 13084 

requires EPA to develop an effective 

process permitting elected and other 

representatives of Indian tribal 

governments to have ‘‘meaningful and 

timely input’’ in the development of 

regulatory policies on matters that 

significantly or uniquely affect their 

communities of Indian tribal 

governments. This action does not 

involve or impose any requirements that 

affect Indian Tribes. Accordingly, the 

requirements of Section 3(b) of 

Executive Order 13084 do not apply to 

this rule. 

XII. National Technology Transfer and 

Advancement Act 

Under Section 12(d) of the National 

Technology Transfer and Advancement 

Act, EPA is directed to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (for example, materials 

specifications, test methods, sampling 

procedures, business practices, etc.) 

developed or adopted by voluntary 

consensus standard bodies. Where 

available and potentially applicable 

voluntary consensus standards are not 

used by EPA, the Act requires that EPA 

provide Congress, through the OMB, an 

explanation of the reasons for not using 

such standards. 

This rule does not establish any new 

technical standards and thus, EPA has 

no need to consider the use of voluntary 

consensus standards in developing this 

final rule. 

XIII. Executive Order 13132

Federalism 

Executive Order 13132, entitled 

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

1999) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ are defined in 

the Executive Order to include 

regulations that 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.’’ 

Under Section 6 of Executive Order 

13132, EPA may not issue a regulation 

that has federalism implications, that 

imposes substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal government provides 

the funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless EPA consults with State and 

local officials early in the process of 

developing the proposed regulation. 

This action does not have federalism 

implications. It will not have a 

substantial direct effect on 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, because it 

affects only one facility. 

List of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, and Reporting and 

recordkeeping requirements. 

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

6921(f) 

Dated: January 21, 2009. 

G. Alan Farmer, 

Director, RCRA Division, Region 4. 

Editorial Note: This document was 

received in the Office of the Federal Register 

on July 6, 2009. 

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: 


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

6922, and 6938. 

2. In Table 1 of Appendix IX of Part 

261, it is proposed to add the following 

wastes in alphabetical order by facility 

to read as follows: 

Appendix IX to Part 261—Waste 

Excluded Under 40 CFR §§ 260.20 and 

260.22 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * 

The Valero Refining 

Company—Tennessee, L.L.C.

Memphis, TN .... Storm Water Basin sediment (EPA Hazardous Waste No. F037) generated one time at a volume of 

2,700 cubic yards [insert publication date of the final rule] and disposed in a Subtitle D landfill. 

This is a one time exclusion and applies to 2,700 cubic yards of Storm Water Basin sediment. (1) 

Reopener. (A) If, anytime after disposal of the delisted waste, Valero possesses or is otherwise 

made aware of any environmental data (including but not limited to leachate data or ground water 

monitoring data) or any other data relevant to the delisted waste indicating that any constituent 

identified for the delisting verification testing is at level higher than the delisting level allowed by 

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

Division Director within 10 days of first possessing or being made aware of that data. (B) If Valero 

fails to submit the information described in paragraph (A) 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 or the environment. Further action 

may include suspending, or revoking the exclusion, or other appropriate response necessary to 

protect human health and the environment. (C) If the Division Director determines that the reported information does require EPA action, the Division Director will notify the facility in writing of 

the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the 

facility with an opportunity to present information as to why the proposed EPA action is not necessary. The facility shall have 10 days from the date of the Division Director’s notice to present 

such information. (D) Following the receipt of information from the facility described in paragraph 

(C) or (if no information is presented under paragraph initial receipt of information described in 

paragraphs (A) or (B), the Division Director will issue a final written determination describing EPA 

actions that are necessary to protect human health or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. (2) Notification Requirements: Valero 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 they will transport the delisted 

waste described above for disposal, 60 days before beginning such activities. (B) Update the onetime written notification, if they ship the delisted waste to a different disposal facility. (C) Failure to 

provide this notification will result in a violation of the delisting variance and a possible revocation 

of the decision. 

* * * * * * 

[FR Doc. E9–16261 Filed 7–8–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2009–0108; SW FRL– 

8922–9] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Proposed Exclusion 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule and request for 

comment. 

SUMMARY: EPA is proposing to grant a 

petition submitted by Occidental 

Chemical Corporation (OxyChem) to 

exclude (or delist) a certain solid waste 

generated by its Ingleside, Texas, facility 

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 

August 10, 2009. We will stamp 

comments received after the close of the 

comment period as late. These late 

comments may not be considered in 

formulating a final decision. Your 

requests for a hearing must reach EPA 

by July 24, 2009. The request must 

contain the information prescribed in 40 

CFR 260.20(d) (hereinafter all CFR cites 

refer to 40 CFR unless otherwise stated). 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

RCRA–2009–0108 by one of the 

following methods: 

1. Federal eRulemaking Portal: 

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

on-line instructions for submitting 

comments. 

2. E-mail: 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–2008– 

0456. 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. 


rmajette on DSK29S0YB1 with PROPOSALS