[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Rules and Regulations]
[Pages 33887-33890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15880]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[FRL-7002-3]
Land Disposal Restrictions: Granting of a Site-Specific Treatment
Variance to Dupont Environmental Treatment--Chambers Works Wastewater
Treatment Plant, Deepwater, NJ
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
promulgating a site-specific treatment variance from the Land Disposal
Restrictions (LDR) standards for wastewater treatment sludge generated
at the Dupont Environmental Treatment (DET)--Chambers Works Wastewater
Treatment Plant located in Deepwater, New Jersey. This sludge is
derived from the treatment of multiple listed wastes, including K088,
and characteristic hazardous waste, and differs significantly from the
waste used to establish the LDR treatment standard for arsenic in K088
nonwastewaters. Accordingly, we are finalizing an alternate treatment
standard of 5.0 mg/L Toxicity Characteristic Leaching Procedure (TCLP)
for the arsenic in the wastewater treatment sludge generated at this
facility.
This treatment variance requires DET to dispose of their wastewater
treatment sludge in their on-site RCRA Subtitle C landfill provided the
sludge complies with the specified alternate treatment standard for
arsenic in K088 nonwastewaters and meets all other applicable LDR
treatment standards.
DATES: This rule is effective June 26, 2001.
ADDRESSES: The official record for this rulemaking is identified as
Docket Number F-2001-DPVF-FFFFF and is located in the RCRA Docket
Information Center (RIC), Crystal Gateway One, 1235 Jefferson Davis
Highway, First Floor, Arlington, VA 22202. The RIC is open from 9 am to
4 pm Monday through Friday, excluding federal holidays. To review
docket materials, we recommend that you make an appointment by calling
703-603-9230. You may copy up to 100 pages from any regulatory document
at no charge. Additional copies cost $0.15 per page. (The index is
available electronically. See the ``Supplementary Information'' section
for information on accessing them).
FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA
Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired).
The RCRA Call Center operates Monday-Friday, 9 am to 6 pm, Eastern
Standard Time. For more detailed information on specific aspects of
this rule, contact Elaine Eby at 703-308-8449, [email protected], or
write her at the Office of Solid Waste, 5302W, U.S. Environmental
Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW,
Washington, DC 20460-0002.
SUPPLEMENTARY INFORMATION:
Availability of Rule on Internet
Please follow these instructions to access the rule: From the World
Wide Web (WWW), type http://www.epa.gov/epaoswer/hazwaste/ldr.
The official record for this action will be kept in paper form.
Accordingly, EPA has transferred any comments received electronically
into paper form and placed them in the official record which also
includes comments submitted directly in writing. The official record is
the paper record maintained at the RIC listed in the ADDRESSES section
at the beginning of this document.
Table of Contents
I. Why and How Are Treatment Variances Granted?
I. Summary of the Proposed Rule
II. Comment Summary and Final Rule
III. Administrative Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
C. Unfunded Mandates Reform Act
D. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
E. Environmental Justice Executive Order 12898
F. Paperwork Reduction Act
G. National Technology Transfer and Advancement Act
H. Consultation with Tribal Governments
I. Executive Order 13132 (Federalism)
J. Congressional Review Act
I. Why and How Are Treatment Variances Granted?
Under Section 3004(m) of the Resource Conservation and Recovery Act
(RCRA) as amended by the Hazardous and Solid Waste Amendments of 1984,
EPA is required to set ``levels or methods of treatment, if any, which
substantially diminish the toxicity of the waste or substantially
reduce the likelihood of migration of hazardous constituents from the
waste so that short-term and long-term threats to human health and the
environment are minimized.'' We have interpreted this language to
authorize treatment standards based on the performance of best
demonstrated available technology (BDAT). This interpretation was
sustained by the court in Hazardous Waste Treatment Council vs. EPA,
886 F. 2d 355 (D.C.Cir.1989).
We recognize that there may be wastes that cannot be treated to
levels specified in the regulation (see 40 CFR 268.40) (51 FR 40576,
November 7, 1986). For such wastes, a treatment variance exists (40 CFR
268.44) that, if granted, becomes the treatment standard for the waste
at issue.
Treatment variances may be generic or site-specific. A generic
variance can result in the establishment of a new treatability group
and a corresponding treatment standard that applies to all wastes that
meet the criteria of the new waste treatability group (55 FR 22526,
June 1, 1990). A site-specific variance applies only to a specific
waste from a specific facility. Under 40 CFR 268.44(h), a generator or
treatment facility may apply to the Administrator, or EPA's delegated
representative, for a site-specific variance in cases where a waste
that is generated under conditions specific to only one site and cannot
or should not be treated to the specified level(s). The applicant for a
site-specific variance must demonstrate that because the physical or
chemical properties of the waste differ significantly from the waste
analyzed in development of the treatment standard, the waste cannot be
treated by BDAT to the specified levels or by the specified method(s).
Although there are other grounds for obtaining treatment variances, we
will not discuss those in this notice because this is the only
provision relevant to the present petition.
Dupont Environmental Treatment--Chambers Works submitted their
request for a treatment variance in February 2000. All information and
data used in the development of this final rule can be found in the
RCRA docket supporting this rule.
II. Summary of the Proposed Rule
On December 4, 2000 (65 FR 75651), we published a proposed rule
detailing our intent to grant a site-specific variance from the K088
treatment standard for arsenic in nonwastewaters to Dupont
Environmental Treatment--
[[Page 33888]]
Chambers Works (herein referred to as ``DET'') for their dewatered
wastewater treatment sludge.\1\ In the proposal, we conclude that an
alternative treatment standard of 5.0 mg/L TCLP for arsenic is
warranted for the following reasons. First, the sludge generated at
DET's WWTP is not the same type of waste that was used to develop the
26.1 mg/kg treatment standard for arsenic in K088 nonwastewaters, nor
does it present the same situation regarding the use of a total arsenic
standard to lock-in treatment process parameters. Second, the sludge
will be disposed of in a Subtitle C hazardous waste landfill with pH
conditions in the range of 6.5 to 8.5 and not the alkaline conditions,
i.e., pH conditions of 12 and above, that resulted in mobilization of
arsenic at Reynold's K088 landfill. Thus, the conditions that prompted
the change in the K088 treatment standard are absent for this site.
Third, the TCLP remains an adequate measure of treatment efficiency for
DET's WWTP sludge due to the non-alkaline sludge matrix and the
expected disposal conditions. Therefore, we believe that a TCLP
standard of 5.0 mg/L is a reasonable measure of demonstrating that
threats posed by the waste's disposal have been minimized. Fourth, the
alternative standard of 5.0 mg/L TCLP is currently the standard
applicable to arsenic in all other hazardous wastes, except K088
nonwastewaters. Fifth, data submitted to the Agency shows that DET's
dewatered WWTP sludge consistently maintains both a neutral pH and TCLP
levels of arsenic far less than 5.0 mg/L. Finally, arsenic
concentrations in the WWTP sludge cannot be treated to a lower
treatment standard based on a totals analysis, i.e., arsenic is an
element and as such must be immobilized, it cannot be destroyed.
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\1\ DET WWTP operates as both a commercial treatment facility
for industrial and RCRA hazardous waste and as an internal treatment
operation for E. I. Dupont de Nemours' numerous manufacturing
operations. As the largest wastewater treatment facility in the
United States, DET WWTP processes approximately 16 million gallons
of wastewater per day or 5.84 billion gallons per year. It should be
noted, however, that the WWTP sludge at issue here is generated by
the biological treatment of a relatively small quantity of
wastewater carrying the K088 waste designation. This K088 wastewater
accounts for less than 0.002% of the total annual throughput at DET
WWTP.
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III. Comment Summary and Final Rule
We received two comments on the proposed rule. Both commenters, the
petitioner, DET, and Alcoa Incorporated/Reynolds Metals Company (herein
referred to as ``Alcoa''), support all the conclusions articulated in
the proposal and recommend granting the petition. No adverse comments
were made. Alcoa did note, however, that the stipulation, ``* * * the
waste must be land disposed in their (DET's) on-site subtitle C
landfill * * *'' (65 FR at 75654) was not specifically reflected in the
regulatory language. As such, we are today granting DET's petition for
a site-specific treatment variance for their WWTP sludge and will amend
40 CFR part 268 to state that wastewater treatment sludge generated by
Dupont Environmental Treatment--Chambers Works Wastewater Treatment
Plant in Deepwater, New Jersey is subject to an arsenic treatment
standard of 5.0 mg/L TCLP for all RCRA wastes. Furthermore, taking note
of Alcoa's concern, we stipulate, and make clear in the regulatory
language, that the waste must be land disposed in DET's on-site
Subtitle C landfill assuming the waste meets all applicable federal,
state and local requirements.
IV. Administrative Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because this final rule does not create any new regulatory
requirements, it is not a ``significant regulatory action'' under the
terms of Executive Order 12866 and is therefore not subject to OMB
review.
B. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not impose any requirements on small entities. This treatment
variance does not create any new regulatory requirements. Rather, it
establishes an alternative treatment standard for a regulated
constituent. This action, therefore, does not require a regulatory
flexibility analysis.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. If a written statement is needed, section 205 of the UMRA
generally requires EPA to identify and consider a reasonable number of
regulatory alternatives. Under section 205, EPA must adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule, unless the Administrator publishes
with the final rule an explanation why that alternative was not
adopted. The provisions of section 205 do not apply when they are
inconsistent with applicable law.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated costs of $100 million or more in
the aggregate to
[[Page 33889]]
either State, local, or tribal governments or the private sector in one
year. The rule would not impose any federal intergovernmental mandate
because it imposes no enforceable duty upon State, tribal or local
governments. States, tribes, and local governments would have no
compliance costs under this final rule. EPA has also determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments. In addition, as discussed above,
the private sector is not expected to incur costs exceeding $100
million. EPA has fulfilled the requirement for analysis under the
Unfunded Mandates Reform Act. Thus, today's rule is not subject to the
requirements of sections 202, 204 and 205 of UMRA.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this rule will not significantly or
uniquely affect small governments. This final rule will not impose any
requirements on small entities. This treatment variance does not create
any new regulatory requirements. Rather, it establish an alternative
treatment standard for a regulated constituent at the specific
facility. Today's rule is not, therefore, subject to the requirements
of section 203 of UMRA.
D. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency 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 the Agency.
Today's rule is not subject to Executive Order 13045 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 subject wastes will comply with
all other treatment standards and be disposed of in a RCRA Subtitle C
landfill. Therefore, we have identified no risks that may
disproportionately affect children.
E. Environmental Justice Executive Order 12898
EPA is committed to addressing environmental justice concerns and
is assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
impacts as a result of EPA's policies, programs, and activities, and
that all people live in clean and sustainable communities. In response
to Executive Order 12898 and to concerns voiced by many groups outside
the Agency, EPA's Office of Solid Waste and Emergency Response formed
an Environmental Justice Task Force to analyze the array of
environmental justice issues specific to waste programs and to develop
an overall strategy to identify and address these issues (OSWER
Directive No. 9200.3-17).
Today's final rule applies to wastes that will be treated and
disposed of in a RCRA Subtitle C hazardous waste landfill, ensuring a
high degree of protection to human health and the environment.
Therefore, the Agency does not believe that today's action will result
in any disproportionately negative impacts on minority or low-income
communities relative to affluent or non-minority communities.
F. Paperwork Reduction Act
This rule only changes the treatment standards applicable to a
subcategory of K088 waste. It does not change in any way the paperwork
requirements already applicable to these waste. Therefore, this rule is
not affected by the requirements of the Paperwork Reduction Act.
G. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA 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 (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
action does not involve technical standards based on new methodologies.
Therefore, EPA did not consider the use of any voluntary consensus
standards.
H. Consultation With Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This treatment variance does not create any new regulatory
requirements. Rather, it establishes an alternative treatment standard
for a regulated constituent at the specific facility. Thus, Executive
Order 13175 does not apply to this rule.
I. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
[[Page 33890]]
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implication.''
``Policies that have federalism implication'' is 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 governments.''
This final 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. This treatment variance does not
create any new regulatory requirements. Rather, it establishes an
alternative treatment standard for a regulated constituent at the
specific facility. Thus, Executive Order 13132 does not apply to this
rule.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 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 today's
action under section 801 because this is a rule of particular
applicability.
List of Subjects in 40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
Dated: June, 14, 2001.
Michael Shapiro,
Acting Assistant Administrator for Solid Waste and Emergency Response.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 268--LAND DISPOSAL RESTRICTIONS
1. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
2. In Sec. 268.44, the table in paragraph (o) is amended by adding
in alphabetical order a new entry for ``Dupont Environmental
Treatment--Chambers Works Wastewater, Deepwater, NJ'' and adding a new
footnote 8 to read as follows:
Sec. 268.44 Variance from a treatment standard.
* * * * *
(o) * * *
Table--Wastes Excluded From the Treatment Standards Under Sec. 268.40
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Wastewaters Nonwastewaters
Regulated ----------------------------------------------------------
Facility name \1\ and address Waste code See also hazardous Concentration Concentration
constituent (mg/L) Notes (mg/kg) Notes
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* * * * * * *
Dupont Environmental Treatment-- K088 Standards under Arsenic............ 1.4 NA 5.0 mg/L TCLP NA
Chambers Works Wastewater Sec. 268.40.
Treatment Plant, Deepwater, NJ
\8\.
* * * * * * *
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\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\8\ Dupont Environmental Treatment--Chambers Works must dispose of this waste in their on-site Subtitle C hazardous waste landfill.
Note: NA means Not Applicable.
[FR Doc. 01-15880 Filed 6-25-01; 8:45 am]
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