[Federal Register Volume 67, Number 102 (Tuesday, May 28, 2002)]
[Rules and Regulations]
[Pages 36813-36818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13114]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[FRL-7217-4]
Land Disposal Restrictions: Site-Specific Treatment Variance to
Chemical Waste Management, Inc.
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (EPA or
Agency) is today taking direct final action by granting a site-specific
treatment variance from the Land Disposal Restrictions (LDR) treatment
standards for two selenium-bearing hazardous wastes. EPA first granted
a variance for these two waste streams three years ago. We are now
taking action to extend the variance because: the chemical properties
of these two wastes continue to differ significantly from the waste
used to establish the current LDR standard for selenium (5.7 mg/L, as
measured by the TCLP); and Chemical Waste Management, Inc. (CWM) has
adequately demonstrated that the two wastes cannot be treated with
current technologies to meet this treatment standard.
CWM will stabilize these two specific wastes at their Kettleman
City, California facility to meet the following alternative treatment
standards: 51 mg/L, as measured by the TCLP, for the Owens-Brockway
waste and 25 mg/L, as measured by the TCLP, for the St. Gobain
(formerly Ball Foster) waste. After treatment to these alternative
selenium standards, CWM may dispose of the treated wastes in a RCRA
Subtitle C landfill provided they meet the applicable LDR treatment
standards for the other hazardous constituents in the wastes. We are
granting this variance for three years.
DATES: This rule is effective on July 12, 2002, without further notice,
unless EPA receives adverse comment on the direct final rule by June
27, 2002. If we receive such comment, we will publish a timely
withdrawal in the Federal Register informing the public that this rule
will not take effect.
ADDRESSES: The official record for this rulemaking is identified as
Docket Number F-2002-CWVF-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.
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).
Callers within the Washington Metropolitan Area must dial 703-412-9810
or TDD 703-412-3323 (hearing impaired). The RCRA Call Center is open
Monday-Friday, 9 am to 4 pm, Eastern Standard Time. For more
information on specific aspects of this direct final rule, contact Josh
Lewis at 703-308-7877, [email protected], or write him at the Office
of Solid Waste, 5302W, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania
Avenue, NW, Washington, DC 20460.
SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior
proposal because we view it as a noncontroversial action. We anticipate
no significant adverse comment because of the site-specific nature of
this action and because we are merely extending a variance that is
already in effect, and which has already been the subject of notice and
opportunity for comment. In the three years since we granted the
original variance, no new treatment options have become available to
treat these two waste streams more effectively. Having said this, in
the ``Proposed Rules'' section of today's Federal Register publication,
we are publishing a separate document that will serve as the proposal
to grant this variance if significant adverse comments are filed. See
the proposed rule for information on submitting comments.
This direct final rule will be effective on July 12, 2002, without
further notice unless we receive adverse comment by June 27, 2002. If
we receive significant adverse comment, we will publish a timely
withdrawal in the Federal Register indicating that this direct final
rule action is being withdrawn due to adverse comment on the proposed
rule. We will then address all public comments, as appropriate, based
on the proposed rule. Any parties interested in commenting on this
treatment variance must do so at this time.
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.
Table of Contents
I. Background
A. What is the basis for LDR treatment variances?
B. What is the basis of the current selenium treatment standard?
II. Basis for Today's Determination
A. What is the history of this variance?
B. What criteria govern a treatment variance?
C. What is the basis for EPA's approval of CWM's request for an
alternative D010 treatment standard?
D. What are the terms and conditions of this variance?
III. Reasons for Imposing Another Three-Year Limitation
IV. 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)
C. Unfunded Mandates Reform Act
D. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
E. Environmental Justice Executive Order 12898
F. Paperwork Reduction Act
G. National Technology Transfer and Advancement Act of 1995
H. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
I. Executive Order 13132 (Federalism)
J. Executive Order 13211 (Energy Effects)
K. Congressional Review Act
I. Background
A. What Is the Basis for LDR Treatment Variances?
Under section 3004(m) of the Resource Conservation and Recovery Act
(RCRA), 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.'' EPA interprets this
language to authorize treatment standards based on the performance of
best demonstrated available technology (BDAT). This interpretation was
upheld by the D.C. Circuit in Hazardous Waste Treatment Council vs.
EPA, 886 F. 2d 355 (D.C. Cir. 1989).
The Agency recognizes that there may be wastes that cannot be
treated to levels specified in the regulations (see 40 CFR 268.40)
because an individual waste matrix or concentration can be
[[Page 36814]]
substantially more difficult to treat than those wastes the Agency
evaluated in establishing the treatment standard (51 FR 40576, November
7, 1986). For such wastes, EPA has a process by which a generator or
treater may seek a treatment variance. See 40 CFR 268.44. If granted,
the terms of the variance establish an alternative treatment standard
for the particular waste at issue.
B. What Is the Basis of the Current Selenium Treatment Standard?
In the so-called Third Third rule (55 FR 22521, June 1, 1990), we
used performance data from the stabilization of a selenium D010 mineral
processing waste, which we determined to be the most difficult to treat
selenium waste, to set the national treatment standard for selenium.
This waste contained up to 700 ppm total selenium and 3.74 mg/L
selenium in the TCLP leachate. The resulting post-treatment selenium
TCLP levels were between 1.80 and 0.154 mg/L, which led to our
establishment of a national treatment standard of 5.7 mg/L for D010
selenium nonwastewaters. At that time, EPA also had information
indicating that wastes containing high concentrations of selenium are
rarely generated and land disposed and, therefore, concluded that the
standard of 5.7 mg/L was achievable.
In the Phase IV final rule, the Agency determined that a treatment
standard of 5.7 mg/L, as measured by the TCLP, continued to be
appropriate for D010 nonwastewaters (63 FR 28556, May 26, 1998). The
Agency also changed the universal treatment standard (UTS) for selenium
nonwastewaters from 0.16 mg/L to 5.7 mg/L. In the preamble to the Phase
IV final rule, we noted that we received comments from one company,
Chemical Waste Management (CWM), indicating that they were attempting
to stabilize selenium wastes with concentrations much higher than those
EPA was examining to establish the national selenium standard. In
response, we indicated that for these high-level selenium waste
streams, we would propose a site-specific treatment variance.
II. Basis for Today's Determination
A. What Is the History of This Variance?
As we just mentioned, in the preamble to the Phase IV rule we said
we would propose a site-specific treatment variance for high selenium
waste streams. We proposed this treatment variance on October 23, 1998
(63 FR 56886) and subsequently finalized it in a May 26, 1999 Federal
Register notice (64 FR 28387). The variance was for a three-year period
from the date of signature (i.e., May 11, 1999) and it covered two
specific waste streams: An electrostatic precipitator dust from Owens
Brockway; and a dry scrubber solid from Ball Foster (now St. Gobain).
Both waste streams contain relatively high leachable selenium
concentrations. As we mentioned in the original treatment variance, CWM
presented data showing that selenium TCLP concentrations in the
untreated wastes are one to three orders of magnitude higher than the
untreated mineral processing wastes that EPA used to develop the
current D010 selenium treatment standard.\1\ The data also showed that
neither treated waste stream can reliably meet the numerical standard
of 5.7 mg/L, as measured by the TCLP, even though CWM shows that they
were using the treatment technology on which EPA based the selenium
treatment standard.\2\
---------------------------------------------------------------------------
\1\ Selenium concentrations in the untreated Owens Brockway
wastes were between 465 and 1024 mg/L, as measured by the TCLP,
while the selenium concentration in the Ball-Foster waste was 59.8
mg/L, as measured by the TCLP.
\2\ CWM submitted stabilation data from each facility using
combinations of the follownig stabilization reagents: ferrous
sulfate, calcium polysulfide, ferric chloride, sodium bisulfate,
portland cement, and cement kiln dust. For more detailed information
about the original petition, see the docket supporting this
rulemaking (docket number F-2002-CWVF-FFFFF).
---------------------------------------------------------------------------
In the May 26, 1999 Federal Register notice, we established the
following alternative treatment standards for selenium: 51 mg/L TCLP
for Owens Brockway; and 25 mg/L TCLP for Ball Foster (now St. Gobain).
We also included a requirement that CWM submit to EPA an annual report
containing any analytical data from studies using alternative treatment
technologies, data showing the stabilization recipes they are using to
meet the alternative treatment standards, and the untreated and treated
selenium concentrations in these wastes.
On June 8, 2000 and May 7, 2001, CWM submitted, respectively, the
first and second annual reports to the Agency.\3\ On March 25, 2002,
CWM submitted a letter to EPA requesting a continuation of the
treatment variance for another three-year period. In the letter, CWM
states that because both wastes continue to have elevated levels of
leachable selenium, they are unable to achieve the selenium treatment
standard consistently. CWM also asserts that they are unaware of any
additional reagents that would be more effective in the treatment
process.
---------------------------------------------------------------------------
\3\ All three CWM's annual reports are in the docket supporting
today's rulemaking.
---------------------------------------------------------------------------
B. What Criteria Govern a Treatment Variance?
Under 40 CFR 268.44 (h), EPA allows facilities to apply for a site-
specific variance when a waste generated under conditions specific to
only one site cannot be treated to the specified level(s). In such
cases, the generator or treatment facility may apply to the
Administrator, or EPA's delegated representative, for a site-specific
variance from a treatment standard.
In 40 CFR 268.44 (h)(1) and (2), EPA describes the two main cases
in which we will grant a treatment variance. The case described in 40
CFR 268.44 (h)(1) is applicable to this treatment variance, which
addresses process wastes that are generated on a routine basis by two
glass manufacturing companies. Basically, EPA must determine if the
petitioner has adequately shown that, ``It is not physically possible
to treat the waste to the level specified in the treatment standard * *
* because the physical or the chemical properties of the waste differ
significantly from the waste analyzed in developing the treatment
standard. * * *''
C. What Is the Basis for EPA's Approval of CWM's Request for an
Alternative D010 Treatment Standard?
After careful review of the original treatment variance and of the
data that CWM has submitted since we granted the original treatment
variance, we conclude that CWM has adequately demonstrated that the
wastes continue to satisfy the requirements for a treatment variance
under 40 CFR 268.44 (h)(1).
The two glass manufacturing waste streams continue to differ
significantly in chemical composition from the waste used to generate
the original selenium treatment standard. Selenium TCLP concentrations
in the untreated wastes continue to be one to three orders of magnitude
higher than the concentrations in the waste used in developing the
treatment standard for D010 hazardous wastes. Furthermore, CWM
continues to use stabilization as the treatment technology, which is
consistent with EPA's determination of BDAT, and the process is well-
designed and operated.\4\
---------------------------------------------------------------------------
\4\ See the docket supporting today's rule for more detailed
information on CWM's standard practices for land disposal restricted
waste.
---------------------------------------------------------------------------
As we mentioned in the preamble to the original treatment variance,
treatment of these two wastes is especially difficult because of the
presence of other metals (i.e., arsenic, cadmium, chromium, and lead)
above their respective characteristic levels. It
[[Page 36815]]
is difficult, if not impossible, to optimize treatment for selenium
when other metals are being treated because the selenium solubility
curve differs from that of most other metals.\5\
---------------------------------------------------------------------------
\5\ Selenium's minimum solubility is at a neutral to mildly
acidic pH (6.5-7.5) while other charactereistic metals have a
minimum solubility in the alkaline pH range (8-12) (see 62 FR
26045).
---------------------------------------------------------------------------
Therefore, EPA is today granting an extension to the site-specific
treatment variance from the D010 treatment standards for the two waste
streams in question since the wastes cannot be physically treated to
the level specified in the regulations. Today's alternative treatment
standards will provide sufficient latitude for CWM to treat the other
metals present in the wastes to LDR treatment standards and, by raising
the selenium treatment standard, will avoid the difficulty posed by the
different metal solubility curves.
D. What Are the Terms and Conditions of the Variance?
This variance applies to the following two waste streams that are
generated during glass manufacturing operations: electrostatic
precipitator dust from Owens Brockway Glass Container Company; and dry
scrubber solid from St. Gobain (formerly Ball Foster).
1. Determination of the Treatment Standard for the Owens Brockway Waste
When we originally set the alternative treatment standard for the
Owens Brockway waste, we determined the most effective stabilization
recipe consisted of 0.7 parts iron sulfate combined with 2.0 parts
cement, resulting in a reagent to waste ratio of 2.7 to 1. This recipe
achieved final selenium TCLP values of 36.8, 34.08, and 43.7 mg/L.\6\
We then used the BDAT methodology \7\ to calculate an alternative D010
standard of 51 mg/L, as measured by the TCLP.
---------------------------------------------------------------------------
\6\ The treatment extract had a pH ranging from 10.5-11.9, which
encompasses the maximum solubility (and, therefore, leaching
potential) of selenium. This, in turn, suggests that use of the TCLP
in this particular case adequately reflects a worst-case disposal
scenario. (This is unlike the situation in Columbia Falls Aluminum
Co. v. EPA, 139 F.3d 914, in which the TCLP testing did not reflect
the post-treatment conditions).
\7\ BDAT Background Document for Quality Assurance/Quality
Control Procedures and Methodology, October 23, 1991.
---------------------------------------------------------------------------
In the approximately three years the treatment variance has been in
effect, CWM has treated 26 batches of the Owens Brockway waste.
Untreated selenium TCLP values ranged from 26.5-649 mg/L, with an
average value of about 265 mg/L. Treated TCLP values range from non-
detect to 32.6 mg/L, with an average value of about 12.5 mg/L. Because
the TCLP values in the untreated and treated wastes are comparable to
the levels in the wastes we used to set the original alternative
treatment standard of 51 mg/L, we determined that a TCLP value of 51
mg/L continues to be the appropriate alternative treatment standard for
this waste.
2. Determination of the Treatment Standard for the St. Gobain Waste
When we originally set the alternative selenium treatment standard
for the Ball-Foster waste, we determined the most effective
stabilization recipes have reagent to waste ratios of 1.8, 2.2, 2.3,
2.4, and 2.7. Selenium concentrations in the treated wastes were 11.6,
7.47, 8.22, 15.6, and 4.82 mg/L, as measured by the TCLP.\8\ Using
these five data points, we calculated an alternative treatment D010
standard of 25 mg/L, as measured by the TCLP.
---------------------------------------------------------------------------
\8\ The treatment extract pH ranged from 11.9-12.0, which again
suggested that the use of the TCLP adequately reflected the worst
case disposal scenario. Furthermore, these treatment recipes were
all consistent with the reagent to waste ratios used ot establish
the existing selenium standard of 5.7 mg/L, as measured by the TCLP.
---------------------------------------------------------------------------
In the approximately three years the treatment variance has been in
place, CWM has treated seven batches of the Owens Brockway waste.
Untreated selenium TCLP values ranged from 33.5-43.9 mg/L, with an
average value of about 38.9 mg/L. Treated TCLP values range from 1.6 to
14.6 mg/L, with an average value of about 8.7 mg/L. Because the TCLP
values in the untreated and treated wastes are comparable to the levels
in the wastes we used to set the original alternative treatment
standard of 25 mg/L, we determined that a TCLP value of 25 mg/L
continues to be the appropriate alternative treatment standard for this
waste.
3. Specifics Applicable to Both Waste Streams
After treatment to these alternative selenium standards, CWM may
dispose of the treated wastes in a RCRA Subtitle C landfill \9\
provided CWM complies with any other applicable treatment standards
associated with these wastes, including other applicable Federal,
State, or local requirements as specified in the facility's waste
analysis plan. We are granting this variance for three years for
reasons discussed in section IV below.
---------------------------------------------------------------------------
\9\ Note that disposal in a Subtitle C landfill is required
because the treated wastes are still characteristic for selenium
(i.e., the wastes have TCLP values above the toxicity characteristic
level for selenium of 1.0 mg/L).
---------------------------------------------------------------------------
4. Summary
In summary, after evaluating the data from the three years that the
treatment variance has been in place, we have determined that the
conditions that were present when we originally granted this treatment
variance still exist: the two glass manufacturers continue to produce
these high selenium waste streams; the untreated and treated selenium
concentrations continue to be one to three orders of magnitude higher
than the wastes we used to set the original selenium treatment
standard; and alternative treatment options have not been established
to more effectively treat these wastes.
We also note that although the alternative selenium standards for
these two wastes are relatively high, this treatment variance is a
technically necessary compromise. As noted above and in the May 12,
1997 Federal Register (62 FR 26045), treatment cannot be optimized for
both acid and base-soluble metals due to their different solubility
curves. Because all of the other toxic metals (i.e., arsenic, cadmium,
chromium, and lead) are being immobilized to meet their respective
universal treatment standards, we consider, under the circumstances,
that threats are being minimized if the alternative selenium treatment
standards are met, as required by 3004 (m).
Furthermore, not only are all of the other toxic metals meeting
their respective UTS standards, but the alternative selenium treatment
standards essentially require CWM to use a well-designed and well-
operated treatment system that is consistent, particularly in terms of
the selection of reagents and reagent to waste ratios, with the
technical basis for the current selenium treatment standard.
III. Reasons for Imposing Another Three-Year Limitation
We are granting this treatment variance for another three-year
period. Again, we believe the conditions that led us to set the
original three-year limit still exist. To be more specific, because
selenium is a non-renewable resource, and because the wastes in
question contain high selenium concentrations, one potential avenue
that we want to continue to explore is whether the selenium component
could be recycled in an environmentally sound manner instead of being
stabilized and landfilled.\10\ Over the next three years,
[[Page 36816]]
we also intend to work with the two glass manufacturers to better
understand the processes that generate these waste streams and to
explore whether opportunities exist to reduce the amount of selenium
that ultimately is disposed.
---------------------------------------------------------------------------
\10\ In 2001, Hydromet Environmental Recovery Ltd. opened the
first plant in the U.S. that recovers selenium from waste materials.
The plant processes selenium materials from the copper refining and
photocopy industries. These materials contain 25% or greater
selenium.
---------------------------------------------------------------------------
For the three-year period, we expect CWM to update us annually on
the alternative treatment technologies they are investigating and to
submit any analytical data from studies using these alternative
technologies. We ask that CWM's submission also include information
showing which stabilization recipe they are using to meet the
alternative treatment standards, the selenium concentrations in
untreated wastes, and the analytical results from these treated wastes.
We intend to use this information to determine, among other things, if
there are any reductions in the amount of selenium that ultimately is
disposed and if the alternative treatment standards for selenium are
appropriate as a more permanent standard for these wastes.
At the end of the three-year period, today's alternative treatment
standards expire. Thus, if the two glass manufacturers continue to
generate these wastes with commensurate selenium levels, and if CWM has
not found a new treatment technology to treat the two wastes to the
national treatment level for D010 selenium wastes (or if the Agency has
not adopted more permanent alternative treatment standards for these
two wastes), then CWM and/or the generators of the two waste streams
will have to re-open discussions with EPA about the most appropriate
course of action for future management of these waste streams.
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 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)
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.
This treatment variance does not create any new regulatory
requirements. Rather, it establishes alternative treatment standards
for two specific wastes that replace standards already in effect, and
it only applies to the CWM facility in Kettleman City, California.
Therefore, I hereby certify that this rule will not have a significant
economic impact on a substantial number of small entities. This rule,
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 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 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 rule will not impose any
requirements on small entities. This treatment variance does not create
any new regulatory requirements. Rather, it establishes alternative
treatment standards for two specific wastes that replace standards
already in effect. Today's rule is not, therefore, subject to
[[Page 36817]]
the requirements of section 203 of UMRA.
D. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
``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 RCRA Subtitle C
landfills. 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 variance applies to two D010 waste streams that will be
treated by Chemical Waste Management, Inc. at their Kettleman City,
California facility and disposed of in a RCRA Subtitle C landfill,
ensuring protection to human health and the environment. Therefore, the
Agency does not believe that today's rule 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 variance only changes the treatment standards applicable to
two D010 waste streams at the Chemical Waste Management, Inc. facility
in Kettleman City, California. It does not change in any way the
paperwork requirements already applicable to these wastes. 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''), Public Law 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. Executive Order 13175: Consultation and Coordination With Indian
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 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 alternative treatment standards
for two specific wastes that replace standards already in effect. 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
``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 governments.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This treatment variance does not
create any new regulatory requirements. Rather, it establishes
alternative treatment standards for two specific wastes that replace
standards already in effect. Thus, Executive Order 13132 does not apply
to this rule.
J. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. Further,
we have concluded that this rule is not likely to have any adverse
energy effects.
[[Page 36818]]
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A Major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective July 12, 2002.
List of Subjects in 40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
Dated: May 13, 2002.
Michael H. Shapiro,
Deputy Assistant Administrator, Office of 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 [sect] 268.44, the table in paragraph (o) is amended by: a.
Removing the entry for ``Ball Foster Glass Container Corp, El Monte,
CA'';
b. Adding in alphabetical order a new entry for ``St. Gobain
Containers, El Monte, CA''; and
c. Revising footnote 7.
The revision and addition read as follows:
[sect] 268.44 Variance from a treatment standard.
* * * * *
(o) * * *
Table--Wastes Excluded From the Treatment Standards Under [sect] 268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wastewaters Nonwastewaters
Regulated hazardous ---------------------------------------------------
Facility name \(1)\ and address Waste code See also constituent Concentration Concentration
(mg/L) Notes (mg/kg) Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
St. Gobain Containers, El Monte, D010 Standards under Selenium............. NA NA 25 NA
CA \(6)\ \(7)\. [sect] 268.40.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\(1)\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\(6)\ Alternative D010 selenium standard only applies to dry scrubber solid from glass manufacturing wastes.
\(7)\ D010 wastes generated by these two facilities are subject to the following conditions: (a) the wastes must be treated by Chemical Waste
Management, Inc. at their Kettleman Hills facility in Kettleman City, California; and (b) this treatment variance will be valid until July 12, 2005.
Note: NA means Not Applicable.
[FR Doc. 02-13114 Filed 5-24-02; 8:45 am]
BILLING CODE 6560-50-P