[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Rules and Regulations]
[Pages 6567-6575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2821]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[RCRA-2003-0025; FRL-7620-2]
Land Disposal Restrictions: Site-Specific Treatment Variances for
Heritage Environmental Services LLC and Chemical Waste Management Inc.
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is today
granting three site-specific treatment variances from the Land Disposal
Restrictions (LDR) treatment standards for selenium-bearing hazardous
wastes generated by the glass manufacturing industry. EPA is granting
these variances because the chemical properties of the wastes differ
significantly from those from the waste used to establish the current
LDR standard for selenium (5.7 mg/L, as measured by the Toxicity
Characteristic Leaching Procedure (TCLP)), and the petitions have
adequately demonstrated that the wastes cannot be treated to meet this
treatment standard.
In the first action, EPA is granting a variance to Heritage
Environmental Services LLC (Heritage) to stabilize a selenium-bearing
hazardous waste generated by Guardian Industries Corp. (Guardian) at
their RCRA permitted facility in Indianapolis, Indiana. With
[[Page 6568]]
promulgation of this final rule, Heritage may treat the Guardian waste
to an alternate treatment standard of 39.4 mg/L, as measured by the
TCLP. Heritage may dispose of the treated waste in a RCRA Subtitle C
landfill, provided they meet the applicable LDR treatment standards for
the other hazardous constituents in the waste.
In the second and third actions, EPA is permanently establishing
two site-specific variances from the Land Disposal Restrictions
treatment standards for Chemical Waste Management Inc. (CWM), at their
Kettleman Hills facility in Kettleman City, California, for two
selenium-bearing hazardous wastes. EPA previously granted treatment
variances to these wastes on a temporary basis. CWM will continue to be
required to treat these two specific wastes to alternative treatment
standards of 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. 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.
DATES: This final rule is effective on March 29, 2004 without further
notice, unless EPA receives adverse comment by March 12, 2004. 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: Comments may be submitted by mail to: EPA Docket Center--
OSWER Docket, Environmental Protection Agency, Mailcode: 5305 T, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
RCRA-2003-0025. Comments may also be submitted electronically, or
through hand delivery/courier. Follow the detailed instructions as
provided in the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703
412-3323. For more detailed information on specific aspects of this
rulemaking, contact Juan Parra at (703) 308-0478 or [email protected],
Office of Solid Waste (MC 5302 W), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave., 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 comments because, to our knowledge, no new
treatment options have become available to treat these high
concentration selenium wastes more effectively, and in the case of the
two selenium-bearing hazardous wastes treated by CWM, we are making
permanent a variance that is already in effect, and which has already
been the subject of notice and opportunity for comment. Having said
this, in the ``Proposed Rules'' section of today's Federal Register
publication, we are publishing a separate document that could serve as
a proposal to grant these variances to Heritage and CWM if significant
adverse comments are filed. See the SUPPLEMENTARY INFORMATION section
on how to submit comments.
This direct final rule will be effective on March 29, 2004 without
further notice unless we receive adverse comment on the proposed rule
by March 12, 2004. If we receive adverse comment on the direct final
rule, we will withdraw the direct final action and the treatment
variance for Heritage and restore the terms and conditions of the three
year site-specific selenium treatment variance to CWM. We will address
all public comments in a subsequent final rule based on this proposed
rule. We will not institute a second comment period on this action. Any
parties interested in commenting on this direct final rule must do so
at this time.
A. How Can I Get Copies of This Variance Proposal ?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. RCRA-2003-0025. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
OSWER Docket is (202) 566-0272. The public may copy a maximum of 100
pages from any regulatory docket at no charge. Additional copies cost
$0.15/page.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
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?
C. Previously Approved Variances for Selenium Waste
D. Reasons for Lack of U.S. Secondary Selenium Recovery Capacity
II. Basis for Heritage Variance Petition
A. Waste Characteristics
B. Chemical Properties and Treatability Information on
Heritage's Selenium Wastes
C. Alternative Treatment Standard for Heritage to Treat the
Guardian Selenium Waste
D. What Is the Basis for EPA's Approval of Heritage's Request
for an Alternative D010 Treatment Standard?
E. What Are the Terms and Conditions of the Variance?
III. Basis for Permanently Establishing Chemical Waste Management's
Selenium Variances
A. History of CWM Variances
B. What Is the Basis for Establishing Permanently CWM's
Alternative D010 Treatment Standards?
C. What Are the Terms and Conditions of the Variances?
IV. Technical Correction to the Table in Paragraph (O) in 268.44.
V. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act of 1995
[[Page 6569]]
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
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 DC Circuit in Hazardous Waste Treatment Council v. EPA,
886 F.2d 355 (DC Cir. 1989).
The Agency recognizes that there may be wastes that cannot be
treated to levels specified in the regulations because an individual
waste can be substantially more difficult to treat than those wastes
the Agency evaluated in establishing the treatment standard. 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?
The current treatment standard for wastes exhibiting the toxicity
characteristic for selenium is based upon the performance of
stabilization treatment technology. When the Agency developed these
treatment standards for selenium, EPA believed that wastes containing
high concentrations of selenium were rarely generated and land disposed
(62 FR 26041, May 12, 1997). The Agency also stated that it believed
that, for most waste containing high concentrations of selenium,
recovery of the selenium was feasible using recovery technologies
currently employed by copper smelters and copper refining operations
(Id.). The Agency further stated that it did not have any performance
data for selenium recovery, but available information indicated that
recovery of elemental selenium out of certain types of scrap material
and other types of waste was practiced in the United States.
The Agency used performance data from the stabilization of a
selenium characteristically hazardous mineral processing waste (waste
code D010) to set the national treatment standard for selenium, which
we determined at that time to be the most difficult to treat selenium
waste. This untreated waste contained up to 700 ppm total selenium and
3.74 mg/L selenium in the TCLP leachate. The resulting post-treatment
levels of selenium in the TCLP leachate were between 0.154 mg/L and
1.80, which led to our establishment of a national treatment standard
of 5.7 mg/L for D010 selenium non-wastewaters. This D010 mineral
processing waste also contained toxic metals (i.e., arsenic, cadmium,
and lead) above characteristic levels. The treatment technology used to
establish the selenium levels also resulted in meeting the LDR
treatment standards for these non-selenium metals. The reagent to waste
ratios varied from 1.3 to 2.7 (62 FR 26041, May 12, 1997).
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 non-wastewaters (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.
C. Previously Approved Variances for Selenium Waste
When EPA established the treatment standards for metal wastes and
mineral processing wastes (63 FR 28555, May 26, 1998), we noted that we
received comments from one company, Chemical Waste Management Inc.
(CWM), indicating that it was attempting to stabilize selenium-bearing
wastes with concentrations much higher than those EPA had examined when
it established the national treatment standard for wastes exhibiting
the toxicity characteristic for selenium. In response, we indicated
that for two high-level selenium waste streams, we would propose two
site-specific treatment variances, which we granted on May 26, 1999 (63
FR 56886). EPA granted this variance for three years, and required CWM
to conduct studies on approaches to further reduce the leachability of
such treated wastes. EPA also required CWM to investigate alternative
treatment technologies that might provide more effective treatment and
remove the need for a treatment variance. EPA required CWM to report
annually on these investigations and to provide any analytical data
from the treatment studies.\1\ The annual reports include stabilization
recipes being utilized to meet the alternative treatment standards, the
selenium concentrations in the untreated wastes and the analytical
results from leach testing of the treated wastes. On May 28, 2002 (67
FR 36849), EPA renewed this variance for another three year term, and
continued to require CWM to report on its treatability studies and to
investigate whether more effective treatment is available.
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\1\ All four of CWM's annual reports are in the docket
supporting today's rulemaking.
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D. Reasons for Lack of U.S. Secondary Selenium Recovery Capacity
Primary selenium \2\ is a co-product in the mining of copper ores.
The principal markets for selenium are in electronics (30%), glass
manufacturing (20%), pigments (19%), metallurgical additives (14%) and
agricultural/biological applications (6%).\3\ In glass manufacturing,
selenium is used to color container glass and other soda-lime silica
glasses and to reduce solar heat transmission in architectural plate
and automotive glass.
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\2\ ``Selenium is found in 75 different mineral species;
however, pure selenium does not exist as an ore. For this reason,
primary selenium is recovered from anode slimes generated in the
electrolytic refining of copper.'' U.S. EPA (F-96-PH4A-S0001):
Identification and Description of Mineral Processing Sectors and
Waste Streams.
\3\ ``Canadian Mineral Yearbook'' 1995.
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Because selenium is a non-renewable resource, and because the
wastes in question contain high selenium concentrations, EPA's
preference would be to recover the selenium in an environmentally sound
manner over stabilization and land disposal. However, there was no
recorded domestic production of secondary selenium in 2002.\4\ All
potential selenium recovery technologies being considered have remained
pilot projects and none of them have been shown to be economically
viable. These factors suggest that development of an environmentally
protective secondary selenium recovery system in the U.S. is not
reasonably expected in the near future. That leaves stabilization as
the best available treatment technology.
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\4\ ``Selenium'' U.S. Geological Survey--Minerals Yearbook--
2003.
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II. Basis for Heritage Variance Petition
Under 40 CFR 268.44(h), facilities can apply for a site-specific
variance in cases where a waste that is generated under conditions
specific to only one site cannot be treated to the specified levels. In
such cases, the generator or treatment facility may apply to the
Administrator, or to EPA's delegated
[[Page 6570]]
representative, for a site-specific variance from a treatment standard.
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 developing the treatment
standard, the waste cannot be treated to the specified levels or by the
specified methods. There are other grounds for obtaining treatment
variances, but this is the only provision relevant to this action.
On May 14, 2003, Heritage Environmental Services submitted their
petition for a treatment variance to EPA. All information and data used
in the development of this treatment variance can be found in the RCRA
docket (RCRA-2003-0025) for this rulemaking.
A. Waste Characteristics
Guardian Industries Corp., in Jefferson Hills, Pennsylvania, is a
specialty glass manufacturing facility. Emissions from its glass
furnace are first subject to lime injection, and subsequently captured
in an electrostatic precipitator. Lime is added to remove sulphur
compounds and selenium from the glass furnace gases. Heritage
stabilizes the selenium-bearing waste from Guardian at their RCRA
permitted facility in Indianapolis, Indiana.
The Guardian waste is a dry powder with a bulk density of about 0.4
g/cm3, and contains no free liquids or organic constituents.
The calcium content is high, approximately 30%, since the waste
contains lime injected to the furnace exhaust. Concentrations of total
selenium in the untreated waste vary between 10,000 ppm and 70,000 ppm
(1%-7%). The dust is a D010 characteristic waste because the selenium
concentration exceeds 1.0 mg/L, as measured by the TCLP. The rate of
variation in the amount of waste is related to the demand, and ranges
from 20-50 tons/month.
The land disposal restrictions found in 40 CFR 268.40(e) require
characteristic wastes to meet the universal treatment standards (UTS)
in 40 CFR 286.48 for all underlying hazardous constituents (UHCs)
before the waste can be land disposed. Analytical data on the raw
Guardian waste indicate that the only underlying hazardous constituent
present is chromium; occasionally the dust is a D007 waste because the
chromium exceeds the hazardous waste characteristic level of 5 mg/L, as
measured by the TCLP. The universal treatment standard for chromium is
0.6 mg/L, as measured by the TCLP. As an underlying hazardous
constituent, chromium must be treated to below the 0.6 mg/L universal
treatment standard for the waste to be properly land disposed (45 FR
74889; November 12, 1980 and 52 FR 25942; July 9, 1987).
B. Chemical Properties and Treatability Information on Heritage's
Selenium Wastes
Selenium emissions from the Guardian glass furnace are captured by
a lime scrubber. Lime treatment is used to remove sulphur compounds and
selenium from the glass furnace gases. An approach to immobilize the
selenium in the Guardian waste and to reduce its exposure to leaching
agents is to stabilize it with cement. With this technology option, the
waste is solidified into a solid of high compressive strength, thereby
incorporating the hazardous components of the electrostatic
precipitator dust into a solid matrix. The solid matrix substantially
lowers the surface area potentially exposed to leaching from that of
untreated dust. As a result, the solidified waste should have a lower
leaching potential after the waste is disposed in a hazardous waste
landfill.
As mentioned earlier, analytical data on the raw Guardian waste
indicate that the only underlying hazardous constituent present is
chromium. Heritage conducted treatability studies demonstrating that
the addition of Portland cement alone is not sufficient to reduce the
chromium levels to below the 0.6 mg/L treatment standard. To further
treat the chromium in the waste, the hexavalent chromium ion must be
reduced to the trivalent state so that precipitation can occur.
Heritage used ferric sulfate for this purpose.
Heritage conducted approximately 200 preliminary rounds of testing
using different stabilization recipes. Heritage then conducted
additional tests using the stabilization recipes used by Chemical Waste
Management (see Section III). Collectively, the TCLP tests on treated
Guardian waste samples indicate a significant reduction in
leachability. This reduction, however, is not enough to meet the LDR
treatment standard of 5.7 mg/L, as measured by the TCLP.
EPA has determined, in analyzing the data from the preliminary
tests, that the most effective stabilization recipe for this waste
consists of 0.35 parts ferrous sulfate combined with 1.0 part cement
and 1.0 part cement kiln dust, resulting in a reagent to waste ratio of
2.35 to 1. Water is also added to make a thick paste, that upon curing,
solidifies the treated waste into a hard cementitious material.
Table I shows the results of leaching, as measured by the TCLP, of
Guardian's waste treated using the optimized stabilization recipe.
Heritage stabilized the samples with reagent to waste ratios of 2.35 to
1. Reagents included cement, cement kiln dust, and iron sulfate.
Treated selenium TCLP concentrations for the five samples ranged from
28.4 mg/L to 35.6 mg/L.
Table I.--Summary of Guardian Selenium Waste
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Untreated Se Treated Se
Guardian sample No. Total selenium content estimate waste TCLP (mg/ waste TCLP (mg/
(%) L) L)
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1183982....................................... 6.7% (67,000 ppm)............... 70 30.4
1183983....................................... 5.8% (58,000 ppm)............... 72 35.6
1184103....................................... 6.0% (60,000 ppm)............... 66 25.6
1184104....................................... 7.2% (72,000 ppm)............... 120 26.7
1184340....................................... 6.3% (63,000 ppm)............... 68 28.4
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[[Page 6571]]
C. Alternative Treatment Standard for Heritage To Treat the Guardian
Selenium Waste
The glass manufacturing waste from Guardian is significantly
different in chemical composition from the waste used in establishing
the original selenium treatment standard. Data from Heritage
demonstrate that wastes containing high concentrations of selenium are
not easily treated using the BDAT technology of stabilization. As
previously acknowledged and discussed by the Agency in a past
rulemaking (see 62 FR 26041), it can be technically challenging to
treat wastes containing selenium and other metals, e.g., cadmium, lead
or chromium, because of their different chemical properties and
solubility curves.
In the Phase IV rule, the Agency did not generally use
stabilization data with reagent to waste ratios greater than 1.\5\
However, in the case for selenium, the existing treatment standard, as
discussed earlier, was calculated from data with reagent to waste
ratios ranging from 1.8 to 2.7.
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\5\ ``Final Draft Site Visit Report for the August 20-21 Site
Visit to Rollins Environmental's Highway 36 Commercial Waste
Treatment Facility Located in Deer Trail, Colorado,'' November 21,
1996, and the economic analysis supporting the Phase IV final rule.
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Using the BDAT methodology \6\, the Agency has calculated an
alternative treatment standard of 39.4 mg/L, as measured by the TCLP,
based on five data points (25.6, 26.7, 28.4, 30.4, and 35.6 from table
I) that were the result of stabilization treatment using a reagent to
waste ratio of 2.35 for the waste generated by Guardian Industries
Corp. The treatment recipe is consistent with the reagent to waste
ratios used to establish the existing treatment standard of 5.7 mg/L,
as measured by the TCLP, and the treatment data from CWM's annual
selenium reports (the CWM variance treatment standards are discussed in
Section III of this notice).
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\6\ BDAT Background Document for Quality Assurance/Quality
Control Procedures and Methodology, October 23, 1991.
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D. What Is the Basis for EPA's Approval of Heritage's Request for an
Alternative D010 Treatment Standard?
After careful review of the data and petition submitted by
Heritage, we conclude that Heritage has adequately demonstrated that
the wastes satisfy the requirements for a treatment variance under 40
CFR 268.44(h)(1). Heritage has demonstrated that Guardian's glass
manufacturing waste differs significantly in chemical composition from
the waste used to establish the original selenium treatment standard.
Selenium TCLP concentrations in the untreated waste are one to two
orders of magnitude higher than TCLP concentrations in the waste used
to develop the treatment standard for D010 hazardous wastes.
Furthermore, Heritage is using stabilization as the treatment
technology, which is consistent with EPA's determination that
stabilization is the best available treatment technology for this
waste, and the process is well-designed and operated.
An added benefit of stabilizing the Guardian waste with cement is
that the hazardous components of the electrostatic precipitator dust
are put into a solid matrix. The solid matrix substantially lowers the
surface area potentially exposed to leaching from that of very fine
untreated dust. The TCLP results show that, even when the solid is
ground to less 9.5 mm, the solidified waste should reduce leaching
potential after the waste is disposed in a hazardous waste landfill.
Before determining that stabilization was the best treatment
technology option for the Guardian waste, Heritage explored the
feasibility of selenium recovery technologies. Heritage established a
pilot project to evaluate the extraction of selenium from raw waste at
one of their facilities using hydrometallurgical recovery methods.
Results from the pilot tests are not yet complete, but preliminary
indications are that the amounts of by-product wastes generated during
the recovery process exceed the amount of raw waste processed. In
addition, the reactions are difficult to control, chemical consumption
is very high, and a product of reasonable quality has not yet been
achieved. Therefore, the technology does not appear to be economically
viable.
Heritage has also looked into techniques for modifying Guardian's
production processes to change the chemical composition of this
selenium-bearing hazardous waste as it is generated. If workable, the
selenium content of the waste would remain high, but the selenium would
be in a different chemical form that might simplify its recovery or
reuse. One of the concerns is that full-scale modifications in its
production processes could cause greater selenium and SO2
air emissions.
Finally, EPA has reviewed CWM's selenium variance annual reports on
the stabilization recipes being utilized to meet the alternative
treatment standards and has determined that stabilization of selenium
with cement and cement kiln dust, in addition to adding ferrous sulfate
as a reagent for chromium, is the best demonstrated available
technology for the Guardian waste.
Therefore, EPA is today granting a site-specific treatment variance
from the D010 treatment standards for the Guardian waste stream in
question. Today's alternative treatment standard will provide
sufficient latitude for Heritage to treat the other metal present in
the waste to LDR treatment standards and, by raising the selenium
treatment standard, will avoid the difficulty posed by the different
metal solubility curves. EPA is amending 40 CFR 268.44 to note that
Heritage Environmental Services, LLC would be subject to a selenium
treatment standard of 39.4 mg/L, as measured by the TCLP.
E. What Are the Terms and Conditions of the Variance?
Since this rule approves a variance from a numerical treatment
standard, Heritage may vary the reagent recipe it uses to best meet the
alternative numerical standard. The Agency notes that, to avoid
questions of impermissible dilution, Heritage will need to keep the
reagent to waste ratios within acceptable bounds. No specific ratios
are being established in today's rule because the Agency does not
desire to prevent further optimization of the treatment process.
However, the Agency recommends that Heritage use a reagent to waste
ratio of 2.35 to 1 as an upper limit. This is the ratio used by the
Agency in establishing today's alternative treatment standard.
The treated waste, provided it meets the applicable LDR treatment
standard for the other hazardous constituent in the waste,\7\ will be
disposed in a RCRA Subtitle C landfill.
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\7\ Note that disposal in a Subtitle C landfill is required
because the treated waste is still characteristic for selenium
(i.e., the waste has TCLP values above the toxicity characteristic
level for selenium of 1.0 mg/L ).
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III. Basis for Permanently Establishing Chemical Waste Management's
Selenium Variances
Also in today's notice, EPA is establishing two permanent site-
specific treatment variances from the LDR treatment standards for two
selenium-bearing hazardous wastes treated by Chemical Waste Management
(CWM). The Agency previously granted treatment variances to CWM for
these wastes on a temporary basis. These variances apply to two waste
streams: Electrostatic precipitator dust generated during glass
manufacturing operations at Owens Brockway Glass Container Company, and
dry scrubber solid from glass manufacturing wastes at St.
[[Page 6572]]
Gobain (formerly Ball-Foster Glass Container Corporation).
Specifically, on October 23, 1998, EPA proposed to grant site-
specific treatment variances for two high-level selenium waste streams
to be stabilized by CWM at their Kettleman City, California facility
(63 FR 56886). The temporary variances were granted to CWM on May 26,
1999 (64 FR 28387) for a three year period and required CWM to conduct
studies on approaches to reduce the leachability of the treated wastes.
EPA also required CWM to report on alternative treatment technologies
being investigated and provide any analytical data from these studies.
On May 28, 2002 (67 FR 36849), EPA renewed these variances for a
consecutive three year term with the same conditions to investigate
treatment technologies and to report on the effectiveness of their
ongoing treatment. These variances expire on May 28, 2005.
A. History of CWM Variances
CWM has applied to the Agency for treatment variances for two
companies. In these petitions and in subsequently reported data, CWM
has shown 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 \8\. The data also show that neither treated waste
stream could reliably meet the numerical treatment standard of 5.7 mg/
L, as measured by the TCLP, even though CWM had shown that it is using
the BDAT treatment technology (properly designed and operated) on which
EPA based the selenium treatment standard.
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\8\ Selenium concentrations in the untreated Owens Brockway
wastes were between 465 and 1024 mg/L, as measured by TCLP, while
the selenium concentration in the untreated Ball Foster waste was
59.8 mg/L, as measured by the TCLP.
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CWM submitted stabilization data from each facility using
combinations of the following stabilization reagents: Ferrous sulfate,
calcium polysulfide, ferric chloride, sodium bisulfate, Portland
cement, and cement kiln dust. For more detailed information about these
petitions, see the proposed rule (63 FR 56886, October 23, 1998), the
docket supporting the proposed rule (docket number F-98-CWMP-FFFFF),
and this direct final rule (docket number RCRA-2003-0025).
As part of CWM's current site-specific treatment variances, EPA
required CWM to report on alternative treatment technologies being
investigated and provide any analytical data from these studies \9\.
These annual reports include stabilization recipes being used to meet
the alternative treatment standards, the selenium concentrations in
untreated wastes, and the analytical results from these wastes. EPA has
reviewed the stabilization recipes being utilized to meet the
alternative treatment standards and has determined that stabilization
of selenium with cement and cement kiln dust, in addition to adding
ferrous sulfate as a reagent for the other toxic metals, is the best
demonstrated available technology for these selenium-bearing hazardous
wastes.
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\9\ All four of CWM's annual reports are in the docket
supporting today's rulemaking.
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B. What Is the Basis for Establishing Permanently CWM's Alternative
D010 Treatment Standards?
After careful review of the data in CWM's selenium variance annual
reports, we conclude that CWM has continued to adequately demonstrate
that the wastes satisfy the requirements for a treatment variance under
40 CFR 268.44(h)(1). CWM has demonstrated that the two glass
manufacturing waste streams differ significantly in chemical
composition from the waste used to establish the original treatment
standard. Selenium TCLP concentrations in the untreated wastes are one
to three orders of magnitude higher than those in the waste used to
develop the treatment standard for D010 hazardous wastes. Furthermore,
CWM is using stabilization as the treatment technology, which is
consistent with EPA's determination of BDAT, and the process is well-
designed and operated.
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 is difficult to
optimize treatment for selenium when other metals are being treated
because the selenium solubility curve differs from that of most other
metals.
In light of the information presented by CWM to the Agency, and
EPA's inability to find selenium recovery capability in the US, EPA is
changing the status of CWM's treatment variances from temporary to
permanent. In addition, consistent with the Heritage treatment variance
discussed in Section II of today's notice, EPA is not requiring annual
reporting on selenium recovery and treatment technologies.
Therefore, EPA is today permanently establishing two site-specific
treatment variances from the D010 treatment standards for the two waste
streams in question. We are making this change to the CWM selenium
treatment variances in this direct final rule without prior proposal.
We view this action as noncontroversial since we did not receive any
significant adverse comments when we renewed these variances in 2002.
C. What Are the Terms and Conditions of the Variances?
Upon promulgation of this final rule, CWM will continue to treat
these two specific wastes to alternate treatment standards of 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. Gobian (formerly Ball-Foster) waste.
CWM will continue to 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. Finally, CWM will no
longer be required to submit annual reports on selenium treatment and
recovery technologies.
IV. Technical Correction to the Table in Paragraph (O) in 268.44
The table in paragraph (o) under 40 CFR 268.44 (July 1, 2003
version) with the title: Wastes Excluded From the Treatment Standards
Under Sec. 268.40, includes a list of facilities that are excluded from
the treatment standards under Sec. 268.40 and are subject to treatment
variances for specific hazardous constituents. The table includes the
following footnote: (5)--Alternative D010 selenium standard only
applies to dry scrubber solid from glass manufacturing wastes.
The Agency is revising footnote 6 as follows: ``(6)--Alternative
D010 selenium standard only applies to electrostatic precipitator dust
generated during glass manufacturing operations.'' This footnote was
inadvertently changed when EPA extended the site-specific variance for
CWM in May, 2002 (67 FR 36849). This technical correction restores the
original text that identifies the source of the selenium-bearing
hazardous waste. The selenium-bearing hazardous waste at each facility
is generated by emissions from their glass furnaces that are captured
in electrostatic precipitators. We are revising the table in paragraph
(o) to reflect this change.
V. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore
[[Page 6573]]
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. Paperwork Reduction Act
This rule contains no new information collection requirements. The
variance only changes the treatment standard applicable to a D010 waste
stream at the Heritage Environmental Services, LLC facility in
Indianapolis, Indiana, and establishes permanently the treatment
standards set for two D10 wastes at the Chemical Waste Management Inc.
facility in Kettleman City, California. These actions do not change in
any way the paperwork requirements already applicable to these wastes.
Therefore, this rule is not subject to the Paperwork Reduction Act.
C. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
This treatment variance does not create any new regulatory
requirements. Rather, they establish alternative treatment standards
for three specific wastes, and it applies to two facilities; Heritage
Environmental Services, LLC facility in Indianapolis, Indiana and
Chemical Waste Management Inc. 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.
D. 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. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. 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 the 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.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector, and it does not impose any Federal
mandate on State, local, or tribal governments or the private sector
within the meaning of the Unfunded Mandates Reform Act of 1995. This
rule also does not create new regulatory requirements; rather, it
merely establishes alternative treatment standards for specific wastes
that replace standards already in effect. EPA has determined that this
rule does not contain a Federal mandate that may result in expenditures
of $100 million or more for State, local, and tribal governments, in
the aggregate, or the private sector in any one year. Thus, today's
rule is not subject to the requirements of sections 202 and 205 of the
UMRA. For the same reasons, EPA has determined that this rule contains
no regulatory requirements that might significantly or uniquely affect
small governments.
E. Executive Order: 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'' 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 government.''
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. The rule will not impose
substantial costs on states and localities. The rule does not impose
any enforceable duties on these entities, therefore, Executive Order
13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13175, EPA may not issue a regulation that is
not required by statute, that significantly 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, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13175
requires EPA to provide to the Office of
[[Page 6574]]
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 13175
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule does not significantly or uniquely affect
these communities of Indian tribal governments. The rule does not
impose any mandate on tribal governments or impose any duties on these
entities. This rule issues a variance from the LDR treatment standards
for specific characteristic selenium wastes. Accordingly, the
requirements of section 3(b) of Executive Order 13175 do not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, entitled ``Protection of Children From
Environmental Health and Safety Risks'' (62 FR 19885, April 23, 1997),
applies to any rule that EPA determines is (1) ``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. EPA
interprets the Executive Order 13045 as encompassing only those
regulatory actions that are risk based or health based, such that the
analysis required under section 5-501 of the Executive Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it does not involve decisions regarding
environmental health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 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.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
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 a D010 waste
stream at the Heritage Environmental Services, LLC facility in
Indianapolis, Indiana and two D10 wastes at the Chemical Waste
Management Inc. facility in Kettleman City, California. These selenium
wastes will be disposed of in RCRA Subtitle C landfills, 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.
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. 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, applying only to a
specific waste type at two facilities under particular circumstances.
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 March 29, 2004.
List of Subjects in 40 CFR Part 268
Environmental Protection, Hazardous waste, Variance.
Dated: February 4, 2004.
Marianne Lamont Horinko,
Assistant Administrator, Office of Solid Waste and Emergency Response.
0
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
0
1. The authority citation for part 268 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
0
2. Section 268.44, the table in paragraph (o) is amended by:
0
a. Adding in alphabetical order the entry for ``Guardian Industries
Corp., Jefferson Hills, PA''
0
b. Adding footnote number 11.
0
c. Revising footnotes 6 and 7.
0
d. Revising the entry for Owens Brockway Glass Container Company,
Vernon, CA.
0
e. Revising the entry for St. Gobian Containers, El Monte, CA.
[[Page 6575]]
The revisions and additions read as follows:
Sec. 268.44 Variance from a treatment standard.
* * * * *
(o) * * *
Table-Wastes Excluded From the Treatment Standards Under Sec. 268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wastewaters Nonwastewaters
Regulated hazardous ------------------------------------------------------------------
Facility name \1\ and address Waste code See also constituent Concentration
Concentration (mg/L) Notes (mg/L) Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Guardian Industries Corp., D010 Standards under Selenium............ NA NA 39.4 mg/L TCLP.. NA.
Jefferson Hills, PA \6\ \11\. Sec. 268.40.
Owens Brockway Glass Container D010 Standards under Selenium............ NA NA 51 mg/L TCLP.... NA.
Company, Vernon CA \6\ \7\. Sec. 268.40.
St. Gobain Containers, El D010 Standards under Selenium............ NA NA 25 mg/L TCLP.... NA.
Monte, CA \5\ \7\. Sec. 268.40.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: NA means Not Applicable.
\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\5\ Alternative DO10 selenium standard only applies to dry scrubber solid from glass manufacturing wastes.
\6\ Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations.
\7\ D010 wastes generated by these two facilities must be treated by Chemical Waste Management, Inc. at their Kettleman Hills facility in Kettleman
City, California.
* * * * * * *
\11\ D010 wastes generated by this facility must be treated by Heritage Environmental Services, LLC. at their treatment facility in Indianapolis,
Indiana.
[FR Doc. 04-2821 Filed 2-10-04; 8:45 am]
BILLING CODE 6560-50-U