Land Disposal Restrictions: Nevada and California; Site Specific Treatment Variances for Hazardous Selenium Bearing Waste, 18921-18927 [2011-8179]
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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations
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AGENCY
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SUMMARY:
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Dated: March 25, 2011.
Steven Bradbury,
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PART 180—[AMENDED]
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§ 180.652 Ethiprole; tolerances for
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(a) General. Tolerances (without U.S.
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ethiprole [5-amino-1-[2,6-dichloro-4(trifluoromethyl)phenyl]-4-[(ethyl)sulfinyl]-1H-pyrazole-3-carbonitrile], in
or on the following commodities:
Parts per
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Rice, grain 1 ............................
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[FR Doc. 2011–8024 Filed 4–5–11; 8:45 am]
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40 CFR Part 268
[EPA–HQ–RCRA–2010–0851; FRL–9290–6]
Land Disposal Restrictions: Nevada
and California; Site Specific Treatment
Variances for Hazardous Selenium
Bearing Waste
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
EPA is taking direct final
actions to both issue a site-specific
treatment variance to U.S. Ecology
Nevada (USEN) in Beatty, Nevada and
to withdraw an existing site-specific
treatment variance issued to Chemical
Waste Management, Inc. (CWM) in
Kettleman Hills, California. These
actions pertain to the treatment of a
hazardous waste generated by the
Owens-Brockway Glass Container
Company in Vernon, California that is
unable to meet the concentration-based
treatment standard for selenium
established under the Land Disposal
Restrictions program. The site-specific
treatment variance issued to USEN
provides an alternative treatment
standard of 59 mg/L for selenium as
measured by the Toxicity Characteristic
Leaching Procedure. EPA has
determined that the treatment
performed by USEN provides the best
demonstrated treatment available for
this waste by reducing the potential
amount of selenium released to the
environment, while minimizing the
total volume of hazardous waste land
disposed.
This direct final rule will be
effective June 6, 2011 without further
notice, unless EPA receives adverse
written comment by May 6, 2011. If EPA
receives adverse comments, EPA will
publish a timely withdrawal in the
Federal Register informing the public
that the direct final rule will not take
effect.
DATES:
Submit your comments,
identified by Docket ID No. EPA–HQ–
RCRA–2010–0851, by one of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: rcra-docket@epa.gov and
miller.jesse@epa.gov. Attention Docket
ID No. EPA–HQ–RCRA–2010–0851.
• Fax: 202–566–9744. Attention
Docket ID No. EPA–HQ–RCRA–2010–
0851.
• Mail: RCRA Docket (28221T), U.S.
Environmental Protection Agency, 1200
ADDRESSES:
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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations
Pennsylvania Avenue, NW.,
Washington, DC 20460. Attention
Docket ID No. EPA–HQ–RCRA–2010–
0851. Please include a total of 2 copies.
• Hand Delivery: Please deliver 2
copies to EPA/DC, EPA West, Room
3334, 1301 Constitution Ave., NW.,
Washington, DC. Such deliveries are
only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–RCRA–2010–
0851. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
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the HQ–Docket Center, Docket ID No.
EPA–HQ–RCRA–2010–0851, EPA/DC,
EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. The Docket Facility 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 RCRA
Docket is (202) 566–0270. A reasonable
fee may be charged for copying docket
materials.
FOR FURTHER INFORMATION CONTACT: For
more information on this rulemaking,
contact Jesse Miller, Materials Recovery
and Waste Management Division, Office
of Resource Conservation and Recovery
(MC 5304 P), U.S. Environmental
Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460;
telephone (703) 308–1180; fax (703)
308–0522; or miller.jesse@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Why is EPA using a direct final rule?
EPA is publishing this rule as a direct
final rule because we view this action as
a noncontroversial action and anticipate
no adverse comment. Based on the
information and data submitted by the
petitioner for this site-specific treatment
variance and the oversight being
provided by the regulatory authorities in
the states of Nevada and California, we
do not believe that there will be adverse
comments on this action. However, in
the ‘‘Proposed Rules’’ section of today’s
Federal Register, we are publishing a
separate document that will serve as a
proposed rule should EPA receive
adverse comments. We will not institute
a second comment period on this action.
Any parties interested in commenting
must do so at this time. For further
information about commenting on this
rule, see the ADDRESSES section of this
document.
If EPA receives adverse comment, we
will publish a timely withdrawal in the
Federal Register informing the public
that this direct final rule will not take
effect. We would address all public
comments in any subsequent final rule
based on the proposed rule.
If we do not receive adverse comment,
the rule will take effect on June 6, 2011.
Section 3010(b) of RCRA states that
rules implementing subtitle C of RCRA
normally take effect six months after
promulgation, but that EPA may provide
for a shorter effective date for rules with
which the regulated community does
not need six months to come into
compliance. This is such a rule, as the
Owens-Brockway Glass Container
Company should be able to transport the
waste to USEN for treatment and
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disposal in a much shorter period of
time.
B. Does this action apply to me?
This action applies only to U.S.
Ecology Nevada located in Beatty,
Nevada and to Chemical Waste
Management, Inc. located in Kettleman
Hills, California.
C. Table of Contents
I. Background
A. Basis for Land Disposal Restrictions
Treatment Variances
B. Basis of the Current Selenium Treatment
Standard
C. Site-Specific Treatment Variance for
Selenium-Bearing Waste
II. Basis for This Determination
III. Development of This Variance
A. U.S. Ecology Nevada Petition
B. What Type and How Much Waste Will
be Subject to This Variance?
C. Description of the Waste Treatment
Process
IV. EPA’s Reasons for Granting This SiteSpecific Treatment Variance to USEN
and Withdrawing the Site-Specific
Treatment Variance from CWM at 40
CFR 268.44
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review.
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
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
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Background
A. Basis for Land Disposal Restrictions
Treatment Variances
Under sections 3004(d) through (g) of
the Resource Conservation and
Recovery Act (RCRA), the land disposal
of hazardous wastes is prohibited unless
such wastes are able to meet the
treatment standards established by EPA.
Under section 3004(m) of 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
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interprets this language to authorize
treatment standards based on the
performance of the best demonstrated
available technology (BDAT). This
interpretation was upheld by the DC
Circuit in Hazardous Waste Treatment
Council v. EPA, 886 F. 2d 355 (D.C. Cir.
1989).
The Agency recognizes however, that
there may be wastes that cannot be
treated to the levels specified in the
regulations (see 40 CFR 268.40) because
an individual waste matrix or
concentration can be substantially more
difficult to treat than those wastes
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.
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B. Basis of the Current Selenium
Treatment Standard
Treatment of selenium poses special
difficulties. In particular, it can be
technically challenging to treat wastes
containing selenium and other metals
e.g., cadmium, lead and/or chromium
because of their different chemical
properties and solubility curves (62 FR
26041, May 12, 1997).
The current treatment standard for a
waste exhibiting the toxicity
characteristic for selenium (RCRA
Hazardous Waste D010) is based upon
the performance of stabilization on low
concentration selenium wastes. When
the Agency developed the treatment
standard for selenium, EPA believed
that wastes containing high
concentrations of selenium were rarely
generated and land disposed (59 FR
47980, September 19, 1994). The
Agency also stated that it believed that,
for most wastes containing high
concentrations of selenium, recovery of
the selenium would be feasible using
recovery technologies currently
employed by copper smelters and
copper refining operations (Id.). The
Agency further stated in 1994, that it
did not have any performance data for
selenium recovery, but available
information indicated that some
recovery of elemental selenium out of
certain types of scrap material and other
wastes was practiced in the United
States.1
1 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. However, based on information
contained in the Mineral Commodity Summaries
2010 published by the U.S. Department of the
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In 1994, the Agency used performance
data from the stabilization of a mineral
processing waste that was
characteristically hazardous (RCRA
Hazardous Waste D010) to set the
national treatment standard for
selenium. At that time, we determined
that this was the most difficult to treat
selenium waste. This untreated waste
contained up to 700 ppm total selenium
and 3.74 mg/L selenium as measured by
the Toxicity Characteristic Leaching
Procedure (TCLP). The resulting posttreatment levels of selenium in the
TCLP leachate were between 0.154 mg/
L and 1.80 mg/L, which (after
considering the range of treatment
process variability) led to EPA
establishing a national treatment
standard of 5.7 mg/L for D010 selenium
nonwastewaters.2 This D010 mineral
processing waste also contained other
toxic metals (i.e., arsenic, cadmium, and
lead) above the characteristic levels. The
treatment technology used to establish
the selenium levels also resulted in
meeting the Land Disposal Restrictions
(LDR) treatment standards for these nonselenium metals. The waste to reagent
ratios varied from 1:1.3 to 1:2.7 (62 FR
26041).
Thus, 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 TCLP.
C. Site-Specific Treatment Variance for
Selenium-Bearing Waste
On May 26, 1999 (64 FR 28387), EPA
granted Chemical Waste Management,
Inc. (CWM) in Kettleman Hills,
California a site-specific treatment
variance from the LDR treatment
standards for hazardous seleniumbearing waste generated by the OwensBrockway Glass Container Company
(Owens-Brockway) at their Vernon,
Interior, U.S. Geological Survey, the amount of
domestic production of secondary selenium is
estimated to be very small because most of the
materials eligible for possible secondary smelting
(e.g., scrap xerographic and electronic materials)
were exported for recovery of the contained
selenium.
2 The calculation of the LDR treatment standard
was based on a specific method, sometimes called
‘‘C 99’’ which has been used in other LDR
rulemakings. This methodology seeks to account for
process variability (including variability that may
be attributed to sampling and analytical processes).
See 63 FR 28556, May 26, 1998 and the document,
Final—Best Demonstrated Available Technology
(BDAT) Background Document for Quality
Assurance/Quality Control Procedures and
Methodology, USEPA. October 23, 1991.
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California manufacturing facility. Under
40 CFR 268.44(o), CWM was allowed to
treat the waste to an alternative
treatment standard for selenium of 51
mg/L TCLP with a waste to reagent ratio
of 1 to 2.7. Total selenium
concentrations in the electrostatic
precipitator (ESP) dust generated at the
Owens-Brockway facility range from
2,400 mg/kg to 5,700 mg/kg. The
untreated waste has a leachable
selenium concentration ranging from
228 mg/L to 440 mg/L TCLP. In
addition, the untreated waste has a
leachable arsenic concentration ranging
from 3.3 mg/L to 8.6 mg/L TCLP, a
leachable cadmium concentration
ranging from 3.9 mg/L to 11.0 mg/L
TCLP, and a leachable lead
concentration ranging from <0.10 mg/L
to 16.3 mg/L TCLP. (For a more detailed
discussion of EPA’s basis for granting
the site-specific treatment variance to
CWM, see 64 FR 28387, May 26, 1999.)
II. Basis for This Determination
Under 40 CFR 268.44, facilities can
apply for a site-specific treatment
variance in cases where a waste that is
generated under conditions specific to
only one site cannot be treated to the
specified LDR treatment standards. In
such cases, the generator(s) or the
treatment facility may apply to the
Administrator, or to EPA’s designated
representative, (in this case the
Assistant Administrator for Solid Waste
and Emergency Response) for a sitespecific variance from a treatment
standard. The applicant for a sitespecific 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
variances, but this is the only provision
relevant to this action.
III. Development of This Variance
A. U.S. Ecology Nevada Petition
On September 16, 2008, U.S. Ecology
Nevada (USEN) submitted a petition
requesting a site-specific treatment
variance from the LDR treatment
standards for hazardous seleniumbearing waste generated by OwensBrockway at their Vernon, California
manufacturing facility. USEN requested
an alternative treatment standard of 59
mg/L as measured by the TCLP for the
selenium contained in the waste. This
alternative treatment standard was
achieved with a waste to reagent ratio of
1 to 0.45, using 20% ferrous sulfate,
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15% quick lime and 10% sodium
sulfide flakes.3
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B. What type and how much waste will
be subject to this variance?
Owens-Brockway operates a glass
manufacturing facility that ESP dust.
The ESP dust is generated by the glass
furnace air emissions control system
and is hazardous due to its high
concentrations of leachable arsenic,
cadmium, lead, and selenium. The
corresponding EPA hazardous waste
codes are D004, D006, D008, and D010,
respectively. The waste generated by
Owens-Brockway does not meet the
LDR treatment standards and requires
treatment prior to land disposal. As
discussed previously, the physical
properties and the chemical
composition of the ESP dust generated
by Owens-Brockway are considerably
different from the waste used to
establish the current LDR treatment
standard for selenium. The Agency set
the national treatment standard for
nonwastewaters using performance data
from the stabilization of a
characteristically hazardous mineral
processing waste, which the Agency
determined at the time to be the most
difficult to treat selenium waste.4
According to the petition submitted
by USEN, the quantity of ESP dust
shipped off-site for management as a
hazardous waste ranges from 50 to 100
tons per year.5 The ESP dust, as
generated, contains fine particle matter
resulting from the combustion of natural
gas and particulate matter generated by
the dry scrubber used to control SOX
emissions. The material is normally
returned to the process as a substitute
raw material; however, there are
3 The selenium concentrations used to calculate
the alternative treatment standard were (in mg/L
TCLP) 49.34, 51.39, 49.39, 43.91, and 54.34. The
most effective treatment recipe was determined
using a 50 gram sample of waste where reagents
were listed as a percent of waste sample weight. For
example, 20% ferrous sulfate, 15% quick lime, and
10% sodium sulfide flakes would measure out as
10 grams of ferrous sulfate, 7.5 grams of quick lime,
and 5 grams of sodium sulfide flakes for a total of
22.5 grams of total reagent. The waste to reagent
ratio was then calculated by dividing 22.5 by 50 to
get a waste to reagent ratios of 1:0.45.
4 The untreated waste had a total selenium
concentration of up to 700 ppm selenium, with a
leachable selenium concentration of 3.74 mg/L
TCLP. The post treatment levels of selenium were
between 0.154 mg/L and 1.80 mg/L TCLP, which
led the Agency to establish the treatment standard
of 5.7 mg/L TCLP for nonwastewaters. See 63 FR
28556, May 26, 1998.
5 According to information obtained from
USEPA’s RCRA Biennial Report, in 2005,
approximately 108 tons of hazardous waste
identified as D010 was shipped from OwensBrockway’s Vernon facility to the CWM facility in
Kettleman Hills, California, while in 2007, almost
61 tons of D010 waste was shipped to CWM in
Kettleman Hills, California.
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circumstances when it cannot be used
again due to the high levels of
hazardous contaminants, its physical
state or excess quantity. In these
situations, the ESP dust is managed as
a RCRA hazardous waste.
C. Description of the Waste Treatment
Process
USEN will stabilize the OwensBrockway ESP dust using a combination
of reagents and techniques. These
reagents include ferrous sulfate (FeSO4),
quick lime (CaO), and sodium sulfide
(Na2S). USEN typically uses a
combination of hydroxide and sulfide
precipitation to treat high concentration
wastes. Most often, an alkaline reagent
(quick lime) is used to raise the solution
pH to lower the solubility of the metal
constituents and start the precipitation
process.
As noted previously, (see 64 FR
28387, May 26, 1999), EPA concluded
that it is difficult, if not impossible, to
optimize the treatment for selenium
when other metals are being treated,
because the selenium solubility curve
differs from that of most other metals.
Thus, successfully stabilizing other
metals generally means that treatment
for selenium cannot be optimized. As
further pointed out in the petition
submitted by USEN, selenium’s
minimum solubility is in the range of
6.5 to 7.5, while other characteristic
metals have a minimum solubility in the
pH range of 8 to 12. In simple terms, if
you maximize the stabilization
treatment recipe to treat arsenic,
cadmium, and lead, the selenium
becomes soluble and will not meet the
treatment standard (i.e., fail the TCLP).
If you maximize the recipe to treat
selenium, the other metals will not meet
the treatment standard.
USEN has been unsuccessful in
developing a treatment recipe that can
achieve all the LDR treatment standards
applicable to this waste (e.g., arsenic,
chromium, lead, and selenium). USEN
tested and submitted performance data
on 135 treatment recipes on five
different ESP dust samples using a
combination of reagents and
concentrations of reagents. USEN was
unable to achieve the LDR treatment
standard of 5.7 mg/L selenium using
any of the 135 treatment recipes. The
average post treatment selenium TCLP
value achieved was 47 mg/L TCLP,
which is approximately a 90%
reduction in soluble selenium. The
treatment to an average of 47 mg/L
TCLP was the result of a recipe with a
waste to reagent ratio of 1:0.45. With a
variability factor applied to the average
TCLP selenium value, the final
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treatment standard would be 59 mg/L
TCLP.6
With the data and information
provided to the Agency as part of their
site-specific treatment variance petition,
EPA was able to perform an analysis
which shows that the USEN treatment
process would generate a lower volume
of waste material, post treatment,
coupled with a lower potential for
selenium being released to the
environment. Mass balance calculations
performed by the Agency indicated that
the treatment conducted by USEN has
the potential to release between 3.88 to
7.76 kilograms (8.54 to 17.1 pounds) of
selenium per year to the environment.
This range is a result of OwensBrockway generating between 50 and
100 tons of waste annually. (As we
discuss in the next section, CWM, even
with a lower alternative treatment
standard, has the potential to release
greater amounts of selenium per year to
the environment. This is due to the
higher waste to reagent ratio used to
stabilize the waste material.7) As such,
the Agency has determined that USEN
has optimized its stabilization recipe by
reducing the amount of selenium
potentially released to the environment
and minimizing the amount of reagent
that must be used to achieve this result.
IV. EPA’s Reasons for Granting This
Site-Specific Treatment Variance to
USEN and Withdrawing the SiteSpecific Variance From CWM at 40
CFR 268.44
EPA has reviewed USEN’s petition for
a site-specific treatment variance from
the LDR treatment standards for
hazardous selenium-bearing waste
generated by Owens-Brockway and is
granting a variance from the selenium
treatment standard from 5.7 mg/L TCLP
to an alternative treatment standard of
59 mg/L TCLP, with the condition that
USEN does not exceed a waste to
reagent ratio of 1:0.45. Concurrently,
EPA is withdrawing the site-specific
variance granted to CWM that
established an alternative treatment
standard of 51 mg/L TCLP for this same
waste (69 FR 6567, February 11, 2004).
6 The calculation of the LDR treatment standard
was based on a specific method, sometimes called
‘‘C 99’’ which has been used in other LDR
rulemakings. This methodology seeks to account for
process variability (including variability that may
be attributed to sampling and analytical processes).
See 63 FR 28556, May 26, 1998 and the document,
Final—Best Demonstrated Available Technology
(BDAT) Background Document for Quality
Assurance/Quality Control Procedures and
Methodology, USEPA. October 23, 1991.
7 With the majority of the treatment recipes
tested, USEN was able to meet the LDRs for all the
other RCRA metals, including any underlying
hazardous constituents.
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EPA has determined that USEN,
despite having a higher selenium
treatment standard based on selenium
concentration, does, in fact, have the
potential to release less selenium in a
land disposal environment by utilizing
a much more environmentally favorable
waste to reagent ratio. As such, the
Agency believes that the treatment
performed by USEN is the best
treatment available for this waste. CWM
uses a waste to reagent ratio of 1:2.7,
while USEN uses a waste to reagent
ration of 1:0.45. Consequently, the
Agency has determined that a treatment
standard of 59 mg/L TCLP for this
selenium-bearing waste is more
protective of human health and the
environment, due to the fact that it
generates a lower volume of waste
material, with a much lower leaching
potential. In particular, the treatment
process employed by CWM has the
potential to release between 8.56 to
17.11 kilograms (18.8 to 37.69 pounds)
of selenium per year to the
environment, whereas USEN has the
potential to release 3.88 to 7.76
kilograms (8.54 to 17.1 pounds) of
selenium per year to the environment.
Furthermore, utilizing the waste to
reagent ratio of 1:2.7 would dispose of
between 185 and 370 tons of waste to
land disposal per year, whereas utilizing
the waste to reagent ratio of 1:0.45
would dispose of only 72.5 to 145 tons
of waste to land disposal per year.
Based on the foregoing, the Agency is
granting USEN’s petition for a sitespecific treatment variance for the ESP
dust generated at the Owens-Brockway
glass manufacturing plant in Vernon,
California. We are also withdrawing the
portion of CWM’s site-specific treatment
variance that pertains to its management
of the Owens-Brockway waste, i.e., 51
mg/L TCLP for selenium-bearing D010
waste.
Technology-based treatment
standards, whether adopted by generally
applicable rule or through a variance to
the generally applicable rule, serve as
the measure of when threats posed by
land disposal of the hazardous waste are
‘‘minimized,’’ as required by RCRA
section 3004(m). See 55 FR 6640
(February 26, 1990). Thus, EPA has
typically limited the standards adopted
by a variance to a single standard. See
70 FR 44505 (August 3, 2005). We are
continuing this practice here by
rescinding the current variance granted
to CWM (69 FR 6567, February 11,
2004). The Agency has determined that
the existing treatment standard is less
stringent than the standard we would
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now be granting, both with respect to
potential concentrations of selenium
released to the environment and also the
waste to reagent ratios. Under these
circumstances, EPA believes that threats
posed by land disposal are minimized
by use of the treatment process utilized
by USEN.
Please note that the waste already
disposed of pursuant to the standard
established in the original treatment
variance granted to CWM would be
lawfully disposed, and would not have
to be retreated if the standard in the
variance were altered or lapsed. This
variance results in amending 40 CFR
268.44(o) to allow hazardous seleniumbearing waste generated by OwensBrockway in Vernon, California, with
the RCRA hazardous waste
identification code of D010, to be
treated to an alternate treatment
standard of 59 mg/L TCLP by USEN
with the condition that the waste to
reagent ratio not exceed 1:0.45.
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under the Executive
Order.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. This
action does two things: (1) Grants a sitespecific treatment variance to USEN for
the treatment of hazardous seleniumbearing waste under RCRA’s LDR
program; and (2) withdraws an existing
site-specific treatment variance to CWM.
The Office of Management and Budget
(OMB) has previously approved the
information collection requirements
contained in the existing regulations at
40 CFR 268.42 and .44 under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has
assigned OMB control number 2050–
0085. The OMB control numbers for
EPA’s regulations in 40 CFR are listed
in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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
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18925
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
This site-specific treatment variance
does not create any new requirements.
Rather, it establishes an alternative
treatment standard for a specific waste
that applies to only one facility, USEN
located in Beatty, Nevada and
withdraws an existing site-specific
treatment variance for the same waste at
CWM located in Kettleman Hills,
California. Therefore, we hereby certify
that this rule will not add any new
regulatory requirements to small
entities. This rule, therefore, does not
require a regulatory flexibility analysis.
D. Unfunded Mandates Reform Act of
1995
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or tribal
governments or the private sector. This
action imposes no enforceable duty on
any State, local or tribal governments or
the private sector. This action would not
impose any new duties on the State’s
hazardous waste program. EPA has
determined, therefore, that this rule
would not contain regulatory
requirements that might significantly or
uniquely affect small governments in
that the authority for this action exists
with the Federal government. Therefore,
this action is not subject to the
requirements of sections 202 or 205 of
the UMRA.
This rule is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. This rule 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 action does
two things: (1) Grants a site-specific
treatment variance applicable to one
facility, and (2) withdraws a sitespecific treatment variance for that same
waste at another facility. Thus,
Executive Order 13132 would not apply
to this action.
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F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action would not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This action is a site-specific
treatment variance that applies to only
one facility, while withdrawing a sitespecific treatment variance for that same
waste at another facility. Neither
facilities are tribal facilities or located
on tribal lands. Thus, Executive Order
13175 would not apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that are based on health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This action is not subject to
Executive Order 13045 because it would
not establish an environmental standard
intended to mitigate health or safety
risks.
H. Executive Order 13211: Actions
Concerning Regulations 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
would not be a significant regulatory
action under Executive Order 12866.
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I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 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
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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. 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. 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
Executive Order 12898 (59 FR 7629
(February 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it increases the
level of protection provided to human
health and the environment because of
a reduced level of selenium being
landfilled than currently occurs. The
treatment variance applies to a specific
hazardous selenium-bearing waste that
will be treated in an existing, permitted
RCRA facility, ensuring protection to
human health and the environment.
Therefore, the rule will not result in any
disproportionately negative impacts on
minority or low-income communities
relative to affluent or non-minority
communities.
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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, when
finalized 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 June 6, 2011. This action is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 268
Environmental Protection, Hazardous
Waste, Variances.
Dated: March 31, 2011.
Mathy Stanislaus,
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 § 268.44, the table in paragraph
(o) is amended by revising the entry for
‘‘Owens Brockway Glass Container
Company, Vernon, CA’’ and revising
footnote 7 to read as follows:
■
§ 268.44 Variance from a treatment
standard.
*
*
*
(o) * * *
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*
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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations
TABLE—WASTES EXCLUDED FROM THE TREATMENT STANDARDS UNDER § 268.40
Wastewaters
Facility name 1 and address
*
*
Owens Brockway Glass Container
Company, Vernon, CA 6,7.
*
Waste
code
Regulated hazardous constituent
See also
*
*
Standards under
§ 268.40.
*
*
D010
*
Selenium ...............
*
Concentration
(mg/l)
Notes
NA .................
*
NA ....
*
Nonwastewaters
Concentration
(mg/kg)
Notes
*
59 mg/L
TCLP.
*
NA
*
1A
facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * *
6 Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations.
7 D010 waste generated by this facility must be treated and disposed by U.S. Ecology Nevada at their RCRA permitted facility in Beatty, Nevada. The treatment variance is conditioned on the waste to reagent ratio not exceeding 1 to 0.45.
* * * * *
Note: NA means Not Applicable.
[FR Doc. 2011–8179 Filed 4–5–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[EPA–R06–RCRA–2010–0307; FRL–9291–1]
Oklahoma: Final Authorization of State
Hazardous Waste Management
Program Revision
Environmental Protection
Agency (EPA).
ACTION: Immediate final rule.
AGENCY:
Oklahoma has applied to the
EPA for Final authorization of the
changes to its hazardous waste program
under the Resource Conservation and
Recovery Act (RCRA). EPA has
determined that these changes satisfy all
requirements needed to qualify for Final
authorization, and is authorizing the
State’s changes through this immediate
final action. The EPA is publishing this
rule to authorize the changes without a
prior proposal because we believe this
action is not controversial and do not
expect comments that oppose it. Unless
we receive written comments which
oppose this authorization during the
comment period, the decision to
authorize Oklahoma’s changes to its
hazardous waste program will take
effect. If we receive comments that
oppose this action, we will publish a
document in the Federal Register
withdrawing this rule before it takes
effect, and a separate document in the
proposed rules section of this Federal
Register will serve as a proposal to
authorize the changes.
DATES: This final authorization will
become effective on June 6, 2011 unless
the EPA receives adverse written
comment by May 6, 2011. If the EPA
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receives such comment, it will publish
a timely withdrawal of this immediate
final rule in the Federal Register and
inform the public that this authorization
will not take effect.
ADDRESSES: Submit your comments by
one of the following methods:
1. Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
2. E-mail: patterson.alima@epa.gov.
3. Mail: Alima Patterson, Region 6,
Regional Authorization Coordinator,
State/Tribal Oversight Section (6PD–O),
Multimedia Planning and Permitting
Division, EPA Region 6, 1445 Ross
Avenue, Dallas, Texas 75202–2733.
4. Hand Delivery or Courier: Deliver
your comments to Alima Patterson,
Region 6, Regional Authorization
Coordinator, State/Tribal Oversight
Section (6PD–O), Multimedia Planning
and Permitting Division, EPA Region 6,
1445 Ross Avenue, Dallas, Texas 75202–
2733.
Instructions: Do not submit
information that you consider to be CBI
or otherwise protected through
regulations.gov, or e-mail. The Federal
regulations.gov Web site is an
‘‘anonymous access’’ system, which
means the EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an e-mail
comment directly to the EPA without
going through regulations.gov, your email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, the EPA recommends that
you include your name and other
contact information in the body of your
comment and with any disk or CD–ROM
you submit. If the EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
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the EPA may not be able to consider
your comment. Electronic files should
avoid the use of special characters, any
form of encryption, and be free of any
defects or viruses.
You can view and copy Oklahoma’s
application and associated publicly
available materials from 8:30 a.m. to 4
p.m. Monday through Friday at the
following locations: Oklahoma
Department of Environmental Quality,
707 North Robinson, Oklahoma City,
Oklahoma 73101–1677, (405) 702–7180
and EPA, Region 6, 1445 Ross Avenue,
Dallas, Texas 75202–2733, phone
number (214) 665–8533. Interested
persons wanting to examine these
documents should make an
appointment with the office at least two
weeks in advance.
FOR FURTHER INFORMATION CONTACT:
Alima Patterson, Region 6, Regional
Authorization Coordinator, State/Tribal
Oversight Section (6PD–O), Multimedia
Planning and Permitting Division, (214)
665–8533, EPA Region 6, 1445 Ross
Avenue, Dallas, Texas 75202–2733, and
E-mail address
patterson.alima@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Why are revisions to state programs
necessary?
States which have received final
authorization from the EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must
maintain a hazardous waste program
that is equivalent to, consistent with,
and no less stringent than the Federal
program. As the Federal program
changes, States must change their
programs and ask the EPA to authorize
the changes. Changes to State programs
may be necessary when Federal or State
statutory or regulatory authority is
modified or when certain other changes
occur. Most commonly, States must
change their programs because of
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]]>Agencies
[Federal Register Volume 76, Number 66 (Wednesday, April 6, 2011)]
[Rules and Regulations]
[Pages 18921-18927]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8179]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[EPA-HQ-RCRA-2010-0851; FRL-9290-6]
Land Disposal Restrictions: Nevada and California; Site Specific
Treatment Variances for Hazardous Selenium Bearing Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final actions to both issue a site-
specific treatment variance to U.S. Ecology Nevada (USEN) in Beatty,
Nevada and to withdraw an existing site-specific treatment variance
issued to Chemical Waste Management, Inc. (CWM) in Kettleman Hills,
California. These actions pertain to the treatment of a hazardous waste
generated by the Owens-Brockway Glass Container Company in Vernon,
California that is unable to meet the concentration-based treatment
standard for selenium established under the Land Disposal Restrictions
program. The site-specific treatment variance issued to USEN provides
an alternative treatment standard of 59 mg/L for selenium as measured
by the Toxicity Characteristic Leaching Procedure. EPA has determined
that the treatment performed by USEN provides the best demonstrated
treatment available for this waste by reducing the potential amount of
selenium released to the environment, while minimizing the total volume
of hazardous waste land disposed.
DATES: This direct final rule will be effective June 6, 2011 without
further notice, unless EPA receives adverse written comment by May 6,
2011. If EPA receives adverse comments, EPA will publish a timely
withdrawal in the Federal Register informing the public that the direct
final rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2010-0851, by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: rcra-docket@epa.gov and miller.jesse@epa.gov.
Attention Docket ID No. EPA-HQ-RCRA-2010-0851.
Fax: 202-566-9744. Attention Docket ID No. EPA-HQ-RCRA-
2010-0851.
Mail: RCRA Docket (28221T), U.S. Environmental Protection
Agency, 1200
[[Page 18922]]
Pennsylvania Avenue, NW., Washington, DC 20460. Attention Docket ID No.
EPA-HQ-RCRA-2010-0851. Please include a total of 2 copies.
Hand Delivery: Please deliver 2 copies to EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2010-0851. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the HQ-Docket Center,
Docket ID No. EPA-HQ-RCRA-2010-0851, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC. The Docket Facility 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 RCRA Docket is (202) 566-
0270. A reasonable fee may be charged for copying docket materials.
FOR FURTHER INFORMATION CONTACT: For more information on this
rulemaking, contact Jesse Miller, Materials Recovery and Waste
Management Division, Office of Resource Conservation and Recovery (MC
5304 P), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460; telephone (703) 308-1180; fax (703) 308-
0522; or miller.jesse@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Why is EPA using a direct final rule?
EPA is publishing this rule as a direct final rule because we view
this action as a noncontroversial action and anticipate no adverse
comment. Based on the information and data submitted by the petitioner
for this site-specific treatment variance and the oversight being
provided by the regulatory authorities in the states of Nevada and
California, we do not believe that there will be adverse comments on
this action. However, in the ``Proposed Rules'' section of today's
Federal Register, we are publishing a separate document that will serve
as a proposed rule should EPA receive adverse comments. We will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.
If we do not receive adverse comment, the rule will take effect on
June 6, 2011. Section 3010(b) of RCRA states that rules implementing
subtitle C of RCRA normally take effect six months after promulgation,
but that EPA may provide for a shorter effective date for rules with
which the regulated community does not need six months to come into
compliance. This is such a rule, as the Owens-Brockway Glass Container
Company should be able to transport the waste to USEN for treatment and
disposal in a much shorter period of time.
B. Does this action apply to me?
This action applies only to U.S. Ecology Nevada located in Beatty,
Nevada and to Chemical Waste Management, Inc. located in Kettleman
Hills, California.
C. Table of Contents
I. Background
A. Basis for Land Disposal Restrictions Treatment Variances
B. Basis of the Current Selenium Treatment Standard
C. Site-Specific Treatment Variance for Selenium-Bearing Waste
II. Basis for This Determination
III. Development of This Variance
A. U.S. Ecology Nevada Petition
B. What Type and How Much Waste Will be Subject to This
Variance?
C. Description of the Waste Treatment Process
IV. EPA's Reasons for Granting This Site-Specific Treatment Variance
to USEN and Withdrawing the Site-Specific Treatment Variance from
CWM at 40 CFR 268.44
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review.
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
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 Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Background
A. Basis for Land Disposal Restrictions Treatment Variances
Under sections 3004(d) through (g) of the Resource Conservation and
Recovery Act (RCRA), the land disposal of hazardous wastes is
prohibited unless such wastes are able to meet the treatment standards
established by EPA. Under section 3004(m) of 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
[[Page 18923]]
interprets this language to authorize treatment standards based on the
performance of the best demonstrated available technology (BDAT). This
interpretation was upheld by the DC Circuit in Hazardous Waste
Treatment Council v. EPA, 886 F. 2d 355 (D.C. Cir. 1989).
The Agency recognizes however, that there may be wastes that cannot
be treated to the levels specified in the regulations (see 40 CFR
268.40) because an individual waste matrix or concentration can be
substantially more difficult to treat than those wastes 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. Basis of the Current Selenium Treatment Standard
Treatment of selenium poses special difficulties. In particular, it
can be technically challenging to treat wastes containing selenium and
other metals e.g., cadmium, lead and/or chromium because of their
different chemical properties and solubility curves (62 FR 26041, May
12, 1997).
The current treatment standard for a waste exhibiting the toxicity
characteristic for selenium (RCRA Hazardous Waste D010) is based upon
the performance of stabilization on low concentration selenium wastes.
When the Agency developed the treatment standard for selenium, EPA
believed that wastes containing high concentrations of selenium were
rarely generated and land disposed (59 FR 47980, September 19, 1994).
The Agency also stated that it believed that, for most wastes
containing high concentrations of selenium, recovery of the selenium
would be feasible using recovery technologies currently employed by
copper smelters and copper refining operations (Id.). The Agency
further stated in 1994, that it did not have any performance data for
selenium recovery, but available information indicated that some
recovery of elemental selenium out of certain types of scrap material
and other wastes was practiced in the United States.\1\
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\1\ 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. However, based on information contained in the Mineral
Commodity Summaries 2010 published by the U.S. Department of the
Interior, U.S. Geological Survey, the amount of domestic production
of secondary selenium is estimated to be very small because most of
the materials eligible for possible secondary smelting (e.g., scrap
xerographic and electronic materials) were exported for recovery of
the contained selenium.
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In 1994, the Agency used performance data from the stabilization of
a mineral processing waste that was characteristically hazardous (RCRA
Hazardous Waste D010) to set the national treatment standard for
selenium. At that time, we determined that this was the most difficult
to treat selenium waste. This untreated waste contained up to 700 ppm
total selenium and 3.74 mg/L selenium as measured by the Toxicity
Characteristic Leaching Procedure (TCLP). The resulting post-treatment
levels of selenium in the TCLP leachate were between 0.154 mg/L and
1.80 mg/L, which (after considering the range of treatment process
variability) led to EPA establishing a national treatment standard of
5.7 mg/L for D010 selenium nonwastewaters.\2\ This D010 mineral
processing waste also contained other toxic metals (i.e., arsenic,
cadmium, and lead) above the characteristic levels. The treatment
technology used to establish the selenium levels also resulted in
meeting the Land Disposal Restrictions (LDR) treatment standards for
these non-selenium metals. The waste to reagent ratios varied from
1:1.3 to 1:2.7 (62 FR 26041).
---------------------------------------------------------------------------
\2\ The calculation of the LDR treatment standard was based on a
specific method, sometimes called ``C 99'' which has been used in
other LDR rulemakings. This methodology seeks to account for process
variability (including variability that may be attributed to
sampling and analytical processes). See 63 FR 28556, May 26, 1998
and the document, Final--Best Demonstrated Available Technology
(BDAT) Background Document for Quality Assurance/Quality Control
Procedures and Methodology, USEPA. October 23, 1991.
---------------------------------------------------------------------------
Thus, 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 TCLP.
C. Site-Specific Treatment Variance for Selenium-Bearing Waste
On May 26, 1999 (64 FR 28387), EPA granted Chemical Waste
Management, Inc. (CWM) in Kettleman Hills, California a site-specific
treatment variance from the LDR treatment standards for hazardous
selenium-bearing waste generated by the Owens- Brockway Glass Container
Company (Owens-Brockway) at their Vernon, California manufacturing
facility. Under 40 CFR 268.44(o), CWM was allowed to treat the waste to
an alternative treatment standard for selenium of 51 mg/L TCLP with a
waste to reagent ratio of 1 to 2.7. Total selenium concentrations in
the electrostatic precipitator (ESP) dust generated at the Owens-
Brockway facility range from 2,400 mg/kg to 5,700 mg/kg. The untreated
waste has a leachable selenium concentration ranging from 228 mg/L to
440 mg/L TCLP. In addition, the untreated waste has a leachable arsenic
concentration ranging from 3.3 mg/L to 8.6 mg/L TCLP, a leachable
cadmium concentration ranging from 3.9 mg/L to 11.0 mg/L TCLP, and a
leachable lead concentration ranging from <0.10 mg/L to 16.3 mg/L TCLP.
(For a more detailed discussion of EPA's basis for granting the site-
specific treatment variance to CWM, see 64 FR 28387, May 26, 1999.)
II. Basis for This Determination
Under 40 CFR 268.44, facilities can apply for a site-specific
treatment variance in cases where a waste that is generated under
conditions specific to only one site cannot be treated to the specified
LDR treatment standards. In such cases, the generator(s) or the
treatment facility may apply to the Administrator, or to EPA's
designated representative, (in this case the Assistant Administrator
for Solid Waste and Emergency Response) 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 variances, but this is the only provision relevant to this
action.
III. Development of This Variance
A. U.S. Ecology Nevada Petition
On September 16, 2008, U.S. Ecology Nevada (USEN) submitted a
petition requesting a site-specific treatment variance from the LDR
treatment standards for hazardous selenium-bearing waste generated by
Owens-Brockway at their Vernon, California manufacturing facility. USEN
requested an alternative treatment standard of 59 mg/L as measured by
the TCLP for the selenium contained in the waste. This alternative
treatment standard was achieved with a waste to reagent ratio of 1 to
0.45, using 20% ferrous sulfate,
[[Page 18924]]
15% quick lime and 10% sodium sulfide flakes.\3\
---------------------------------------------------------------------------
\3\ The selenium concentrations used to calculate the
alternative treatment standard were (in mg/L TCLP) 49.34, 51.39,
49.39, 43.91, and 54.34. The most effective treatment recipe was
determined using a 50 gram sample of waste where reagents were
listed as a percent of waste sample weight. For example, 20% ferrous
sulfate, 15% quick lime, and 10% sodium sulfide flakes would measure
out as 10 grams of ferrous sulfate, 7.5 grams of quick lime, and 5
grams of sodium sulfide flakes for a total of 22.5 grams of total
reagent. The waste to reagent ratio was then calculated by dividing
22.5 by 50 to get a waste to reagent ratios of 1:0.45.
---------------------------------------------------------------------------
B. What type and how much waste will be subject to this variance?
Owens-Brockway operates a glass manufacturing facility that ESP
dust. The ESP dust is generated by the glass furnace air emissions
control system and is hazardous due to its high concentrations of
leachable arsenic, cadmium, lead, and selenium. The corresponding EPA
hazardous waste codes are D004, D006, D008, and D010, respectively. The
waste generated by Owens-Brockway does not meet the LDR treatment
standards and requires treatment prior to land disposal. As discussed
previously, the physical properties and the chemical composition of the
ESP dust generated by Owens-Brockway are considerably different from
the waste used to establish the current LDR treatment standard for
selenium. The Agency set the national treatment standard for
nonwastewaters using performance data from the stabilization of a
characteristically hazardous mineral processing waste, which the Agency
determined at the time to be the most difficult to treat selenium
waste.\4\
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\4\ The untreated waste had a total selenium concentration of up
to 700 ppm selenium, with a leachable selenium concentration of 3.74
mg/L TCLP. The post treatment levels of selenium were between 0.154
mg/L and 1.80 mg/L TCLP, which led the Agency to establish the
treatment standard of 5.7 mg/L TCLP for nonwastewaters. See 63 FR
28556, May 26, 1998.
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According to the petition submitted by USEN, the quantity of ESP
dust shipped off-site for management as a hazardous waste ranges from
50 to 100 tons per year.\5\ The ESP dust, as generated, contains fine
particle matter resulting from the combustion of natural gas and
particulate matter generated by the dry scrubber used to control
SOX emissions. The material is normally returned to the
process as a substitute raw material; however, there are circumstances
when it cannot be used again due to the high levels of hazardous
contaminants, its physical state or excess quantity. In these
situations, the ESP dust is managed as a RCRA hazardous waste.
---------------------------------------------------------------------------
\5\ According to information obtained from USEPA's RCRA Biennial
Report, in 2005, approximately 108 tons of hazardous waste
identified as D010 was shipped from Owens-Brockway's Vernon facility
to the CWM facility in Kettleman Hills, California, while in 2007,
almost 61 tons of D010 waste was shipped to CWM in Kettleman Hills,
California.
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C. Description of the Waste Treatment Process
USEN will stabilize the Owens-Brockway ESP dust using a combination
of reagents and techniques. These reagents include ferrous sulfate
(FeSO4), quick lime (CaO), and sodium sulfide (Na2S). USEN typically
uses a combination of hydroxide and sulfide precipitation to treat high
concentration wastes. Most often, an alkaline reagent (quick lime) is
used to raise the solution pH to lower the solubility of the metal
constituents and start the precipitation process.
As noted previously, (see 64 FR 28387, May 26, 1999), EPA concluded
that it is difficult, if not impossible, to optimize the treatment for
selenium when other metals are being treated, because the selenium
solubility curve differs from that of most other metals. Thus,
successfully stabilizing other metals generally means that treatment
for selenium cannot be optimized. As further pointed out in the
petition submitted by USEN, selenium's minimum solubility is in the
range of 6.5 to 7.5, while other characteristic metals have a minimum
solubility in the pH range of 8 to 12. In simple terms, if you maximize
the stabilization treatment recipe to treat arsenic, cadmium, and lead,
the selenium becomes soluble and will not meet the treatment standard
(i.e., fail the TCLP). If you maximize the recipe to treat selenium,
the other metals will not meet the treatment standard.
USEN has been unsuccessful in developing a treatment recipe that
can achieve all the LDR treatment standards applicable to this waste
(e.g., arsenic, chromium, lead, and selenium). USEN tested and
submitted performance data on 135 treatment recipes on five different
ESP dust samples using a combination of reagents and concentrations of
reagents. USEN was unable to achieve the LDR treatment standard of 5.7
mg/L selenium using any of the 135 treatment recipes. The average post
treatment selenium TCLP value achieved was 47 mg/L TCLP, which is
approximately a 90% reduction in soluble selenium. The treatment to an
average of 47 mg/L TCLP was the result of a recipe with a waste to
reagent ratio of 1:0.45. With a variability factor applied to the
average TCLP selenium value, the final treatment standard would be 59
mg/L TCLP.\6\
---------------------------------------------------------------------------
\6\ The calculation of the LDR treatment standard was based on a
specific method, sometimes called ``C 99'' which has been used in
other LDR rulemakings. This methodology seeks to account for process
variability (including variability that may be attributed to
sampling and analytical processes). See 63 FR 28556, May 26, 1998
and the document, Final--Best Demonstrated Available Technology
(BDAT) Background Document for Quality Assurance/Quality Control
Procedures and Methodology, USEPA. October 23, 1991.
---------------------------------------------------------------------------
With the data and information provided to the Agency as part of
their site-specific treatment variance petition, EPA was able to
perform an analysis which shows that the USEN treatment process would
generate a lower volume of waste material, post treatment, coupled with
a lower potential for selenium being released to the environment. Mass
balance calculations performed by the Agency indicated that the
treatment conducted by USEN has the potential to release between 3.88
to 7.76 kilograms (8.54 to 17.1 pounds) of selenium per year to the
environment. This range is a result of Owens-Brockway generating
between 50 and 100 tons of waste annually. (As we discuss in the next
section, CWM, even with a lower alternative treatment standard, has the
potential to release greater amounts of selenium per year to the
environment. This is due to the higher waste to reagent ratio used to
stabilize the waste material.\7\) As such, the Agency has determined
that USEN has optimized its stabilization recipe by reducing the amount
of selenium potentially released to the environment and minimizing the
amount of reagent that must be used to achieve this result.
---------------------------------------------------------------------------
\7\ With the majority of the treatment recipes tested, USEN was
able to meet the LDRs for all the other RCRA metals, including any
underlying hazardous constituents.
---------------------------------------------------------------------------
IV. EPA's Reasons for Granting This Site-Specific Treatment Variance to
USEN and Withdrawing the Site-Specific Variance From CWM at 40 CFR
268.44
EPA has reviewed USEN's petition for a site-specific treatment
variance from the LDR treatment standards for hazardous selenium-
bearing waste generated by Owens-Brockway and is granting a variance
from the selenium treatment standard from 5.7 mg/L TCLP to an
alternative treatment standard of 59 mg/L TCLP, with the condition that
USEN does not exceed a waste to reagent ratio of 1:0.45. Concurrently,
EPA is withdrawing the site-specific variance granted to CWM that
established an alternative treatment standard of 51 mg/L TCLP for this
same waste (69 FR 6567, February 11, 2004).
[[Page 18925]]
EPA has determined that USEN, despite having a higher selenium
treatment standard based on selenium concentration, does, in fact, have
the potential to release less selenium in a land disposal environment
by utilizing a much more environmentally favorable waste to reagent
ratio. As such, the Agency believes that the treatment performed by
USEN is the best treatment available for this waste. CWM uses a waste
to reagent ratio of 1:2.7, while USEN uses a waste to reagent ration of
1:0.45. Consequently, the Agency has determined that a treatment
standard of 59 mg/L TCLP for this selenium-bearing waste is more
protective of human health and the environment, due to the fact that it
generates a lower volume of waste material, with a much lower leaching
potential. In particular, the treatment process employed by CWM has the
potential to release between 8.56 to 17.11 kilograms (18.8 to 37.69
pounds) of selenium per year to the environment, whereas USEN has the
potential to release 3.88 to 7.76 kilograms (8.54 to 17.1 pounds) of
selenium per year to the environment. Furthermore, utilizing the waste
to reagent ratio of 1:2.7 would dispose of between 185 and 370 tons of
waste to land disposal per year, whereas utilizing the waste to reagent
ratio of 1:0.45 would dispose of only 72.5 to 145 tons of waste to land
disposal per year.
Based on the foregoing, the Agency is granting USEN's petition for
a site-specific treatment variance for the ESP dust generated at the
Owens-Brockway glass manufacturing plant in Vernon, California. We are
also withdrawing the portion of CWM's site-specific treatment variance
that pertains to its management of the Owens-Brockway waste, i.e., 51
mg/L TCLP for selenium-bearing D010 waste.
Technology-based treatment standards, whether adopted by generally
applicable rule or through a variance to the generally applicable rule,
serve as the measure of when threats posed by land disposal of the
hazardous waste are ``minimized,'' as required by RCRA section 3004(m).
See 55 FR 6640 (February 26, 1990). Thus, EPA has typically limited the
standards adopted by a variance to a single standard. See 70 FR 44505
(August 3, 2005). We are continuing this practice here by rescinding
the current variance granted to CWM (69 FR 6567, February 11, 2004).
The Agency has determined that the existing treatment standard is less
stringent than the standard we would now be granting, both with respect
to potential concentrations of selenium released to the environment and
also the waste to reagent ratios. Under these circumstances, EPA
believes that threats posed by land disposal are minimized by use of
the treatment process utilized by USEN.
Please note that the waste already disposed of pursuant to the
standard established in the original treatment variance granted to CWM
would be lawfully disposed, and would not have to be retreated if the
standard in the variance were altered or lapsed. This variance results
in amending 40 CFR 268.44(o) to allow hazardous selenium-bearing waste
generated by Owens-Brockway in Vernon, California, with the RCRA
hazardous waste identification code of D010, to be treated to an
alternate treatment standard of 59 mg/L TCLP by USEN with the condition
that the waste to reagent ratio not exceed 1:0.45.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action does two things: (1) Grants a site-specific treatment
variance to USEN for the treatment of hazardous selenium-bearing waste
under RCRA's LDR program; and (2) withdraws an existing site-specific
treatment variance to CWM. The Office of Management and Budget (OMB)
has previously approved the information collection requirements
contained in the existing regulations at 40 CFR 268.42 and .44 under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number 2050-0085. The OMB control numbers
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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 a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
This site-specific treatment variance does not create any new
requirements. Rather, it establishes an alternative treatment standard
for a specific waste that applies to only one facility, USEN located in
Beatty, Nevada and withdraws an existing site-specific treatment
variance for the same waste at CWM located in Kettleman Hills,
California. Therefore, we hereby certify that this rule will not add
any new regulatory requirements to small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
D. Unfunded Mandates Reform Act of 1995
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. This action imposes no enforceable duty on any State, local or
tribal governments or the private sector. This action would not impose
any new duties on the State's hazardous waste program. EPA has
determined, therefore, that this rule would not contain regulatory
requirements that might significantly or uniquely affect small
governments in that the authority for this action exists with the
Federal government. Therefore, this action is not subject to the
requirements of sections 202 or 205 of the UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. This rule 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 action does two things: (1)
Grants a site-specific treatment variance applicable to one facility,
and (2) withdraws a site-specific treatment variance for that same
waste at another facility. Thus, Executive Order 13132 would not apply
to this action.
[[Page 18926]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action would not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action is a
site-specific treatment variance that applies to only one facility,
while withdrawing a site-specific treatment variance for that same
waste at another facility. Neither facilities are tribal facilities or
located on tribal lands. Thus, Executive Order 13175 would not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that are based on health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it would not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions Concerning Regulations 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 would
not be a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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. 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. 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
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it increases the level of protection
provided to human health and the environment because of a reduced level
of selenium being landfilled than currently occurs. The treatment
variance applies to a specific hazardous selenium-bearing waste that
will be treated in an existing, permitted RCRA facility, ensuring
protection to human health and the environment. Therefore, the rule
will not 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. EPA will submit a report containing this rule, when
finalized 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 June 6, 2011. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 268
Environmental Protection, Hazardous Waste, Variances.
Dated: March 31, 2011.
Mathy Stanislaus,
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
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. In Sec. 268.44, the table in paragraph (o) is amended by revising
the entry for ``Owens Brockway Glass Container Company, Vernon, CA''
and revising footnote 7 to read as follows:
Sec. 268.44 Variance from a treatment standard.
* * * * *
(o) * * *
[[Page 18927]]
Table--Wastes Excluded From the Treatment Standards Under Sec. 268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wastewaters Nonwastewaters
Waste Regulated hazardous --------------------------------------------------------------------
Facility name \1\ and address code See also constituent Concentration (mg/
Concentration (mg/l) Notes kg) Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Owens Brockway Glass Container D010 Standards under Selenium........... NA................... NA........ 59 mg/L TCLP........ NA
Company, Vernon, CA \6\,\7\. Sec. 268.40.
* * * * * * *
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\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 electrostatic precipitator dust generated during glass manufacturing operations.
\7\ D010 waste generated by this facility must be treated and disposed by U.S. Ecology Nevada at their RCRA permitted facility in Beatty, Nevada. The
treatment variance is conditioned on the waste to reagent ratio not exceeding 1 to 0.45.
* * * * *
Note: NA means Not Applicable.
[FR Doc. 2011-8179 Filed 4-5-11; 8:45 am]
BILLING CODE 6560-50-P
