[Federal Register Volume 62, Number 167 (Thursday, August 28, 1997)] [Rules and Regulations] [Pages 45568-45573] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-22949] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 268 and 271 [FRL-5884-2] RIN 2050-AD38 Second Emergency Revision of the Land Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous Wastes From Carbamate Production AGENCY: Environmental Protection Agency (EPA, the Agency). ACTION: Immediate final rule. ----------------------------------------------------------------------- SUMMARY: This second emergency revision extends the time that the alternative carbamate treatment [[Page 45569]] standards are in place by one additional year. The Agency is taking this action because analytical problems associated with the measurement of constituent levels in carbamate waste residues have not yet been resolved. EFFECTIVE DATES: This action becomes effective on August 21, 1997. ADDRESSES: Supporting materials are available for viewing in the RCRA Information Center (RIC), located at Crystal Gateway One, 1235 Jefferson Davis Highway, First Floor, Arlington, VA. The Docket Identification Number is F-96-P32F-FFFFF. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, except for Federal holidays. The public must make an appointment to review docket materials by calling (703) 603-9230. The public may copy a maximum of 100 pages from any regulatory document at no cost. Additional copies cost $0.15 per page. FOR FURTHER INFORMATION CONTACT: For general information, contact the RCRA Hotline at 800-424-9346 (toll-free) or 703-412-9810 locally. For technical information on the carbamate treatment standards, contact Shaun McGarvey, phone 703-308-8603. For information on analytic problems associated with carbamate wastes, contact John Austin on 703- 308-0436. For information on State Authorization, contact Wayne Roepe on 703-308-8630. For specific information about this rule, contact Rhonda Minnick on 703-308-8771. SUPPLEMENTARY INFORMATION: Availability of rule on Internet This Federal Register notice is available on the Internet System through the EPA Public Web Page at: http://www.epa.gov/EPA-WASTE/. For the text of the notice, choose: Year/Month/Day. I. Background The Phase III final rule established treatment standards for hazardous wastes associated with carbamate pesticide production (61 FR 15583; see appendix for a list of regulated constituents). The treatment standards were expressed as concentration levels that had to be monitored in the treatment residue. All constituents were placed on the Universal Treatment Standard (UTS) list. These regulations were issued on April 8, 1996 (61 FR 15663), and corrected June 28, 1996 (61 FR 33683). The prohibition on land disposal of carbamate wastes was effective July 8, 1996 and the prohibition on radioactive waste mixed with newly listed or identified wastes, including soil and debris, was effective April 8, 1998. On November 1, 1996, the United States Court of Appeals for the District of Columbia Circuit, in Dithiocarbamate Task Force v. EPA (98 F.3d 1394), vacated certain of the listings of carbamate wastes. Accordingly, EPA removed from the Code of Federal Regulations those listings vacated by the court and all references to those listings. EPA notes that substantial portions of the decisions made in the carbamate listing rule remain in effect and are not changed by the court's ruling. See 62 FR 32973, June 17, 1997. The court vacated the listings of 24 U wastes, one K-waste (K160), and three of the K-wastes (K156, K157 and K158) only to the extent they apply to the chemical, 3-iodo-2-propynyl n-butylcarbamate (IPBC). Twenty-three of the vacated U wastes consisted of all the dithiocarbamates and thiocarbamates. The other vacated U waste was IPBC, a carbamate. This notice applies only to the carbamate wastes that remain listed as hazardous wastes. Carbamates that were regulated as UHCs were unaffected by the courts decision, because the decision didn't deal with adding carbamates as underlying hazardous constituents. After promulgation of the Phase III rule on April 8, 1996, but shortly before the treatment standards took effect on July 8, 1996, several companies in the waste management industry contacted EPA, reporting that laboratory standards were not available for some of the carbamate waste constituents. The Agency confirmed this assertion, and realized that the waste management industry was unintentionally left in a quandary: they were required to certify compliance with the carbamate waste treatment standards, but commercial laboratories were only able to perform the necessary analyses for some of the newly regulated constituents. Thus, it was impossible to document whether the treatment standards were or were not achieved for those constituents which could not be analyzed. The problem was complicated by the LDR rules that pertain to regulation of underlying hazardous constituents (UHCs) in characteristic (or formerly characteristic) hazardous wastes. Because new constituents were added to the UTS list, they thus became potential UHCs. Whenever a generator sends a characteristic (or formerly- characteristic) waste to a treatment facility, they must identify for treatment not only the hazardous characteristic, but also all UHCs reasonably expected to be present in the waste at the point of generation. (See 40 CFR 268.2(i).) Because of the lack of laboratory standards for all carbamate constituents, generators could not in all cases identify the UHCs reasonably expected to be present in their wastes, and treatment facilities and EPA could not monitor compliance with the standards for the carbamate UHCs. Generators also reported that commercial laboratories were unable to provide the recommended methods. II. The Revised Carbamate Treatment Standards In an emergency final rule promulgated on August 26, 1996 (61 FR 43924), EPA established temporary alternative treatment standards for carbamate wastes for a one-year period. EPA believed that one year was sufficient time for laboratory standards to be developed and for laboratories to take appropriate steps to do the necessary analyses for these wastes. The Phase III rule required treatment of carbamate wastes to UTS levels. The temporary alternative standards promulgated in the August 26, 1996 rule provided waste handlers a choice of meeting the Phase III treatment levels, or of using a specified treatment technology, the specified standard being the technology upon whose performance the numerical treatment standard was based. (See 61 FR 43925, August 26, 1996.) Combustion was the specified technology for nonwastewaters; combustion, biodegradation, chemical oxidation, and carbon adsorption are the specified technologies for wastewaters. If the wastes were treated by a specified technology, there was no requirement to measure compliance with treatment levels, thus avoiding the analytical problems. III. Today's Extension of the Alternative Treatment Standard Provision EPA is extending the alternative treatment standards for carbamate wastes for one additional year. EPA and the regulated community initially expected that laboratory standards would be developed during the past year, but that appears not to be the case for all carbamate constituents. Furthermore, there appears to be confusion as to which analytical methods can be used to measure carbamate constituents. (See memorandum from Kevin Igli, Waste Management, Inc., to James Berlow, EPA, dated July 16, 1997, in the docket for this rule.) The waste treatment industry has begun a testing project that will determine whether existing analytical methods can be extended to apply to all carbamate constituents. (See August 8, [[Page 45570]] 1997 letter from Kevin Igli, Waste Management, Inc., to Michael Petruska, EPA.) The Agency believes that much can be learned from this study. EPA estimates it will take four to six months to conduct this study, and then additional time to review the results. If the study verifies that analytical problems remain, EPA may issue an appropriate notice seeking comment, and then a final rule modifying the standard. This would all take approximately 1 year. If EPA finds there are no serious analytical difficulties, however, the Agency may consider reinstating the numeric standard sooner than 1 year. Since the analytical problems which necessitated the 1996 emergency rule remain, however, EPA is allowing the alternative treatment standards to remain in place until the study is completed and the results factored into a final decision on whether to retain the alternative treatment standards permanently or to revert to the exclusive numerical standards promulgated in the Phase III rule. (The Agency's general preference is to establish numerical treatment standards for hazardous wastes whenever possible because they provide maximum flexibility in selecting treatment technologies, while ensuring that the technologies are optimally operated to achieve full waste treatment.) Under the alternative treatment standards, combustion is the specified technology for nonwastewaters; combustion, biodegradation, chemical oxidation, and carbon adsorption are the specified technologies for wastewaters. (Descriptions of these treatment technologies can be found in 40 CFR 268.42, Table 1.) If the wastes are treated by a specified technology, there is no requirement to measure compliance with treatment levels. Because the performance of these Best Demonstrated Available Technologies (BDATs) were the basis of the originally promulgated treatment levels, EPA believes that temporarily allowing the use of these BDATs for an additional year--without a requirement to monitor the treatment residues--fully satisfies the core requirement of the LDR program: Hazardous wastes must be treated to minimize threats to human health and the environment before they are land disposed. The Agency is also suspending for an additional year inclusion of carbamate waste constituents on the UTS list at 40 CFR 268.48. Not including these constituents on the UTS list eliminates the need to identify and treat them, and monitor compliance with their UTS levels, when they are present as UHCs in characteristic hazardous wastes. The Agency believes that suspending the carbamate constituents from the UTS list will not have adverse environmental consequences because it will be in effect for only one additional year. Furthermore, EPA found in the Phase III rulemaking that these constituents are unlikely to occur in wastes generated outside the carbamate production industry (61 FR 15584, April 8, 1996), so today's rule may not cause an adverse environmental impact because carbamate constituents simply are not present in most characteristic hazardous wastes. IV. Good Cause for Foregoing Notice and Comment Requirements This final rule is being issued without notice and opportunity for public comment. Under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), an agency may forgo notice and comment in promulgating a rule when, according to the APA, the agency for good cause finds (and incorporates the finding and a brief statement of the reasons for that finding into the rules issues) that notice and public comments procedures are impracticable, unnecessary, or contrary to the public interest. For the reasons set forth below, EPA believes it has good cause to find that notice and comment would be unnecessary and contrary to the public interest, and therefore is not required by the APA. First, although both industry and EPA have endeavored to resolve the problem during the past year, analytic laboratory standards will continue to be unavailable for a number of the carbamate waste constituents covered by the Phase III rule. Members of the regulated community thus cannot fully document compliance with the requirements of the treatment standard through no fault of their own. For the same reason, EPA cannot ascertain compliance for these constituents. In addition, this unavailability of analytic standards is likely to create a serious disruption in the production of at least some carbamate pesticides. Although the treatment of the restricted carbamate wastes through biodegradation, carbon adsorption, chemical oxidation (for wastewaters), and combustion is both possible and highly effective, certification that the treatment actually meets the treatment standard levels may not be possible in many instances. Without the certification, disposal of the residuals left after treatment cannot legally occur. The Agency believes this situation will quickly impede production of certain pesticides, since legal disposal of some carbamate wastes will no longer be available. See Steel Manufacturers Ass'n v. EPA, 27 F.3d 642, 646-47 (D.C. Cir. 1994) (absence of a treatment standard providing a legal means of disposing of wastes from a process is equivalent to shutting down that process). With regard to the suspension of certain carbamates as underlying hazardous constituents in characteristic (and formerly-characteristic) prohibited wastes, the Agency believes that the same practical difficulties described for listed carbamate wastes would be created. Furthermore, the Agency believes it is necessary for industry to complete a study project that will provide answers to the questions raised about the availability of analytical standards and which analytical methods are appropriate for carbamate wastes. This study will require a number of months to be completed, and then the Agency must make a decision about whether or not to retain the alternative treatment standards. This extension of the emergency rule preserves the core of the promulgated Phase III rule by ensuring that the restricted carbamate wastes are treated by a BDAT before they are land disposed. At the same time, EPA is eliminating the situation which could halt production of carbamate pesticides, and allowing time for a study project to be completed. For these reasons, EPA believes there is good cause to issue the rule immediately without prior notice and opportunity for comment. V. Rationale for Immediate Effective Date The Agency believes that the regulated community is in the untenable position of having to comply with treatment standards but lacks analytical methods to measure compliance. To avoid this result, therefore, this extension needs to take effect essentially immediately. In addition, today's rule does not create additional regulatory requirements; rather, it provides greater flexibility for compliance with treatment standards. For these reasons, EPA finds that good cause exists under section 3010(b)(3) of RCRA, 42 U.S.C. 6903(b)(3), to provide for an immediate effective date. See generally 61 FR at 15662. For the same reasons, EPA finds that there is good cause under 5 U.S.C. 553(b)(3) to waive the requirement that regulations be published at least 30 days before they become effective. [[Page 45571]] VI. Analysis Under Executive Order 12866, the Unfunded Mandates Reform Act of 1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act This final rule does not create new regulatory requirements; rather, it provides a temporary alternative means to comply with the treatment standards already promulgated. Therefore, this final rule is not a ``significant'' regulatory action within the meaning of Executive Order 12866. 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 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 final rule does not create new regulatory requirements; rather, it provides a temporary alternative means to comply with the treatment standards already promulgated. 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. EPA has determined that this rule will not have a significant economic impact on a substantial number of small entities. EPA recognizes that small entities may own and/or operate carbamate pesticide manufacturing operations or TSDFs that will become subject to the requirements of the land disposal restrictions program. However, since such small entities are already subject to the requirements in 40 CFR part 268, this rule does not impose any additional burdens on these small entities, because this rule does not create new regulatory requirements. Rather, it provides a temporary alternative means to comply with the treatment standards already promulgated. Therefore, EPA provides the following certification under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), I hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities. It does not impose any new burdens on small entities. This rule, therefore, does not require a regulatory flexibility analysis. Today's rule does not contain any new information collection requirements subject to OMB review under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. Because there are no new information collection requirements in today's rule, an Information Collection Request has not been prepared. VII. Submission to Congress and the General Accounting Office Under section 801(a)(1)(A) of the Administrative Procedure Act (APA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of the rule in today's Federal Register. This rule is not a ``major rule'' as defined by section 804(2) of the APA as amended. VIII. State Authority A. Applicability of Rule in Authorized States Under section 3006 of RCRA, EPA may authorize qualified States to administer and enforce the RCRA program within the State. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for authorization are found in 40 CFR part 271. Prior to HSWA, a State with final authorization administered its hazardous waste program in lieu of EPA administering the Federal program in that State. The Federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities that the State was authorized to permit. When new, more stringent Federal requirements were promulgated or enacted, the State was obliged to enact equivalent authority within specified time frames. New Federal requirements did not take effect in an authorized State until the State adopted the requirements as State law. In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new requirements and prohibitions imposed by HSWA take effect in authorized States at the same time that they take effect in unauthorized States. EPA is directed to carry out these requirements and prohibitions in authorized States, including the issuance of permits, until the State is granted authorization to do so. Today's rule is being promulgated pursuant to section 3004(m), of RCRA (42 U.S.C. 6924(m)). Therefore, the Agency is adding today's rule to Table 1 in 40 CFR 271.1(j), which identifies the Federal program requirements that are promulgated pursuant to HSWA. States may apply for final authorization for the HSWA provisions in Table 1, as discussed in the following section of this preamble. B. Effect on State Authorization As noted above, EPA will implement today's rule in authorized States until they modify their programs to adopt these rules and the modification is approved by EPA. Because today's rule is promulgated pursuant to HSWA, a State submitting a program modification may apply to receive interim or final [[Page 45572]] authorization under RCRA section 3006(g)(2) or 3006(b), respectively, on the basis of requirements that are substantially equivalent or equivalent to EPA's. The procedures and schedule for State program modifications for final authorization are described in 40 CFR 271.21. All HSWA interim authorizations will expire January 1, 2003. (See section 271.24 and 57 FR 60132, December 18, 1992.) In general, EPA recommends that States pay close attention to the sunset date for today's rule. If States are adopting the Phase III rule before the sunset date of today's rule, and applying for authorization, EPA strongly encourages these States to adopt today's rule when they adopt the April 8, 1996, Phase III rule. States should note that after the sunset date, the provisions of this rule may be considered less stringent if the Agency decides to disallow use of the alternative treatment standards. If so, States would be barred under section 3009 of RCRA from adopting this rule after August 26, 1998, and would not be able to receive authorization for it. States that are planning to adopt and become authorized for today's rule and the Phase III rule should factor the sunset date into their rulemaking activities. Appendix to the Preamble--List of Regulated Constituents K156--Organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes. (This listing does not apply to wastes generated from the manufacture of 3-iodo-2-propynyl n- butylcarbamate) K157--Wastewaters (including scrubber waters, condenser waters, washwaters, and separation waters) from the production of carbamates and carbamoyl oximes. (This listing does not apply to wastes generated from the manufacture of 3-iodo-2-propynyl n- butylcarbamate.) K158--Bag house dust, and filter/separation solids from the production of carbamates and carbamoyl oximes. (This listing does not apply to wastes generated from the manufacture of 3-iodo-2- propynyl n-butylcarbamate.) K159--Organics from the treatment of thiocarbamate wastes. K161--Purification solids (including filtration, evaporation, and centrifugation solids), baghouse dust, and floor sweepings from the production of dithiocarbamate acids and their salts. (This listing does not include K125 or K126.) P203 Aldicarb sulfone P127 Carbofuran P189 Carbosulfan P202 m-Cumenyl methylcarbamate P191 Dimetilan P198 Formetanate hydrochloride P197 Formparanate P192 Isolan P196 Manganese dimethyldithiocarbamate P199 Methiocarb P066 Methomyl P190 Metolcarb P128 Mexacarbate P194 Oxamyl P204 Physostigmine P188 Physostigmine salicylate P201 Promecarb P185 Tirpate P205 Ziram U394 A2213 U280 Barban U278 Bendiocarb U364 Bendiocarb phenol U271 Benomyl U279 Carbaryl U372 Carbendazim U367 Carbofuran phenol U395 Diethylene glycol, dicarbamate U373 Propham U411 Propoxur U387 Prosulfocarb U410 Thiodicarb U409 Thiophanate-methyl U389 Triallate U404 Triethylamine Additional chemicals from carbamate production regulated in 40 CFR 268.48 Butylate EPTC Dithiocarbamates, total Molinate Pebulate o-Phenylenediamine Vernolate List of Subjects 40 CFR part 268 Environmental protection, Hazardous waste, Reporting and recordkeeping requirements. 40 CFR part 271 Environmental protection, Administrative practice and procedure, Hazardous materials transportation, Hazardous waste, Penalties, Reporting and recordkeeping requirements. Dated: August 21, 1997. Carol M. Browner, Administrator. For the reasons set forth 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. SUBPART D--TREATMENT STANDARDS 2. Section 268.40 is amended by revising the dates in paragraph (g) to read ``Between August 26, 1997 and August 26, 1998''. 3. Section 268.48(a) is amended by revising the dates in footnote 6 to the table--Universal Treatment Standards to read ``Between August 26, 1997 and August 26, 1998''. PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS 4. The authority citation for part 271 continues to read as follows: Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 and 1361. SUBPART A--REQUIREMENTS FOR FINAL AUTHORIZATION 5. Section 271.1(j) is amended by adding the following entry to Table 1 in chronological order by date of publication in the Federal Register to read as follows: Sec. 271.1 Purpose and scope. * * * * * (j) * * * Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984 -------------------------------------------------------------------------------------------------------------------------------------------------------- Promulgation date Title of Regulation Federal Register reference Effective date -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * August 28, 1997.................... Second Emergency Revision of 62 FR [Insert page numbers].............. August 26, 1997 until August 26, 1998. the Land Disposal Restrictions (LDR) Phase III Treatment Standards for Listed Hazardous Wastes from Carbamate Production. * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- [[Page 45573]] * * * * * [FR Doc. 97-22949 Filed 8-27-97; 8:45 am] BILLING CODE 6560-50-P