[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Rules and Regulations]
[Pages 28387-28392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12945]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-6346-2]


Land Disposal Restrictions: Site-Specific Treatment Variance to 
Chemical Waste Management, Inc.

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA or 
Agency) is today granting a site-specific treatment variance from the 
Land Disposal Restrictions (LDR) treatment standards for two selenium-
bearing hazardous wastes. EPA is granting this variance because the 
chemical properties of these two wastes differ significantly from the 
waste used to establish the current LDR standard for selenium (5.7 mg/L 
TCLP) and Chemical Waste Management, Inc. (CWM) has adequately 
demonstrated that the two wastes cannot be treated to meet this 
treatment standard.
    CWM intends to stabilize the wastes at their Kettleman City, 
California facility. Upon promulgation of this final rule, CWM may 
treat these two specific wastes to alternate treatment standards of 51 
mg/L TCLP for the Owens-Brockway waste and 25 mg/L TCLP for the Ball-
Foster waste. After treatment to these alternative selenium standards, 
CWM may dispose of the treated wastes in a RCRA Subtitle C landfill 
provided they meet the applicable LDR treatment standards for the other 
hazardous constituents in the wastes. We are granting this variance for 
three years.

DATES: This final rule is effective on May 11, 1999.

ADDRESSES: The official record for this rulemaking is identified by 
RCRA Docket Number F-1999-CWMF-FFFFF and is located at the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 
a.m. to 4 p.m., Monday through Friday, excluding federal holidays. To 
review docket materials, it is recommended that the public make an 
appointment by calling (703) 603-9230. The public may copy a maximum of 
100 pages from any regulatory docket at no charge. Additional copies 
cost $0.15/page. The index and some supporting materials are available 
electronically. Follow these instructions to access the information 
electronically:

WWW: http://www.epa.gov/epaoswer/osw/hazwaste.htm#ldr
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epaoswer.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In 
the Washington, D.C., metropolitan area, call 703 412-9810 or TDD 703 
412-3323. For more detailed information on specific aspects of this 
rulemaking, contact Josh Lewis at (703) 308-7877 or [email protected], 
or Elaine Eby at (703) 308-8449 or [email protected], Office of Solid 
Waste (5302 W), U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION:

I. Background

A. What Is the Basis for LDR Treatment Variances?

    Under section 3004(m) of the Resource Conservation and Recovery Act 
(RCRA), EPA is required to set ``levels or methods of treatment, if 
any, which substantially diminish the toxicity of the waste or 
substantially reduce the likelihood of migration of hazardous 
constituents from the waste so that short-term and long-term threats to 
human health and the environment are minimized.'' EPA interprets this 
language to authorize treatment standards based on the performance of 
best demonstrated available technology (BDAT). This interpretation was 
upheld by the D.C. Circuit in Hazardous Waste Treatment Council vs. 
EPA, 886 F. 2d 355 (D.C. Cir. 1989).
    The Agency recognizes that there may be wastes that cannot be 
treated to levels specified in the regulations (see 40 CFR 268.40) 
because an individual waste matrix or concentration can be 
substantially more difficult to treat than those wastes the Agency 
evaluated in establishing the treatment standard (51 FR 40576, November 
7, 1986). For such wastes, EPA has a process by which a generator or 
treater may seek a treatment variance. See 40 CFR 268.44. If granted, 
the terms of the variance establish an alternative treatment standard 
for the particular waste at issue.

B. What Is the Basis of the Current Selenium Treatment Standard?

    In the Third rule (55 FR 22521, June 1, 1990), the Agency used 
performance data from the stabilization of a selenium D010 mineral 
processing waste, which we determined to be the most difficult to treat 
selenium waste, to set the national treatment standard for selenium. 
This waste contained up to 700 ppm total selenium and 3.74 mg/L 
selenium in the TCLP leachate. The resulting post-treatment selenium 
TCLP levels were between 1.80 and 0.154 mg/L TCLP, which led to our 
establishment of a national treatment standard of 5.7 mg/L for D010 
selenium nonwastewaters. At that time, EPA also had information 
indicating that wastes containing high concentrations of selenium are 
rarely generated and land disposed and, therefore, concluded that the 
standard of 5.7 mg/L was achievable.
    In the Phase IV final rule, the Agency determined that a treatment 
standard of 5.7 mg/L 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

[[Page 28388]]

nonwastewaters from 0.16 mg/L to 5.7 mg/L. In the preamble to the Phase 
IV final rule, we noted that we received comments from one company, 
CWM, indicating that it was attempting to stabilize selenium wastes 
with concentrations much higher than those EPA was examining to 
establish the national selenium standard. In response, we indicated 
that for these high-level selenium waste streams, we would propose a 
site-specific treatment variance, which we did on October 23, 1998 (63 
FR 56886).

II. Basis for Today's Determination

A. What Does the CWM Petition Assert?

    In their petition, CWM states that two companies, Owens Brockway 
and Ball-Foster, generate hazardous wastes with relatively high 
leachable selenium concentrations. CWM presents data showing that 
selenium TCLP concentrations in the untreated wastes are one to three 
orders of magnitude higher than the untreated mineral processing wastes 
that EPA used to develop the current D010 selenium treatment standard. 
The data also show that neither treated waste stream can reliably meet 
the numerical standard of 5.7 mg/L TCLP, even though CWM shows that it 
is using the treatment technology on which EPA based the selenium 
treatment standard.
    Specifically, CWM's testing data consisted of bench-scale 
stabilization treatment testing for selenium-bearing wastes generated 
by Owens Brockway and Ball-Foster. Three samples of the Owens Brockway 
waste and one sample of the Ball Foster waste were tested to determine 
appropriate stabilization recipes. Selenium concentrations in the 
untreated Owens Brockway wastes were between 465 and 1024 mg/L TCLP, 
while the selenium concentration in the Ball-Foster waste was 59.8 mg/L 
TCLP. CWM submitted stabilization data from each facility using 
combinations of the following stabilization reagents: ferrous sulfate, 
calcium polysulfide, ferric chloride, sodium bisulfate, portland 
cement, and cement kiln dust. For more detailed information about this 
petition, see the proposed rule (63 FR 56886, October 23, 1998) and the 
docket supporting this proposal (docket number F-98-CWMP-FFFFF).

B. What Criteria Govern a Treatment Variance?

    Under 40 CFR 268.44(h), EPA allows facilities to apply for a site-
specific variance when a waste generated under conditions specific to 
only one site cannot be treated to the specified level(s). In such 
cases, the generator or treatment facility may apply to the 
Administrator, or EPA's delegated representative, for a site-specific 
variance from a treatment standard.
    In 40 CFR 268.44(h)(1) and (2), EPA describes the two main cases in 
which we will grant a treatment variance. The case described in 40 CFR 
268.44(h)(1) is applicable to this treatment variance, which addresses 
process wastes that are generated on a routine basis by two glass 
manufacturing companies. Basically, EPA must determine if the 
petitioner has adequately shown that, ``It is not physically possible 
to treat the waste to the level specified in the treatment standard . . 
. because the physical or the chemical properties of the waste differ 
significantly from the waste analyzed in developing the treatment 
standard. . . .''
    C. What Is the Basis for EPA's Approval of CWM's Request for an 
Alternative D010 Treatment Standard?
    After careful review of the data and petition submitted by CWM, we 
conclude that CWM has adequately demonstrated that the wastes satisfy 
the requirements for a treatment variance under 40 CFR 268.44(h)(1).
    CWM has demonstrated that the two glass manufacturing waste streams 
differ significantly in chemical composition from the waste used to 
generate the original treatment standard. Selenium TCLP concentrations 
in the untreated wastes are one to three orders of magnitude higher 
than the waste used in developing the treatment standard for D010 
hazardous wastes. Furthermore, CWM is using stabilization as the 
treatment technology, which is consistent with EPA's determination of 
BDAT, and the process is well-designed and operated.
    Treatment of these two wastes is especially difficult because of 
the presence of other metals (i.e., arsenic, cadmium, chromium, and 
lead) above their respective characteristic levels. It is difficult, if 
not impossible, to optimize treatment for selenium when other metals 
are being treated because the selenium solubility curve differs from 
that of most other metals. Selenium's minimum solubility is at a 
neutral to mildly acidic pH (6.5-7.5) while other characteristic metals 
have a minimum solubility in the alkaline pH range (8-12) (see 62 FR 
26045).
    Therefore, EPA is today granting a site-specific variance from the 
D010 treatment standards for the two waste streams in question since 
the wastes cannot be physically treated to the level specified in the 
regulations. Today's alternative treatment standards will provide 
sufficient latitude for CWM to treat the other metals present in the 
wastes to LDR treatment standards and, by raising the selenium 
treatment standard, will avoid the difficulty posed by the different 
metal solubility curves.

D. What Are the Terms and Conditions of the Variance?

    This variance applies to two specific waste streams: electrostatic 
precipitator dust generated during glass manufacturing operations at 
Owens Brockway Glass Container Company, and dry scrubber solid from 
glass manufacturing wastes at Ball-Foster Glass Container Corporation.
    In analyzing the Owens Brockway data, the most effective 
stabilization recipe for this waste consists of 0.7 parts iron sulfate 
combined with 2.0 parts cement, resulting in a reagent to waste ratio 
of 2.7 to 1. For each of the three analytical trials submitted for the 
waste stream, this specific recipe achieved 36.8, 34.08, and 43.7 mg/L 
selenium TCLP in the treated waste. The treatment extract had a pH 
ranging from 10.5-11.9, which encompasses the maximum solubility (and, 
therefore, leaching potential) of selenium. This, in turn, suggests 
that use of the TCLP in this particular case adequately reflects a 
worst-case disposal scenario. (This is unlike the situation in Columbia 
Falls Aluminum Co. v. EPA, 139 F.3d 914, in which the TCLP testing did 
not reflect the post-treatment conditions). Using the BDAT 
methodology,1 we calculated an alternative D010 standard of 
51 mg/L TCLP.
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    \1\ BDAT Background Document for Quality Assurance/Quality 
Control Procedures and Methodology, October 23, 1991.
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    For Ball-Foster's waste, the most effective treatment recipes have 
reagent to waste ratios of 1.8, 2.2, 2.3, 2.4, and 2.7. Selenium 
concentrations in the treated wastes were 11.6, 7.47, 8.22, 15.6, and 
4.82 mg/L TCLP. The treatment extract pH ranged from 11.9-12.0, which 
again suggests that use of the TCLP adequately reflects the worst case 
disposal scenario. These treatment recipes are all consistent with the 
reagent to waste ratios used to establish the existing standard of 5.7 
mg/L TCLP. Using these five data points, we calculated an alternative 
treatment D010 standard of 25 mg/L TCLP.
    After treatment to these alternative selenium standards, CWM may 
dispose of the treated wastes in a RCRA Subtitle C landfill--since the 
waste still exhibits the toxicity characteristic--provided they meet 
all other applicable LDR treatment standards. We are granting this 
variance for three years for reasons discussed in Section IV below.

[[Page 28389]]

    Although the alternative selenium standards for these two wastes 
are relatively high, this is a technically necessary compromise. As 
noted above and in the May 12, 1997 Federal Register (62 FR 26045), 
treatment cannot be optimized for both acid and base-soluble metals due 
to their different solubility curves. Because all of the other toxic 
metals (i.e., arsenic, cadmium, chromium, and lead) are being 
immobilized to meet their respective universal treatment standards, we 
consider, under the circumstances, that threats are being minimized if 
the alternative selenium treatment standards are met, as required by 
3004(m).
    Not only are all of the other toxic metals meeting their respective 
UTS standards, but the alternative selenium treatment standards 
essentially require CWM to use a well-designed and well-operated 
treatment system that is consistent, particularly in terms of the 
selection of reagents and reagent to waste ratios, with the technical 
basis for the current selenium treatment standard.

III. Response to Comments

    The Agency received one comment on the proposed rule from a waste 
treatment company that treats metal-bearing hazardous wastes, including 
wastes contaminated with selenium. The commenter claims to have a 
reagent capable of stabilizing the wastes in question so that less 
selenium will leach out of the treated waste. The commenter submitted 
data showing that its reagent is successful in stabilizing wastes 
containing a variety of heavy metals, including selenium.
    The commenter asked to perform a treatability study on the two 
wastes to verify whether a variance is necessary, and to determine 
whether a numerical treatment standard closer to the current regulatory 
level of 5.7 mg/L TCLP would be achievable.
    We agreed that the commenter should conduct a treatability study. 
From December 1998 to February 1999, the commenter treated both of the 
glass manufacturing waste streams using its reagent. The commenter 
achieved selenium TCLP results ranging from 25.0-57.7 mg/L. These 
results are comparable to the alternative treatment standards in the 
proposed variance. However, we observe two significant points in the 
treatability study data:

(1) The commenter treated wastes that had significantly higher selenium 
concentrations than the wastes described in the proposed variance. The 
untreated Ball-Foster and Owens Brockway samples used in the 
treatability study had selenium concentrations of 2900 mg/L TCLP and 
15,200 mg/L TCLP, respectively. The untreated wastes analyzed at the 
time of the proposed variance had concentrations of 60-1000 mg/L TCLP.
(2) The commenter's reagent achieved treatment levels similar to those 
we proposed, but with reagent to waste ratios of only 0.15-0.2 to 1. By 
comparison, the reagent to waste ratios used in the proposed rule were 
as high as 2.7 to 1.

Based on our review of the treatability study, we conclude that the 
wastes used in the treatability study represent the most difficult to 
treat Ball-Foster and Owens Brockway wastes, and that the proposed 
alternative treatment standards are still appropriate for these two 
waste streams. CWM also has indicated that the high concentration 
selenium wastes from the treatability study are not strictly one-time 
generated wastes, but rather are representative of the wastes that the 
two facilities generate from time to time. Therefore, we are finalizing 
the alternative treatment standards for the two waste streams as 
proposed. Both CWM and the commenter support our decision to finalize 
this variance at this time.
    We note that, since this rule is approving a variance from a 
numerical treatment standard, CWM may use any reagent it chooses in 
meeting the alternative numerical standard. Finalization of this rule 
does not preclude CWM from using the commenter's reagent in stabilizing 
the two waste streams, which may be needed for any batches of higher 
selenium concentrations. The Agency notes that, to avoid questions of 
impermissible dilution, CWM will need to keep the reagent to waste 
ratios within acceptable bounds. No specific ratios are being 
established in today's rule because the Agency does not typically 
circumscribe a treater's flexibility in this manner. However, the 
Agency recommends that CWM use a reagent to waste ratio of 2.7 to 1 as 
a benchmark. This is the ratio used by the Agency in establishing 
today's alternative treatment standard.

IV. Reasons for the 3-Year Limitation

    Because selenium is a non-renewable resource, and because the 
wastes in question contain high selenium concentrations, one potential 
avenue is that the selenium component could be recycled in an 
environmentally sound manner instead of being stabilized and 
landfilled. No secondary selenium recovery capacity currently exists in 
the U.S.2 Further, the market for selenium appears to be 
declining, selenium prices are low, and a surplus foreign secondary 
capacity of selenium exists.3 All of these factors suggest 
that development of an environmentally protective secondary selenium 
recovery system in the U.S. is not reasonably to be expected in the 
near future. That leaves stabilization as the best available treatment 
technology.
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    \2\ ``Recycling-Metals.'' U.S. Geological Survey--Minerals 
Information--1997.
    \3\ Id.
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    Over the next three years, EPA will determine whether this is still 
the case, and also whether new technologies (e.g., more effective 
stabilization reagents) have become available to treat these wastes to 
the national treatment level of 5.7 mg/L TCLP. CWM should expect to 
update us annually on the alternative treatment technologies it is 
investigating, and to submit any analytical data from studies using 
these alternative technologies. We will ask that CWM's submission also 
include information showing which stabilization recipe it is using to 
meet the alternative treatment standards, the selenium concentrations 
in untreated wastes, and the analytical results from these treated 
wastes. The Agency intends to use this information to determine if 
today's alternative treatment standards (or some other levels) are 
appropriate as a more permanent standard. Timely submittal of this 
information will allow us to begin any necessary rulemaking process as 
early as possible.
    At the end of the three-year period, today's alternative treatment 
standards expire. Thus, if CWM has not found a new treatment technology 
to treat the two wastes to the national treatment level for D010 
selenium wastes or if the Agency has not adopted more permanent 
alternative treatment standards for these two wastes, then CWM will 
have to submit a new petition to the Agency for a continuation of the 
current treatment variance, or a new treatment variance if a different 
alternative treatment standard is warranted.

V. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) have an annual 
effect on the economy of $100

[[Page 28390]]

million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Because this rule does not create any new regulatory requirements, 
it is not a ``significant regulatory action'' under the terms of 
Executive Order 12866 and is therefore not subject to OMB review. Also, 
because this variance only changes the treatment standards applicable 
to two D010 waste streams at the Chemical Waste Management, Inc. 
facility in Kettleman City, California, and does not change in any way 
the paperwork requirements already applicable to these wastes, it does 
not affect requirements under the Paperwork Reduction Act.

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, any written communications 
from the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates. Today's rule does not create 
a mandate on state, local, or tribal governments. The rule does not 
impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this rule.

C. Executive Order 13045

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    Today's final rule is not subject to E.O. 13045 because it does not 
meet either of these criteria. The wastes described in this treatment 
variance will be treated by Chemical Waste Management, Inc., and then 
disposed of in a RCRA Subtitle C landfill, ensuring that there will be 
no risks that may disproportionately affect children.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' Today's 
final rule does not significantly or uniquely affect the communities of 
Indian tribal governments. This rule issues a variance from the LDR 
treatment standards for two specific characteristic selenium wastes. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

E. Executive Order 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in clean and sustainable communities. In response 
to Executive Order 12898 and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response formed 
an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17). Today's variance applies to two D010 waste 
streams that will be treated by Chemical Waste Management, Inc. at 
their Kettleman City, California facility and disposed of in a RCRA 
Subtitle C landfill, ensuring protection to human health and the 
environment. Therefore, the Agency does not believe that today's rule 
will result in any disproportionately negative impacts on minority or 
low-income communities relative to affluent or non-minority 
communities.

F. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with

[[Page 28391]]

applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector, and it does not impose any Federal 
mandate on State, local, or tribal governments or the private sector 
within the meaning of the Unfunded Mandates Reform Act of 1995. This 
rule also does not create new regulatory requirements; rather, it 
merely establishes alternative treatment standards for specific wastes 
that replace standards already in effect. EPA has determined that this 
rule does not contain a Federal mandate that may result in expenditures 
of $100 million or more for State, local, and tribal governments, in 
the aggregate, or the private sector in any one year. Thus, today's 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA. For the same reasons, EPA has determined that this rule contains 
no regulatory requirements that might significantly or uniquely affect 
small governments.

G. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    This treatment variance does not create any new regulatory 
requirements. Rather, it establishes alternative treatment standards 
for two specific wastes that replace standards already in effect, and 
it only applies to the CWM facility in Kettleman City, California. 
Therefore, I hereby certify that this rule will not have a significant 
economic impact on a substantial number of small entities. This rule, 
therefore, does not require a regulatory flexibility analysis.

H. National Technology Transfer and Advancement Act of 1995

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. This action does not involve 
technical standards. Therefore, EPA did not consider the use of any 
voluntary consensus standards.

I. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability, applying only to a 
particular waste at one facility under particular (and, as noted, 
exceptional) circumstances.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: May 11, 1999.
James R. Berlow,
Acting Director, Office of Solid Waste.
    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. Section 268.44 is amended by adding two entries in alphabetical 
order and three footnotes to ``TABLE--WASTES EXCLUDED FROM THE 
TREATMENT STANDARDS UNDER Sec. 268.40'' in paragraph (o) to read as 
follows:


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

                                             Wastes Excluded From the Treatment Standards Under Sec.  268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Wastewaters               Nonwastewaters
                                                                            Regulated hazardous  -------------------------------------------------------
   Facility name \1\ and address      Waste code           See also             constituent       Concentration               Concentration
                                                                                                   (mg/L TCLP)      Notes      (mg/L TCLP)      Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ball-Foster Glass Container         D010            Table CCWE in 268.40.  Selenium.............            NA            NA            25            NA
 Corporation, El Monte, CA (6),(7).
 

[[Page 28392]]

 
                   *                  *                  *                  *                  *                  *                  *
Owens Brockway Glass Container      D010            Table CCWE in 268.40.  Selenium.............            NA            NA            51            NA
 Company, Vernon, CA (5),(7) .
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(1) A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
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(5) Alternative D010 selenium standard only applies to dry scrubber solid from glass manufacturing wastes.
(6) Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations.
(7) D010 wastes generated by these two facilities are subject to the following conditions: (a) the wastes must be treated by Chemical Waste Management,
  Inc. at their Kettleman Hills facility in Kettleman City, California; and (b) this treatment variance will be valid until May 11, 2002.
 
Note: NA means Not Applicable.

[FR Doc. 99-12945 Filed 5-25-99; 8:45 am]
BILLING CODE 6560-50-P