[Federal Register Volume 65, Number 144 (Wednesday, July 26, 2000)]
[Notices]
[Pages 45978-45980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18906]



[[Page 45978]]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-6841-4]


Land Disposal Restrictions: Notice of Intent To Grant a Site-
Specific Treatment Variance to Safety-Kleen (Deer Park), Inc.

AGENCY: Environmental Protection Agency.

ACTION: Notice of intent to grant petition.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or Agency) is today 
announcing our intent to grant a site-specific treatment variance from 
the Land Disposal Restrictions (LDR) treatment standards for 
approximately 2850 cubic yards of hazardous waste that Safety-Kleen 
(Deer Park), Inc. is currently storing at its Deer Park, Texas 
facility. Safety-Kleen requests this one-time variance because the 
waste cannot be treated to the interim K088 total arsenic standard of 
26.1 mg/kg. Furthermore, a portion of the waste cannot meet the 28 mg/
kg total dithiocarbamates treatment standard for the waste codes K161, 
P196, and P205. If we grant this one-time petition, Safety-Kleen may 
dispose of this waste in its on-site RCRA Subtitle C landfill provided 
the waste complies with the specified alternative treatment standards 
described in this notice and all other applicable LDR treatment 
standards.

DATES: This one-time variance is effective on August 25, 2000, unless 
we receive relevant adverse comment by August 16, 2000. If we receive 
such comment(s), we will publish a timely notice in the Federal 
Register informing the public that this one-time variance will not be 
automatically granted and indicating the further steps that will be 
taken.

ADDRESSES: If you wish to comment on this notice, you must send an 
original and two copies of the comments referencing Docket Number F-
2000-SKVP-FFFFF to: (1) if using regular U.S. Postal Service mail: RCRA 
Docket Information Center, Office of Solid Waste (5305G), U.S. 
Environmental Protection Agency Headquarters (EPA, HQ), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460-0002, or (2) if using 
special delivery, such as overnight express service: RCRA Docket 
Information Center (RIC), Crystal Gateway One, 1235 Jefferson Davis 
Highway, First Floor, Arlington, VA 22202. You may also submit comments 
electronically by sending electronic mail through the Internet to: 
[email protected]. You should identify comments in electronic format 
with the docket number F-2000-SKVP-FFFFF. You must submit all 
electronic comments as an ASCII (text) file, avoiding the use of 
special characters or any type of encryption.
    You should not submit electronically any confidential business 
information (CBI). You must submit an original and two copies of CBI 
under separate cover to: RCRA CBI Document Control Officer, Office of 
Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460-0002.
    You may view public comments and supporting materials in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 am 
to 4 pm Monday through Friday, excluding federal holidays. To review 
docket materials, we recommend that you make an appointment by calling 
703-603-9230. You may copy up to 100 pages from any regulatory document 
at no charge. Additional copies cost $ 0.15 per page. (The index and 
some supporting materials are available electronically. See the 
``Supplementary Information'' section for information on accessing 
them).

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). 
Callers within the Washington Metropolitan Area must dial 703-412-9810 
or TDD 703-412-3323 (hearing impaired). The RCRA Hotline is open 
Monday-Friday, 9 am to 6 pm, Eastern Standard Time. For more detailed 
information on specific aspects of this notice of intent, contact Josh 
Lewis at 703-308-7877, [email protected], or write him at the Office 
of Solid Waste, 5302W, U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW, Washington, DC 20460-0002.

SUPPLEMENTARY INFORMATION: The index and selected supporting materials 
are available on the Internet. You can find these materials at: http://www.epa.gov/epaoswer/osw/hazwaste.htm#ldr.
    The official record for this action will be kept in the paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the RIC listed in the ADDRESSES 
section at the beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register or in a 
response to comments document placed in the official record for this 
notice. EPA will not immediately reply to commenters electronically 
other than to seek clarification of electronic comments that may be 
garbled in transmission or during conversion to paper form, as 
discussed above.

A. Authority

    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 has interpreted 
this language to authorize treatment standards based on the performance 
of best demonstrated available technology (BDAT). This interpretation 
was sustained by the court in Hazardous Waste Treatment Council vs. 
EPA, 886 F. 2d 355 (D.C. Cir. 1989). The Agency has recognized 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 established a 
treatment variance (40 CFR 268.44) that, if granted, becomes the 
treatment standard for the waste at issue.

II. Basis for Determination

    Under 40 CFR 268.44 (h), EPA allows facilities to apply for a site-
specific variance in cases where a waste that is generated under 
conditions specific to a site cannot be treated to the specified 
levels. 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. 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 level or by the specified method. Note that 
there are other grounds for obtaining treatment variances, but this is 
the only provision relevant to the present petition.
    Safety-Kleen (Deer Park), Inc. (``Safety-Kleen'') formally 
submitted its request for a treatment variance from the interim K088 
total arsenic treatment

[[Page 45979]]

standard in March 1999. The request was for approximately 2850 cubic 
yards of hazardous waste. In a subsequent submittal of information, 
Safety-Kleen requested a variance from the total dithiocarbamate 
treatment standard for a portion of this fixed quantity of waste. All 
of the information and data used in the development of this notice can 
be found in the RCRA docket.

A. Establishment of Treatment Standards for K088

    K088, the EPA waste code for spent potliners from primary aluminum 
reduction (see 40 CFR 261.32), is generated by the aluminum 
manufacturing industry. Aluminum production occurs in four distinct 
steps: (1) Mining of bauxite ores; (2) refining of bauxite to produce 
alumina; (3) reduction of alumina to aluminum metal; and (4) casting of 
the molten aluminum. Bauxite is refined by dissolving alumina (aluminum 
oxide) in a molten cryolite bath. Next, alumina is reduced to aluminum 
metal. This reduction process requires high purity aluminum oxide, 
carbon, electrical power, and an electrolytic cell. An electric current 
reduces the alumina to aluminum metal in electrolytic cells, called 
pots. These pots consist of a steel shell lined with brick with an 
inner lining of carbon. During the pot's service, the liner is 
physically and chemically degraded. Upon failure of a liner in a pot, 
the cell is emptied, cooled, and the lining is removed.
    The Phase III LDR rule (61 FR 15566, April 8, 1996) established 
treatment standards, expressed as numerical concentration limits, for 
various hazardous constituents in spent potliner waste. There were 25 
in all, with standards for both wastewaters and nonwastewaters. These 
constituents include arsenic, cyanide, fluoride, toxic metals, and a 
group of organic compounds called polycyclic aromatic hydrocarbons 
(PAHs). The standards were based on treatment performance data from 
Reynolds Metal Company, which uses a high-temperature thermal process 
to treat the degraded potliners that are broken up into various size 
pieces prior to treatment.
    After EPA published its final treatment standards, Columbia Falls 
Aluminum Company and other aluminum producers from the Pacific 
Northwest brought a judicial challenge to the standards. The 
petitioners argued, among other things, that the use of the toxicity 
characteristic leaching procedure (TCLP) did not accurately predict the 
leaching of K088 waste constituents, particularly arsenic and fluoride, 
to the environment and that it was therefore arbitrary to measure 
compliance with the treatment standard using this test.
    On April 3, 1998, the United States Court of Appeals for the 
District of Columbia Circuit decided that EPA's use of the TCLP as a 
basis for setting treatment standards for K088 was arbitrary and 
capricious for those constituents for which the TCLP demonstratively 
and significantly underpredicted the amount of the constituent that 
would leach. See 139 F.3d 914; see also 63 FR 28571, May 26, 1998 
(EPA's interpretation of court's opinion). The court vacated all of the 
treatment standards and the prohibition on land disposal. Id. at 923-
24. After an interim stay, on September 24, 1998, EPA promulgated an 
interim final rule that revised the K088 treatment standard for arsenic 
from a TCLP standard of 5.0 mg/l to a total arsenic standard of 26.1 
mg/kg. See 63 FR 51253. It is this interim adjustment of the arsenic 
K088 treatment standard from which Safety-Kleen seeks relief by way of 
this treatment variance.

B. Chemical Properties and Treatability Information on Safety-Kleen's 
Waste

    The waste at issue consists of about 2850 cubic yards of 
incineration residues (ash or wastewater treatment plant scrubber 
sludge filter cake) that are in storage at the Safety-Kleen Deer Park 
facility. The waste carries many EPA hazardous waste codes, one of 
which is K088. Safety-Kleen's K088 waste, however, is significantly 
different, both physically and chemically, from the waste used to set 
the K088 treatment standard. The waste that is initially incinerated by 
Safety-Kleen consists of various non-potliner materials (e.g., tank 
wash water, bin liners, laboratory waste) that have been in contact 
with K088 waste prior to incineration but carry the K088 waste code 
solely because of the ``mixture'' and ``derived-from'' rules. Neither 
the incoming wastes nor the treatment residues bear any resemblance to 
the degraded potliners that are the original K088 waste form. Of 
course, as described below, we have examined the constituents of 
concern that could have been transferred from the K088 waste itself to 
these wash waters, bin liners, and lab wastes and to the residues from 
the treatment of these wastes.
    Safety-Kleen sampled and analyzed ten grab samples of 25 cubic yard 
bins containing the waste treatment residues. The TCLP values for all 
of the K088 regulated hazardous constituents (save one) in the analyzed 
samples are below the detection limit. However, because of arsenic 
contamination from wastes other than K088 (e.g., the characteristic 
arsenic waste code D004), nine of the ten Safety-Kleen samples do not 
meet the interim K088 total arsenic standard of 26.1 mg/kg. The total 
arsenic concentrations (in mg/kg) of the ten samples are: non-detect, 
7.7 (duplicate), 88, 210, 41, 47, 57, 92 (duplicate), 100, 130, 110, 
and 88.
    A second issue concerning dithiocarbamates arises with respect to 
500 of the 2850 cubic yards of the Safety-Kleen waste treatment 
residues. This portion of the waste residuals carries the waste codes 
K161, P196, and P205. \1\ These three waste codes all have total 
dithiocarbamates as one of the constituents that requires treatment.
---------------------------------------------------------------------------

    \1\ K161 is the waste code for purification solids (including 
filtration, evaporation, and centrifugation solids), baghouse dust 
and floor sweepings from the production of dithiocarbamate acids and 
their salts, P196 for manganese dimethyldithiocarbamate, and P205 
for ziram.
---------------------------------------------------------------------------

    The 500 cubic yards cannot meet the current total dithiocarbamates 
treatment standard of 28 mg/kg because Safety-Kleen uses Betz 5636, a 
liquid anionic polymer that contains about 18-20% total 
dithiocarbamates, to precipitate metals out of the scrubber water that 
is generated from Safety-Kleen's incineration process. Because the Betz 
5636 is added in the post-combustion scrubber water, the scrubber 
sludge filter cake has a base load of total dithiocarbamates as high as 
132 mg/kg, which is above the total dithiocarbamates treatment standard 
of 28 mg/kg. Because LDR compliance testing is performed on treatment 
residuals after all the treatment steps are performed, there is no 
practical way to discriminate between the regulated dithiocarbamate 
coming from any K161, P196, and P205 waste versus the unregulated 
dithiocarbamate coming from the use of the Betz 5636 product. \2\
---------------------------------------------------------------------------

    \2\ In the Emergency Revision of the LDR Treatment Standards for 
Listed Hazardous Wastes from Carbamate Production; Final Rule (63 FR 
47409, September 4, 1998), we note that the EPA analytical method 
for total dithiocarbamates, Method 630, determines total 
dithiocarbamates after conversion of the dithiocarbamates to carbon 
disulfide and measurement of the carbon disulfide. We further state 
that the method does not distinguish individual dithiocarbamate 
compounds. Therefore, use of the method on Safety-Kleen's scrubber 
water filter cake measures both regulated and unregulated 
dithiocarbamates.
---------------------------------------------------------------------------

III. Alternative Treatment Standards for Safety-Kleen's Waste

A. Alternative Standard for Arsenic

    As discussed in the previous section, Safety-Kleen's waste is not 
K088 itself and is also significantly different, both physically and 
chemically, from the K088 waste used in developing the K088 treatment 
standards. Specifically,

[[Page 45980]]

Safety-Kleen's waste contains other waste codes (e.g., D004) that 
contribute to the total arsenic concentration of the waste. Therefore, 
it is not physically possible for Safety-Kleen to treat the waste to 
the K088 treatment standard of 26.1 mg/kg total arsenic. Instead, we 
are proposing that the 2850 cubic yards of waste comply with an 
alternative treatment standard for arsenic of 5.0 mg/L. This is, of 
course, the current universal treatment standard (UTS) for arsenic that 
would otherwise apply to this waste were it not for the K088 waste code 
carry through. After treatment, the waste is to be disposed in Safety-
Kleen's North landfill, which is a RCRA permitted hazardous waste 
landfill.

B. Alternative Standard for Total Dithiocarbamates

    For the 500 cubic yards of the waste that cannot meet the total 
dithiocarbamate treatment standard of 28 mg/kg developed for K161, 
P196, and P205, we are proposing to allow Safety-Kleen to dispose of 
the 500 cubic yards without further treatment for several reasons. 
First, any K161, P196, and P205 waste being handled by Safety-Kleen at 
Deer Park has already been incinerated. This satisfies the applicable 
regulatory requirements regarding this waste, and incineration is the 
best, demonstrated, and available treatment technology for these wastes 
and the types of regulated dithiocarbamates in them.
    Second, the only reason why dithiocarbamates is an issue for these 
wastes is that the testing for compliance with the K161, P196, and P205 
treatment standards occurs on treatment residuals sampled downstream of 
the scrubber water precipitation process. Non-regulated dithiocarbamate 
product added at that point presumably is the vast majority of any 
detectable dithiocarbamate, since at least 99.99% of any 
dithiocarbamate residing in the K161, P196, and P205 waste would be 
expected to have been destroyed in the combustion chamber.
    Third, the dithiocarbamate issue only arises for this 500 cubic 
yards of waste because of an independent change in EPA regulations. 
Prior to March 4, 1999, the treatment standard for total 
dithiocarbamates in nonwastewaters was a specified method of treatment: 
CMBST, or combustion. \3\ On March 4, 1999, we revised the treatment 
standards for seven carbamate waste constituents so that they are now 
expressed as both numerical limits as well as specified technologies; 
removed all treatment standards for one additional waste constituent; 
and reinstated numerical treatment standards for 32 other carbamate 
waste constituents. (See 63 FR 47409).
---------------------------------------------------------------------------

    \3\ After promulgation of the Phase III rule on April 8, 1996 
(but before the effective date of July 8, 1996) several companies 
reported that laboratory standards were not available for some of 
the carbamate waste constituents. After confirming this assertion, 
we promulgated an emergency final rule on August 26, 1996 (61 FR 
43924) in which we established temporary alternative treatment 
standards for 40 carbamate waste constituents for a one-year period. 
These alternative standards provided waste handlers a choice of 
meeting the original Phase III numerical concentration limits or of 
using a specified treatment technology (combustion for 
nonwastewaters; combustion, biodegradation, chemical oxidation, or 
carbon adsorption for wastewaters). The laboratory standards were 
still unavailable at the end of the one year, so we extended the 
alternative treatment standards for one additional year until August 
26, 1998 (62 FR 45568, August 28, 1998). A September 4, 1998 final 
rule resolved the issue by revising the treatment standards for 
seven carbamate waste constituents so that they are now expressed as 
both numerical limits as well as specified technologies; removing 
all treatment standards for one additional waste constituent; and 
reinstating numerical treatment standards for 32 other carbamate 
waste constituents (see 63 FR 47409; effective on March 4, 1999).
---------------------------------------------------------------------------

    Safety-Kleen was aware of the potential treatment problems that 
this reinstatement of the numerical treatment standards for total 
dithiocarbamates would cause, namely that the downstream residual 
testing of its incinerator treatment residuals would pick up non-
regulated dithiocarbamates in addition to any trace amounts of 
regulated dithiocarbamates. On its part, Safety-Kleen instituted timely 
measures to avoid these problems. Starting on August 12, 1998, Safety-
Kleen stopped accepting waste carrying EPA codes K161, P196, and P205. 
The facility's plan was to incinerate all of the dithiocarbamates waste 
in its inventory and landfill the residues prior to the effective date 
of our institution of numerical, concentration standards for total 
dithiocarbamates, i.e., March 4, 1999. However, this solution was 
compromised when EPA changed the TCLP-based arsenic K088 treatment 
standard to 26.1 mg/kg total arsenic on September 21, 1998. The 500 
cubic yards of waste with the dithiocarbamate problem also carry the 
K088 waste code, fail the total arsenic standard for reasons addressed 
earlier, and therefore could not be landfilled prior to the March 4, 
1999 target date for Safety-Kleen. EPA was not fully aware, at that 
time, about this linkage and the unforeseen consequence of changing the 
arsenic treatment standard for K088 on August 12, 1998, some seven 
months earlier than the revised dithiocarbamate standards went into 
effect--a date on which Safety-Kleen's disposal plans hinged.
    We are therefore proposing to better harmonize the impacts of the 
two independent treatment standard changes that impact the 500 yards of 
Safety-Kleen's waste now being stored. Our avenue for relief is to 
propose to allow the 500 cubic yards of dithiocarbamate contaminated 
waste to be disposed without further treatment for the reasons 
discussed above. Our treatment objectives have already been achieved 
for K161, P196, and P205. Safety-Kleen has treated these wastes by the 
specified method of combustion and the regulated dithiocarbamates have 
been addressed in a manner that protects human health and the 
environment. Also, in light of Safety-Kleen's good faith effort to 
effectively treat and legally dispose of these wastes prior to March 4, 
1999, we deem it appropriate to grant relief from the unintended 
consequences of our independent action to revise the K088 arsenic 
standard.

C. Conditions of the Proposed Variance

    In summary, if we grant this one-time treatment variance, the 
approximately 2850 cubic yards of incinerator residues currently stored 
at Safety-Kleen's Deer Park facility would be subject to an alternative 
arsenic treatment standard of 5.0 mg/L. Furthermore, the 500 cubic 
yards of the waste that do not currently meet the total 
dithiocarbamates treatment standard of 28 mg/kg can be disposed at 
their current concentrations (which can be as high as 132 mg/kg) 
without further treatment. Finally, the waste would have to be disposed 
in Safety-Kleen's on-site Subtitle C landfill assuming it meets all 
other applicable federal, state, and local requirements.

    Dated: July 20, 2000.
Timothy Fields, Jr.,
Assistant Adminstrator, Office of Solid Waste and Emergency Response.
[FR Doc. 00-18906 Filed 7-25-00; 8:45 am]
BILLING CODE 6560-50-P