[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Rules and Regulations]
[Pages 33887-33890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15880]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-7002-3]


Land Disposal Restrictions: Granting of a Site-Specific Treatment 
Variance to Dupont Environmental Treatment--Chambers Works Wastewater 
Treatment Plant, Deepwater, NJ

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
promulgating a site-specific treatment variance from the Land Disposal 
Restrictions (LDR) standards for wastewater treatment sludge generated 
at the Dupont Environmental Treatment (DET)--Chambers Works Wastewater 
Treatment Plant located in Deepwater, New Jersey. This sludge is 
derived from the treatment of multiple listed wastes, including K088, 
and characteristic hazardous waste, and differs significantly from the 
waste used to establish the LDR treatment standard for arsenic in K088 
nonwastewaters. Accordingly, we are finalizing an alternate treatment 
standard of 5.0 mg/L Toxicity Characteristic Leaching Procedure (TCLP) 
for the arsenic in the wastewater treatment sludge generated at this 
facility.
    This treatment variance requires DET to dispose of their wastewater 
treatment sludge in their on-site RCRA Subtitle C landfill provided the 
sludge complies with the specified alternate treatment standard for 
arsenic in K088 nonwastewaters and meets all other applicable LDR 
treatment standards.

DATES: This rule is effective June 26, 2001.

ADDRESSES: The official record for this rulemaking is identified as 
Docket Number F-2001-DPVF-FFFFF and is located in the RCRA Docket 
Information Center (RIC), Crystal Gateway One, 1235 Jefferson Davis 
Highway, First Floor, Arlington, VA 22202. 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 is 
available electronically. See the ``Supplementary Information'' section 
for information on accessing them).

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). 
The RCRA Call Center operates Monday-Friday, 9 am to 6 pm, Eastern 
Standard Time. For more detailed information on specific aspects of 
this rule, contact Elaine Eby at 703-308-8449, [email protected], or 
write her at the Office of Solid Waste, 5302W, U.S. Environmental 
Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460-0002.

SUPPLEMENTARY INFORMATION:

Availability of Rule on Internet

    Please follow these instructions to access the rule: From the World 
Wide Web (WWW), type http://www.epa.gov/epaoswer/hazwaste/ldr.
    The official record for this action will be kept in paper form. 
Accordingly, EPA has transferred any comments received electronically 
into paper form and placed them in the official record which also 
includes 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.

Table of Contents

I. Why and How Are Treatment Variances Granted?
I. Summary of the Proposed Rule
II. Comment Summary and Final Rule
III. Administrative Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    C. Unfunded Mandates Reform Act
    D. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Environmental Justice Executive Order 12898
    F. Paperwork Reduction Act
    G. National Technology Transfer and Advancement Act
    H. Consultation with Tribal Governments
    I. Executive Order 13132 (Federalism)
    J. Congressional Review Act

I. Why and How Are Treatment Variances Granted?

    Under Section 3004(m) of the Resource Conservation and Recovery Act 
(RCRA) as amended by the Hazardous and Solid Waste Amendments of 1984, 
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.'' We have 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).
    We recognize that there may be wastes that cannot be treated to 
levels specified in the regulation (see 40 CFR 268.40) (51 FR 40576, 
November 7, 1986). For such wastes, a treatment variance exists (40 CFR 
268.44) that, if granted, becomes the treatment standard for the waste 
at issue.
    Treatment variances may be generic or site-specific. A generic 
variance can result in the establishment of a new treatability group 
and a corresponding treatment standard that applies to all wastes that 
meet the criteria of the new waste treatability group (55 FR 22526, 
June 1, 1990). A site-specific variance applies only to a specific 
waste from a specific facility. Under 40 CFR 268.44(h), a generator or 
treatment facility may apply to the Administrator, or EPA's delegated 
representative, for a site-specific variance in cases where a waste 
that is generated under conditions specific to only one site and cannot 
or should not be treated to the specified level(s). 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 development of the treatment standard, the waste cannot be 
treated by BDAT to the specified levels or by the specified method(s). 
Although there are other grounds for obtaining treatment variances, we 
will not discuss those in this notice because this is the only 
provision relevant to the present petition.
    Dupont Environmental Treatment--Chambers Works submitted their 
request for a treatment variance in February 2000. All information and 
data used in the development of this final rule can be found in the 
RCRA docket supporting this rule.

II. Summary of the Proposed Rule

    On December 4, 2000 (65 FR 75651), we published a proposed rule 
detailing our intent to grant a site-specific variance from the K088 
treatment standard for arsenic in nonwastewaters to Dupont 
Environmental Treatment--

[[Page 33888]]

Chambers Works (herein referred to as ``DET'') for their dewatered 
wastewater treatment sludge.\1\ In the proposal, we conclude that an 
alternative treatment standard of 5.0 mg/L TCLP for arsenic is 
warranted for the following reasons. First, the sludge generated at 
DET's WWTP is not the same type of waste that was used to develop the 
26.1 mg/kg treatment standard for arsenic in K088 nonwastewaters, nor 
does it present the same situation regarding the use of a total arsenic 
standard to lock-in treatment process parameters. Second, the sludge 
will be disposed of in a Subtitle C hazardous waste landfill with pH 
conditions in the range of 6.5 to 8.5 and not the alkaline conditions, 
i.e., pH conditions of 12 and above, that resulted in mobilization of 
arsenic at Reynold's K088 landfill. Thus, the conditions that prompted 
the change in the K088 treatment standard are absent for this site. 
Third, the TCLP remains an adequate measure of treatment efficiency for 
DET's WWTP sludge due to the non-alkaline sludge matrix and the 
expected disposal conditions. Therefore, we believe that a TCLP 
standard of 5.0 mg/L is a reasonable measure of demonstrating that 
threats posed by the waste's disposal have been minimized. Fourth, the 
alternative standard of 5.0 mg/L TCLP is currently the standard 
applicable to arsenic in all other hazardous wastes, except K088 
nonwastewaters. Fifth, data submitted to the Agency shows that DET's 
dewatered WWTP sludge consistently maintains both a neutral pH and TCLP 
levels of arsenic far less than 5.0 mg/L. Finally, arsenic 
concentrations in the WWTP sludge cannot be treated to a lower 
treatment standard based on a totals analysis, i.e., arsenic is an 
element and as such must be immobilized, it cannot be destroyed.
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    \1\ DET WWTP operates as both a commercial treatment facility 
for industrial and RCRA hazardous waste and as an internal treatment 
operation for E. I. Dupont de Nemours' numerous manufacturing 
operations. As the largest wastewater treatment facility in the 
United States, DET WWTP processes approximately 16 million gallons 
of wastewater per day or 5.84 billion gallons per year. It should be 
noted, however, that the WWTP sludge at issue here is generated by 
the biological treatment of a relatively small quantity of 
wastewater carrying the K088 waste designation. This K088 wastewater 
accounts for less than 0.002% of the total annual throughput at DET 
WWTP.
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III. Comment Summary and Final Rule

    We received two comments on the proposed rule. Both commenters, the 
petitioner, DET, and Alcoa Incorporated/Reynolds Metals Company (herein 
referred to as ``Alcoa''), support all the conclusions articulated in 
the proposal and recommend granting the petition. No adverse comments 
were made. Alcoa did note, however, that the stipulation, ``* * * the 
waste must be land disposed in their (DET's) on-site subtitle C 
landfill * * *'' (65 FR at 75654) was not specifically reflected in the 
regulatory language. As such, we are today granting DET's petition for 
a site-specific treatment variance for their WWTP sludge and will amend 
40 CFR part 268 to state that wastewater treatment sludge generated by 
Dupont Environmental Treatment--Chambers Works Wastewater Treatment 
Plant in Deepwater, New Jersey is subject to an arsenic treatment 
standard of 5.0 mg/L TCLP for all RCRA wastes. Furthermore, taking note 
of Alcoa's concern, we stipulate, and make clear in the regulatory 
language, that the waste must be land disposed in DET's on-site 
Subtitle C landfill assuming the waste meets all applicable federal, 
state and local requirements.

IV. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to 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 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 final rule does not create any new regulatory 
requirements, it is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to OMB 
review.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The 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 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. This treatment 
variance does not create any new regulatory requirements. Rather, it 
establishes an alternative treatment standard for a regulated 
constituent. This action, therefore, does not require a regulatory 
flexibility analysis.

C. 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. If a written statement is needed, section 205 of the UMRA 
generally requires EPA to identify and consider a reasonable number of 
regulatory alternatives. Under section 205, EPA must adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule, unless the Administrator publishes 
with the final rule an explanation why that alternative was not 
adopted. The provisions of section 205 do not apply when they are 
inconsistent with applicable law.
    EPA has determined that this rule does not include a Federal 
mandate that may result in estimated costs of $100 million or more in 
the aggregate to

[[Page 33889]]

either State, local, or tribal governments or the private sector in one 
year. The rule would not impose any federal intergovernmental mandate 
because it imposes no enforceable duty upon State, tribal or local 
governments. States, tribes, and local governments would have no 
compliance costs under this final rule. EPA has also determined that 
this rule contains no regulatory requirements that might significantly 
or uniquely affect small governments. In addition, as discussed above, 
the private sector is not expected to incur costs exceeding $100 
million. EPA has fulfilled the requirement for analysis under the 
Unfunded Mandates Reform Act. Thus, today's rule is not subject to the 
requirements of sections 202, 204 and 205 of UMRA.
    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 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.
    EPA has determined that this rule will not significantly or 
uniquely affect small governments. This final rule will not impose any 
requirements on small entities. This treatment variance does not create 
any new regulatory requirements. Rather, it establish an alternative 
treatment standard for a regulated constituent at the specific 
facility. Today's rule is not, therefore, subject to the requirements 
of section 203 of UMRA.

D. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    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 Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    Today's rule is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. The subject wastes will comply with 
all other treatment standards and be disposed of in a RCRA Subtitle C 
landfill. Therefore, we have identified no risks that may 
disproportionately affect children.

E. Environmental Justice 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 final rule applies to wastes that will be treated and 
disposed of in a RCRA Subtitle C hazardous waste landfill, ensuring a 
high degree of protection to human health and the environment. 
Therefore, the Agency does not believe that today's action will result 
in any disproportionately negative impacts on minority or low-income 
communities relative to affluent or non-minority communities.

F. Paperwork Reduction Act

    This rule only changes the treatment standards applicable to a 
subcategory of K088 waste. It does not change in any way the paperwork 
requirements already applicable to these waste. Therefore, this rule is 
not affected by the requirements of the Paperwork Reduction Act.

G. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
action does not involve technical standards based on new methodologies. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.

H. Consultation With Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This treatment variance does not create any new regulatory 
requirements. Rather, it establishes an alternative treatment standard 
for a regulated constituent at the specific facility. Thus, Executive 
Order 13175 does not apply to this rule.

I. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure

[[Page 33890]]

``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implication.'' 
``Policies that have federalism implication'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of governments.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This treatment variance does not 
create any new regulatory requirements. Rather, it establishes an 
alternative treatment standard for a regulated constituent at the 
specific facility. Thus, Executive Order 13132 does not apply to this 
rule.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: June, 14, 2001.
Michael Shapiro,
Acting Assistant Administrator for 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 Sec. 268.44, the table in paragraph (o) is amended by adding 
in alphabetical order a new entry for ``Dupont Environmental 
Treatment--Chambers Works Wastewater, Deepwater, NJ'' and adding a new 
footnote 8 to read as follows:


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

                                         Table--Wastes Excluded From the Treatment Standards Under Sec.  268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Wastewaters                 Nonwastewaters
                                                                               Regulated      ----------------------------------------------------------
  Facility name \1\ and address       Waste code           See also            hazardous        Concentration                 Concentration
                                                                              constituent           (mg/L)         Notes         (mg/kg)        Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Dupont Environmental Treatment--  K088               Standards under      Arsenic............              1.4           NA   5.0 mg/L TCLP           NA
 Chambers Works Wastewater                            Sec.  268.40.
 Treatment Plant, Deepwater, NJ
 \8\.
 
                  *                  *                  *                  *                  *                  *                  *
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\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
*                  *                  *                  *                  *                  *                  *
\8\ Dupont Environmental Treatment--Chambers Works must dispose of this waste in their on-site Subtitle C hazardous waste landfill.
Note: NA means Not Applicable.

[FR Doc. 01-15880 Filed 6-25-01; 8:45 am]
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