[Federal Register Volume 66, Number 142 (Tuesday, July 24, 2001)]
[Proposed Rules]
[Pages 38405-38410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18409]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-7017-2]


Land Disposal Restrictions: Notice of Intent to Grant Two Site-
Specific Treatment Variances--U.S. Ecology Idaho, Incorporated in 
Grandview, Idaho and CWM Chemical Services, LLC in Model City, New York

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
proposing to grant two site-specific treatment variances from the Land 
Disposal Restrictions (LDR) standards for wastes generated at U.S. 
Ecology Idaho, Incorporated (USEII) in Grandview, Idaho, and CWM 
Chemical Services, LLC (CWM) in Model City, New York. Both these waste 
streams are derived from the treatment of multiple listed and 
characteristic hazardous wastes, including K088 (spent potliners from 
primary aluminum reduction). USEII and CWM are both requesting 
treatment variances for K088 derived from hazardous waste because they 
contend that the chemical properties of their wastes differ 
significantly from the waste used to establish the LDR treatment 
standard for arsenic in K088 nonwastewaters. Because we believe that 
the Petitioners are correct, we are proposing to grant an alternate 
treatment standard of 5.0 mg/L Toxicity Characteristic Leaching 
Procedure (TCLP) for the arsenic in the K088 derived emission control 
dust from the USEII facility and for the arsenic in the K088 derived 
baghouse dust, incinerator ash, and filtercake from the CWM facility.
    If promulgated, USEII and CWM may dispose of their respective waste 
in on-site RCRA Subtitle C landfills provided the waste complies with 
the specified alternate treatment standard for arsenic in K088 
nonwastewaters and meets all other applicable LDR treatment standards.

DATES: Comments will be accepted until August 14, 2001. Comments 
postmarked after the close of the comment period will be stamped 
``late'' and may or may not be considered by the Agency.

ADDRESSES: Commenters should submit an original and two copies of their 
comments referencing Docket Number F-2001-TVLN-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 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 is 
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). The 
RCRA Hotline is open Monday-Friday, 9 am to 6 pm, Eastern Standard 
Time. For more detailed information on specific aspects of this 
proposal, 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:

Electronic Comment Submission

    You may 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-2001-TVLN-FFFFF. 
You must submit all electronic comments as an ASCII (text) file, 
avoiding the use of special characters or any type of encryption. If 
possible, EPA's Office of Solid Waste (OSW) would also like to receive 
an additional copy of the comments on disk in WordPerfect 6.1 file 
format.
    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.

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/cwm.htm.
    The official record for this action will be kept in 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's 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.

How Can I Influence EPA's Thinking on This Rule?

    We invite you to provide different views on options we propose, new

[[Page 38406]]

approaches we haven't considered, new data, how this rule may effect 
you, or other relevant information. Your comments will be most 
effective if you follow the suggestions below:
     Explain your views as clearly as possible and why you feel 
that way.
     Provide solid technical data to support your views.
     Tell us which parts you support, as well as those you 
disagree with.
     Provide specific examples to illustrate your concerns.
     Offer specific alternatives.
     Make sure to submit your comments by the deadline in this 
notice.
     Be sure to include the name, date, and docket number with 
your comments.
    The Agency will consider the public comments during development of 
the final rule related to this action. The Agency urges commenters 
submitting data in support of their views to include evidence that 
appropriate quality assurance/quality control (QA/QC) procedures were 
followed in generating the data. Data the Agency cannot verify through 
QA/QC documentation may be given less consideration or disregarded in 
developing regulatory options for the final rule.
    For guidance see Final Best Demonstrated Available Technology 
(BDAT) Background Document for Quality Assurance/Quality Control 
Procedures and Methodology; USEPA, October 23, 1991.

Table of Contents

I. Why and How Are Treatment Variances Granted?
II. Establishment of Treatment Standards for K088
III. Why is USEII Seeking a Treatment Variance?
IV. Why is CWM Seeking a Treatment Variance?
V. EPA's Analysis of the Petitions
VI. 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. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    I. Executive Order 13132 (Federalism)
    J. Executive Order 13211 (Energy Effects)

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). Under provision 40 
CFR 268.44(h)(1), 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 petitions. U.S. Ecology Idaho, Incorporated submitted their 
request for a treatment variance in September 2000. CWM Chemical 
Services LLC submitted their request in December 2000. All information 
and data used in the development of this proposal can be found in the 
RCRA docket supporting this rule.

II. 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 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 polycyclic aromatic hydrocarbons (PAHs). The standards were 
based on treatment performance data from Reynolds Metals Company, which 
uses a high temperature thermal process to treat the potliners that are 
broken up into various 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 is 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

[[Page 38407]]

demonstratively and significantly underpredicted the amount of the 
constituent that would leach. See Columbia Falls Aluminum Co. v. EPA, 
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, but stayed its 
mandate at EPA's request so that EPA could promulgate a revised 
treatment standard and a new prohibition. 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.\1\ See also 63 FR 51253. It is this 
interim adjustment of the arsenic K088 treatment standard from which 
USEII and CWM seek relief by way of this treatment variance.
---------------------------------------------------------------------------

    \1\ The 26.1 mg/kg standard for arsenic in K088 waste, 
promulgated in 1998, was developed based on performance data from a 
high temperature thermal treatment process for spent aluminum 
potliners from primary aluminum reduction used at a Reynolds Metals 
facility in Gum Springs, Arkansas. Specifically, the treatment 
standard was derived-from an assay of the total acid soluble arsenic 
in K088 waste after spent potliner had been crushed, mixed with lime 
and sand, and send through a high-temperature rotary kiln resulting 
in a fused waste residue.
    As previously discussed, prior to 1998, the treatment standard 
for arsenic was 5.0 mg/L TCLP, based on the Reynolds treatment 
process that, at that time, treated much of the K088 generated in 
the United States (63 FR 51257, September 24, 1998). However, to 
address subsequent concerns regarding the elevated concentrations of 
arsenic in Reynold's landfill leachate, Reynolds changed the type of 
sand used in their thermal process to a sand with lower 
concentrations of arsenic. These 1998 revisions, to the K088 arsenic 
standards, were intended to cap arsenic concentrations in the 
treated potliner and to lock-in the Reynolds treatment process 
change, i.e., the change in sand type. Therefore, the reason for our 
shift to a 26.1 mg/kg total arsenic standard has no basis in 
appropriate treatment levels for waste carrying the K088 waste code 
solely due to the derived-from regulations.
---------------------------------------------------------------------------

III. Why is USEII Seeking a Treatment Variance?

    U.S. Ecology Idaho, Incorporated (herein referred to as USEII) is a 
permitted hazardous waste treatment, storage, and disposal facility 
located in Grandview, Idaho. The facility treats and disposes of 
hazardous and non-hazardous wastes into an on-site RCRA permitted 
landfill. The waste at issue is emission control dust from an air 
pollution control system from a stabilization and containment building. 
The waste consists of particles of various waste streams and 
stabilization reagents from the treatment of K061, D004, D005, D006, 
D007, D008, D009, D010, D011 as well as K088 waste. USEII contends that 
all of these wastes contribute to the overall total arsenic 
concentration of the emission control dust, which was generated during 
maintenance operations. Approximately two 55-gallons drums are 
currently being stored at the facility. USEII is requesting that an 
alternative treatment standard of 5.0 mg/L TCLP be granted for this 
waste (the two 55-gallons drums as well as any future generation of 
this waste) which contains the K088 identification code as a derived-
from waste.
    As part of their petition, in accordance with the requirements of 
40 CFR 268.44, USEII contends that their waste, i.e., the emission 
control dust carrying the K088 waste designation, differs significantly 
from the waste used to establish the treatment standard for total 
arsenic in K088 waste. USEII states that the dust is a derived-from 
waste that bears no resemblance, in physical form or composition, to 
generated potliners or typically thought of generated residues from 
potliner treatment. Furthermore, USEII states that no treatment can be 
applied to the dust to meet the K088 arsenic standard of 26.1 mg/kg 
because arsenic is an element, and as such cannot be destroyed to meet 
the existing treatment standard--a totals analysis test. An analysis of 
the emission control dust shows that the concentration of arsenic is 
78.2 mg/kg.

IV. Why is CWM Seeking a Treatment Variance?

    CWM Chemical Services LLC (herein referred to as CWM) operates a 
RCRA permitted treatment, storage and disposal facility located in 
Model City, New York. Site operations include a stabilization facility, 
a wastewater treatment facility, and a Subtitle C hazardous waste 
landfill. CWM also operates as both a storage and transfer facility. 
CWM is seeking a site specific treatment variance from the K088 arsenic 
treatment standard of 26.1 mg/kg to the universal treatment standard 
for arsenic nonwastewaters of 5.0 mg/L TCLP. Presently, CWM has 2 roll-
off boxes of baghouse dust and one roll-off box of incinerator ash that 
cannot meet the 26.1 mg/kg treatment standard. CWM contends that this 
waste carries the K088 waste code by the mixture and derived-from 
principles and is physically and chemically different from aluminum 
potliners. In addition to the K088 listing, the waste carries 
approximately 200 other waste code designations. Analysis of the 
baghouse dust shows arsenic concentrations of 32.3 mg/kg and 107.1 mg/
kg. An analysis of the roll-off box of incinerator residue shows a 
total arsenic concentration of 1000 mg/kg with a TCLP for arsenic of 
0.52 mg/L. CWM further contends that the total arsenic standard is 
inappropriate for the wastes, since arsenic as an element, cannot be 
destroyed and that stabilization to the current UTS and placement in a 
Subtitle C landfill is protective of the environment.
    CWM is also requesting that filtercake from their on-site 
wastewater treatment operations be included as part of the petition. 
While to date, no K088 derived-from filtercake has been generated, CWM 
contends that there is a possibility that occurrences such as, a spill 
of baghouse dust carrying K088 into the water in a containment area, 
may indeed happen, resulting in the need for another treatment 
variance. As such, CWM reasons that including filtercake along with 
incinerator ash and baghouse dust into the treatment variance petition 
would address any future disposal issues dealing with K088 derived-from 
waste.

V. EPA's Analysis of the Petitions

    As just discussed in the previous sections, both USEII and CWM have 
waste that are not K088 itself, but are mixture and derived-from K088 
wastes. The wastes at issue here, emission control dust and baghouse 
dust/incineration ash/filtercake are significantly different from the 
K088 waste used in developing the K088 treatment standard. 
Specifically, both USEII and CWM waste contain other waste codes (e.g., 
D004) that contribute to the total arsenic concentration of the waste. 
It is not physically possible for USEII or CWM to treat any of these 
wastes to the K088 treatment standard of 26.1 mg/kg total arsenic. As 
such, we are proposing that the wastes specified in each of the 
petitioner's submittal comply with an alternative treatment standard 
for arsenic of 5.0 mg/L TCLP. We believe it appropriate to use the 
universal treatment standard (UTS) for arsenic for these wastes rather 
than the K088-specific standard for arsenic developed for the classic 
potliner treatment residue matrix. The UTS is, of course, the standard 
that would otherwise apply to these wastes were in not for the K088 
waste code carry through. After treatment, the waste must be disposed 
in the petitioner's on-site RCRA subtitle C permitted hazardous waste 
landfill assuming it meets all other applicable federal, state and 
local requirements.

V. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency

[[Page 38408]]

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 proposed 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 proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. These 
treatment variances do not create any new regulatory requirements. 
Rather, they establish an alternative treatment standard for a 
regulated constituent at two specific facilities. 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 proposed rule does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more in the aggregate to either State, local, or tribal governments or 
the private sector in one year. The proposed 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 rule. EPA has 
also determined that this proposal 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 
proposed 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 proposed rule will not impose 
any requirements on small entities. These treatment variances do not 
create any new regulatory requirements. Rather, they establish an 
alternative treatment standard for a regulated constituent at two 
specific facilities. Today's proposed 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 proposed rule is not subject to Executive Order 13045 
because it is not economically significant as defined in E.O.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 RCRA Subtitle C 
landfills. 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

[[Page 38409]]

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 proposed 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 proposed rule would only change the treatment standards 
applicable to a subcategory of K088 wastes at two facilities 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.

G. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 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. Executive Order 13175: Consultation and Coordination with Indian 
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 proposed 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. 
These treatment variances do not create any new regulatory 
requirements. Rather, they establish an alternative treatment standard 
for a regulated constituent at two specific facilities. Thus, Executive 
Order 13175 does not apply to this proposed rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

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 
``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 regulation 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 proposed 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. These treatment variances do not 
create any new regulatory requirements. Rather, they establish an 
alternative treatment standard for a regulated constituent at two 
specific facilities. Thus, Executive Order 13132 does not apply to this 
rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

J. Executive Order 13211 (Energy Effects)

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Further, we have 
concluded that this rule is not likely to have any adverse energy 
effects.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: July 16, 2001.
Michael H. 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 proposed to be 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 two new entries: ``U.S. Ecology Idaho, 
Incorporated, Grandview, Idaho''; and ``CWM Chemical Services LLC, 
Model City, New York'' to read as follows:


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

[[Page 38410]]



                                                             Table--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)        Notes        (mg/kg)        Notes
---------------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                       *                  *                  *                  *                  *                  *                  *
CWM Chemical Services, LLC, Model     K088 \8\          Standards under Sec.    Arsenic................           1.4            NA  5.0 mg/L TCLP  NA'