[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62618-62625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25414]



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Part IV





Environmental Protection Agency





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43 CFR Parts 268 and 271



Land Disposal Restrictions: National Treatment Variance To Designate 
New Treatment Subcategories for Radioactively Contaminated Cadmium-, 
Mercury- and Silver-Containing Batteries; Final Rule and Proposed Rule

  Federal Register / Vol. 67, No. 194 / Monday, October 7, 2002 / Rules 
and Regulations  

[[Page 62618]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 268 and 271

[FRL-7390-7; Docket Number: RCRA-2002-0027]
RIN 2050-AE99


Land Disposal Restrictions: National Treatment Variance To 
Designate New Treatment Subcategories for Radioactively Contaminated 
Cadmium-, Mercury-, and Silver-Containing Batteries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to grant a national 
treatability variance from the Land Disposal Restrictions (LDR) 
treatment standards for radioactively contaminated cadmium-, mercury-, 
and silver-containing batteries by designating new treatment 
subcategories for these wastes in response to a rulemaking petition 
from the Department of Energy. The current treatment standards of 
thermal recovery for cadmium batteries and of roasting and retorting 
for mercury batteries are technically inappropriate, because any 
recovered metals would likely contain residual radioactive 
contamination and not be usable. The current numerical treatment 
standard for silver batteries is also inappropriate because of the 
potential increase in radiation exposure to workers associated with 
manually segregating silver-containing batteries for the purpose of 
treatment. Macroencapsulation in accordance with the provisions for 
treatment standards for hazardous debris is designated as the required 
treatment prior to land disposal for the new waste subcategories. This 
will allow safe disposal of these radioactively contaminated materials.

DATES: This rule is effective on November 21, 2002 without further 
notice, unless EPA receives adverse comment by November 6, 2002. If we 
receive such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand/delivery/courier. You must send an original and two copies 
of the comments referencing Docket Number RCRA-2002-0027 to: EPA Docket 
Center (EPA/DC), B102, EPA West, 1301 Constitution Ave. NW, Washington, 
DC 20460-0002. Follow the detailed instructions as provided in the 
Supplementary Information section I. D. below.

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). 
Callers within the Washington Metropolitan Area must dial 703-412-9810 
or TDD 703-412-3323 (hearing impaired). The RCRA Call Center is open 
Monday-Friday, 9 a.m. to 4 p.m., Eastern Standard Time. For more 
information on specific aspects of this direct final rule, contact Mr. 
John Austin at 703-308-0436, [email protected], or write him at the 
Office of Solid Waste, 5302W, U.S. EPA, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW, Washington, DC 20460.

SUPPLEMENTARY INFORMATION:
    The contents of the preamble to this final are listed in the 
following outline:

I. General Information
    A. Regulated Entities
    B. Direct Final Action
    C. How Can I Get Copies of This Document and Other Related 
Information?
    D. How and To Whom Do I Submit Comments?
    E. How Should I Submit CBI to the Agency?
    F. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    What Is the Basis for LDR Treatment Variances?
III. Why Are the Existing Standards Inappropriate?
    A. What Are the Wastes That Require a Treatment Variance?
    B. What Are the New Treatment Standards?
IV. State Authority
    A. Applicability of Rules in Authorized States
    B. Effect on State Authorization
V. Regulatory Requirements
    A. Executive Order 12866: Regulatory Planning and 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.
    C. Paperwork Reduction Act
    D. Unfunded Mandates
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Children's Health
    H. Executive Order 13211: Energy Effects
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898: Environmental Justice
    K. Congressional Review Act

I. General Information

A. Regulated Entities

    Entities potentially regulated by this action are those which 
generate, treat, and dispose radioactive batteries. Regulated 
categories and entities include:

Category..................................  Radioactively contaminated
                                             cadmium-, mercury-, and
                                             silver- containing
                                             batteries.
Industry..................................  Nuclear waste generators,
                                             and treatment and disposal
                                             facilities.
Examples of regulated entities............  Envirocare of Utah, Inc.;
                                             Nevada Test Site; and the
                                             Hanford Nuclear
                                             Reservation, Washington.
Federal Agencies..........................  Department of Energy.
 

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

B. Direct Final Action

    EPA is publishing this rule without a prior proposal because we 
view it as a noncontroversial action. We anticipate no adverse comment 
because of the limited nature of this action. Having said this, in the 
``Proposed Rules'' section of today's Federal Register publication, we 
are publishing a separate document that will serve as the proposal to 
grant the designation of a new treatment subcategory if adverse 
comments are filed. This direct final rule will be effective on 
November 21, 2002 without further notice unless we receive adverse 
comment by November 6, 2002. If we receive significant adverse comment 
on this rulemaking, we will publish a timely withdrawal in the Federal 
Register indicating that this direct final rule action is being 
withdrawn due to adverse comment. We will then address all public 
comments, as appropriate. We will not institute a second comment period 
on this action. Any parties interested in commenting on this rulemaking 
must do so at this time.

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C. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. RCRA-2002-0027. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the EPA Docket Center (EPA/DC), B102, EPA West, 1301 Constitution Ave. 
NW, Washington, DC 20460-0002. The EPA/DC is open from 9 a.m. to 4 
p.m., Monday through Friday, excluding legal holidays. To review file 
materials, we recommend that you make an appointment by calling (202) 
566-0270. You may copy a maximum of 100 pages from any file maintained 
at the RCRA Docket at no charge. Additional copies cost $0.15 per page.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials at the 
EPA/DC.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

D. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments. Do not use EPA Dockets or e-
mail to submit CBI or information protected by statute.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. RCRA-
2002-0027. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. RCRA-2002-0027. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in the following 
section. These electronic submissions will be accepted in WordPerfect 
or ASCII file format. Avoid the use of special characters and any form 
of encryption.
    2. By Mail. You must send an original and two copies of the 
comments referencing Docket Number RCRA-2002-0027 to: EPA Docket Center 
(EPA/DC), B102, EPA West, 1301 Constitution Ave. NW, Washington, DC 
20460-0002.
    3. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center (EPA/DC), B102, EPA West, 1301 Constitution Ave. NW, 
Washington, DC 20460-0002, Attention Docket ID No. RCRA-2002-0027. 
Deliveries are only

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accepted during the Docket's normal hours of operation 9 a.m. to 4 
p.m., Monday through Friday, excluding legal holidays.

E. How Should I Submit CBI to the Agency?

    Do not submit information electronically that you consider to be 
CBI through EPA's electronic public docket or by e-mail. Send or 
deliver information identified as CBI only to the following address: 
RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. 
EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 
20460, Attention Docket ID No. RCRA-2002-0027. You may claim 
information that you submit to EPA as CBI by marking any part or all of 
that information as CBI (if you submit CBI on disk or CD ROM, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is CBI). 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

F. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. Background

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), or that it may be inappropriate to require the waste to be 
treated to the level specified or by the method specified, even though 
such treatment is technically possible. For such wastes, EPA has a 
process by which a generator or treater may seek a treatment variance 
(see 40 CFR 268.44). Treatment variances may be generic (under 40 CFR 
268.44(a)) or site-specific (under 40 CFR 268.44(h)). 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.
    On June 13, 2002, the Department of Energy (DOE) petitioned EPA 
pursuant to 40 CFR 268.44 for a generic treatability variance for 
mercury-, cadmium-, and silver-containing batteries that are 
contaminated with radioactive materials. The petition is available in 
the docket for this rulemaking.

III. Why Are the Existing Standards Inappropriate?

A. What Are the Wastes That Require a Treatment Variance?

    Batteries are used in a variety of ways across the DOE complex. For 
example, nickel-cadmium (NiCd) rechargeable batteries are commonly 
found in cellular and cordless telephones, 2-way radios, video cameras, 
portable power tools, laptop computers, and radiological monitoring 
equipment. Mercury-containing and silver-containing batteries have been 
widely used in watches, calculators, and cameras. When these batteries 
reach end of life, they are typically classified as radioactive waste 
if they were used in a radioactively contaminated area, unless through 
decontamination and/or radiological surveys they can be cleared for 
management as non-radiological waste. Sometimes because of cracks, 
fissures, holes or uneven surfaces in the battery casings, a reasonable 
confidence level that the batteries are free of radioactive 
contamination cannot be achieved. In other cases, radioactive 
contamination is found that cannot be easily removed. In either case, 
there will always be some batteries that are deemed to be radioactively 
contaminated.
    Based on input from individual facilities, DOE estimates that 2,653 
kg of radioactively contaminated waste cadmium-containing batteries, 
and 247 kg of radioactively contaminated waste mercury-containing 
batteries are in storage across the complex. No estimate is available 
for silver-containing batteries. Projected generation rates are 23 kg/
yr for radioactively contaminated waste cadmium batteries and 4 kg/yr 
for radioactively contaminated waste mercury batteries.
    The cadmium-containing waste batteries are almost all NiCd 
batteries, although other types of cadmium-containing waste batteries 
such as mercury-cadmium and silver-cadmium may be present as well. At a 
minimum, all of the cadmium-containing waste batteries exhibit the 
toxicity characteristic for cadmium and carry a D006 hazardous waste 
code.
    Detail on the specific types of mercury-containing waste batteries 
present is limited, but it is assumed that this waste stream includes 
both mercury-zinc and mercury-cadmium batteries. At a minimum, these 
batteries exhibit the toxicity characteristic for mercury and carry a 
D009 hazardous waste code. Detail on specific types of silver-
containing waste batteries is also limited. They may be silver-cadmium 
or of other composition. At a minimum,

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these batteries exhibit the toxicity characteristic for silver and 
carry a D011 hazardous waste code.
    While not representing a large volume of waste, radioactively 
contaminated cadmium-, mercury-, and silver-containing batteries, which 
must be managed as mixed waste (i.e., RCRA hazardous and radioactive), 
present an ongoing waste disposal problem for several sites in the DOE 
complex. This situation has developed because the existing applicable 
LDR treatment standards are inappropriate, as explained below. 
Moreover, neither EPA nor DOE is aware of any commercial metals 
recovery facility that currently accepts radioactively contaminated 
cadmium-, or mercury-containing waste batteries for treatment.

B. What Are the New Treatment Standards?

    Under existing land disposal restriction (LDR) treatment standards, 
cadmium-containing waste batteries are classified as D006 Cadmium 
Containing Batteries Subcategory waste. As such, they are subject to 
the specified technology of RTHRM (thermal recovery of metals). Most 
mercury-containing waste batteries are classified as D009 High Mercury-
Inorganic Subcategory waste because they are inorganic, exhibit the 
toxicity characteristic for mercury (under 40 CFR 261.24(b)), and 
contain greater than 260 ppm total mercury. As such, they are subject 
to the specified technology of RMERC (roasting/retorting with recovery 
of mercury). In both cases, the objective of the specified technology 
is to volatilize the metals in a high temperature treatment unit and 
subsequently condense and collect them for reuse, while significantly 
reducing the concentration of metals in the waste residual. This 
approach is technically inappropriate for radioactively contaminated 
cadmium- and mercury-containing batteries, because the recovered metals 
would likely contain residual radioactive contamination. As a 
consequence, the recovered metals would have an extremely low 
probability for reuse.
    For silver-containing batteries that are D011, the existing LDR 
treatment standards require treatment to meet numerical constituent 
concentration levels for silver and any underlying hazardous 
constituents. Meeting these standards could involve manually 
segregating the silver-containing batteries from commingled waste 
batteries before treatment, which could entail increased worker 
exposure to radiation and result in the generation of larger volumes of 
radioactively contaminated waste for disposal.
    As a result, we intend to grant a national treatment variance by 
designation of new treatment subcategories for these materials. We 
believe that the appropriate treatment standard is macroencapsulation 
in accordance with the design and operating standards of 40 CFR 268.45. 
Macroencapsulation of debris is defined at 40 CFR 268.45 Table 1 as:
    Application of surface coating materials such as polymeric organics 
(e.g., resins and plastics) or use of a jacket of inert inorganic 
materials to substantially reduce surface exposure to potential 
leaching media.
    The design and operating standard requires that the encapsulating 
material must completely encapsulate the waste and be resistant to 
degradation by the debris and its contaminants and materials into which 
it may come into contact after placement (e.g., leachate, other waste, 
or microbes).
    Encapsulation technologies are applicable primarily to wastes 
containing hazardous metal constituents. Macroencapsulation is the 
required treatment for D008 radioactive lead solids subcategory wastes 
and K175 mercury-bearing wastes. Macroencapsulation is also an 
alternative treatment standard for hazardous debris. We believe that 
macroencapsulation is appropriate for these radioactively contaminated 
batteries, because it would require minimal worker handling and reduce 
the potential for leaching media to contact the batteries following 
disposal. Thus, macroencapsulation would minimize worker exposure to 
radioactivity and the potential for release, which we wish to 
encourage.

IV. State Authority

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified State to 
administer and enforce a hazardous waste program within the State in 
lieu of the federal program, and to issue and enforce permits in the 
State. A State may receive authorization by following the approval 
process described under 40 CFR 271.21. See 40 CFR part 271 for the 
overall standards and requirements for authorization. EPA continues to 
have independent authority to bring enforcement actions under RCRA 
sections 3007, 3008, 3013, and 7003. An authorized State also continues 
to have independent authority to bring enforcement actions under State 
law.
    After a State receives initial authorization, new Federal 
requirements promulgated under RCRA authority existing prior to the 
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that 
State until the State adopts and receives authorization for equivalent 
State requirements. In contrast, under RCRA section 3006(g) (42 U.S.C. 
6926(g)), new Federal requirements and prohibitions promulgated 
pursuant to HSWA provisions take effect in authorized States at the 
same time that they take effect in unauthorized States. As such, EPA 
carries out HSWA requirements and prohibitions in authorized States, 
including the issuance of new permits implementing those requirements, 
until EPA authorizes the State to do so.
    Authorized States are required to modify their programs when EPA 
promulgates Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. RCRA section 3009 allows the 
States to impose standards more stringent than those in the Federal 
program. See also Sec.  271.1(i). Therefore, authorized States are not 
required to adopt Federal regulations, both HSWA and non-HSWA, that are 
considered less stringent than existing Federal requirements.

B. Effect on State Authorization

    The requirements of today's rule, in EPA's view, are neither more 
nor less stringent than current regulatory requirements.\1\ Therefore, 
when promulgated, the Agency will add the rule to Table 1 in 40 CFR 
271.1(j), which identifies the Federal program requirements that are 
promulgated pursuant to HSWA. Although States are only required to 
adopt requirements that are more stringent than the existing 
provisions, EPA strongly encourages States to adopt the provisions of 
today's rule.
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    \1\ Although today's rule is granted through the 40 CFR 268.44 
variance process, the Agency has determined that the new standards 
are neither more nor less stringent than the current standards. This 
is because today's rule offers a different technical approach 
(macoencapsulation) over the current technical approaches of 
recovery and stabilization.
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V. Regulatory Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant

[[Page 62622]]

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.
    It has been determined that this rule 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 a 
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, a small entity is defined as: (1) A small business that has 
fewer than 1000 or 100 employees per firm depending upon the SIC code 
the firm primarily is classified; (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.
    This rule is not expected to result in a net cost to any affected 
entity. Thus, adverse impacts are not anticipated. Costs could increase 
for entities that are not complying with current requirements, but even 
these costs, which are not properly attributable to the current 
rulemaking, would not be expected to result in significant impacts on a 
substantial number of small entities.
    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.

C. Paperwork Reduction Act

    This rule does not change in any way the paperwork requirements 
already applicable to radioactive cadmium-, mercury-, or silver-
containing batteries. Therefore, it does not affect requirements under 
the Paperwork Reduction Act.

D. Unfunded Mandates

    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 the proposed and final rules with ``federal mandates'' 
that may result in expenditures by state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year.
    Before promulgating a rule for which a written statement is needed, 
section 205 of the UMRA generally requires EPA to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enable 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.
    The Agency's analysis of compliance with the Unfunded Mandates 
Reform Act (UMRA) of 1995 found that today's rule imposes no 
enforceable duty on any state, local or tribal government or the 
private sector. This 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. In addition, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. Because we 
consider today's rule to be neither more nor less stringent than the 
current regulations, state governments are not required to adopt the 
proposed changes. The UMRA generally excludes from the definition of 
``Federal intergovernmental mandate'' duties that arise from 
participation in a voluntary federal program. The UMRA also excludes 
from the definition of ``Federal private sector mandate'' duties that 
arise from participation in a voluntary federal program. Therefore, we 
have determined that today's rule is not subject to the requirements of 
sections 202 and 205 of UMRA.

E. 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 implications. 
``Policies that have federalism implications'' 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 government.''
    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, because states are not required 
to adopt the provisions of this rule. Thus, Executive Order 13132 does 
not apply to this rule.

F. 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 9, 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.'' This final rule does not have 
tribal implications, as specified in

[[Page 62623]]

Executive Order 13175, because it does not preempt tribal law. Thus, 
Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Children's Health

    ``Protection of Children From Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that EPA 
determines (1) ``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 potential effective and reasonably feasible alternatives 
considered by the Agency. This final rule is not subject to Executive 
Order 13045 because it is not an economically significant rule as 
defined by 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. When the 
subject wastes are treated and disposed in accordance with this 
regulation, the Agency believes that future risks to the human health 
and the environment will be minimized.

H. Executive Order 13211: Energy Effects

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Effect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

    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, though OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rule does not establish new technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

J. Executive Order 12898: Environmental Justice

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (February 
11, 1994) is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. In response to Executive Order 
12898, EPA's Office of Solid Waste and Emergency Response (OSWER) 
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). Facilities that would be affected by today's 
rule include any facility generating hazardous radioactive cadmium, 
radioactive mercury, or radioactive silver batteries for treatment or 
disposal. 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, because 
today's rule will facilitate the removal of the subject hazardous 
wastes from current generation sites for treatment and controlled 
disposal to ensure protection of human health and the environment.

K. 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective 45 days following the publication.

List of Subjects

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous material transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

    Dated: September 30, 2002.
Christine Todd Whitman,
Administrator.
    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.  268.40, the Table, ``Treatment Standards for Hazardous 
Wastes'' is amended by adding entries to the end of entries D006, D009, 
and D011 to read as follows. The footnotes are republished without 
change.


Sec.  268.40  Applicability of treatment standards.

* * * * *

[[Page 62624]]



                                                        Treatment Standards for Hazardous Wastes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Regulated hazardous constituent                                   Nonwastewaters:
                                                             -------------------------------------------------                         Concentration in
                                                                                                                    Wastewaters:       mg/kg \5\ unless
      Waste code          Waste description and treatment/                                                      Concentration in mg/    noted as ``mg/L
                              Regulatory subcategory\1\              Common name             CAS \2\ No.        L,\3\ or technology       TCLP'', or
                                                                                                                      code \4\            technology
                                                                                                                                           code.\4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
D006 \9\..............  * * * * *                             Cadmium.................  7440-43-9              NA                     Macroencapsulation
                        Radioactively contaminated cadmium                                                                             in accordance
                         containing batteries. (Note: This                                                                             with 40 CFR
                         subcategory consists of                                                                                       268.45.
                         nonwastewaters only)
 
                                                                      * * * * * * *
D009 \9\..............  * * * * *                             Mercury.................  7439-97-6              NA                     Macroencapsulation
                        Radioactively contaminated mercury                                                                             in accordance
                         containing batteries. (Note: This                                                                             with 40 CFR
                         subcategory consists of                                                                                       268.45.
                         nonwastewaters only)
 
                                                                      * * * * * * *
D011 \9\..............  * * * * *                             Silver..................  7440-22-4              NA                     Macroencapsulation
                        Radioactively contaminated silver                                                                              in accordance
                         containing batteries. (Note: This                                                                             with 40 CFR
                         subcategory consists of                                                                                       268.45.
                         nonwastewaters only)
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to Treatment Standard Table 268.40
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Regulatory
  Subcategories are provided, as needed, to distinguish between applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
  and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1--
  Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
  established, in part, based upon incineration in units opeated in accordance with the technical requirements of 40 CFR Part 264, Subpart O, or Part
  265, Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may
  comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on
  analysis of grab samples.
* * * * * * *
\9\ These wastes, when rendered nonhazardous and then subsequently injected in a Class I SDWA well, are not subject to treatment standards. (See Sec.
  148.1(d)).
* * * * * * *

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    3. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.


    4. Section 271.1(j) is amended by adding the following entries to 
Table 1 in chronological order by date of publication to read as 
follows.


Sec.  271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                              Federal Register
        Promulgation date            Title of regulation         reference                Effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Sept. 30, 2002..................  Land Disposal             [Insert Federal      November 21, 2002
                                   Restrictions: National    Register citation
                                   Treatment Variance to     page numbers].
                                   Designate New Treatment
                                   Subcategories for
                                   Radioactively
                                   Contaminated Cadmium-,
                                   Mercury-, and Silver-
                                   Containing Batteries.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 62625]]

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[FR Doc. 02-25414 Filed 10-4-02; 8:45 am]
BILLING CODE 6560-50-P