[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Rules and Regulations]
[Pages 6567-6575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2821]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[RCRA-2003-0025; FRL-7620-2]


Land Disposal Restrictions: Site-Specific Treatment Variances for 
Heritage Environmental Services LLC and Chemical Waste Management Inc.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is today 
granting three site-specific treatment variances from the Land Disposal 
Restrictions (LDR) treatment standards for selenium-bearing hazardous 
wastes generated by the glass manufacturing industry. EPA is granting 
these variances because the chemical properties of the wastes differ 
significantly from those from the waste used to establish the current 
LDR standard for selenium (5.7 mg/L, as measured by the Toxicity 
Characteristic Leaching Procedure (TCLP)), and the petitions have 
adequately demonstrated that the wastes cannot be treated to meet this 
treatment standard.
    In the first action, EPA is granting a variance to Heritage 
Environmental Services LLC (Heritage) to stabilize a selenium-bearing 
hazardous waste generated by Guardian Industries Corp. (Guardian) at 
their RCRA permitted facility in Indianapolis, Indiana. With

[[Page 6568]]

promulgation of this final rule, Heritage may treat the Guardian waste 
to an alternate treatment standard of 39.4 mg/L, as measured by the 
TCLP. Heritage may dispose of the treated waste in a RCRA Subtitle C 
landfill, provided they meet the applicable LDR treatment standards for 
the other hazardous constituents in the waste.
    In the second and third actions, EPA is permanently establishing 
two site-specific variances from the Land Disposal Restrictions 
treatment standards for Chemical Waste Management Inc. (CWM), at their 
Kettleman Hills facility in Kettleman City, California, for two 
selenium-bearing hazardous wastes. EPA previously granted treatment 
variances to these wastes on a temporary basis. CWM will continue to be 
required to treat these two specific wastes to alternative treatment 
standards of 51 mg/L, as measured by the TCLP, for the Owens-Brockway 
waste, and 25 mg/L, as measured by the TCLP, for the St. Gobain 
(formerly Ball Foster) waste. CWM may dispose of the treated wastes in 
a RCRA Subtitle C landfill provided they meet the applicable LDR 
treatment standards for the other hazardous constituents in the wastes.

DATES: This final rule is effective on March 29, 2004 without further 
notice, unless EPA receives adverse comment by March 12, 2004. 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 by mail to: EPA Docket Center--
OSWER Docket, Environmental Protection Agency, Mailcode: 5305 T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
RCRA-2003-0025. Comments may also be submitted electronically, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703 
412-3323. For more detailed information on specific aspects of this 
rulemaking, contact Juan Parra at (703) 308-0478 or [email protected], 
Office of Solid Waste (MC 5302 W), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., Washington, DC 20460.

SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior 
proposal because we view it as a noncontroversial action. We anticipate 
no significant adverse comments because, to our knowledge, no new 
treatment options have become available to treat these high 
concentration selenium wastes more effectively, and in the case of the 
two selenium-bearing hazardous wastes treated by CWM, we are making 
permanent a variance that is already in effect, and which has already 
been the subject of notice and opportunity for comment. Having said 
this, in the ``Proposed Rules'' section of today's Federal Register 
publication, we are publishing a separate document that could serve as 
a proposal to grant these variances to Heritage and CWM if significant 
adverse comments are filed. See the SUPPLEMENTARY INFORMATION section 
on how to submit comments.
    This direct final rule will be effective on March 29, 2004 without 
further notice unless we receive adverse comment on the proposed rule 
by March 12, 2004. If we receive adverse comment on the direct final 
rule, we will withdraw the direct final action and the treatment 
variance for Heritage and restore the terms and conditions of the three 
year site-specific selenium treatment variance to CWM. We will address 
all public comments in a subsequent final rule based on this proposed 
rule. We will not institute a second comment period on this action. Any 
parties interested in commenting on this direct final rule must do so 
at this time.

A. How Can I Get Copies of This Variance Proposal ?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. RCRA-2003-0025. 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 OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket 
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
OSWER Docket is (202) 566-0272. The public may copy a maximum of 100 
pages from any regulatory docket at no charge. Additional copies cost 
$0.15/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.

Table of Contents

I. Background
    A. What is the Basis for LDR Treatment Variances?
    B. What is the Basis of the Current Selenium Treatment Standard?
    C. Previously Approved Variances for Selenium Waste
    D. Reasons for Lack of U.S. Secondary Selenium Recovery Capacity
II. Basis for Heritage Variance Petition
    A. Waste Characteristics
    B. Chemical Properties and Treatability Information on 
Heritage's Selenium Wastes
    C. Alternative Treatment Standard for Heritage to Treat the 
Guardian Selenium Waste
    D. What Is the Basis for EPA's Approval of Heritage's Request 
for an Alternative D010 Treatment Standard?
    E. What Are the Terms and Conditions of the Variance?
III. Basis for Permanently Establishing Chemical Waste Management's 
Selenium Variances
    A. History of CWM Variances
    B. What Is the Basis for Establishing Permanently CWM's 
Alternative D010 Treatment Standards?
    C. What Are the Terms and Conditions of the Variances?
IV. Technical Correction to the Table in Paragraph (O) in 268.44.
V. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act of 1995

[[Page 6569]]

    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Background

A. What Is the Basis for LDR Treatment Variances?

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

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

    The current treatment standard for wastes exhibiting the toxicity 
characteristic for selenium is based upon the performance of 
stabilization treatment technology. When the Agency developed these 
treatment standards for selenium, EPA believed that wastes containing 
high concentrations of selenium were rarely generated and land disposed 
(62 FR 26041, May 12, 1997). The Agency also stated that it believed 
that, for most waste containing high concentrations of selenium, 
recovery of the selenium was feasible using recovery technologies 
currently employed by copper smelters and copper refining operations 
(Id.). The Agency further stated that it did not have any performance 
data for selenium recovery, but available information indicated that 
recovery of elemental selenium out of certain types of scrap material 
and other types of waste was practiced in the United States.
    The Agency used performance data from the stabilization of a 
selenium characteristically hazardous mineral processing waste (waste 
code D010) to set the national treatment standard for selenium, which 
we determined at that time to be the most difficult to treat selenium 
waste. This untreated waste contained up to 700 ppm total selenium and 
3.74 mg/L selenium in the TCLP leachate. The resulting post-treatment 
levels of selenium in the TCLP leachate were between 0.154 mg/L and 
1.80, which led to our establishment of a national treatment standard 
of 5.7 mg/L for D010 selenium non-wastewaters. This D010 mineral 
processing waste also contained toxic metals (i.e., arsenic, cadmium, 
and lead) above characteristic levels. The treatment technology used to 
establish the selenium levels also resulted in meeting the LDR 
treatment standards for these non-selenium metals. The reagent to waste 
ratios varied from 1.3 to 2.7 (62 FR 26041, May 12, 1997).
    In the Phase IV final rule, the Agency determined that a treatment 
standard of 5.7 mg/L, as measured by the TCLP, continued to be 
appropriate for D010 non-wastewaters (63 FR 28556, May 26, 1998). The 
Agency also changed the universal treatment standard (UTS) for selenium 
nonwastewaters from 0.16 mg/L to 5.7 mg/L.

C. Previously Approved Variances for Selenium Waste

    When EPA established the treatment standards for metal wastes and 
mineral processing wastes (63 FR 28555, May 26, 1998), we noted that we 
received comments from one company, Chemical Waste Management Inc. 
(CWM), indicating that it was attempting to stabilize selenium-bearing 
wastes with concentrations much higher than those EPA had examined when 
it established the national treatment standard for wastes exhibiting 
the toxicity characteristic for selenium. In response, we indicated 
that for two high-level selenium waste streams, we would propose two 
site-specific treatment variances, which we granted on May 26, 1999 (63 
FR 56886). EPA granted this variance for three years, and required CWM 
to conduct studies on approaches to further reduce the leachability of 
such treated wastes. EPA also required CWM to investigate alternative 
treatment technologies that might provide more effective treatment and 
remove the need for a treatment variance. EPA required CWM to report 
annually on these investigations and to provide any analytical data 
from the treatment studies.\1\ The annual reports include stabilization 
recipes being utilized to meet the alternative treatment standards, the 
selenium concentrations in the untreated wastes and the analytical 
results from leach testing of the treated wastes. On May 28, 2002 (67 
FR 36849), EPA renewed this variance for another three year term, and 
continued to require CWM to report on its treatability studies and to 
investigate whether more effective treatment is available.
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    \1\ All four of CWM's annual reports are in the docket 
supporting today's rulemaking.
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D. Reasons for Lack of U.S. Secondary Selenium Recovery Capacity

    Primary selenium \2\ is a co-product in the mining of copper ores. 
The principal markets for selenium are in electronics (30%), glass 
manufacturing (20%), pigments (19%), metallurgical additives (14%) and 
agricultural/biological applications (6%).\3\ In glass manufacturing, 
selenium is used to color container glass and other soda-lime silica 
glasses and to reduce solar heat transmission in architectural plate 
and automotive glass.
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    \2\ ``Selenium is found in 75 different mineral species; 
however, pure selenium does not exist as an ore. For this reason, 
primary selenium is recovered from anode slimes generated in the 
electrolytic refining of copper.'' U.S. EPA (F-96-PH4A-S0001): 
Identification and Description of Mineral Processing Sectors and 
Waste Streams.
    \3\ ``Canadian Mineral Yearbook'' 1995.
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    Because selenium is a non-renewable resource, and because the 
wastes in question contain high selenium concentrations, EPA's 
preference would be to recover the selenium in an environmentally sound 
manner over stabilization and land disposal. However, there was no 
recorded domestic production of secondary selenium in 2002.\4\ All 
potential selenium recovery technologies being considered have remained 
pilot projects and none of them have been shown to be economically 
viable. These factors suggest that development of an environmentally 
protective secondary selenium recovery system in the U.S. is not 
reasonably expected in the near future. That leaves stabilization as 
the best available treatment technology.
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    \4\ ``Selenium'' U.S. Geological Survey--Minerals Yearbook--
2003.
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II. Basis for Heritage Variance Petition

    Under 40 CFR 268.44(h), facilities can apply for a site-specific 
variance in cases where a waste that is generated under conditions 
specific to only one site cannot be treated to the specified levels. In 
such cases, the generator or treatment facility may apply to the 
Administrator, or to EPA's delegated

[[Page 6570]]

representative, for a site-specific variance from a treatment standard. 
The applicant for a site-specific variance must demonstrate that, 
because the physical or chemical properties of the waste differ 
significantly from the waste analyzed in developing the treatment 
standard, the waste cannot be treated to the specified levels or by the 
specified methods. There are other grounds for obtaining treatment 
variances, but this is the only provision relevant to this action.
    On May 14, 2003, Heritage Environmental Services submitted their 
petition for a treatment variance to EPA. All information and data used 
in the development of this treatment variance can be found in the RCRA 
docket (RCRA-2003-0025) for this rulemaking.

A. Waste Characteristics

    Guardian Industries Corp., in Jefferson Hills, Pennsylvania, is a 
specialty glass manufacturing facility. Emissions from its glass 
furnace are first subject to lime injection, and subsequently captured 
in an electrostatic precipitator. Lime is added to remove sulphur 
compounds and selenium from the glass furnace gases. Heritage 
stabilizes the selenium-bearing waste from Guardian at their RCRA 
permitted facility in Indianapolis, Indiana.
    The Guardian waste is a dry powder with a bulk density of about 0.4 
g/cm3, and contains no free liquids or organic constituents. 
The calcium content is high, approximately 30%, since the waste 
contains lime injected to the furnace exhaust. Concentrations of total 
selenium in the untreated waste vary between 10,000 ppm and 70,000 ppm 
(1%-7%). The dust is a D010 characteristic waste because the selenium 
concentration exceeds 1.0 mg/L, as measured by the TCLP. The rate of 
variation in the amount of waste is related to the demand, and ranges 
from 20-50 tons/month.
    The land disposal restrictions found in 40 CFR 268.40(e) require 
characteristic wastes to meet the universal treatment standards (UTS) 
in 40 CFR 286.48 for all underlying hazardous constituents (UHCs) 
before the waste can be land disposed. Analytical data on the raw 
Guardian waste indicate that the only underlying hazardous constituent 
present is chromium; occasionally the dust is a D007 waste because the 
chromium exceeds the hazardous waste characteristic level of 5 mg/L, as 
measured by the TCLP. The universal treatment standard for chromium is 
0.6 mg/L, as measured by the TCLP. As an underlying hazardous 
constituent, chromium must be treated to below the 0.6 mg/L universal 
treatment standard for the waste to be properly land disposed (45 FR 
74889; November 12, 1980 and 52 FR 25942; July 9, 1987).

B. Chemical Properties and Treatability Information on Heritage's 
Selenium Wastes

    Selenium emissions from the Guardian glass furnace are captured by 
a lime scrubber. Lime treatment is used to remove sulphur compounds and 
selenium from the glass furnace gases. An approach to immobilize the 
selenium in the Guardian waste and to reduce its exposure to leaching 
agents is to stabilize it with cement. With this technology option, the 
waste is solidified into a solid of high compressive strength, thereby 
incorporating the hazardous components of the electrostatic 
precipitator dust into a solid matrix. The solid matrix substantially 
lowers the surface area potentially exposed to leaching from that of 
untreated dust. As a result, the solidified waste should have a lower 
leaching potential after the waste is disposed in a hazardous waste 
landfill.
    As mentioned earlier, analytical data on the raw Guardian waste 
indicate that the only underlying hazardous constituent present is 
chromium. Heritage conducted treatability studies demonstrating that 
the addition of Portland cement alone is not sufficient to reduce the 
chromium levels to below the 0.6 mg/L treatment standard. To further 
treat the chromium in the waste, the hexavalent chromium ion must be 
reduced to the trivalent state so that precipitation can occur. 
Heritage used ferric sulfate for this purpose.
    Heritage conducted approximately 200 preliminary rounds of testing 
using different stabilization recipes. Heritage then conducted 
additional tests using the stabilization recipes used by Chemical Waste 
Management (see Section III). Collectively, the TCLP tests on treated 
Guardian waste samples indicate a significant reduction in 
leachability. This reduction, however, is not enough to meet the LDR 
treatment standard of 5.7 mg/L, as measured by the TCLP.
    EPA has determined, in analyzing the data from the preliminary 
tests, that the most effective stabilization recipe for this waste 
consists of 0.35 parts ferrous sulfate combined with 1.0 part cement 
and 1.0 part cement kiln dust, resulting in a reagent to waste ratio of 
2.35 to 1. Water is also added to make a thick paste, that upon curing, 
solidifies the treated waste into a hard cementitious material.
    Table I shows the results of leaching, as measured by the TCLP, of 
Guardian's waste treated using the optimized stabilization recipe. 
Heritage stabilized the samples with reagent to waste ratios of 2.35 to 
1. Reagents included cement, cement kiln dust, and iron sulfate. 
Treated selenium TCLP concentrations for the five samples ranged from 
28.4 mg/L to 35.6 mg/L.

                                  Table I.--Summary of Guardian Selenium Waste
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                                                                                   Untreated Se     Treated Se
              Guardian sample No.                Total selenium content estimate  waste TCLP (mg/ waste TCLP (mg/
                                                               (%)                      L)              L)
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1183982.......................................  6.7% (67,000 ppm)...............              70            30.4
1183983.......................................  5.8% (58,000 ppm)...............              72            35.6
1184103.......................................  6.0% (60,000 ppm)...............              66            25.6
1184104.......................................  7.2% (72,000 ppm)...............             120            26.7
1184340.......................................  6.3% (63,000 ppm)...............              68            28.4
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[[Page 6571]]

C. Alternative Treatment Standard for Heritage To Treat the Guardian 
Selenium Waste

    The glass manufacturing waste from Guardian is significantly 
different in chemical composition from the waste used in establishing 
the original selenium treatment standard. Data from Heritage 
demonstrate that wastes containing high concentrations of selenium are 
not easily treated using the BDAT technology of stabilization. As 
previously acknowledged and discussed by the Agency in a past 
rulemaking (see 62 FR 26041), it can be technically challenging to 
treat wastes containing selenium and other metals, e.g., cadmium, lead 
or chromium, because of their different chemical properties and 
solubility curves.
    In the Phase IV rule, the Agency did not generally use 
stabilization data with reagent to waste ratios greater than 1.\5\ 
However, in the case for selenium, the existing treatment standard, as 
discussed earlier, was calculated from data with reagent to waste 
ratios ranging from 1.8 to 2.7.
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    \5\ ``Final Draft Site Visit Report for the August 20-21 Site 
Visit to Rollins Environmental's Highway 36 Commercial Waste 
Treatment Facility Located in Deer Trail, Colorado,'' November 21, 
1996, and the economic analysis supporting the Phase IV final rule.
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    Using the BDAT methodology \6\, the Agency has calculated an 
alternative treatment standard of 39.4 mg/L, as measured by the TCLP, 
based on five data points (25.6, 26.7, 28.4, 30.4, and 35.6 from table 
I) that were the result of stabilization treatment using a reagent to 
waste ratio of 2.35 for the waste generated by Guardian Industries 
Corp. The treatment recipe is consistent with the reagent to waste 
ratios used to establish the existing treatment standard of 5.7 mg/L, 
as measured by the TCLP, and the treatment data from CWM's annual 
selenium reports (the CWM variance treatment standards are discussed in 
Section III of this notice).
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    \6\ BDAT Background Document for Quality Assurance/Quality 
Control Procedures and Methodology, October 23, 1991.
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D. What Is the Basis for EPA's Approval of Heritage's Request for an 
Alternative D010 Treatment Standard?

    After careful review of the data and petition submitted by 
Heritage, we conclude that Heritage has adequately demonstrated that 
the wastes satisfy the requirements for a treatment variance under 40 
CFR 268.44(h)(1). Heritage has demonstrated that Guardian's glass 
manufacturing waste differs significantly in chemical composition from 
the waste used to establish the original selenium treatment standard. 
Selenium TCLP concentrations in the untreated waste are one to two 
orders of magnitude higher than TCLP concentrations in the waste used 
to develop the treatment standard for D010 hazardous wastes. 
Furthermore, Heritage is using stabilization as the treatment 
technology, which is consistent with EPA's determination that 
stabilization is the best available treatment technology for this 
waste, and the process is well-designed and operated.
    An added benefit of stabilizing the Guardian waste with cement is 
that the hazardous components of the electrostatic precipitator dust 
are put into a solid matrix. The solid matrix substantially lowers the 
surface area potentially exposed to leaching from that of very fine 
untreated dust. The TCLP results show that, even when the solid is 
ground to less 9.5 mm, the solidified waste should reduce leaching 
potential after the waste is disposed in a hazardous waste landfill.
    Before determining that stabilization was the best treatment 
technology option for the Guardian waste, Heritage explored the 
feasibility of selenium recovery technologies. Heritage established a 
pilot project to evaluate the extraction of selenium from raw waste at 
one of their facilities using hydrometallurgical recovery methods. 
Results from the pilot tests are not yet complete, but preliminary 
indications are that the amounts of by-product wastes generated during 
the recovery process exceed the amount of raw waste processed. In 
addition, the reactions are difficult to control, chemical consumption 
is very high, and a product of reasonable quality has not yet been 
achieved. Therefore, the technology does not appear to be economically 
viable.
    Heritage has also looked into techniques for modifying Guardian's 
production processes to change the chemical composition of this 
selenium-bearing hazardous waste as it is generated. If workable, the 
selenium content of the waste would remain high, but the selenium would 
be in a different chemical form that might simplify its recovery or 
reuse. One of the concerns is that full-scale modifications in its 
production processes could cause greater selenium and SO2 
air emissions.
    Finally, EPA has reviewed CWM's selenium variance annual reports on 
the stabilization recipes being utilized to meet the alternative 
treatment standards and has determined that stabilization of selenium 
with cement and cement kiln dust, in addition to adding ferrous sulfate 
as a reagent for chromium, is the best demonstrated available 
technology for the Guardian waste.
    Therefore, EPA is today granting a site-specific treatment variance 
from the D010 treatment standards for the Guardian waste stream in 
question. Today's alternative treatment standard will provide 
sufficient latitude for Heritage to treat the other metal present in 
the waste to LDR treatment standards and, by raising the selenium 
treatment standard, will avoid the difficulty posed by the different 
metal solubility curves. EPA is amending 40 CFR 268.44 to note that 
Heritage Environmental Services, LLC would be subject to a selenium 
treatment standard of 39.4 mg/L, as measured by the TCLP.

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

    Since this rule approves a variance from a numerical treatment 
standard, Heritage may vary the reagent recipe it uses to best meet the 
alternative numerical standard. The Agency notes that, to avoid 
questions of impermissible dilution, Heritage will need to keep the 
reagent to waste ratios within acceptable bounds. No specific ratios 
are being established in today's rule because the Agency does not 
desire to prevent further optimization of the treatment process. 
However, the Agency recommends that Heritage use a reagent to waste 
ratio of 2.35 to 1 as an upper limit. This is the ratio used by the 
Agency in establishing today's alternative treatment standard.
    The treated waste, provided it meets the applicable LDR treatment 
standard for the other hazardous constituent in the waste,\7\ will be 
disposed in a RCRA Subtitle C landfill.
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    \7\ Note that disposal in a Subtitle C landfill is required 
because the treated waste is still characteristic for selenium 
(i.e., the waste has TCLP values above the toxicity characteristic 
level for selenium of 1.0 mg/L ).
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III. Basis for Permanently Establishing Chemical Waste Management's 
Selenium Variances

    Also in today's notice, EPA is establishing two permanent site-
specific treatment variances from the LDR treatment standards for two 
selenium-bearing hazardous wastes treated by Chemical Waste Management 
(CWM). The Agency previously granted treatment variances to CWM for 
these wastes on a temporary basis. These variances apply to two waste 
streams: Electrostatic precipitator dust generated during glass 
manufacturing operations at Owens Brockway Glass Container Company, and 
dry scrubber solid from glass manufacturing wastes at St.

[[Page 6572]]

Gobain (formerly Ball-Foster Glass Container Corporation).
    Specifically, on October 23, 1998, EPA proposed to grant site-
specific treatment variances for two high-level selenium waste streams 
to be stabilized by CWM at their Kettleman City, California facility 
(63 FR 56886). The temporary variances were granted to CWM on May 26, 
1999 (64 FR 28387) for a three year period and required CWM to conduct 
studies on approaches to reduce the leachability of the treated wastes. 
EPA also required CWM to report on alternative treatment technologies 
being investigated and provide any analytical data from these studies. 
On May 28, 2002 (67 FR 36849), EPA renewed these variances for a 
consecutive three year term with the same conditions to investigate 
treatment technologies and to report on the effectiveness of their 
ongoing treatment. These variances expire on May 28, 2005.

A. History of CWM Variances

    CWM has applied to the Agency for treatment variances for two 
companies. In these petitions and in subsequently reported data, CWM 
has shown that selenium TCLP concentrations in the untreated wastes are 
one to three orders of magnitude higher than the untreated mineral 
processing wastes that EPA used to develop the current D010 selenium 
treatment standard \8\. The data also show that neither treated waste 
stream could reliably meet the numerical treatment standard of 5.7 mg/
L, as measured by the TCLP, even though CWM had shown that it is using 
the BDAT treatment technology (properly designed and operated) on which 
EPA based the selenium treatment standard.
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    \8\ Selenium concentrations in the untreated Owens Brockway 
wastes were between 465 and 1024 mg/L, as measured by TCLP, while 
the selenium concentration in the untreated Ball Foster waste was 
59.8 mg/L, as measured by the TCLP.
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    CWM submitted stabilization data from each facility using 
combinations of the following stabilization reagents: Ferrous sulfate, 
calcium polysulfide, ferric chloride, sodium bisulfate, Portland 
cement, and cement kiln dust. For more detailed information about these 
petitions, see the proposed rule (63 FR 56886, October 23, 1998), the 
docket supporting the proposed rule (docket number F-98-CWMP-FFFFF), 
and this direct final rule (docket number RCRA-2003-0025).
    As part of CWM's current site-specific treatment variances, EPA 
required CWM to report on alternative treatment technologies being 
investigated and provide any analytical data from these studies \9\. 
These annual reports include stabilization recipes being used to meet 
the alternative treatment standards, the selenium concentrations in 
untreated wastes, and the analytical results from these wastes. EPA has 
reviewed the stabilization recipes being utilized to meet the 
alternative treatment standards and has determined that stabilization 
of selenium with cement and cement kiln dust, in addition to adding 
ferrous sulfate as a reagent for the other toxic metals, is the best 
demonstrated available technology for these selenium-bearing hazardous 
wastes.
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    \9\ All four of CWM's annual reports are in the docket 
supporting today's rulemaking.
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B. What Is the Basis for Establishing Permanently CWM's Alternative 
D010 Treatment Standards?

    After careful review of the data in CWM's selenium variance annual 
reports, we conclude that CWM has continued to adequately demonstrate 
that the wastes satisfy the requirements for a treatment variance under 
40 CFR 268.44(h)(1). CWM has demonstrated that the two glass 
manufacturing waste streams differ significantly in chemical 
composition from the waste used to establish the original treatment 
standard. Selenium TCLP concentrations in the untreated wastes are one 
to three orders of magnitude higher than those in the waste used to 
develop the treatment standard for D010 hazardous wastes. Furthermore, 
CWM is using stabilization as the treatment technology, which is 
consistent with EPA's determination of BDAT, and the process is well-
designed and operated.
    Treatment of these two wastes is especially difficult because of 
the presence of other metals (i.e., arsenic, cadmium, chromium, and 
lead) above their respective characteristic levels. It is difficult to 
optimize treatment for selenium when other metals are being treated 
because the selenium solubility curve differs from that of most other 
metals.
    In light of the information presented by CWM to the Agency, and 
EPA's inability to find selenium recovery capability in the US, EPA is 
changing the status of CWM's treatment variances from temporary to 
permanent. In addition, consistent with the Heritage treatment variance 
discussed in Section II of today's notice, EPA is not requiring annual 
reporting on selenium recovery and treatment technologies.
    Therefore, EPA is today permanently establishing two site-specific 
treatment variances from the D010 treatment standards for the two waste 
streams in question. We are making this change to the CWM selenium 
treatment variances in this direct final rule without prior proposal. 
We view this action as noncontroversial since we did not receive any 
significant adverse comments when we renewed these variances in 2002.

C. What Are the Terms and Conditions of the Variances?

    Upon promulgation of this final rule, CWM will continue to treat 
these two specific wastes to alternate treatment standards of 51 mg/L, 
as measured by the TCLP, for the Owens-Brockway waste and 25 mg/L, as 
measured by the TCLP, for the St. Gobian (formerly Ball-Foster) waste. 
CWM will continue to dispose of the treated wastes in a RCRA Subtitle C 
landfill provided they meet the applicable LDR treatment standards for 
the other hazardous constituents in the wastes. Finally, CWM will no 
longer be required to submit annual reports on selenium treatment and 
recovery technologies.

IV. Technical Correction to the Table in Paragraph (O) in 268.44

    The table in paragraph (o) under 40 CFR 268.44 (July 1, 2003 
version) with the title: Wastes Excluded From the Treatment Standards 
Under Sec. 268.40, includes a list of facilities that are excluded from 
the treatment standards under Sec. 268.40 and are subject to treatment 
variances for specific hazardous constituents. The table includes the 
following footnote: (5)--Alternative D010 selenium standard only 
applies to dry scrubber solid from glass manufacturing wastes.
    The Agency is revising footnote 6 as follows: ``(6)--Alternative 
D010 selenium standard only applies to electrostatic precipitator dust 
generated during glass manufacturing operations.'' This footnote was 
inadvertently changed when EPA extended the site-specific variance for 
CWM in May, 2002 (67 FR 36849). This technical correction restores the 
original text that identifies the source of the selenium-bearing 
hazardous waste. The selenium-bearing hazardous waste at each facility 
is generated by emissions from their glass furnaces that are captured 
in electrostatic precipitators. We are revising the table in paragraph 
(o) to reflect this change.

V. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore

[[Page 6573]]

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 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. Paperwork Reduction Act

    This rule contains no new information collection requirements. The 
variance only changes the treatment standard applicable to a D010 waste 
stream at the Heritage Environmental Services, LLC facility in 
Indianapolis, Indiana, and establishes permanently the treatment 
standards set for two D10 wastes at the Chemical Waste Management Inc. 
facility in Kettleman City, California. These actions do not change in 
any way the paperwork requirements already applicable to these wastes. 
Therefore, this rule is not subject to the Paperwork Reduction Act.

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector, and it does not impose any Federal 
mandate on State, local, or tribal governments or the private sector 
within the meaning of the Unfunded Mandates Reform Act of 1995. This 
rule also does not create new regulatory requirements; rather, it 
merely establishes alternative treatment standards for specific wastes 
that replace standards already in effect. EPA has determined that this 
rule does not contain a Federal mandate that may result in expenditures 
of $100 million or more for State, local, and tribal governments, in 
the aggregate, or the private sector in any one year. Thus, today's 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA. For the same reasons, EPA has determined that this rule contains 
no regulatory requirements that might significantly or uniquely affect 
small governments.

E. Executive Order: 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 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. The rule will not impose 
substantial costs on states and localities. The rule does not impose 
any enforceable duties on these entities, therefore, Executive Order 
13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13175, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13175 
requires EPA to provide to the Office of

[[Page 6574]]

Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13175 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.'' Today's rule does not significantly or uniquely affect 
these communities of Indian tribal governments. The rule does not 
impose any mandate on tribal governments or impose any duties on these 
entities. This rule issues a variance from the LDR treatment standards 
for specific characteristic selenium wastes. Accordingly, the 
requirements of section 3(b) of Executive Order 13175 do not apply to 
this rule.

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

    Executive Order 13045, entitled ``Protection of Children From 
Environmental Health and Safety Risks'' (62 FR 19885, April 23, 1997), 
applies to any rule that EPA determines is (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 potentially effective 
and reasonably feasible alternatives considered by the Agency. EPA 
interprets the Executive Order 13045 as encompassing only those 
regulatory actions that are risk based or health based, such that the 
analysis required under section 5-501 of the Executive Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it does not involve decisions regarding 
environmental health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect 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''), Pub. L. 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.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in clean and sustainable communities. In response 
to Executive Order 12898 and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response formed 
an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17). Today's variance applies to a D010 waste 
stream at the Heritage Environmental Services, LLC facility in 
Indianapolis, Indiana and two D10 wastes at the Chemical Waste 
Management Inc. facility in Kettleman City, California. These selenium 
wastes will be disposed of in RCRA Subtitle C landfills, ensuring 
protection to human health and the environment. Therefore, the Agency 
does not believe that today's rule will result in any 
disproportionately negative impacts on minority or low-income 
communities relative to affluent or non-minority communities.

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. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability, applying only to a 
specific waste type at two facilities under particular circumstances.
    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 March 29, 2004.

List of Subjects in 40 CFR Part 268

    Environmental Protection, Hazardous waste, Variance.

    Dated: February 4, 2004.
Marianne Lamont Horinko,
Assistant Administrator, Office of Solid Waste and Emergency Response.

0
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

0
1. The authority citation for part 268 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

0
2. Section 268.44, the table in paragraph (o) is amended by:
0
a. Adding in alphabetical order the entry for ``Guardian Industries 
Corp., Jefferson Hills, PA''
0
b. Adding footnote number 11.
0
c. Revising footnotes 6 and 7.
0
d. Revising the entry for Owens Brockway Glass Container Company, 
Vernon, CA.
0
e. Revising the entry for St. Gobian Containers, El Monte, CA.

[[Page 6575]]

    The revisions and additions 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 hazardous ------------------------------------------------------------------
 Facility name \1\ and address   Waste code        See also           constituent                                            Concentration
                                                                                       Concentration (mg/L)      Notes          (mg/L)          Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Guardian Industries Corp.,      D010           Standards under   Selenium............  NA                    NA            39.4 mg/L TCLP..  NA.
 Jefferson Hills, PA \6\ \11\.                 Sec. 268.40.
Owens Brockway Glass Container  D010          Standards under    Selenium............  NA                    NA            51 mg/L TCLP....  NA.
 Company, Vernon CA \6\ \7\.                   Sec. 268.40.
St. Gobain Containers, El       D010          Standards under    Selenium............  NA                    NA            25 mg/L TCLP....  NA.
 Monte, CA \5\ \7\.                            Sec. 268.40.
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: NA means Not Applicable.
\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\5\ Alternative DO10 selenium standard only applies to dry scrubber solid from glass manufacturing wastes.
\6\ Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations.
\7\ D010 wastes generated by these two facilities must be treated by Chemical Waste Management, Inc. at their Kettleman Hills facility in Kettleman
  City, California.
* * * * * * *
\11\ D010 wastes generated by this facility must be treated by Heritage Environmental Services, LLC. at their treatment facility in Indianapolis,
  Indiana.


[FR Doc. 04-2821 Filed 2-10-04; 8:45 am]
BILLING CODE 6560-50-U