[Federal Register Volume 70, Number 148 (Wednesday, August 3, 2005)]
[Rules and Regulations]
[Pages 44505-44512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15325]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[RCRA-2004-0009; FRL-7947-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is today 
granting two site-specific treatment standard variances from the Land 
Disposal Restrictions (LDR) treatment standards to Chemical Waste 
Management, Chemical Services LLC (CWM), and to Heritage Environmental 
Services LLC (Heritage), to treat a selenium-bearing hazardous waste 
from the glass manufacturing industry. This final rule follows a 
proposed rule and a subsequent request for comment. These facilities 
intend to treat and dispose of selenium-bearing hazardous waste from 
Guardian Industries Corp. (Guardian) at their RCRA permitted facilities 
in Model City, New York and Indianapolis, Indiana, respectively. Based 
on treatment data on a new proprietary chemical stabilization 
technology provided by Heritage, EPA is issuing variances so that both 
facilities may treat the Guardian waste to an alternate treatment 
standard of 11 mg/L selenium, as measured by the TCLP.
    Upon promulgation of this final rule, CWM and Heritage may dispose 
of the treated waste in permitted RCRA Subtitle C landfills, provided 
they meet the applicable LDR treatment standards for any other 
hazardous constituents in the waste. EPA is granting these variances 
because the chemical properties of the wastes differ significantly 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 waste 
cannot be treated to meet this treatment standard.

DATES: This final rule is effective August 3, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. RCRA-2004-0009. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose

[[Page 44506]]

disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the EPA Docket Center (EPA/DC), EPA West Building, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading 
Room is open from 8:30 a.m.-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) 
566-0271.
    This Federal Register notice and related materials on Land Disposal 
Restrictions may also be viewed on the EPA Web site at http://www.epa.gov/fedrgstr/EPA-WASTE/, and at http://www.epa.gov/epaoswer/hazwaste/ldr.

FOR FURTHER INFORMATION CONTACT: 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., NW., 
Washington, DC 20460.

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?
II. What Is the Basis for Today's Determination?
    A. Background for Today's Determination
    B. Waste Characteristics
    C. What Criteria Govern a Treatment Variance?
    D. New Treatment Technology for Selenium-Bearing Wastes
    E. Determination of the New Alternative Treatment Standard for 
the Guardian Waste
    F. Availability of the Heritage Treatment Technology
III. Same Site-Specific Treatment Standard Variance for Heritage
IV. What Is the Basis for EPA's Approval of CWM's and Heritage's 
Request for an Alternative D010 Treatment Standard?
V. What Are the Terms and Conditions of the Variances?
VI. Response to Comments
VII. 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

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 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). 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?

    In the Third Third rule (55 FR 22521, June 1, 1990), the Agency 
developed performance standards for selenium based on stabilization as 
BDAT. At that time, EPA had information indicating that wastes 
containing high concentrations of selenium were rarely generated and 
land disposed. 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. The Agency further 
stated that it did not have any performance data for selenium recovery, 
but available information indicated that recovery of elemental selenium 
from certain types of scrap material and other types of waste was 
practiced in the United States. No comments or data were received on 
this issue in the Third Third rulemaking docket.
    The Agency set the national treatment standard for selenium 
nonwastewaters using performance data from the stabilization of a 
characteristically hazardous mineral processing waste (waste code 
D010), 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 mg/L, 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.
    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.

II. What Is the Basis for Today's Determination?

A. Background for Today's Determination

    On April 9, 2004, EPA received a treatment standard variance 
petition from CWM \1\ to stabilize a glass manufacturing waste from 
Guardian Industries in Jefferson Hills, Pennsylvania (Guardian).\2\ On 
November 19, 2004, EPA promulgated a direct final rule to grant a site-
specific treatment standard of 28 mg/L selenium, as measured by the 
TCLP, to CWM in Model City, New York because we believed this action to 
be non-controversial. EPA also published a parallel proposed rule 
seeking comments on this site-specific treatment standard. In the 
parallel proposed rule, EPA proposed to allow CWM to treat the Guardian 
waste to an alternative

[[Page 44507]]

treatment standard of 28 mg/L selenium, as measured by the TCLP 
(November 19, 2004, 69 FR 67695). EPA received comments from Heritage 
and Niagara Health Science Report Inc. (Niagara) that we deemed 
adverse. Heritage also provided performance data on treatability 
studies conducted on the Guardian waste in their comments to the CWM 
rule. As a result, EPA subsequently withdrew the direct final rule to 
evaluate these comments and to make a decision on a future action 
(December 23, 2004, FR 76863).
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    \1\ All information and data in CWM's site-specific treatment 
standard variance petition can be found in the RCRA docket (RCRA-
2004-0009) for this rulemaking.
    \2\ The Agency previously granted a site-specific treatment 
standard variance for selenium (39.4 mg/L., as measured by the TCLP) 
for this same waste to Heritage on February 11, 2004 (see 69 FR 
6567).
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    On February 28, 2005, EPA sought additional comments from the 
stakeholders of this rule on an option to use the new performance data 
provided by Heritage. Under this approach, Heritage's proprietary 
stabilization technology would be the basis for an alternative 
treatment standard for the Guardian waste. EPA received additional 
comments from Heritage and Niagara on this approach.

B. Waste Characteristics

    Guardian Industries Corp. 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.
    The Guardian waste is a dry powder with a bulk density of about 0.4 
g/cm\3\, 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 85,000 ppm (1%-
8.5%). 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 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 is land disposed. Analytical data on the raw Guardian 
waste indicate that the only underlying hazardous constituent present 
is chromium. The UTS level for chromium is 0.6 mg/L, as measured by the 
TCLP. The untreated waste contains, in some samples, chromium at levels 
sufficient such that the waste exceeds the toxicity characteristic 
level of 5 mg/L, and is a D007 waste.

C. What Criteria Govern a Treatment Variance?

    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 EPA's delegated representative, for a site-specific 
variance from a treatment standard. The applicant for a site-specific 
variance must demonstrate that, because the physical or chemical 
properties of the waste differ significantly from the waste analyzed in 
developing the treatment standard, the waste cannot be treated by the 
best demonstrated available technology (BDAT) to specified levels or by 
the specified methods. (Note that there are other grounds for obtaining 
treatment variances, but this is the only provision relevant to the 
present petition.)
    All information and data used in the development of these proposed 
treatment standard variances can be found in the OSWER Docket (RCRA-
2004-0009) for this rulemaking.

D. New Treatment Technology for Selenium-Bearing Wastes

    Heritage states that shortly after receiving the treatability 
variance for selenium (39.4 mg/L, as measured by the TCLP) on February 
11, 2004 (60 FR 6567), they developed a new, proprietary, stabilization 
technology that they used to treat the Guardian waste. Based on data 
from the application of this new technology, Heritage submitted 
comments to EPA in response to the CWM rule suggesting a new TCLP 
selenium criterion of 10 mg/L, as measured by the TCLP, for the 
Guardian waste, in contrast to CWM's proposed treatment standard 
variance of 28 mg/L, as measured by the TCLP.
    The performance data were obtained from stabilization optimization 
testing conducted by Heritage on the waste generated by Guardian. 
Heritage used two stabilization technologies to verify the performance 
of treatment recipes against the new stabilization method. The first 
two treatment recipes tested were Heritage's previously approved 
treatment recipe (0.35 parts ferrous sulfate, 1 part cement, 1 part 
cement kiln dust) and CWM's treatment recipe from the proposed variance 
(0.20 parts ferrous sulfate, 1.0 part cement kiln dust). Five samples 
were treated using all three stabilization technologies. In addition to 
lab-scale testing, Heritage verified the effectiveness of the new 
stabilization recipe on the Guardian waste via several rounds of full-
scale demonstrations. All information and data provided by Heritage can 
be found in the RCRA docket (RCRA-2004-0009). Collectively, the TCLP 
tests on all treated Guardian waste samples indicate a significant 
reduction in leachability. The new chemical stabilization treatment 
recipe obtained results that were one order of magnitude lower than the 
other two treatment recipes tested. The reduction in all cases, 
however, was not enough to meet the LDR treatment standard of 5.7 mg/L 
for selenium, as measured by the TCLP.
    EPA believes from its analysis of the data submitted by Heritage 
that the most effective stabilization recipe for this waste consists of 
1 part cement, 0.5 parts lime, 0.28 parts aluminum sulfate, and 0.017 
parts calcium polysulfide (CaSx), resulting in a reagent to waste ratio 
of 1.8. Water is also added to make a thick paste that upon curing 
solidifies into a hard cemented material.

E. Determination of the New Alternative Treatment Standard for the 
Guardian Waste

    When the Agency developed the national treatment standard of 5.7 
mg/L for D010 selenium non-wastewaters, as measured by the TCLP, it 
used data with reagent to waste ratios that varied from 1.3 to 2.7 to 
calculate the treatment standard. The Heritage selenium variance that 
was previously granted for the Guardian waste reflected a reagent to 
waste ratio of 2.35 (69 FR 6567, February 11, 2004). Heritage, treating 
the same Guardian waste with their proprietary chemical stabilization 
technology, achieved a reagent to waste ratio of 1.8. The Agency notes 
that, by keeping the reagent to waste ratio to minimal levels, 
treatment facilities minimize the amount of treated waste to be 
disposed in hazardous waste landfills. The Agency recommends that CWM 
and Heritage use a reagent to waste ratio of 1.8 as an upper limit.
    Using the BDAT methodology,\3\ the Agency has calculated an 
alternative treatment standard of 11 mg/L, as measured by the TCLP, 
based on eight data points that were the result of stabilization 
treatment using a reagent to waste ratio of 1.8 for the Guardian

[[Page 44508]]

waste. Treated selenium concentrations for the eight samples ranged 
from 4.8 mg/L to 8.0 mg/L selenium, as measured by the TCLP. Table 1 
shows the results of leaching, as measured by the TCLP, of the Guardian 
waste treated using the new stabilization recipe.
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    \3\ BDAT Background Document for Quality Assurance/Quality 
Control Procedures and Methodology, October 23, 1991.

                   Table 1.--Summary of Guardian Waste
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                      Heritage verification testing
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                                                            Selenium
                                                          concentration
 Guardian sample ID/ test ID   Total selenium content-     in treated
                                 estimate (percent)     waste TCLP (mg/L
                                                                )
------------------------------------------------------------------------
1183982/280.................  6.7% (67,000 ppm).......               7.0
1183983/281.................  5.8% (58,000 ppm).......               7.6
1184104/283.................  7.2% (60,000 ppm).......               6.9
1184304/284.................  6.3% (72,000 ppm).......               6.8
1183982/280.................  6.7% (67,000 ppm).......               7.0
Sample 1: full scale field    Not available...........               8.0
 test.
Sample 1: full scale field    Not available...........               4.8
 test.
Sample 1: full scale field    Not available...........               6.3
 test.
------------------------------------------------------------------------

F. Availability of the Heritage Treatment Technology

    The new chemical stabilization technology developed by Heritage has 
a patent application pending for approval by mid 2006. EPA considers 
this technology to be the ``best available treatment technology'' 
(BDAT) for treating the Guardian waste and is using the performance 
data provided by Heritage as the basis for a site-specific treatment 
standard variance for the Guardian waste. EPA addressed the issue of 
the use of proprietary or patented technologies for establishing BDAT 
in the Solvents & Dioxin rule (November 7, 1986, 51 FR 40572). In that 
rule, EPA stated that it considers a technology that is proprietary or 
patented to be available, ``if the Agency determines that the treatment 
method can be purchased from the proprietor or is a commercially 
available treatment.'' (See 51 FR 40588, November 7, 1986.)
    EPA is aware that the level achieved by Heritage's proprietary 
stabilization technology as the best available technology treatment 
standard for the Guardian waste may necessitate actual use of the 
Heritage technology. Heritage has indicated that it will offer its use 
through a licensing arrangement. EPA has examined the Heritage 
licensing agreement and believes that it allows for the technology to 
be reasonably available for use by other entities. A boilerplate of the 
licensing agreement can be found in EDOCKET under Docket ID RCRA-2004-
0009.

III. Same Site-Specific Treatment Standard Variance for Heritage

    In the November 19, 2004 notice, we proposed to modify the existing 
selenium alternative treatment standard of 39.4 mg/L, as measured by 
the TCLP (69 FR 67647), that EPA had previously granted to Heritage (69 
FR 6567, February 11, 2004) for the same waste based on a variance 
petition submitted by CWM in which they demonstrated that a more 
stringent treatment standard--28 mg/L, as measured by the TCLP--was 
achievable. Based on comments received on that proposal, on February 
28, 2005, EPA sought additional comments from stakeholders on using the 
new performance data provided by Heritage as BDAT for both CWM and 
Heritage, so that both treaters could treat the Guardian waste to the 
same treatment standard. EPA did not receive any comments against using 
this approach to set the alternative treatment standard to 11 mg/L 
selenium, as measured by the TCLP, for the Guardian waste.

IV. What Is the Basis for EPA's Approval of CWM's and Heritage's 
Request for an Alternative D010 Treatment Standard?

    After careful review of the petition submitted by CWM, and of the 
comments received on EPA's proposals to modify the site-specific 
treatment standards for the Guardian waste at both the CWM and Heritage 
facilities, EPA concludes that the requirements for a treatment 
standard variance under 40 CFR 268.44(h)(1) are satisfied. CWM and 
Heritage have 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 or two orders of 
magnitude higher than TCLP concentrations in the waste used to develop 
the treatment standard for D010 hazardous wastes. Data from CWM and 
Heritage demonstrate that wastes containing high concentrations of 
selenium are not easily treated. Furthermore, both facilities are using 
stabilization as the treatment technology, which is consistent with 
EPA's determination that stabilization is the best available treatment 
technology for this waste.
    An added benefit of stabilizing the Guardian waste 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 of in a hazardous waste landfill.
    Therefore, EPA is today granting these two site-specific variances 
from the D010 treatment standards for the Guardian waste stream in 
question since the waste cannot be treated to the level specified in 
the regulations with a reasonable waste to reagent ratio. Today's 
alternative treatment standard will provide sufficient latitude for CWM 
and Heritage to treat the other metal (chromium) present in the waste 
to LDR treatment standards and, by raising the selenium treatment 
standard, will avoid the difficulty posed by the different solubility 
curves of selenium and chromium. EPA is amending 40 CFR 268.44 to note 
that Chemical Waste Management, Chemical Services LLC and Heritage 
Environmental Services, LLC would be subject to a selenium treatment 
standard of 11 mg/L, as measured by the TCLP.

[[Page 44509]]

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

    In establishing an alternative treatment standard of 11 mg/L for 
selenium in the Guardian waste, as measured by the TCLP, EPA is not 
specifying that a specific recipe or methodology be used to reach the 
alternative treatment standard. The Agency notes that, to avoid 
questions of impermissible dilution, Heritage and CWM 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 both facilities use a reagent to 
waste ratio of 1.8 to 1 as an upper limit, where the reagents are 
measured on a dry weight basis. This is the ratio used in the 
treatability study that forms the basis for establishing today's 
alternative treatment standard.
    In addition, the Agency is requiring that Heritage and CWM not 
place the stabilized waste from Guardian directly on the operation 
layer on the floor of the landfill, nor in the area of a stand pipe or 
leachate sump pump. This restriction of the placement of the waste in 
the cell would minimize potential leaching in the landfill.
    Upon promulgation of this final rule, CWM and Heritage may treat 
the Guardian waste to an alternate treatment standard of 11mg/L 
selenium, as measured by the TCLP. CWM and Heritage may dispose of the 
treated wastes \4\ in a RCRA Subtitle C landfill provided they meet all 
the applicable LDR treatment standards for any other hazardous 
constituents in the wastes.
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    \4\ Note that disposal in a Subtitle C landfill is required 
because the treated wastes are 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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    It is a technically necessary compromise that the alternative 
selenium standard for the Guardian waste is higher that the LDR 
treatment standard of 5.7 mg/L for selenium. As noted above and in the 
May 12, 1997, Federal Register (62 FR 26045), treatment cannot be 
optimized for both acid and base-soluble metals due to their different 
solubility curves. Because another toxic metal (chromium) is being 
immobilized to meet its respective universal treatment standard, we 
consider, under the circumstances, that threats are being minimized if 
the alternative selenium treatment standards are met, as required by 
3004(m).

VI. Response to Comments

    The Agency received comments from two parties on the November 19, 
2004, proposed rule. This Federal Register notice discusses the major 
issues raised by the commenters. Detailed responses to all comments 
raised can be found in the Response to Comments Document which is in 
the OSWER Docket (RCRA-2004-0009) for this rulemaking.
    The first commenter was the waste treatment company, Heritage 
Environmental Services LLC, which had previously received a variance 
for the Guardian waste (see 69 FR 6567, February 11, 2004). Heritage 
submitted performance data showing that its new stabilization 
technology was successful in achieving additional stabilization of 
selenium and chromium in the Guardian waste. Heritage proposed that EPA 
establish a new selenium variance level of 10 mg/L for CWM, as measured 
by the TCLP, based upon their performance data. EPA agrees with the 
comment submitted by Heritage, but the Agency has calculated an 
alternative treatment standard of 11 mg/L, as measured by the TCLP, and 
is requiring the same standard for both facilities (CWM and Heritage).
    The second commenter was Niagara Health Science Report Inc. 
(Niagara). Niagara commented that the proposed standard would not 
provide any incentive for the waste industry to develop alternative 
recovery technologies for selenium-bearing hazardous wastes. The 
Agency's preference would be to recover the selenium in an 
environmentally sound manner over stabilization and land disposal. 
However, there has been no recorded domestic production of secondary 
selenium in 2002, 2003, and 2004. \5\ In addition, our discussions with 
the glass manufacturing industry, our research on commodity reports 
regarding selenium production and demand, and conference calls with 
commercial vendors indicate that all potential selenium recovery 
technologies being considered remain pilot projects and have been shown 
not to be economically viable for treatment of wastes containing low 
concentration of selenium. Consequently, EPA believes that the 
development of an environmentally protective secondary selenium 
recovery system in the U.S. is not reasonably expected in the near 
future.
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    \5\ ``Selenium''; U.S. Geological Survey--Minerals Yearbooks.
---------------------------------------------------------------------------

    On February 28, 2005, EPA sought additional comments from the 
stakeholders on using the new performance data provided by Heritage as 
BDAT for the Guardian waste. Heritage submitted a response that 
expressed their support for the Agency to establish an alternative 
treatment standard of 11 mg/L, as measured by the TCLP.
    Niagara commented that there is no critical need to grant a 
variance for the Guardian waste to CWM since Heritage had demonstrated 
their ability to achieve a TCLP selenium criterion of 10 mg/L. The 
Agency agrees that Heritage has developed a treatment methodology that 
performs better than the stabilization technologies that were used to 
develop the proposed alternative treatment standard for the Guardian 
waste. The Agency is, therefore, establishing a site-specific treatment 
standard based upon the performance of the Heritage technology. As a 
result, Guardian will have the option of sending their waste to either 
treater/disposal facility to be treated to the same level of 
performance.

VII. 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 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. These 
variances only change the treatment standard applicable to a D010 waste 
stream that is treated at the CWM Chemical Services LLC facility in 
Model City, New York, and the Heritage Environmental Services LLC 
facility in Indianapolis, Indiana.

[[Page 44510]]

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
These site-specific treatment standard variances do not impose 
information collection burden on CWM (Model City) and Heritage given 
their petitions contains the information needed to determine 
effectiveness of treatment. All information and data used in the 
development of these treatment standard variances can be found in the 
RCRA docket (RCRA-2004-0009) for this rulemaking. These actions also do 
not change in any way the paperwork requirements already applicable to 
this waste. It, therefore, does not affect the requirements under the 
Paperwork Reduction Act.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. None of the 
entities involved in this final rule are small entities as defined by 
the Small Business Administration's (SBA) regulations at 13 CFR 
121.201.

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 adopts 
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 a specific waste 
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 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 effect 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. Today's rule does not create a 
mandate on state, local, or tribal governments. The rule does not 
impose any enforceable duties on these entities. 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

[[Page 44511]]

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 Executive Order 13175.
    Today's final rule does not significantly or uniquely affect the 
communities of Indian tribal governments. The rule issues two site-
specific treatment standard variances from the LDR treatment standards 
for a specific characteristic selenium waste that will be disposed in 
existing, permitted hazardous waste landfills. Accordingly, Executive 
Order 13175 does not apply to this rule.

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

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    Today's final rule is not subject to Executive Order 13045 because 
it does not meet either of these criteria. The waste described in these 
site-specific treatment standard variances will be treated by Heritage 
Environmental Services, LLC or Chemical Waste Management, Chemical 
Services LLC, and then disposed of in existing, permitted RCRA Subtitle 
C landfills, ensuring that there will be no risks that may 
disproportionately affect children.

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 variances apply to a D010 waste stream at the Heritage 
Environmental Services, LLC facility in Indianapolis, Indiana and at 
the Chemical Waste Management, Chemical Services LLC. facility in Model 
City, New York. These selenium wastes will be disposed of in existing, 
permitted 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.

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 August 3, 2005.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Variance, Selenium.

    Dated; July 26, 2005.
Thomas P. Dunne,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response (OSWER).

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. Revising the entry for ``Guardian Industries Corp.''
0
b. Revising footnote number 11.
    The revisions and additions read as follows:


Sec.  268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

[[Page 44512]]



                                            Wastes Excluded From the Treatment Standards Under Sec.   268.40.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Wastewaters                        Nonwastewaters
                                                            Regulated hazardous ------------------------------------------------------------------------
   Facility name \1\ and address           Waste code           constituent       Concentration
                                                                                     (mg/L )          Notes       Concentration  (mg/kg)       Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Guardian Industries Jefferson        D010 Standards under   Selenium...........              NA              NA  11 mg/L TCLP...........              NA
 Hills, PA (6), (11), and (12).       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.
* * * * *
\6\ Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations.
* * * * *
\11\ D010 wastes generated by this facility may be treated by Heritage Environmental Services, LLC at their RCRA permitted treatment facility in
  Indianapolis, Indiana or by Chemical Waste Management, Chemical Services Inc. at their RCRA permitted treatment facility in Model City, New York.

* * * * *
[FR Doc. 05-15325 Filed 8-2-05; 8:45 am]
BILLING CODE 6560-50-P