[Federal Register Volume 71, Number 25 (Tuesday, February 7, 2006)]
[Proposed Rules]
[Pages 6238-6241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1072]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-8027-7; EPA-HQ-RCRA-2005-0015]


Site-Specific Variance From the Land Disposal Restrictions 
Treatment Standard for 1,3-Phenylenediamine (1,3-PDA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to revise the waste treatment standard for 
1,3-phenylenediamine (1,3-PDA) for a biosludge generated at DuPont's 
Chambers Works facility in Deepwater, New Jersey. This variance is 
necessary because the facility is unable to measure compliance with the 
previously promulgated 1,3-PDA treatment standard in its multisource 
leachate biosludge matrix. As a practical matter, therefore, the 
facility cannot fully document compliance with the requirements of the 
treatment standard. For the same reason, EPA cannot ascertain 
compliance for this constituent. Furthermore, faced with the inability 
to demonstrate treatment residual content through analytical testing 
for this constituent, this facility faces potential curtailment of 1,3-
PDA production operations. This site-specific variance will provide 
alternative technology treatment standards for 1,3-PDA in multisource 
leachate that do not require analysis of the biosludge matrix to 
determine whether the numerical treatment standard is being met, thus 
ensuring that treatment reflecting performance of the Best Demonstrated 
Available Technology occurs and that threats to human health and the 
environment from land disposal of the waste are minimized.
    In the ``Rules and Regulations'' section of the Federal Register, 
we are revising the 1,3-PDA multisource leachate (F039) treatment 
standard for the DuPont Chambers Works facility in Deepwater, New 
Jersey without prior proposal because we view the revision as 
noncontroversial and anticipate no adverse comment. We have explained 
our reasons for this approach in the preamble to the direct final rule. 
If we receive adverse comment on this revision, however, we will 
withdraw the direct final action for that portion of the variance and 
it will not take effect. 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 any amendment must do so at this time.

DATES: Comments must be received by March 9, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2005-0015, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: [email protected] and [email protected].
     Fax: 202-566-0272.
     Mail: RCRA Docket (5305T), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please 
include a total of 3 copies.
     Hand Delivery: 1301 Constitution Ave., NW., Room B102, 
Washington, DC. Such deliveries are only accepted during the Docket's 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No EPA-HQ-RCRA-
2005-0015. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the HQ-Docket Center, Docket 
ID No EPA-HQ-RCRA-2005-0015, EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The Docket Facility 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 RCRA Docket is (202) 566-0270. A reasonable 
fee may be charged for copying docket materials.

FOR FURTHER INFORMATION CONTACT: For more information on this proposed 
rulemaking, contact Rhonda Minnick, Hazardous Waste Minimization and 
Management Division, Office of Solid Waste (MC 5302 W), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone (703) 308-8771; fax (703) 308-8443; or 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 6239]]

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.'' We interpret this 
language to authorize treatment standards based on the performance of 
the Best Demonstrated Available Technology (BDAT). This interpretation 
was upheld by the DC Circuit in Hazardous Waste Treatment Council v. 
EPA, 886 F. 2d 355 (D.C. Cir. 1989).
    We recognize that there may be wastes that cannot be treated to 
levels specified in the regulations (see 40 CFR 268.40) because an 
individual waste matrix or concentration can be substantially more 
difficult to treat than those wastes we 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 1,3-PDA Treatment Standard?

    The treatment standard for 1,3-PDA was promulgated in the Dyes and 
Pigments (K181) hazardous waste listing on February 24, 2005 (70 FR 
9138) and it became effective on August 23, 2005. The 1,3-PDA treatment 
standard was placed in the Table of Treatment Standards (see 40 CFR 
268.40) under ``K181'' (the waste code for the Dyes and Pigments 
listing) and under ``F039'' (the waste code for multisource leachate). 
It is the F039 treatment standard for 1,3-PDA that is addressed in this 
site-specific variance. We also added this constituent to the Universal 
Treatment Standard Table (see 40 CFR 268.48), which means that when 
1,3-PDA is reasonably expected to be present in a characteristic waste 
at point of generation it must be considered an underlying hazardous 
constituent requiring treatment.
    In the final rule, we set a numerical nonwastewater treatment 
standard of 0.66 mg/kg for 1,3-PDA, based on use of the best 
demonstrated available technology (BDAT) of combustion. For purposes of 
establishing the treatment standard, we grouped 1,3-PDA with other 
waste constituents (notably 1,2-PDA, but also including o-Anisidine, p-
Cresidine, 2,4-dimethylaniline, aniline and 4-chloroaniline). No actual 
treatment data were available for 1,3-PDA. However, the 0.66 mg/kg 
treatment standard was based on: (1) The thermal stability index 
ranking system and incinerability index (if the most difficult to treat 
constituents can be destroyed via incineration, then all less stable 
constituents can also be destroyed); and (2) similar chemical 
structures and chemical and physical properties that are exhibited by 
the constituents in each treatability group (incineration should be 
able to destabilize and destroy each of the compounds in a similar 
fashion). See the ``Best Demonstrated Available Technology (BDAT) 
Background Document for Dyes and Pigments Production Wastes,'' December 
2004, section 2.2.3.

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

A. What Criteria Govern a Treatment Variance?

    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 a delegated 
representative, for a site-specific variance from a treatment standard. 
One of the demonstrations that an applicant for a site-specific 
variance may make is that it is not physically possible to treat the 
waste to the level specified in the treatment standard (40 CFR 
268.44(h)(1)). This is the criteria pertinent to today's variance, in 
that it is not technically possible to measure the constituent in 
DuPont's biosludge treatment residual, as explained below.

B. What Does DuPont Request?

    DuPont contacted EPA about an analytical problem it is having with 
1,3-PDA in their multisource leachate (F039) treatment biosludge. The 
facility produces 1,3-PDA in their plant and then pipes the wastewaters 
from manufacturing 1,3-PDA to an onsite biological wastewater treatment 
plant. DuPont ultimately disposes of the biosolids containing 1,3-PDA 
into their hazardous waste landfill. The mass loading levels of the 
waste 1,3-PDA do not trigger the K181 listing, so such placement is not 
considered land disposal of a hazardous waste. However, the landfill is 
permitted to accept biosolids with several listed hazardous waste and, 
as a result, generates F039 (a hazardous waste), which is reasonably 
expected to contain 1,3-PDA. The F039 is introduced by pipeline into 
DuPont's biological treatment system, a two-step biological process 
that includes the use of activated carbon. Biodegradation reduces 
organics in this system by approximately 99%. The treatment residual is 
a F039 biosludge that is high in carbon. It is this biosludge that is 
the basis of the requested treatability variance.
    DuPont has sent the biosludge to several commercial laboratories 
for analysis to see if it met the treatment standard and could be 
legally land disposed. The laboratories have consistently been unable 
to detect 1,3-PDA in this high carbon matrix. When asked if they could 
develop a new detection method for this constituent, only one 
laboratory was interested in attempting to do so, but indicated that it 
could take a year to develop and it likely would have a detection limit 
around 13 mg/kg (the detection limit for a similar compound, 1,4-PDA). 
This detection limit is much higher than the 1,3-PDA treatment standard 
of 0.66 mg/kg.
    DuPont pointed out that when the treatment standard for a similar 
compound, 1,2-PDA (1,2-phenylenediamine, o-phenylenediamine), was 
promulgated in the dyes and pigments listing rule, we set a treatment 
standard expressed as specified technologies because of method 
detection problems: we specified that combustion (CMBST), or chemical 
oxidation (CHOXD) followed by biodegradation (BIODG) or carbon 
adsorption (CARBN), or a treatment train of BIODG followed by CARBN are 
the treatment standard. DuPont requested that we provide a variance 
that would set specified technologies as the treatment standard for 
1,3-PDA at their Chambers Works facility, as we did for 1,2-PDA. We 
believe that this is a reasonable request because when we evaluated the 
waste constituents to determine the original treatment standards, we 
grouped 1,3-PDA with 1,2-PDA (and other constituents) because they are 
similar in chemical structure and physical properties.

C. New Treatment Standard for 1,3-PDA

    We are granting DuPont's request in today's site-specific variance. 
Under one of the criteria for a variance from the treatment standard, 
the applicant must demonstrate that it is not physically possible to 
treat the waste to the level specified in the treatment standard. We 
believe that today's variance falls into this category, in that it is 
technically

[[Page 6240]]

impossible for DuPont to demonstrate that it complies with a treatment 
level when laboratories have not been able to detect the waste in 
DuPont's particular, site-specific biosludge matrix.\1\ Therefore, 
certification that this constituent has been treated in the F039 
biosludge matrix is not possible, and without the certification, 
disposal of the F039 biosludge cannot legally occur. This situation may 
impede production of 1,3-PDA at the facility, because legal disposal of 
this waste would no longer be available. See Steel Manufacturers 
Association v. EPA. 27 F.3d 642, 646-47 (D.C. Cir. 1994) (absence of a 
treatment standard providing a legal means of disposing of wastes from 
a process is equivalent to shutting down that process).
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    \1\ This finding is similar to a previous LDR determination. We 
originally promulgated a numerical treatment standard for 1,2-PDA 
(o-phenylenediamine) on April 8, 1996 (61 FR 15583). However, we 
subsequently withdrew the treatment standard because of poor method 
performance on September 4, 1998. We stated at that time that 
treatment of other constituents would provide adequate treatment for 
o-phenylenediamine (63 FR 47409)).
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    The alternative treatment standard established by today's site-
specific variance is: Combustion (CMBST), or chemical oxidation (CHOXD) 
followed by biodegradation (BIODG) or carbon adsorption (CARBN), or a 
treatment train of BIODG followed by CARBN, the same treatment standard 
we set in the K181 listing rule for a similar constituent, 1,2-PDA. By 
altering the treatment standard for 1,3-PDA to allow certification of 
compliance based on the use of specified treatment technologies without 
constituent-specific testing, we can ensure that effective treatment 
occurs without delay and can also assure that threats to human health 
and the environment are minimized. We believe that DuPont's two-step 
biological treatment system that includes the use of activated carbon 
effectively treats 1,3-PDA in the F039 multisource leachate waste.\2\ 
And, as mentioned in footnote 1, we made a similar finding that 
treatment of other carbamate waste constituents would adequately treat 
1,2-PDA, when we withdrew it as a constituent of concern in 1998. 
Likewise, we believe that treatment of the other constituents of 
concern in DuPont's F039 multisource leachate waste will serve as a 
surrogate for 1,3-PDA.
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    \2\ When we originally promulgated treatment standards for F039, 
we stated that constituents on the BDAT list serve as surrogates for 
those constituents that may be present in the multisource leachate 
that cannot be adequately analyzed (55 FR 22622, June 1, 1990).
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III. Administrative Requirements

    For a complete discussion of all of the administrative requirements 
applicable to this action, see the direct final rule in the Rules and 
Regulations section of today's Federal Register.

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.
    This treatment variance does not create any new regulatory 
requirements. Rather, it establishes an alternative treatment standard 
for a specific waste stream that replaces a standard already in effect, 
and it applies to only one facility. Therefore, I hereby certify that 
this proposed 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.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: January 27, 2006.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 268--LAND DISPOSAL RESTRICTIONS

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

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

    2. Section 268.44, the table in paragraph (o) is amended by adding 
in alphabetical order an additional entry for ``DuPont Environmental 
Treatment Chambers Works, Deepwater, NJ'' and adding a new footnote 13 
to read as follows:


Sec.  268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

                                        Table.--Wastes Excluded From the Treatment Standards Under Sec.   268.40
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                                                                                                Wastewaters                      Nonwastewaters
                                                                      Regulated    ---------------------------------------------------------------------
 Facility name \1\ and address    Waste code        See also          hazardous       Concentration                       Concentration
                                                                     constituent         (mg/L)             Notes            (mg/kg)           Notes
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                                                                      * * * * * * *
DuPont Environmental Treatment-           F039  Standards under   1,3-phenylenedia- NA..............  NA..............  CMBST; CHOXD fb           (\13\)
 Chambers Works, Deepwater, NJ.                  Sec.   268.40.    mine (1,3-PDA).                                       BIODG or CARBN;
                                                                                                                         or BIODG fb
                                                                                                                         CARBN.
 
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\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\13\ This treatment standard applies to 1,3-PDA in biosludge from treatment of F039.
Note: NA means Not Applicable.


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[FR Doc. 06-1072 Filed 2-6-06; 8:45 am]
BILLING CODE 6560-50-P