[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Rules and Regulations]
[Pages 12017-12024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4449]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[EPA-HQ-RCRA-2007-0936; FRL-8538-8]


Land Disposal Restrictions: Site-Specific Treatment Variance for 
P and U-Listed Hazardous Mixed Wastes Treated by Vacuum Thermal 
Desorption at the EnergySolutions' Facility in Clive, UT

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
issuing a direct final rule granting a site-specific treatment variance 
to EnergySolutions LLC (EnergySolutions) in Clive, Utah for the 
treatment of certain P and U-listed hazardous waste containing 
radioactive contamination (``mixed waste'') using vacuum thermal 
desorption (VTD). This variance is an alternative treatment standard to 
treatment by combustion (CMBST) required for these wastes under EPA 
rules implementing the land disposal restriction (LDR) provisions of 
the Resource Conservation and Recovery Act (RCRA). The Agency has 
determined that combustion of the solid treatment residue generated 
from the VTD unit is technically inappropriate due to the effective 
performance of the VTD unit. Once the P and U-listed mixed waste are 
treated using VTD, the solid treatment residue can be land disposed 
without further treatment. This treatment variance is conditioned upon 
EnergySolutions complying with a Waste Family Demonstration Testing 
(WFDT) plan specifically addressing the treatment of these P and U 
listed wastes, which is to be implemented through a RCRA Part B permit 
modification for the VTD unit.

DATES: This direct final rule will be effective May 5, 2008 without 
further notice, unless EPA receives adverse written comment by April 7, 
2008. If EPA receives significant adverse comments, EPA will withdraw 
this direct final rule before it takes effect by means of a timely 
withdrawal notice in the Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2007-0936, by one of the following methods: www.regulations.gov: 
Follow the on-line instructions for submitting comments.
    E-mail: [email protected] and [email protected]. Attention 
Docket ID No. EPA-HQ-RCRA-2007-0936.
    Fax: 202-566-9744. Attention Docket ID No. EPA-HQ-RCRA-2007-0936.
    Mail: RCRA Docket (2822T), U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Attention Docket 
ID No. EPA-HQ-RCRA-2007-0936. Please include a total of 2 copies.
    Hand Delivery: EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., 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-
2007-0936. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or e-mail. The http://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 http://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 http://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 http://www.regulations.gov or in hard copy at the HQ-Docket Center, 
Docket ID No

[[Page 12018]]

EPA-HQ-RCRA-2007-0936, EPA West, Room 3334, 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 
rulemaking, contact Juan Parra, Hazardous Waste Minimization and 
Management Division, Office of Solid Waste (MC 5302 P), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone (703) 308-0478; fax (703) 308-8443; or 
[email protected] or Elaine Eby. Hazardous Waste Minimization and 
Management Division, Office of Solid Waste (MC 5302 P), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone (703) 308-8449; fax (703) 308-8443; or 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Why Is EPA Using a Direct Final Rule?

    EPA is publishing this rule as a direct final rule because we view 
this action as noncontroversial. Based on the information and data 
submitted by the petitioner for this site specific treatment variance 
and the oversight being provided by the regulatory authority in the 
State of Utah, we do not believe that there will be significant adverse 
comments to this action. However, in the ``Proposed Rules'' section of 
today's Federal Register, we are publishing a separate document that 
will serve as a proposed rule should EPA receive significant adverse 
comments on this action. We will not institute a second comment period 
on this action. Any parties interested in commenting must do so at this 
time. For further information about commenting on this rule, see the 
ADDRESSES section of this document.
    If EPA receives significant adverse comment, we will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect. We would address all 
public comments in any subsequent final rule based on the proposed 
rule.

B. Does This Action Apply to Me?

    This action applies only to EnergySolutions located in Clive, Utah.

C. Table of Contents

I. Summary of This Action
II. Background

III. Development of This Variance

    A. EnergySolutions' Petition
    B. What Type and How Much Mixed Waste Are Subject to This 
Variance?
    C. Description of the VTD Process
IV. EPA's Reasons for Granting This Variance
V. Conditions of the Variance
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    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 Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Summary of This Action

    EPA is taking direct final action to grant a site-specific 
treatment variance to EnergySolutions in Clive, Utah, for the treatment 
of certain P and U-listed mixed waste using an alternative treatment 
standard of VTD.\1\ The current treatment standard for these wastes is 
combustion (CMBST). See 40 CFR 268.40 and 268.42.
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    \1\ Mixed waste is defined as radioactive waste that contains 
hazardous waste that either: (1) Is listed as a hazardous waste in 
Subpart D of 40 CFR Part 261; or (2) causes the waste to exhibit any 
of the hazardous waste characteristics identified in Subpart C of 40 
CFR Part 261. Mixed waste is regulated under multiple authorities: 
RCRA (for the non-radioactive component), as implemented by EPA or 
authorized States; and the Atomic Energy Act (AEA) (for the source, 
special nuclear, or by-product material component), as implemented 
by the Nuclear Regulatory Commission (NRC), NRC agreement States 
(for commercially-generated mixed wastes), or the Department of 
Energy (DOE) (for defense-related mixed waste generated by DOE 
activities). This treatment variance is limited to the RCRA 
requirements for treatment of the hazardous waste portion of the 
mixed waste and does not affect the regulatory requirements under 
AEA authority. As a result, absent the variance, mixed waste 
identified as RCRA P and U-listed hazardous wastes are subject to 
the CMBST treatment standard. This must take place in a high 
temperature organic destruction unit, permitted for both the 
radioactive component and for the RCRA hazardous wastes.
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    EnergySolutions' VTD unit currently operates pursuant to a Part B 
RCRA permit issued by the State of Utah which (among other things) 
authorizes treatment of mixed waste containing both semi-volatile 
organic compounds (SVOC) and volatile organic compounds (VOC). In 2006, 
EnergySolutions submitted a petition to EPA for a site-specific 
treatment variance from the LDR treatment standard of CMBST for various 
P and U-listed mixed waste. The petitioner is seeking an alternative 
treatment standard of VTD. EnergySolutions provided data and 
information indicating that the VTD unit is capable of achieving at 
least 99.99% removal of analyzable SVOC \2\ and VOC \3\ constituents in 
the solid treatment residue generated from the VTD unit; analysis of 
the solid treatment residue shows that the LDR concentration-based 
treatment standards for these chemical constituents are consistently 
achieved. (Concentration-based treatment standards for specific 
chemical constituents are found in 40 CFR 268.48.) The petitioner also 
supplied performance data demonstrating that the VTD unit effectively 
removes chemical compounds (in the SVOC and VOC families) from the 
mixed waste having similar chemical and physical properties (i.e., 
boiling points and vapor pressures) to the regulated hazardous 
constituents in the P and U-listings that are the subject of this 
variance. The P and U-listed wastes subject to this treatment variance 
are not analyzable hence the treatment standard of CMBST. 
EnergySolutions contends that additional treatment of the solid 
treatment residue, using the treatment method of CMBST, would be 
technically inappropriate in that substantial treatment, as measured 
with the use of similar chemical compounds, has already been achieved 
using the VTD unit.
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    \2\ The SVOC waste family is defined as those chemical compounds 
that are detected using SW-846 Method 8270.
    \3\ The VOC waste family is defined as those chemical compounds 
that are detected using SW-846 Method 8260.
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    The Agency has reviewed the information and data presented by the 
petitioner and has determined that additional treatment of the solid 
treatment residue (i.e., complying with the existing CMBST treatment 
standard) is technically inappropriate given the documented performance 
of the VTD unit. The Agency is therefore taking direct final action to 
grant a site-specific treatment variance to EnergySolutions for an 
alternative LDR treatment standard of VTD for certain P and U-listed 
mixed wastes that have undergone treatment using the VTD process. Once 
treated, the solid treatment residue can be land disposed, in this case 
in EnergySolutions' on-site hazardous mixed waste landfill. As a

[[Page 12019]]

condition of this variance, EnergySolutions must receive and be in 
compliance with a RCRA permit modification for the VTD process 
specifically establishing a treatment protocol for these P and U-listed 
wastes. This permit modification will consist of a WFDT plan that 
establishes conditions on the treatment process that should assure 
optimized treatment of the mixed waste.

II. Background

    Under sections 3004(d) through (g) of RCRA, land disposal of 
hazardous wastes is normally prohibited unless wastes are able to meet 
the treatment standards established by EPA. Section 3004(m) of RCRA 
requires EPA to set levels or methods of treatment that substantially 
diminishes the hazardous waste's toxicity or substantially reduces the 
likelihood of hazardous constituents migrating from the waste so that 
short-term and long-term threats to human health and the environment 
posed by the waste's land disposal 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 v. EPA, 
886 F.2d 355 (D.C. Cir. 1989).
    However, facilities can apply for a site-specific treatment 
variance in cases when a hazardous waste that is generated cannot be 
treated to the specified levels or when it is technically inappropriate 
for the waste to undergo such treatment (See 51 FR 40605-40606 
(November 7, 1986)). In such cases, the generator or treatment facility 
may apply for a variance from a treatment standard. The requirements 
for a treatment variance are found at 40 CFR 268.44.\4\
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    \4\ In the case where the rules specify that a method of 
treatment must be used to treat a particular constituent or 
constituents, EPA also allows facilities to demonstrate that an 
alternative treatment method can achieve a measure of performance 
equivalent to that achievable by the EPA-specified treatment method 
(40 CFR 268.42(b)). This demonstration of equivalency, known as a 
Determination of Equivalent Treatment (DET), is typically both 
waste-specific and site-specific. EPA notes that the petition 
submitted by EnergySolutions appears to meet the criteria of 40 CFR 
268.42(b) in that the solid treatment residue from the VTD removes 
SVOC and VOC constituents with the same efficiency as hazardous 
waste combustion units. However, while the Agency could choose to 
evaluate the petition under the criteria developed for a DET, we are 
processing EnergySolutions petition under the criteria found in 40 
CFR 268.44, as requested in EnergySolutions petition to EPA. Today's 
decision is thus based on the rationale provided by EnergySolutions 
treatment variance petition, i.e., that it is inappropriate to 
require the waste to be treated by the method specified as the 
treatment standard (i.e., CMBST), even though such treatment is 
technically possible (see 40 CFR 268.44(h)(2)).
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    An applicant for a site-specific treatment variance may demonstrate 
that it is inappropriate to require a waste to be treated by the method 
specified as the treatment standard, even though such treatment is 
technically possible (40 CFR 268.44(h)(2)). This is the criteria 
pertinent to today's action in that EnergySolutions claims it is 
technically inappropriate to further treat the waste (i.e., solid 
treatment residue) that has already been treated to remove over 99.99% 
of the hazardous organic constituents contained in the waste.

III. Development of This Variance

A. EnergySolutions' Petition

    On April 28, 2006, EnergySolutions petitioned the Agency for a 
site-specific treatment variance from the treatment standard of CMBST 
for certain P and U-listed mixed wastes.\5\ EnergySolutions requested 
an alternative treatment standard of VTD \6\ which would allow land 
disposal of the solid treatment residue from the VTD unit without 
having to combust the treatment residue (as required by the CMBST 
treatment standard). The petitioner contends that additional treatment 
is inappropriate and would result in little if any additional reduction 
of the waste's toxicity.
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    \5\ Under 40 CFR 268.42, ``CMBST'' is defined as ``[h]igh 
temperature organic destruction technologies, such as combustion in 
incinerators, boilers, or industrial furnaces operated in accordance 
with the applicable requirements of 40 CFR Part 264, Subpart O, or 
40 CFR Part 265, Subpart O, or 40 CFR Part 266, Subpart H, and in 
other units operated in accordance with applicable technical 
operating requirements; and certain non-combustive technologies, 
such as the Catalytic Extraction Process.'' EnergySolutions' VTD 
unit does not meet this definition.
    \6\ For certain P and U-listed wastes, EPA was not able to 
identify an analytical method by which treatment effectiveness could 
be determined in the regulated constituent. As a result, EPA 
promulgated CMBST as the treatment standard for these P and U-listed 
wastes. CMBST was selected as the method of treatment because it is 
relatively indiscriminate in the destruction of organics due to the 
high temperatures, efficient mixing, and consistent residence times 
present in a well-designed and well-operated facility (see 55 FR 
22611, June 1, 1990).
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    EnergySolutions provided data and information indicating that 
treatment using their VTD unit achieves substantial reductions in the 
concentrations of organic constituents (greater than 99.99%) in the 
solid treatment residue. Data included SVOC and VOC concentrations in 
the untreated waste, organic liquid condensate and solid treatment 
residue from demonstration tests conducted in August and September of 
2004 and October of 2006. The petitioner also supplied performance data 
indicating that the VTD unit can remove 99.99% of organic constituents 
with chemical and physical properties (i.e., boiling points and vapor 
pressures) comparable to the organic constituents in the P and U-listed 
hazardous waste identified in their petition.\7\ The petitioner also 
provided a description of the analytical and methodological protocol 
established by the State of Utah that describes how the VTD unit will 
be optimized to assure continued optimized removal of hazardous organic 
constituents from the P and U-listed mixed waste.
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    \7\ The specific P and U-listed hazardous wastes associated with 
the untreated mixed waste had been conservatively determined by the 
facility, in consultation with the State of Utah, using the 
``derived-from rule,'' described in 40 CFR 261.3(c)(2)(i). A listing 
of the specific waste codes and chemicals applicable to this rule 
can be found in the docket supporting this rule.
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B. What Type and How Much Mixed Waste Are Subject to This Variance?

    The wastes subject to this treatment variance are mixed waste 
consisting of discarded commercial chemical products (P and U-listed 
hazardous wastes) that are required to meet a technology performance 
standard of CMBST.\8\ It also includes secondary waste (e.g., carbon 
filter media) generated by the EnergySolutions' VTD unit during the 
processing of the mixed waste.
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    \8\ A list of these chemicals, with associated boiling point 
data, is included as part of the docket supporting this rulemaking.
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    The Department of Energy (DOE) has identified approximately 50 
cubic meters (m3) of mixed waste (tank sludges and decontamination 
residues) in legacy storage in Oak Ridge, Tennessee. EnergySolutions 
has also identified an additional 900 m3 of hardened tank sludge at a 
commercial facility. Another potential source of hazardous waste to be 
treated by EnergySolutions' VTD unit is from a commercial chemical 
manufacturer. The waste can be characterized as tank sludge, much of 
which is in a hardened/compressed form, identified as U053 
(crotonaldehyde) and U122 (formaldehyde) mixed waste.\9\
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    \9\ Waste codes are assigned by the generator based upon process 
knowledge of raw feed materials and by-products within the chemical 
manufacturing process.
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C. Description of the VTD Process

    EnergySolutions' VTD unit holds a permit from the State of Utah as 
a RCRA Subpart X miscellaneous treatment unit. This permit allows the 
facility to treat mixed waste that contains SVOC and VOC waste 
families. The VTD unit has

[[Page 12020]]

been in operation since March 2005, and has processed more than 304,000 
kilograms (kg) of mixed waste. EnergySolutions' VTD process design 
typically achieves a removal efficiency of 99.99% for SVOC and VOC 
waste families in the VTD solid treatment residue and meets all 
applicable LDR concentration-based treatment standards. Treatment 
residue from the unit is land disposed at EnergySolutions' on-site 
permitted hazardous mixed waste landfill after all other regulatory 
requirements are met.
    The VTD unit consists of four subsystems: (1) A thermal separation 
system (dryer); (2) a processed material discharge system; (3) an off-
gas treatment train; and (4) a condensate tank system.\10\ The 
treatment system operates by indirectly heating the raw waste fed into 
the unit, vaporizing the volatile and semi-volatile organic 
constituents and capturing these constituents as a condensate. The 
process has one input stream (the raw waste) and three output streams. 
The three output streams are: (1) The solid treatment residue; (2) the 
concentrated liquid condensate; and (3) an off-gas which is released to 
the atmosphere after passing through a series of condensers and 
filters. It should be noted that the liquid condensate and the off-gas 
are not subject to this rulemaking. The condensate is still subject to 
the CMBST treatment standard before it can be land disposed, and is 
sent off-site for incineration. The off-gas emission is regulated under 
the state-issued Part B Permit (its emission limits established using a 
risk assessment under 40 CFR 270.32(b)(2) (the so-called omnibus 
provision) and by an Air Approval Order issued by the Utah Department 
of Environmental Quality).
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    \10\ A process diagram of the EnergySolutions' VTD unit can be 
found in the docket supporting this rulemaking. Schematic drawings 
of the equipment are also provided.
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    The thermal separation unit or dryer is a completely enclosed 
cylindrical tank with a processing capacity of approximately 29 cubic 
feet (ft3) of feed material per process cycle. Several process cycles 
can be run per day. It is indirectly heated by a propane-fired furnace 
and is permitted to reach process temperatures up to 650 [deg]C. Feed 
material is introduced into the dryer through a hopper. The system is 
maintained below atmospheric pressure by a vacuum pump. Nitrogen is 
introduced to displace oxygen to a level no greater than 7%, which is 
below the oxygen ignition point for volatile and semi-volatile 
contaminants. The nitrogen purge gas carries the volatilized 
contaminants from the dryer to the off-gas treatment train. Treatment 
time and temperature in the dryer are established for each process 
cycle following the characterization of the raw waste.
    The processed material discharge system is fully enclosed and 
consists of a hopper with a cooling jacket, a conveyor system, and a 
collection container. The system includes water spray nozzles to aid in 
cooling the processed material and to provide dust control. The dry 
processed material is collected in the discharge system after the 
process cycle is completed. An auger conveys the discharged solid to a 
metal receiving box. Post-treatment analytical samples are collected 
from the box or directly from the processed material discharge system 
and tested for all analyzable regulated constituents originally 
identified in the waste feed. Once successful verification results are 
received, the process material is land disposed at EnergySolutions' on-
site mixed hazardous waste landfill.
    Off-gas is generated within the dryer and is purged with a nitrogen 
carrier gas. The off-gas treatment train, also called the air pollution 
control (APC) system, consists of condensers in series, a vacuum pump, 
and a filtration adsorption system with a pre-filter, HEPA filter, and 
carbon adsorption beds. The nitrogen provides a relatively inert 
atmosphere (oxygen content less than 7%), which prevents combustion of 
the volatile or semi-volatile constituents. The gas stream then passes 
through the filtration system to remove the remaining SVOC and VOC.
    Hot gas from the dryer is fed to the condensers and the condensers 
cool the gas stream and the majority of the volatile and semi-volatile 
compounds are brought to a liquid phase. The condensate tank system 
consists of traps, for temporary storage, from which the liquid 
condensate can either be transferred to permanent tanks or to portable 
totes. Traps located in the liquid discharge line from the condensers 
collect the condensate. It is then sent off-site for incineration at a 
RCRA permitted facility.
    The liquid condensate is more amenable to combustion than the 
untreated waste.\11\ Incineration of the liquid condensate optimizes 
the destruction of toxic organics and yields a smaller volume of post-
incineration waste. The liquid condensate also contains only 
approximately 5% of the total amount of radionucliides in the untreated 
waste and presents a significantly lower potential for radioactive 
materials to be emitted to the atmosphere through the combustion 
process.
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    \11\ Analytical data on the organic condensate and solid process 
residuals from VTD demonstration tests completed in August and 
September of 2004 and October of 2006 can be found in the docket 
supporting this rulemaking.
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    The off-gas emission is vented to the atmosphere through a stack 
that discharges approximately 35 feet above ground level. The gas 
emission leaves the APC system and its exit velocity is boosted with 
outside air through a blower in order to provide good dispersion of any 
remaining emissions. The APC system also is designed to allow the 
carrier gas to be recycled back to the dryer. System data are displayed 
as an electronic process flow diagram that is continuously monitored by 
trained technicians. Dryer temperature, dryer pressure, oxygen level 
and off-gas exit temperature are included in the parameters that are 
measured.\12\
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    \12\ More detailed information on the EnergySolutions' VTD 
technology process can be found in the docket for this rulemaking.
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    The facility currently ships separately the solid treatment 
residue, containing the majority of the radionucliides (over 95%) and 
negligible concentration of organics to its on-site hazardous mixed 
waste landfill, and the liquid condensate, containing the majority of 
the organic constituents, to an incinerator to meet the CMBST 
requirement. The incineration takes place in a unit permitted for both 
the radioactive component and for RCRA hazardous wastes.\13\
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    \13\ There are only two permitted mixed waste incinerators in 
the U.S. These facilities, due to the operational design of their 
units, have greater available capacity to accept liquid condensate 
waste and have a backlog of solid mixed wastes.
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IV. EPA's Reasons for Granting This Variance

    EPA has determined that given the similarities in chemical and 
physical properties and separation characteristics between the SVOC and 
VOC mixed waste and the P and U-listed mixed wastes, that processing 
the P and U-listed mixed waste through the VTD unit will achieve the 
same level of treatment achieved for the SVOC and VOC mixed wastes 
(i.e., 99.99% removal in the solid treatment residue). Furthermore, EPA 
has concluded that subsequent combustion of the solid treatment residue 
from the VTD unit will not substantially reduce its toxicity so that 
subsequent treatment by the required treatment standard of CMBST is 
unnecessary and will achieve no additional benefit. This is because the 
solid treatment residue has negligible concentrations of the residual 
organics. Put another way, EPA has determined

[[Page 12021]]

that additional treatment with CMBST, as required by the treatment 
standard of CMBST, is technically inappropriate due to the 
effectiveness of the VTD treatment unit for the removal of organic 
constituents. Therefore, EPA is taking direct final action to grant a 
site-specific treatment variance to EnergySolutions for an alternative 
treatment standard of VTD for the land disposal of solid treatment 
residue from the treatment of certain P and U-listed mixed waste.
    Not only would further treatment of the residue be technically 
inappropriate, but it could have environmentally detrimental effects. 
Under their state-issued Part B permit, EnergySolutions is required to 
operate the VTD unit so that most (generally over 95%) of the 
radioactive component remains in the solid treatment residue.\14\ 
Combustion of that treatment residue could release some of the 
radioactive component to the atmosphere through the combustion process. 
To limit this potential, the Agency believes that processing the P and 
U-listed hazardous wastes through the VTD unit followed by disposal of 
the solid treatment residue in the on-site hazardous mixed waste 
landfill is environmentally preferable.
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    \14\ Data relating to radiochemical properties of the condensate 
generated through the process is included in the docket supporting 
this rulemaking.
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V. Conditions of the Variance

    Although EPA believes the applicant has made a technically sound 
presentation, and believes further from study of the VTD process that 
it should continue to result in highly effective treatment, EPA (and 
the applicant, and the State of Utah (the authorized permit-issuer)) 
believes that conditions can and should be imposed on the treatment 
process to assure its continued effective operation. Therefore, as a 
condition of its RCRA permit, EnergySolutions is required to submit to 
the State of Utah all the appropriate data and documentation to support 
a RCRA Part B permit modification addressing the treatment of these P 
and U-listed mixed wastes using VTD. Most significantly for purposes of 
the treatment variance, this submission is to include a new WFDT plan 
for the P and U-listed mixed wastes developed by the facility and 
approved by the State of Utah. This plan identifies the surrogate 
compounds that reflect treatment of the most difficult to treat CMBST-
coded organic compounds (e.g., those with the highest vapor pressures 
and boiling points).\15\ Surrogates will have to be selected to measure 
the level of treatment of the organic compounds that do not have 
analytical methods of detection or quantification. The RCRA permit, 
when modified, will require compliance with this plan for each batch of 
P and U-listed mixed waste that requires CMBST.\16\ EPA's site-specific 
treatment variance is conditioned on EnergySolutions' adhering to the 
WFDT plan specifically addressing the treatment of these P and U-listed 
wastes and implemented through a RCRA Part B permit modification for 
the VTD unit.
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    \15\ The objectives of the WFDT are: (1) Determine if the P and 
U-listed hazardous wastes that have CMBST as the LDR treatment 
standard are amenable to VTD processing and that the processed 
material meets LDR standards for all analyzable P and U hazardous 
organic constituents; (2) identify and justify representative 
surrogate compounds for the demonstration for those P and U 
hazardous organic constituents that do not have an analytical method 
of detection; (3) determine the optimal operational and system 
parameters for the new waste family that will ensure at least 99.99 
percent removal efficiency is attained for such hazardous wastes; 
(4) account for toxic waste constituents through material balances; 
(5) verify compliance of the VTD unit with all applicable conditions 
of the EnergySolutions' state-issued Part B Permit; and (6) 
determine concentration levels for the hazardous organic 
constituents in treatment residuals to determine they are below 
analytical reporting levels, including surrogate compounds chosen 
for non-analyzable or difficult to treat organics.
    \16\ If the conditions outlined in the WFDT plan are not met for 
each batch of P and U-listed mixed waste, EnergySolutions must re-
treat the batch of waste to meet the conditions established in the 
plan or send the waste off-site for CMBST.
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    A WFDT plan is required in the state-issued Part B permit for every 
new waste type to be treated in the EnergySolutions' VTD unit. Because 
many of the organic chemicals in P and U-listed hazardous waste do not 
have analytical methods for detection or quantification, the WFDT plan, 
as required by the permit, will need to identify individual surrogate 
compounds that reflect treatment of the non-analyzable organic 
compounds in the waste family. The volatility of each target 
contaminant is the most important factor in thermal desorption 
separation.\17\ Most of these chemicals (99 of 139) have boiling points 
less than 200[deg]C, 28 have boiling points between 200[deg]C and 
300[deg]C, seven have boiling points between 300[deg]C and 400[deg]C, 
four have boiling points between 400[deg]C and 500[deg]C, and only one 
of the compounds has a boiling point greater than 500[deg]C; at 
534[deg]C. The VTD system is permitted to operate at temperatures up to 
650[deg]C. Based on the volatility of the organic constituents in the 
boiling point table and the operational temperature of the VTD unit, 
processing these P and U-listed hazardous waste through the VTD system 
can be expected to remove the organic constituents (especially those 
organics requiring CMBST) from the solid material and concentrate them 
within the liquid condensate, including the surrogates chosen to 
represent the non-analyzable P and U-listed organic constituents.
---------------------------------------------------------------------------

    \17\ The CMBST Code Boiling Point Table is included in the 
docket supporting this rulemaking. It provides boiling point data 
for those non-analyzable hazardous organics that require CMBST as 
the LDR treatment standard.
---------------------------------------------------------------------------

    Surrogates are also used to measure the performance of the VTD 
unit. Rather than test each specific organic constituent associated 
with each waste family, the facility chooses surrogate compounds to 
represent the most difficult to treat organic chemicals in the entire 
waste family matrix (i.e., highest boiling points and pressure vapors). 
The WFDT plan must identify these surrogate compounds to be spiked into 
the waste as indicators for the entire waste family performance in the 
VTD unit.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action grants a site-specific treatment variance to 
EnergySolutions for the treatment of certain P and U-listed mixed 
wastes using VTD instead of the treatment standard required under 
RCRA's LDR program, CMBST. However, the Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations at 40 CFR 268.42 and .44 under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned OMB control number 2050-0085. 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.
    This site-specific treatment variance does not create any new 
requirements.

[[Page 12022]]

Rather, it establishes an alternative treatment standard for specific 
waste codes and applies to only one facility. Therefore, we hereby 
certify that this rule will not add any new regulatory requirements to 
small entities. This rule, therefore, does not require a regulatory 
flexibility analysis.

D. Unfunded Mandates Reform Act of 1995

    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 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 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 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 UMRA) for State, local, or tribal governments 
or the private sector. The rule imposes no enforceable duty on any 
State, local or tribal governments or the private sector. 
EnergySolutions will obtain from the State of Utah a RCRA permit 
modification for their VTD unit to treat these P- and U-listed wastes. 
This action, however, does not impose any new duties on the state's 
hazardous waste program. EPA has determined, therefore, that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments in that the authority for this action 
already exists with the State of Utah.

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'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This action finalizes a site-
specific treatment variance applicable to one facility. 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'' (59 FR 22951, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This action 
is a site-specific treatment variance that applies to only one 
facility, which is not a tribal facility or located on tribal lands. 
Thus, Executive Order 13175 does not apply to this rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that are based on health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211: Actions Concerning Regulations 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

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 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. 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. 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

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this direct final rule will not have a 
disproportionately high and adverse human health or environmental 
effects

[[Page 12023]]

on minority or low-income populations because it does not affect the 
level of protection provided to human health or the environment. The 
treatment variance being finalized applies to certain P and U-listed 
mixed waste that is treated in an existing, permitted RCRA facility, 
ensuring protection to human health and the environment. Therefore, the 
rule will not 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 5, 2008.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Mixed waste and 
variances.

    Dated: February 28, 2008.
Susan Parker Bodine,
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.

Subpart D--Treatment Standards

0
2. In Sec.  268.42, the table in paragraph (a) is amended by adding in 
alphabetical order an entry for ``VTD'' to read as follows:


Sec.  268.42  Treatment standards expressed as specified technologies.

* * * * *
    (a) * * *

------------------------------------------------------------------------
      Technology code         Description of technology-based standards
------------------------------------------------------------------------
 
                              * * * * * * *
VTD........................  Vacuum thermal desorption of low-level
                              radioactive hazardous mixed waste in units
                              in compliance with all applicable
                              radioactive protection requirements under
                              control of the Nuclear Regulatory
                              Commission.
 
                              * * * * * * *
------------------------------------------------------------------------

0
3. In Sec.  268.44, the table in paragraph (o) is amended by adding in 
alphabetical order an entry for ``EnergySolutions LLC, Clive, UT'' and 
adding a new footnote 14 to read as follows:


Sec.  268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Wastewaters                    Nonwastewaters
                                                                           Regulated     ---------------------------------------------------------------
 Facility name \1\ and  address      Waste code          See also          hazardous      Concentration (mg/             Concentration (mg/
                                                                          constituent             L)            Notes           kg)             Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                       * * * * * *
EnergySolutions LLC, Clive, UT   P and U-listed     Standards under    NA...............  NA...............  NA........  CMBST or VTD.....  NA.
 \14\.                            hazardous waste    Sec.   268.40.
                                  requiring CMBST.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\14\ This site-specific treatment variance applies only to the solid treatment residue resulting from the vacuum thermal desorption (VTD) of P and U-
  listed hazardous waste containing radioactive contamination (``mixed waste'') at the EnergySolutions' LLC (EnergySolutions) facility in Clive, Utah
  that otherwise requires CMBST as the LDR treatment standard. Once the P and U-listed mixed waste are treated using VTD, the solid treatment residue
  can be land disposed at EnergySolutions' onsite RCRA permitted hazardous mixed waste landfill without further treatment. This treatment variance is
  conditioned on EnergySolutions complying with a Waste Family Demonstration Testing Plan specifically addressing the treatment of these P and U-listed
  wastes, with this plan being implemented through a RCRA Part B permit modification for the VTD unit. Note: NA means Not Applicable.


[[Page 12024]]

 [FR Doc. E8-4449 Filed 3-5-08; 8:45 am]
BILLING CODE 6560-50-P