[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Rules and Regulations]
[Pages 27761-27767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10786]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[EPA-HQ-RCRA-2007-0936; FRL-8565-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
promulgating a 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's 
rules in 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. Thus, once the P- and U-listed mixed waste 
are treated using the VTD unit, the solid treatment residue can be land 
disposed without further treatment. This 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 final rule will be effective June 13, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-RCRA-2007-0936. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information may not be publicly available, because for example, it 
may be Confidential Business Information (CBI) or other information, 
the disclosure of which is restricted by statute. Certain 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 through http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Avenue, 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 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. Does This Action Apply to Me?

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

B. Table of Contents

I. Summary of This Action
II. Background
III. Development of This Variance
    A. EnergySolutions' Petition
    B. Comments Received on Variance and the Agency's Response
    C. What Type and How Much Mixed Waste Are Subject to This 
Variance?
    D. Description of the VTD Process
IV. EPA's Reasons for Granting This Variance
V. Conditions of the Variance
VI. Statutory and Executive Orders
    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 promulgating, as proposed, 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). The variance is limited to the RCRA requirements for 
treatment of the hazardous waste portion of the mixed waste and does 
not affect the regulations under AEA authority.
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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 the 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.

[[Page 27762]]

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 site-specific treatment variance. These P- and U-listed 
wastes are not analyzable, hence the treatment standard of CMBST. 
EnergySolutions contends that additional treatment of the solid 
treatment residue from the VTD unit, 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 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 condition 
of this treatment variance, EnergySolutions must comply with a WFDT 
plan that establishes conditions on the treatment process that will 
assure optimized treatment of the mixed waste, which is implemented 
through a RCRA Part B permit modification of the VTD unit.

II. Background

    Under sections 3004(d) through (g) of RCRA, the land disposal of 
hazardous wastes is normally prohibited unless such 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 diminish the hazardous waste's toxicity or substantially 
reduce 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 at 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 
constituent(s), 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 VTD unit 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's 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 criterion 
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 EPA for a site-
specific treatment variance from the treatment standard of combustion 
(CMBST) for certain P- and U-listed mixed wastes.\5\ EnergySolutions 
requested an alternative treatment standard of VTD \6\ which would 
allow the 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 
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) similar to the organic constituents in the P- and U-listed 
hazardous waste identified in their petition.\7\ The petitioner also

[[Page 27763]]

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 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 chemical applicable to this rule can 
be found in the docket supporting this rule.
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    On March 6, 2008 (73 FR 12043), the Agency issued a direct final 
rule and a parallel proposal (73 FR 12043) granting a site-specific 
treatment variance to EnergySolutions for the treatment of certain P- 
and U-listed mixed waste using the VTD unit. The treatment variance 
established an alternative treatment standard to treatment by 
combustion (CMBST) required for these wastes under EPA's rules 
implementing the LDR provisions of RCRA. The Agency made the 
determination that combustion of the solid treatment residue generated 
from the VTD unit was technically inappropriate due to the effective 
performance of the VTD unit. The treatment variance was conditioned 
upon EnergySolutions complying with a 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.
    We stated in the preamble to the direct final rule and parallel 
proposal that if we received adverse comment we would withdraw the 
direct final rule and proceed with a subsequent final rule. We received 
adverse comment on the direct final rule and therefore withdrew the 
direct final rule as of May 2, 2008.

B. Comments Received on Variance and Agency's Response

    The Agency received four comments on the direct final rule. Two of 
the comments were identical, and urged the Nuclear Regulatory 
Commission (NRC) to deny EnergySolutions' request to import nuclear 
waste into the United States for disposal. We have concluded that these 
comments are not germane to the treatment variance and addressed an 
issue outside the scope of this rulemaking. The third comment supported 
granting the site-specific treatment variance to EnergySolutions. The 
final comment raised concerns about radioactive waste being treated in 
Utah and EPA's determination that the only regulated entity that would 
be affected by the rule would be EnergySolutions (see 73 FR at 12044). 
The commenter argued that EnergySolutions was not the only affected 
party and stated that the commenter, the State of Utah, and the United 
States would be affected by granting this treatment variance. The 
commenter, however, did not state why or how these entities would be 
affected. While the commenter's assertion that citizens, the States, 
and the federal government could be affected by this action may be 
correct in the broadest sense, we believe that it has no relation to 
the narrow question at issue here of whether the criteria for a 
treatment variance are satisfied. However, EPA believes firmly that no 
entities will be adversely affected by granting the treatment variance. 
First, EnergySolutions is a permitted hazardous waste treatment, 
storage and disposal facility and is subject to regulations and permit 
conditions which assure protection of human health and the environment. 
Second, the unchallenged record indicates that EnergySolutions' method 
of treatment fully satisfies the criterion for a treatment variance; 
that is, the method of treatment is one that minimizes threats to human 
health and the environment posed by land disposal of the wastes being 
treated.\8\
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    \8\ It should be noted that even if the Agency were to deny 
EnergySolutions' petition, it would not prevent them from treating 
these wastes, although the solid treatment residue generated from 
the VTD unit would need to be further treated by CMBST. However, the 
data and information provided by EnergySolutions demonstrates that 
such further treatment is inappropriate.
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    After review of the comments, the Agency has determined that the 
site specific treatment variance to EnergySolutions should be 
promulgated.

C. What Type and How Much Mixed Waste Are Subject to This Variance?

    The wastes subject to this variance are mixed waste consisting of 
discarded commercial chemical products (P- and U-listed hazardous 
wastes) that are required to meet the technology performance standard 
of CMBST.\9\ 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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    \9\ 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.\10\
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    \10\ 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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D. 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 been in operation since March 2005, and has 
processed more than 304,000 kilograms (kg) of mixed waste. 
EnergySolutions' VTD process design 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 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.\11\ 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 filters and 
condensers. 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 
a 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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    \11\ 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

[[Page 27764]]

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. The 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 the 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 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.\12\ Incineration of the liquid condensate optimizes 
the destruction of toxic organics and yields a smaller volume of post-
incineration waste. The liquid condensate contains 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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    \12\ Analytical data on the organic condensate and solid process 
residuals from the 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.\13\
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    \13\ 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.\14\
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    \14\ 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 performance achieved for the SVOC and VOC mixed 
waste (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 that additional treatment with CMBST, as required by the 
treatment standard of CMBST, is technically inappropriate due to the 
effectiveness of the VTD treatment for the removal of organic 
constituents. Therefore, EPA is promulgating this final action to grant 
a site-specific treatment variance to EnergySolutions for an 
alternative treatment standard of VTD for the land disposal of the 
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.\15\ 
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 mixed waste landfill is 
environmentally preferable.
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    \15\ 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 that the VTD process 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, as part of a RCRA Part B 
permit modification, addressing the treatment of these P- and U-listed 
mixed wastes using VTD. Most significantly for

[[Page 27765]]

purposes of the treatment variance, this submission is to include a new 
WFDT plan for 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).\16\ 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 WFDT plan for each 
batch of P- and U-listed mixed waste that requires CMBST.\17\ 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.
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    \16\ 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 the 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 that they are below 
analytical reporting levels, including surrogate compounds chosen 
for non-analyzable or difficult to treat organics.
    \17\ 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.\18\ 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 feed material and 
concentrate them within the liquid condensate, including the surrogates 
chosen to represent the non-analyzable P- and U-listed organic 
constituents.
---------------------------------------------------------------------------

    \18\ 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 their VTD unit 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 
268.44 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. 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, sections 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

[[Page 27766]]

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.

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, 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.
    The final rule 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 final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The site-specific 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 U.S.C. 
804(2). This rule will be effective June 13, 2008.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Mixed waste and 
variances.

    Dated: May 8, 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:

[[Page 27767]]

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. In Sec.  268.42, Table 1 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) * * *

Table 1.--Technology Codes and Description of Technology-Based Standards
------------------------------------------------------------------------
                                     Description of technology-based
        Technology code                         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) * * *

                                        Table.--Wastes Excluded From the Treatment Standards Under Sec.   268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     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     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 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 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 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.


[FR Doc. E8-10786 Filed 5-13-08; 8:45 am]
BILLING CODE 6560-50-P