Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 18921 

not subject to Executive Order 13211, 

entitled Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001) or Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997). 

This final rule does not contain any 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., nor does it require any special 

considerations under Executive Order 

12898, entitled Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under section 408(d) of FFDCA, such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.) do not apply. 

This final rule directly regulates 

growers, food processors, food handlers, 

and food retailers, not States or tribes, 

nor does this action alter the 

relationships or distribution of power 

and responsibilities established by 

Congress in the preemption provisions 

of section 408(n)(4) of FFDCA. As such, 

the Agency has determined that this 

action will not have a substantial direct 

effect on States or tribal governments, 

on the relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000) do not apply 

to this final rule. In addition, this final 

rule does not impose any enforceable 

duty or contain any unfunded mandate 

as described under Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to 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). 

VII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report 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 this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: March 25, 2011. 

Steven Bradbury, 

Director, Office of Pesticide Programs. 

Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.652 is added to read as 

follows: 

§ 180.652 Ethiprole; tolerances for 

residues. 

(a) General. Tolerances (without U.S. 

registrations) are established for 

residues of the insecticide ethiprole, 

including its metabolites and degradate, 

in or on the following commodities 

listed in the table. Compliance with the 

tolerance levels specified in the table is 

to be determined by measuring only 

ethiprole [5-amino-1-[2,6-dichloro-4- 

(trifluoromethyl)phenyl]-4-[(ethyl)- 

sulfinyl]-1H-pyrazole-3-carbonitrile], in 

or on the following commodities: 

Commodity Parts per 

million 

Rice, grain 1 ............................ 1 .7 

Tea, dried 1 ............................. 30 

1There are no U.S. registrations for rice and 

tea. 

(b) Section 18 emergency exemptions. 

[Reserved] 

(c) Tolerances with regional 

registrations. [Reserved] 

(d) Indirect or inadvertent residues. 

[Reserved] 

[FR Doc. 2011–8024 Filed 4–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 268 

[EPA–HQ–RCRA–2010–0851; FRL–9290–6] 

Land Disposal Restrictions: Nevada 

and California; Site Specific Treatment 

Variances for Hazardous Selenium 

Bearing Waste 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

actions to both issue a site-specific 

treatment variance to U.S. Ecology 

Nevada (USEN) in Beatty, Nevada and 

to withdraw an existing site-specific 

treatment variance issued to Chemical 

Waste Management, Inc. (CWM) in 

Kettleman Hills, California. These 

actions pertain to the treatment of a 

hazardous waste generated by the 

Owens-Brockway Glass Container 

Company in Vernon, California that is 

unable to meet the concentration-based 

treatment standard for selenium 

established under the Land Disposal 

Restrictions program. The site-specific 

treatment variance issued to USEN 

provides an alternative treatment 

standard of 59 mg/L for selenium as 

measured by the Toxicity Characteristic 

Leaching Procedure. EPA has 

determined that the treatment 

performed by USEN provides the best 

demonstrated treatment available for 

this waste by reducing the potential 

amount of selenium released to the 

environment, while minimizing the 

total volume of hazardous waste land 

disposed. 

DATES: This direct final rule will be 

effective June 6, 2011 without further 

notice, unless EPA receives adverse 

written comment by May 6, 2011. If EPA 

receives adverse comments, EPA will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the direct final rule will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

RCRA–2010–0851, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: rcra-docket@epa.gov and 

miller.jesse@epa.gov. Attention Docket 

ID No. EPA–HQ–RCRA–2010–0851. 

• Fax: 202–566–9744. Attention 

Docket ID No. EPA–HQ–RCRA–2010– 

0851. 

• Mail: RCRA Docket (28221T), U.S. 

Environmental Protection Agency, 1200 


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Pennsylvania Avenue, NW., 

Washington, DC 20460. Attention 

Docket ID No. EPA–HQ–RCRA–2010– 

0851. Please include a total of 2 copies. 

• Hand Delivery: Please deliver 2 

copies to 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–2010– 

0851. 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. 

EPA–HQ–RCRA–2010–0851, EPA/DC, 

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 Jesse Miller, Materials Recovery 

and Waste Management Division, Office 

of Resource Conservation and Recovery 

(MC 5304 P), U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone (703) 308–1180; fax (703) 

308–0522; or miller.jesse@epa.gov. 

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 

a noncontroversial action and anticipate 

no adverse comment. Based on the 

information and data submitted by the 

petitioner for this site-specific treatment 

variance and the oversight being 

provided by the regulatory authorities in 

the states of Nevada and California, we 

do not believe that there will be adverse 

comments on 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 

adverse comments. 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 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. 

If we do not receive adverse comment, 

the rule will take effect on June 6, 2011. 

Section 3010(b) of RCRA states that 

rules implementing subtitle C of RCRA 

normally take effect six months after 

promulgation, but that EPA may provide 

for a shorter effective date for rules with 

which the regulated community does 

not need six months to come into 

compliance. This is such a rule, as the 

Owens-Brockway Glass Container 

Company should be able to transport the 

waste to USEN for treatment and 

disposal in a much shorter period of 

time. 

B. Does this action apply to me? 

This action applies only to U.S. 

Ecology Nevada located in Beatty, 

Nevada and to Chemical Waste 

Management, Inc. located in Kettleman 

Hills, California. 

C. Table of Contents 

I. Background 

A. Basis for Land Disposal Restrictions 

Treatment Variances 

B. Basis of the Current Selenium Treatment 

Standard 

C. Site-Specific Treatment Variance for 

Selenium-Bearing Waste 

II. Basis for This Determination 

III. Development of This Variance 

A. U.S. Ecology Nevada Petition 

B. What Type and How Much Waste Will 

be Subject to This Variance? 

C. Description of the Waste Treatment 

Process 

IV. EPA’s Reasons for Granting This SiteSpecific Treatment Variance to USEN 

and Withdrawing the Site-Specific 

Treatment Variance from CWM at 40 

CFR 268.44 

V. 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. Background 

A. Basis for Land Disposal Restrictions 

Treatment Variances 

Under sections 3004(d) through (g) of 

the Resource Conservation and 

Recovery Act (RCRA), the land disposal 

of hazardous wastes is prohibited unless 

such wastes are able to meet the 

treatment standards established by EPA. 

Under section 3004(m) of RCRA, EPA is 

required to set ‘‘levels or methods of 

treatment, if any, which substantially 

diminish the toxicity of the waste or 

substantially reduce the likelihood of 

migration of hazardous constituents 

from the waste so that short-term and 

long-term threats to human health and 

the environment are minimized.’’ EPA 


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1Because selenium is a non-renewable resource, 

and because the wastes in question contain high 

selenium concentrations, EPA’s preference would 

be to recover the selenium in an environmentally 

sound manner. However, based on information 

contained in the Mineral Commodity Summaries 

2010 published by the U.S. Department of the 

Interior, U.S. Geological Survey, the amount of 

domestic production of secondary selenium is 

estimated to be very small because most of the 

materials eligible for possible secondary smelting 

(e.g., scrap xerographic and electronic materials) 

were exported for recovery of the contained 

selenium. 

2The calculation of the LDR treatment standard 

was based on a specific method, sometimes called 

‘‘C 99’’ which has been used in other LDR 

rulemakings. This methodology seeks to account for 

process variability (including variability that may 

be attributed to sampling and analytical processes). 

See 63 FR 28556, May 26, 1998 and the document, 

Final—Best Demonstrated Available Technology 

(BDAT) Background Document for Quality 

Assurance/Quality Control Procedures and 

Methodology, USEPA. October 23, 1991. 

interprets this language to authorize 

treatment standards based on the 

performance of the best demonstrated 

available technology (BDAT). This 

interpretation was upheld by the DC 

Circuit in Hazardous Waste Treatment 

Council v. EPA, 886 F. 2d 355 (D.C. Cir. 

1989). 

The Agency recognizes however, that 

there may be wastes that cannot be 

treated to the levels specified in the 

regulations (see 40 CFR 268.40) because 

an individual waste matrix or 

concentration can be substantially more 

difficult to treat than those wastes 

evaluated in establishing the treatment 

standard (51 FR 40576, November 7, 

1986). For such wastes, EPA has a 

process by which a generator or treater 

may seek a treatment variance (see 40 

CFR 268.44). If granted, the terms of the 

variance establish an alternative 

treatment standard for the particular 

waste at issue. 

B. Basis of the Current Selenium 

Treatment Standard 

Treatment of selenium poses special 

difficulties. In particular, it can be 

technically challenging to treat wastes 

containing selenium and other metals 

e.g., cadmium, lead and/or chromium 

because of their different chemical 

properties and solubility curves (62 FR 

26041, May 12, 1997). 

The current treatment standard for a 

waste exhibiting the toxicity 

characteristic for selenium (RCRA 

Hazardous Waste D010) is based upon 

the performance of stabilization on low 

concentration selenium wastes. When 

the Agency developed the treatment 

standard for selenium, EPA believed 

that wastes containing high 

concentrations of selenium were rarely 

generated and land disposed (59 FR 

47980, September 19, 1994). The 

Agency also stated that it believed that, 

for most wastes containing high 

concentrations of selenium, recovery of 

the selenium would be feasible using 

recovery technologies currently 

employed by copper smelters and 

copper refining operations (Id.). The 

Agency further stated in 1994, that it 

did not have any performance data for 

selenium recovery, but available 

information indicated that some 

recovery of elemental selenium out of 

certain types of scrap material and other 

wastes was practiced in the United 

States.1

In 1994, the Agency used performance 

data from the stabilization of a mineral 

processing waste that was 

characteristically hazardous (RCRA 

Hazardous Waste D010) to set the 

national treatment standard for 

selenium. At that time, we determined 

that this was the most difficult to treat 

selenium waste. This untreated waste 

contained up to 700 ppm total selenium 

and 3.74 mg/L selenium as measured by 

the Toxicity Characteristic Leaching 

Procedure (TCLP). The resulting posttreatment levels of selenium in the 

TCLP leachate were between 0.154 mg/ 

L and 1.80 mg/L, which (after 

considering the range of treatment 

process variability) led to EPA 

establishing a national treatment 

standard of 5.7 mg/L for D010 selenium 

nonwastewaters.2 This D010 mineral 

processing waste also contained other 

toxic metals (i.e., arsenic, cadmium, and 

lead) above the characteristic levels. The 

treatment technology used to establish 

the selenium levels also resulted in 

meeting the Land Disposal Restrictions 

(LDR) treatment standards for these nonselenium metals. The waste to reagent 

ratios varied from 1:1.3 to 1:2.7 (62 FR 

26041). 

Thus, in the Phase IV final rule, the 

Agency determined that a treatment 

standard of 5.7 mg/L, as measured by 

the TCLP, continued to be appropriate 

for D010 nonwastewaters (63 FR 28556, 

May 26, 1998). The Agency also 

changed the universal treatment 

standard (UTS) for selenium 

nonwastewaters from 0.16 mg/L to 5.7 

mg/L TCLP. 

C. Site-Specific Treatment Variance for 

Selenium-Bearing Waste 

On May 26, 1999 (64 FR 28387), EPA 

granted Chemical Waste Management, 

Inc. (CWM) in Kettleman Hills, 

California a site-specific treatment 

variance from the LDR treatment 

standards for hazardous seleniumbearing waste generated by the OwensBrockway Glass Container Company 

(Owens-Brockway) at their Vernon, 

California manufacturing facility. Under 

40 CFR 268.44(o), CWM was allowed to 

treat the waste to an alternative 

treatment standard for selenium of 51 

mg/L TCLP with a waste to reagent ratio 

of 1 to 2.7. Total selenium 

concentrations in the electrostatic 

precipitator (ESP) dust generated at the 

Owens-Brockway facility range from 

2,400 mg/kg to 5,700 mg/kg. The 

untreated waste has a leachable 

selenium concentration ranging from 

228 mg/L to 440 mg/L TCLP. In 

addition, the untreated waste has a 

leachable arsenic concentration ranging 

from 3.3 mg/L to 8.6 mg/L TCLP, a 

leachable cadmium concentration 

ranging from 3.9 mg/L to 11.0 mg/L 

TCLP, and a leachable lead 

concentration ranging from <0.10 mg/L 

to 16.3 mg/L TCLP. (For a more detailed 

discussion of EPA’s basis for granting 

the site-specific treatment variance to 

CWM, see 64 FR 28387, May 26, 1999.) 

II. Basis for This Determination 

Under 40 CFR 268.44, facilities can 

apply for a site-specific treatment 

variance in cases where a waste that is 

generated under conditions specific to 

only one site cannot be treated to the 

specified LDR treatment standards. In 

such cases, the generator(s) or the 

treatment facility may apply to the 

Administrator, or to EPA’s designated 

representative, (in this case the 

Assistant Administrator for Solid Waste 

and Emergency Response) for a sitespecific variance from a treatment 

standard. The applicant for a sitespecific variance must demonstrate that, 

because the physical or chemical 

properties of the waste differ 

significantly from the waste analyzed in 

developing the treatment standard, the 

waste cannot be treated to the specified 

levels or by the specified methods. 

There are other grounds for obtaining 

variances, but this is the only provision 

relevant to this action. 

III. Development of This Variance 

A. U.S. Ecology Nevada Petition 

On September 16, 2008, U.S. Ecology 

Nevada (USEN) submitted a petition 

requesting a site-specific treatment 

variance from the LDR treatment 

standards for hazardous seleniumbearing waste generated by OwensBrockway at their Vernon, California 

manufacturing facility. USEN requested 

an alternative treatment standard of 59 

mg/L as measured by the TCLP for the 

selenium contained in the waste. This 

alternative treatment standard was 

achieved with a waste to reagent ratio of 

1 to 0.45, using 20% ferrous sulfate, 


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3The selenium concentrations used to calculate 

the alternative treatment standard were (in mg/L 

TCLP) 49.34, 51.39, 49.39, 43.91, and 54.34. The 

most effective treatment recipe was determined 

using a 50 gram sample of waste where reagents 

were listed as a percent of waste sample weight. For 

example, 20% ferrous sulfate, 15% quick lime, and 

10% sodium sulfide flakes would measure out as 

10 grams of ferrous sulfate, 7.5 grams of quick lime, 

and 5 grams of sodium sulfide flakes for a total of 

22.5 grams of total reagent. The waste to reagent 

ratio was then calculated by dividing 22.5 by 50 to 

get a waste to reagent ratios of 1:0.45. 

4The untreated waste had a total selenium 

concentration of up to 700 ppm selenium, with a 

leachable selenium concentration of 3.74 mg/L 

TCLP. The post treatment levels of selenium were 

between 0.154 mg/L and 1.80 mg/L TCLP, which 

led the Agency to establish the treatment standard 

of 5.7 mg/L TCLP for nonwastewaters. See 63 FR 

28556, May 26, 1998. 

5According to information obtained from 

USEPA’s RCRA Biennial Report, in 2005, 

approximately 108 tons of hazardous waste 

identified as D010 was shipped from OwensBrockway’s Vernon facility to the CWM facility in 

Kettleman Hills, California, while in 2007, almost 

61 tons of D010 waste was shipped to CWM in 

Kettleman Hills, California. 

6The calculation of the LDR treatment standard 

was based on a specific method, sometimes called 

‘‘C 99’’ which has been used in other LDR 

rulemakings. This methodology seeks to account for 

process variability (including variability that may 

be attributed to sampling and analytical processes). 

See 63 FR 28556, May 26, 1998 and the document, 

Final—Best Demonstrated Available Technology 

(BDAT) Background Document for Quality 

Assurance/Quality Control Procedures and 

Methodology, USEPA. October 23, 1991. 

7With the majority of the treatment recipes 

tested, USEN was able to meet the LDRs for all the 

other RCRA metals, including any underlying 

hazardous constituents. 

15% quick lime and 10% sodium 

sulfide flakes.3

B. What type and how much waste will 

be subject to this variance? 

Owens-Brockway operates a glass 

manufacturing facility that ESP dust. 

The ESP dust is generated by the glass 

furnace air emissions control system 

and is hazardous due to its high 

concentrations of leachable arsenic, 

cadmium, lead, and selenium. The 

corresponding EPA hazardous waste 

codes are D004, D006, D008, and D010, 

respectively. The waste generated by 

Owens-Brockway does not meet the 

LDR treatment standards and requires 

treatment prior to land disposal. As 

discussed previously, the physical 

properties and the chemical 

composition of the ESP dust generated 

by Owens-Brockway are considerably 

different from the waste used to 

establish the current LDR treatment 

standard for selenium. The Agency set 

the national treatment standard for 

nonwastewaters using performance data 

from the stabilization of a 

characteristically hazardous mineral 

processing waste, which the Agency 

determined at the time to be the most 

difficult to treat selenium waste.4

According to the petition submitted 

by USEN, the quantity of ESP dust 

shipped off-site for management as a 

hazardous waste ranges from 50 to 100 

tons per year.5 The ESP dust, as 

generated, contains fine particle matter 

resulting from the combustion of natural 

gas and particulate matter generated by 

the dry scrubber used to control SOX

emissions. The material is normally 

returned to the process as a substitute 

raw material; however, there are 

circumstances when it cannot be used 

again due to the high levels of 

hazardous contaminants, its physical 

state or excess quantity. In these 

situations, the ESP dust is managed as 

a RCRA hazardous waste. 

C. Description of the Waste Treatment 

Process 

USEN will stabilize the OwensBrockway ESP dust using a combination 

of reagents and techniques. These 

reagents include ferrous sulfate (FeSO4), 

quick lime (CaO), and sodium sulfide 

(Na2S). USEN typically uses a 

combination of hydroxide and sulfide 

precipitation to treat high concentration 

wastes. Most often, an alkaline reagent 

(quick lime) is used to raise the solution 

pH to lower the solubility of the metal 

constituents and start the precipitation 

process. 

As noted previously, (see 64 FR 

28387, May 26, 1999), EPA concluded 

that it is difficult, if not impossible, to 

optimize the treatment for selenium 

when other metals are being treated, 

because the selenium solubility curve 

differs from that of most other metals. 

Thus, successfully stabilizing other 

metals generally means that treatment 

for selenium cannot be optimized. As 

further pointed out in the petition 

submitted by USEN, selenium’s 

minimum solubility is in the range of 

6.5 to 7.5, while other characteristic 

metals have a minimum solubility in the 

pH range of 8 to 12. In simple terms, if 

you maximize the stabilization 

treatment recipe to treat arsenic, 

cadmium, and lead, the selenium 

becomes soluble and will not meet the 

treatment standard (i.e., fail the TCLP). 

If you maximize the recipe to treat 

selenium, the other metals will not meet 

the treatment standard. 

USEN has been unsuccessful in 

developing a treatment recipe that can 

achieve all the LDR treatment standards 

applicable to this waste (e.g., arsenic, 

chromium, lead, and selenium). USEN 

tested and submitted performance data 

on 135 treatment recipes on five 

different ESP dust samples using a 

combination of reagents and 

concentrations of reagents. USEN was 

unable to achieve the LDR treatment 

standard of 5.7 mg/L selenium using 

any of the 135 treatment recipes. The 

average post treatment selenium TCLP 

value achieved was 47 mg/L TCLP, 

which is approximately a 90% 

reduction in soluble selenium. The 

treatment to an average of 47 mg/L 

TCLP was the result of a recipe with a 

waste to reagent ratio of 1:0.45. With a 

variability factor applied to the average 

TCLP selenium value, the final 

treatment standard would be 59 mg/L 

TCLP.6

With the data and information 

provided to the Agency as part of their 

site-specific treatment variance petition, 

EPA was able to perform an analysis 

which shows that the USEN treatment 

process would generate a lower volume 

of waste material, post treatment, 

coupled with a lower potential for 

selenium being released to the 

environment. Mass balance calculations 

performed by the Agency indicated that 

the treatment conducted by USEN has 

the potential to release between 3.88 to 

7.76 kilograms (8.54 to 17.1 pounds) of 

selenium per year to the environment. 

This range is a result of OwensBrockway generating between 50 and 

100 tons of waste annually. (As we 

discuss in the next section, CWM, even 

with a lower alternative treatment 

standard, has the potential to release 

greater amounts of selenium per year to 

the environment. This is due to the 

higher waste to reagent ratio used to 

stabilize the waste material.7) As such, 

the Agency has determined that USEN 

has optimized its stabilization recipe by 

reducing the amount of selenium 

potentially released to the environment 

and minimizing the amount of reagent 

that must be used to achieve this result. 

IV. EPA’s Reasons for Granting This 

Site-Specific Treatment Variance to 

USEN and Withdrawing the SiteSpecific Variance From CWM at 40 

CFR 268.44 

EPA has reviewed USEN’s petition for 

a site-specific treatment variance from 

the LDR treatment standards for 

hazardous selenium-bearing waste 

generated by Owens-Brockway and is 

granting a variance from the selenium 

treatment standard from 5.7 mg/L TCLP 

to an alternative treatment standard of 

59 mg/L TCLP, with the condition that 

USEN does not exceed a waste to 

reagent ratio of 1:0.45. Concurrently, 

EPA is withdrawing the site-specific 

variance granted to CWM that 

established an alternative treatment 

standard of 51 mg/L TCLP for this same 

waste (69 FR 6567, February 11, 2004). 


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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 18925 

EPA has determined that USEN, 

despite having a higher selenium 

treatment standard based on selenium 

concentration, does, in fact, have the 

potential to release less selenium in a 

land disposal environment by utilizing 

a much more environmentally favorable 

waste to reagent ratio. As such, the 

Agency believes that the treatment 

performed by USEN is the best 

treatment available for this waste. CWM 

uses a waste to reagent ratio of 1:2.7, 

while USEN uses a waste to reagent 

ration of 1:0.45. Consequently, the 

Agency has determined that a treatment 

standard of 59 mg/L TCLP for this 

selenium-bearing waste is more 

protective of human health and the 

environment, due to the fact that it 

generates a lower volume of waste 

material, with a much lower leaching 

potential. In particular, the treatment 

process employed by CWM has the 

potential to release between 8.56 to 

17.11 kilograms (18.8 to 37.69 pounds) 

of selenium per year to the 

environment, whereas USEN has the 

potential to release 3.88 to 7.76 

kilograms (8.54 to 17.1 pounds) of 

selenium per year to the environment. 

Furthermore, utilizing the waste to 

reagent ratio of 1:2.7 would dispose of 

between 185 and 370 tons of waste to 

land disposal per year, whereas utilizing 

the waste to reagent ratio of 1:0.45 

would dispose of only 72.5 to 145 tons 

of waste to land disposal per year. 

Based on the foregoing, the Agency is 

granting USEN’s petition for a sitespecific treatment variance for the ESP 

dust generated at the Owens-Brockway 

glass manufacturing plant in Vernon, 

California. We are also withdrawing the 

portion of CWM’s site-specific treatment 

variance that pertains to its management 

of the Owens-Brockway waste, i.e., 51 

mg/L TCLP for selenium-bearing D010 

waste. 

Technology-based treatment 

standards, whether adopted by generally 

applicable rule or through a variance to 

the generally applicable rule, serve as 

the measure of when threats posed by 

land disposal of the hazardous waste are 

‘‘minimized,’’ as required by RCRA 

section 3004(m). See 55 FR 6640 

(February 26, 1990). Thus, EPA has 

typically limited the standards adopted 

by a variance to a single standard. See 

70 FR 44505 (August 3, 2005). We are 

continuing this practice here by 

rescinding the current variance granted 

to CWM (69 FR 6567, February 11, 

2004). The Agency has determined that 

the existing treatment standard is less 

stringent than the standard we would 

now be granting, both with respect to 

potential concentrations of selenium 

released to the environment and also the 

waste to reagent ratios. Under these 

circumstances, EPA believes that threats 

posed by land disposal are minimized 

by use of the treatment process utilized 

by USEN. 

Please note that the waste already 

disposed of pursuant to the standard 

established in the original treatment 

variance granted to CWM would be 

lawfully disposed, and would not have 

to be retreated if the standard in the 

variance were altered or lapsed. This 

variance results in amending 40 CFR 

268.44(o) to allow hazardous seleniumbearing waste generated by OwensBrockway in Vernon, California, with 

the RCRA hazardous waste 

identification code of D010, to be 

treated to an alternate treatment 

standard of 59 mg/L TCLP by USEN 

with the condition that the waste to 

reagent ratio not exceed 1:0.45. 

V. 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 does two things: (1) Grants a sitespecific treatment variance to USEN for 

the treatment of hazardous seleniumbearing waste under RCRA’s LDR 

program; and (2) withdraws an existing 

site-specific treatment variance to CWM. 

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. 

Rather, it establishes an alternative 

treatment standard for a specific waste 

that applies to only one facility, USEN 

located in Beatty, Nevada and 

withdraws an existing site-specific 

treatment variance for the same waste at 

CWM located in Kettleman Hills, 

California. 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 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. This 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. This action would not 

impose any new duties on the State’s 

hazardous waste program. EPA has 

determined, therefore, that this rule 

would not contain regulatory 

requirements that might significantly or 

uniquely affect small governments in 

that the authority for this action exists 

with the Federal government. Therefore, 

this action is not subject to the 

requirements of sections 202 or 205 of 

the UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. This rule 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 does 

two things: (1) Grants a site-specific 

treatment variance applicable to one 

facility, and (2) withdraws a sitespecific treatment variance for that same 

waste at another facility. Thus, 

Executive Order 13132 would not apply 

to this action. 


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18926 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action would not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action is a site-specific 

treatment variance that applies to only 

one facility, while withdrawing a sitespecific treatment variance for that same 

waste at another facility. Neither 

facilities are tribal facilities or located 

on tribal lands. Thus, Executive Order 

13175 would not apply to this action. 

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 would 

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 

would not be 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 rule will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because it increases the 

level of protection provided to human 

health and the environment because of 

a reduced level of selenium being 

landfilled than currently occurs. The 

treatment variance applies to a specific 

hazardous selenium-bearing waste that 

will be 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, when 

finalized 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 June 6, 2011. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 268 

Environmental Protection, Hazardous 

Waste, Variances. 

Dated: March 31, 2011. 

Mathy Stanislaus, 

Assistant Administrator, Office of Solid Waste 

and Emergency Response. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 268—LAND DISPOSAL 

RESTRICTIONS 

■ 1. The authority citation for part 268 

continues to read as follows: 

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

and 6924. 

■ 2. In § 268.44, the table in paragraph 

(o) is amended by revising the entry for 

‘‘Owens Brockway Glass Container 

Company, Vernon, CA’’ and revising 

footnote 7 to read as follows: 

§ 268.44 Variance from a treatment 

standard. 

* * * * * 

(o) * * * 


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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 18927 

TABLE—WASTES EXCLUDED FROM THE TREATMENT STANDARDS UNDER § 268.40 

Facility name 1 and address Waste 

code See also Regulated hazardous constituent 

Wastewaters Nonwastewaters 

Concentration 

(mg/l) Notes Concentration (mg/kg) Notes 

*******

Owens Brockway Glass Container 

Company, Vernon, CA6,7.

D010 Standards under 

§ 268.40.

Selenium ............... NA ................. NA .... 59 mg/L 

TCLP.

NA 

* * * * * * * 

1A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7. 

* * * * * 

6Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations. 7 D010 waste generated by this facility must be treated and disposed by U.S. Ecology Nevada at their RCRA permitted facility in Beatty, Nevada. The treatment variance is conditioned on the waste to reagent ratio not exceeding 1 to 0.45. 

* * * * * 

Note: NA means Not Applicable. 

[FR Doc. 2011–8179 Filed 4–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R06–RCRA–2010–0307; FRL–9291–1] 

Oklahoma: Final Authorization of State 

Hazardous Waste Management 

Program Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Immediate final rule. 

SUMMARY: Oklahoma has applied to the 

EPA for Final authorization of the 

changes to its hazardous waste program 

under the Resource Conservation and 

Recovery Act (RCRA). EPA has 

determined that these changes satisfy all 

requirements needed to qualify for Final 

authorization, and is authorizing the 

State’s changes through this immediate 

final action. The EPA is publishing this 

rule to authorize the changes without a 

prior proposal because we believe this 

action is not controversial and do not 

expect comments that oppose it. Unless 

we receive written comments which 

oppose this authorization during the 

comment period, the decision to 

authorize Oklahoma’s changes to its 

hazardous waste program will take 

effect. If we receive comments that 

oppose this action, we will publish a 

document in the Federal Register 

withdrawing this rule before it takes 

effect, and a separate document in the 

proposed rules section of this Federal 

Register will serve as a proposal to 

authorize the changes. 

DATES: This final authorization will 

become effective on June 6, 2011 unless 

the EPA receives adverse written 

comment by May 6, 2011. If the EPA 

receives such comment, it will publish 

a timely withdrawal of this immediate 

final rule in the Federal Register and 

inform the public that this authorization 

will not take effect. 

ADDRESSES: Submit your comments by 

one of the following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

2. E-mail: patterson.alima@epa.gov. 

3. Mail: Alima Patterson, Region 6, 

Regional Authorization Coordinator, 

State/Tribal Oversight Section (6PD–O), 

Multimedia Planning and Permitting 

Division, EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733. 

4. Hand Delivery or Courier: Deliver 

your comments to Alima Patterson, 

Region 6, Regional Authorization 

Coordinator, State/Tribal Oversight 

Section (6PD–O), Multimedia Planning 

and Permitting Division, EPA Region 6, 

1445 Ross Avenue, Dallas, Texas 75202– 

2733. 

Instructions: Do not submit 

information that you consider to be CBI 

or otherwise protected through 

regulations.gov, or e-mail. The Federal 

regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means the 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 the EPA without 

going through regulations.gov, your email 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, the 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 the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the 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. 

You can view and copy Oklahoma’s 

application and associated publicly 

available materials from 8:30 a.m. to 4 

p.m. Monday through Friday at the 

following locations: Oklahoma 

Department of Environmental Quality, 

707 North Robinson, Oklahoma City, 

Oklahoma 73101–1677, (405) 702–7180 

and EPA, Region 6, 1445 Ross Avenue, 

Dallas, Texas 75202–2733, phone 

number (214) 665–8533. Interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least two 

weeks in advance. 

FOR FURTHER INFORMATION CONTACT: 

Alima Patterson, Region 6, Regional 

Authorization Coordinator, State/Tribal 

Oversight Section (6PD–O), Multimedia 

Planning and Permitting Division, (214) 

665–8533, EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733, and 

E-mail address 

patterson.alima@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Why are revisions to state programs 

necessary? 

States which have received final 

authorization from the EPA under RCRA 

section 3006(b), 42 U.S.C. 6926(b), must 

maintain a hazardous waste program 

that is equivalent to, consistent with, 

and no less stringent than the Federal 

program. As the Federal program 

changes, States must change their 

programs and ask the EPA to authorize 

the changes. Changes to State programs 

may be necessary when Federal or State 

statutory or regulatory authority is 

modified or when certain other changes 

occur. Most commonly, States must 

change their programs because of 


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