[Federal Register Volume 76, Number 66 (Wednesday, April 6, 2011)]
[Rules and Regulations]
[Pages 18921-18927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8179]


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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.

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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:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#552736273478313a363e3021153025347b323a23"><span class="__cf_email__" data-cfemail="90e2f3e2f1bdf4fff3fbf5e4d0f5e0f1bef7ffe6">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#b4d9ddd8d8d1c69aded1c7c7d1f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="a1ccc8cdcdc4d38fcbc4d2d2c4e1c4d1c08fc6ced7">[email protected]</span></a>. 
Attention Docket ID No. EPA-HQ-RCRA-2010-0851.
    <bullet> Fax: 202-566-9744. Attention Docket ID No. EPA-HQ-RCRA-
2010-0851.
    <bullet> Mail: RCRA Docket (28221T), U.S. Environmental Protection 
Agency, 1200

[[Page 18922]]

Pennsylvania Avenue, NW., Washington, DC 20460. Attention Docket ID No. 
EPA-HQ-RCRA-2010-0851. Please include a total of 2 copies.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#ed80848181889fc387889e9e88ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="b1dcd8ddddd4c39fdbd4c2c2d4f1d4c1d09fd6dec7">[email protected]</span></a>.

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 Site-Specific 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

[[Page 18923]]

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\
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    \1\ Because 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.
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    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 post-treatment 
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 non-selenium metals. The waste to reagent ratios varied from 
1:1.3 to 1:2.7 (62 FR 26041).
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    \2\ The 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.
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    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 
selenium-bearing waste generated by the Owens- Brockway 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 site-specific variance 
from a treatment standard. The applicant for a site-specific variance 
must demonstrate that, because the physical or chemical properties of 
the waste differ significantly from the waste analyzed in developing 
the treatment standard, the waste cannot be treated 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 selenium-bearing waste generated by 
Owens-Brockway 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,

[[Page 18924]]

15% quick lime and 10% sodium sulfide flakes.\3\
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    \3\ The 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.
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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\
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    \4\ The 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.
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    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 
SO<INF>X</INF> 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.
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    \5\ According to information obtained from USEPA's RCRA Biennial 
Report, in 2005, approximately 108 tons of hazardous waste 
identified as D010 was shipped from Owens-Brockway'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.
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C. Description of the Waste Treatment Process

    USEN will stabilize the Owens-Brockway 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\
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    \6\ The 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.
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    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 Owens-Brockway 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.
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    \7\ With 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.
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IV. EPA's Reasons for Granting This Site-Specific Treatment Variance to 
USEN and Withdrawing the Site-Specific 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).

[[Page 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 site-specific 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 selenium-bearing waste 
generated by Owens-Brockway 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 site-specific treatment 
variance to USEN for the treatment of hazardous selenium-bearing 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 site-specific treatment variance for that same 
waste at another facility. Thus, Executive Order 13132 would not apply 
to this action.

[[Page 18926]]

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 site-specific 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

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.  268.44, 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:


Sec.  268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

[[Page 18927]]



                                         Table--Wastes Excluded From the Treatment Standards Under Sec.   268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Wastewaters                      Nonwastewaters
                                   Waste                        Regulated hazardous --------------------------------------------------------------------
  Facility name \1\ and address     code         See also           constituent                                          Concentration  (mg/
                                                                                     Concentration  (mg/l)     Notes             kg)             Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Owens Brockway Glass Container       D010  Standards under      Selenium...........  NA...................  NA........  59 mg/L TCLP........  NA
 Company, Vernon, CA \6\,\7\.               Sec.   268.40.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * *
\6\ Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations.
\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


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