[Federal Register Volume 69, Number 223 (Friday, November 19, 2004)]
[Rules and Regulations]
[Pages 67647-67654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25716]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[RCRA-2004-0009; FRL-7839-3]


Land Disposal Restrictions: Site-Specific Treatment Standard 
Variance for Selenium Waste for Chemical Waste Management, Chemical 
Services, LLC

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is today 
granting a site-specific treatment standard variance from the Land 
Disposal Restrictions (LDR) treatment standards for a selenium-bearing 
hazardous waste generated by the glass manufacturing industry. EPA is 
granting this variance because the chemical properties of the waste 
differ significantly from those of the waste used to establish the 
current LDR treatment standard for selenium (5.7 mg/L, as measured by 
the Toxicity Characteristic Leaching Procedure (TCLP)), and the 
petition has adequately demonstrated that the waste cannot be treated 
to meet this treatment standard.
    EPA is granting this variance to CWM Chemical Services LLC (CWM 
(Model City, NY)) to stabilize a selenium-bearing hazardous waste 
generated by Guardian Industries Corp. (Guardian) at their RCRA 
permitted facility in Model City, New York. With promulgation of this 
final rule, CWM may treat the Guardian waste to an alternate treatment 
standard of 28 mg/L, as measured by the TCLP. CWM (Model City, NY) may 
dispose of the treated waste in a RCRA Subtitle C landfill, provided 
they meet the applicable LDR treatment standard for any other hazardous 
constituents in the waste.
    EPA is also modifying the existing alternative treatment standard 
for the Guardian selenium waste that EPA had previously granted to 
Heritage Environmental Services LLC (69 FR 6567, February 11, 2004) to 
be consistent with the levels that CWM has demonstrated as best 
demonstrated achievable technology (BDAT) for this selenium waste.

DATES: This final rule is effective on January 3, 2005 without further 
notice, unless EPA receives adverse comment by December 20, 2004. If we 
receive such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. RCRA-2004-0009. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. Correspondence to the 
docket should be addressed to: EPA Docket Center, OSWER Docket (5305T), 
1200 Pennsylvania Ave NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Call Center at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323. For more detailed information on specific 
aspects of this rulemaking, contact Juan Parra at (703) 308-0478 or 
<a href="/cdn-cgi/l/email-protection#e19180939380cf8b94808fa1849180cf868e97"><span class="__cf_email__" data-cfemail="b0c0d1c2c2d19edac5d1def0d5c0d19ed7dfc6">[email protected]</span></a>, Office of Solid Waste (MC 5302 W), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., Washington, DC 
20460.

SUPPLEMENTARY INFORMATION:

I. General Information

    EPA is publishing this rule without prior proposal because we view 
it as a noncontroversial action. We anticipate no significant adverse 
comments, because, to our knowledge, no new treatment options have 
become available to treat this high-concentration selenium waste more 
effectively. Having said this, in the ``Proposed Rules'' section of 
today's Federal Register publication, we are publishing a separate 
document that could serve as a proposal to grant a site-specific 
treatment standard variance to CWM (Model City, NY), if significant 
adverse comments are filed. See the Supplementary Information section 
in that notice on how to submit comments.
    This direct final rule will be effective on January 3, 2005 without 
further notice unless we receive adverse comment on the proposed rule 
by December 20, 2004. If we receive adverse comment on the direct final 
rule, we will withdraw the direct final action and the treatment 
standard variance for CWM (Model City, NY). We will address all public 
comments in a subsequent final rule based on this proposed rule. We 
will not institute a second comment period on this action.

[[Page 67648]]

Any parties interested in commenting on this direct final rule must do 
so at this time.
    Documents in the official public docket are listed in the index 
list in EPA's electronic public docket and comment system, EDOCKET. 
Documents may be available either electronically or in hard copy. 
Electronic documents may be viewed through EDOCKET. Hard copy documents 
may be viewed at the EPA Docket Center (EPA/DC), EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 
Public Reading Room 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 OSWER 
Docket is (202) 566-0272.
    An electronic version of the public docket is available through 
EDOCKET. You may use EDOCKET at http://www.epa.gov/edocket/ to view 
public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Publicly available docket 
materials that are not available electronically may be viewed at the 
docket facility identified above. Once in the system, select 
``search,'' then key in the appropriate docket identification number.

Table of Contents

I. Background
    A. What is the Basis for LDR Treatment Standard Variances?
    B. What is the Basis of the Current Selenium Treatment Standard?
    C. Previously Approved Variances for Selenium Wastes
    D. Reasons for Lack of Secondary Selenium Recovery Capacity
II. Basis for CWM (Model City, NY) Variance Petition
    A. Waste Characteristics
    B. Chemical Properties of the Guardian Waste and Results of CWM 
Treatment
    C. Alternative Treatment Standard for CWM to Treat the Guardian 
Selenium Waste
    D. What Is the Basis for EPA's Approval of CWM's Request for an 
Alternative D010 Treatment Standard?
    E. What Are the Terms and Conditions of the Variance?
III. New Best Demonstrated Available Technology Determination for 
Guardian Selenium Waste
IV. Statutory and Executive Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    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 & Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Background

A. What Is the Basis for LDR Treatment Standard Variances?

    Under section 3004(m) of the Resource Conservation and Recovery Act 
(RCRA), EPA is required to set ``levels or methods of treatment, if 
any, which substantially diminish the toxicity of the waste or 
substantially reduce the likelihood of migration of hazardous 
constituents from the waste so that short-term and long-term threats to 
human health and the environment are minimized.'' EPA interprets this 
language to authorize treatment standards based on the performance of 
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 that there may be wastes that cannot be 
treated to levels specified in the regulations because an individual 
waste can be substantially more difficult to treat than those wastes 
the Agency evaluated in establishing the treatment standard. For such 
wastes, EPA has a process by which a generator or treater may seek a 
treatment standard variance (see 40 CFR 268.44). If granted, the terms 
of the variance establish an alternative treatment standard for the 
particular waste at issue.

B. What Is the Basis of the Current 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 or chromium, because of their 
different chemical properties and solubility curves (62 FR 26041, May 
12, 1997).
    The current treatment standard for wastes exhibiting the toxicity 
characteristic for selenium is based upon the performance of 
stabilization treatment technologies on selenium-bearing wastes with 
low concentrations. When the Agency developed these treatment standards 
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 types of waste was practiced in the United States. In 2004, 
there is no domestic production of secondary selenium.\1\ Primary 
selenium is recovered, as a co-product with copper, from anode slimes 
generated in the electrolytic refining of copper.
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    \1\ ``Selenium'' U.S. Geological Survey--Minerals Yearbook 2004.
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    In 1994, the Agency used performance data from the stabilization of 
mineral processing waste that was characteristically hazardous for 
selenium (waste code 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 in the TCLP leachate. 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 non-wastewaters. This 
D010 mineral processing waste also contained toxic metals (i.e., 
arsenic, cadmium, and lead) above characteristic levels. The treatment 
technology used to establish the selenium levels also resulted in 
meeting the LDR treatment standards for these non-selenium metals. The 
reagent to waste ratios varied from 1.3 to 2.7 (62 FR 26041, May 12, 
1997).
    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 non-wastewaters (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.

[[Page 67649]]

C. Previously Approved Variances for Selenium Wastes

    When EPA established the treatment standards for metal wastes and 
mineral processing wastes (63 FR 28555, May 26, 1998), we noted that we 
received comments from one company, Chemical Waste Management Inc. (CWM 
(Kettleman City, CA)), indicating that it was attempting to stabilize 
selenium-bearing wastes with concentrations much higher than those EPA 
had examined when it established the national treatment standard for 
wastes exhibiting the toxicity characteristic for selenium. In 
response, EPA proposed and subsequently granted variances for two high-
level selenium waste streams. EPA granted these variances for three 
years, and required CWM (Kettleman City, CA) to conduct studies on 
approaches to further reduce the leachability of such treated wastes 
(63 FR 56886, May 26, 1999). EPA also required the company to 
investigate alternative treatment technologies that might provide more 
effective treatment, report annually on these investigations, and 
provide any analytical data from the treatment studies.\2\ The annual 
reports include stabilization recipes that were used to meet the 
alternative treatment standards, the selenium concentrations in the 
untreated wastes, and the analytical results from leach testing of the 
treated wastes. EPA renewed this variance for another three year term, 
and continued to require CWM (Kettleman City, CA) to report on its 
treatability studies and to investigate whether more effective 
treatment is available (67 FR 36849, May 28, 2002). In 2004, EPA 
permanently established the two site-specific variances from the Land 
Disposal Restrictions treatment standards for Chemical Waste Management 
Inc., at their Kettleman Hills facility in Kettleman City, California, 
for these two selenium-bearing hazardous wastes (69 FR 6567, February 
11, 2004).
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    \2\ All four of CWM's annual reports are in the docket ID No. 
RCRA 2003-0025.
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    On May 14, 2003, Heritage Environmental Services LLC (Heritage) 
submitted a site-specific treatment standard variance petition to EPA 
for their RCRA permitted facility in Indianapolis, Indiana. The 
petition requested a treatment standard variance for a selenium-bearing 
hazardous waste generated by Guardian Industries Corp. Heritage 
demonstrated that, because the physical and 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. EPA determined that stabilization of 
selenium with cement kiln dust, along with the addition of ferrous 
sulfate as a reagent for hexavalent chromium, was the best demonstrated 
available technology for the Guardian waste. EPA granted the site-
specific treatment standard variance from the D010 treatment standards 
for the Guardian waste stream on February 11, 2004 (69 FR 6567).

D. Reasons for Lack of Secondary Selenium Recovery Capacity

    Primary selenium \3\ is a co-product in the mining of copper ores. 
The principal markets for selenium are in electronics (30%), glass 
manufacturing (20%), pigments (19%), metallurgical additives (14%) and 
agricultural/biological applications (6%).\4\ In glass manufacturing, 
selenium is used to color container glass and other soda-lime silica 
glasses and to reduce solar heat transmission in architectural plate 
and automotive glass.
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    \3\ ``Selenium is found in 75 different mineral species; 
however, pure selenium does not exist as an ore. For this reason, 
primary selenium is recovered from anode slimes generated in the 
electrolytic refining of copper.'' U.S. EPA (F-96-PH4A-S0001): 
Identification and Description of Mineral Processing Sectors and 
Waste Streams.
    \4\ ``Canadian Mineral Yearbook'' 1995.
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    Because selenium is a non-renewable resource, and because the 
wastes in question contain high selenium concentrations, EPA's 
preference, rather than stabilization and land disposal, would be to 
recover the selenium in an environmentally sound manner. However, there 
was no recorded domestic production of secondary selenium in 2004.\5\ 
All potential secondary selenium recovery technologies being considered 
have remained pilot projects and none of them have been shown to be 
economically viable. These factors suggest that development of an 
environmentally protective secondary selenium recovery system in the 
U.S. is not reasonably expected in the near future, and stabilization 
remains the best available treatment technology.
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    \5\ ``Selenium'' U.S. Geological Survey--Minerals Yearbook--
2004.
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II. Basis for CWM (Model City, NY) Variance Petition

    Under 40 CFR 268.44(h), facilities can apply for a site-specific 
variance in cases where a waste that is generated under conditions 
specific to only one site cannot be treated to the specified levels. In 
such cases, the generator or treatment facility may apply to the 
Administrator, or to EPA's delegated representative, 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 treatment standard variances, but this is 
the only provision relevant to this action.
    On April 9, 2004, Chemical Waste Management-Chemical Services 
L.L.C. (CWM (Model City, NY)) submitted their petition for a treatment 
standard variance to EPA. All information and data used in the 
development of this treatment standard variance can be found in the 
RCRA docket (RCRA-2004-0009) for this rulemaking.

A. Waste Characteristics

    Guardian Industries Corp., in Jefferson Hills, Pennsylvania, is a 
specialty glass manufacturing facility. Emissions from its glass 
furnace are first subjected to lime injection, and subsequently 
captured in an electrostatic precipitator. Lime is added to remove 
sulphur compounds and selenium from the glass furnace gases. This waste 
stream consists of lime with 100-70,000 mg/kg selenium (0.1%-7%), 50-
1000 mg/kg of chromium, 0-50 mg/kg of lead and 1-100 mg/kg of cobalt. 
The dust is a D010 characteristic waste because the selenium 
concentration exceeds 1.0 mg/L, as measured by the TCLP.\6\ The waste 
is a dry powder with a bulk density of about 0.4 g/cm\3\, and contains 
no free liquids or organic constituents. The calcium content is high, 
approximately 30%, since the waste contains lime injected to the 
furnace exhaust. The rate of variation in the amount of waste is 
related to the manufacturing demand, and ranges from 20-50 tons/month.
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    \6\ This waste currently has an LDR treatment variance based on 
a petition submitted by Heritage (see 69 FR 6567, February 11, 
2004).
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    The Land Disposal Restrictions found in 40 CFR 268.40(e) require 
most characteristic wastes to meet the universal treatment standards 
(UTS) in 40 CFR 268.48 for all underlying hazardous constituents (UHCs) 
before the waste can be land disposed. Analytical data on the raw 
Guardian waste indicate that the only underlying hazardous constituent 
present above UTS levels is chromium; occasionally the dust is also a 
D007 waste because the chromium exceeds the hazardous waste 
characteristic level of 5 mg/L, as

[[Page 67650]]

measured by the TCLP. The universal treatment standard for chromium is 
0.6 mg/L, as measured by the TCLP. As an underlying hazardous 
constituent, chromium must be treated to below the 0.6 mg/L universal 
treatment standard for the waste to be properly land disposed (58 FR 
29560, May 24, 1993 and 63 FR 28556, May 26, 1998). Once the Guardian 
waste has been stabilized for selenium and treated for any underlying 
constituents, the waste can be disposed in a hazardous waste landfill.

B. Chemical Properties of the Guardian Waste and Results of CWM 
Treatment

    An approach to immobilize the selenium in the Guardian waste and to 
reduce its exposure to leaching agents is to stabilize it with cement. 
The solid matrix chemically binds the metals in the waste and 
substantially lowers the surface area potentially exposed to leaching 
from that of untreated dust. As a result, the solidified waste should 
have a lower leaching potential after the waste is disposed in a 
hazardous waste landfill.
    As mentioned above, analytical data on the raw Guardian waste 
indicate that the only underlying hazardous constituent present is 
chromium. CWM (Model City, NY) conducted treatability studies 
demonstrating that the addition of cement kiln dust alone is not 
sufficient to reduce the chromium levels to below the 0.6 mg/L 
treatment standard. To further treat the chromium in the waste, the 
hexavalent chromium ion must be reduced to the trivalent state so that 
precipitation can occur. CWM (Model City, NY) used ferrous sulfate for 
this purpose.
    CWM (Model City, NY) conducted several rounds of testing using 
different stabilization recipes, which had varied amounts of Portland 
cement, cement kiln dust, ferrous sulfate, hydroxylamine hydrochloride, 
quick lime and polysulfide. Collectively, the TCLP tests on treated 
Guardian waste samples indicate a significant reduction in 
leachability. This reduction, however, is not enough to meet the LDR 
treatment standard of 5.7 mg/L, as measured by the TCLP.
    EPA has determined, in analyzing the data from the preliminary 
tests, that the most effective stabilization recipe for this waste 
consists of 0.20 parts ferrous sulfate combined with 1.0 part cement 
kiln dust, resulting in a reagent to waste ratio of 1.20. Water is also 
added to make a thick paste, that upon curing, solidifies into a hard, 
cemented material. This optimized stabilization recipe reduces the 
leachable selenium and minimizes the amount of reagent that must be 
used to achieve this result.
    Table I shows the results of leaching, as measured by the TCLP, of 
Guardian's waste treated using the optimized stabilization recipe. CWM 
(Model City, NY) stabilized the samples with reagent to waste ratios of 
1.20. Treated selenium concentrations for the ten samples ranged from 
15.09 mg/L to 24.5 mg/L, as measured by the TCLP.

     Summary of Treatability Studies of the Guardian Selenium Waste
------------------------------------------------------------------------
                    20% FESO4+ 100% cement kiln dust
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                                                         Se waste TCLP
                  Guardian sample ID                         (mg/L)
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0408138-01...........................................          \1\ 90.9
0408138-02...........................................              19.3
0408138-03...........................................              21.49
0408138-04...........................................              24.5
0408138-05...........................................              22.9
0408138-06...........................................              23.4
0408096-04...........................................              19
0408096-03...........................................              18.14
0408096-02...........................................              15.12
0408096-01...........................................              15.6
0407946-14...........................................              15.09
------------------------------------------------------------------------
\1\ (Untreated).

C. Alternative Treatment Standard for CWM To Treat the Guardian 
Selenium Waste

    When the Agency developed the current national treatment standard 
of 5.7 mg/L, as measured by the TCLP, for D010 selenium non-
wastewaters, as discussed earlier, data with reagent to waste ratios 
that varied from 1.3 to 2.7 were used to calculate the treatment 
standard.\7\ The Heritage selenium variance that was previously granted 
for the Guardian waste reflected a reagent to waste ratio of 2.35 (69 
FR 6567, February 11, 2004). CWM (Model City, NY), treating the same 
Guardian waste, achieved a reagent to waste ratio of 1.2. CWM's (Model 
City, NY) reagent to waste ratio is significantly lower than the ratio 
reflected in the Heritage variance. The Agency notes that, by keeping 
the reagent to waste ratio to minimal levels, CWM (Model City, NY) is 
minimizing the amount of treated waste to be disposed in the hazardous 
landfill. The Agency recommends that CWM (Model City, NY) use a reagent 
to waste ratio of 1.2 as an upper limit.
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    \7\ In the Phase IV Land Disposal Restrictions rule, the Agency 
did not generally use stabilization data with reagent to waste 
ratios greater than 1. ``Final Draft Site Visit Report for the 
August 20-21 Site Visit to Rollins Environmental's Highway 36 
Commercial Waste Treatment Facility Located in Deer Trail, 
Colorado,'' November 21, 1996, and the economic analysis supporting 
the Phase IV final rule.
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    Using the BDAT methodology,\8\ the Agency has calculated an 
alternative treatment standard of 28 mg/L, as measured by the TCLP, 
based on ten data points (15.09, 15.6, 15.12, 18.14, 19, 19.3, 21.49, 
24.5, 22.9, and 23.4 from Table I) that were the result of 
stabilization treatment using a reagent to waste ratio of 1.2 for the 
waste generated by Guardian Industries Corp.
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    \8\ BDAT Background Document for Quality Assurance/Quality 
Control Procedures and Methodology, October 23, 1991.
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D. What Is the Basis for EPA's Approval of CWM's Request for an 
Alternative D010 Treatment Standard?

    After careful review of the data and petition submitted by CWM 
(Model City, NY), we conclude that CWM (Model City, NY) has adequately 
demonstrated that the wastes satisfy the requirements for a treatment 
standard variance under 40 CFR 268.44(h)(1). CWM (Model City, NY) has 
demonstrated that Guardian's glass manufacturing waste differs 
significantly in chemical composition from the waste used to establish 
the original selenium treatment standard. Selenium TCLP concentrations 
in the untreated waste are one or two orders of magnitude higher than 
TCLP concentrations in the waste used to develop the treatment standard 
for D010 hazardous wastes. Data from CWM (Model City, NY) demonstrate 
that wastes containing high concentrations of selenium are not easily 
treated. Furthermore, CWM (Model City, NY) is using stabilization as 
the treatment technology, which is consistent with EPA's determination 
that stabilization is the best available treatment technology for this 
waste, and the process is well-designed and well-operated.
    In addition, CWM (Model City, NY) intends to minimize potential 
leaching in the landfill by restricting the placement of the waste in 
the cell. The stabilized waste will not be placed directly on the 
operation layer on the floor of the landfill, nor in the area of a 
stand pipe or leachate sump pump. EPA is supportive of this approach.
    Therefore, EPA is today granting a site-specific treatment standard 
variance from the D010 treatment standards for the Guardian waste 
stream in question. Today's alternative treatment standard will provide 
sufficient latitude for CWM (Model City, NY) to treat the other metal 
present in the waste (chromium) to LDR treatment standards and, by 
raising the selenium treatment standard, will avoid the difficulty 
posed by the different metal solubility curves. EPA is amending 40 CFR 
268.44 to include a

[[Page 67651]]

selenium treatment standard of 28 mg/L, as measured by the TCLP, for 
the Guardian waste it treats.

E. What Are the Terms and Conditions of the Variance?

    Since this rule approves a variance from a numerical treatment 
standard, CWM (Model City, NY) may vary the reagent recipe it uses to 
best meet the alternative numerical standard. The Agency notes that, to 
avoid questions of impermissible dilution, CWM (Model City, NY) will 
need to keep the reagent to waste ratios within acceptable bounds. No 
specific ratios are being established in today's rule because the 
Agency does not desire to prevent further optimization of the treatment 
process. However, the Agency recommends that CWM (Model City, NY) use a 
reagent to waste ratio of 1.2 as an upper limit. This is the ratio used 
in the treated waste that formed the basis for establishing today's 
alternative treatment standard.
    The treated waste, provided it meets applicable LDR treatment 
standards for any other hazardous constituents in the waste,\9\ will be 
disposed in a RCRA Subtitle C landfill.
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    \9\ Note that disposal in a Subtitle C landfill is required 
because the treated wastes are still characteristic for selenium 
(i.e., the waste has TCLP values above the toxicity characteristic 
level for selenium of 1.9 mg/L).
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III. New Best Demonstrated Available Technology Determination for 
Guardian Selenium Waste

    In today's notice, EPA has determined, in analyzing the CWM (Model 
City, NY) and Heritage data (69 CFR 6568, February 11, 2004) from the 
tests on the Guardian Waste, that the most effective stabilization 
recipe for this waste consists of 0.20 parts ferrous sulfate combined 
with 1.0 part cement kiln dust, resulting in a reagent to waste ratio 
of 1.20 to 1. This optimized stabilization recipe from CWM (Model City, 
NY) reduces the leachable selenium and minimizes the amount of reagent 
that must be used to achieve this result. As explained previously, we 
have calculated an alternative treatment standard, based on the 
performance of their treatment data, of 28 mg/L, as measured by the 
TCLP.
    As described above, on February 11, 2004, EPA granted a site-
specific variance from the D010 treatment standard for the same 
Guardian waste. This variance was granted to Heritage Environmental 
Services, LLC. The treatment standard that EPA approved in this 
variance, 39.4 mg/L, as measured by the TCLP, and the reagent to waste 
ratio (2.35 to 1 as an upper limit) used to achieve this level, are 
both higher than those achieved by CWM (Model City, NY) for the source 
waste. These results are obviously higher than the alternative 
treatment standard for the same waste. After careful study, EPA sees no 
reason that the treatment standard for the same waste cannot be 
duplicated elsewhere. EPA has determined in today's rule that the 
treatment results achieved by CWM (Model City, NY) reflect the best 
demonstrated available treatment for the Guardian selenium waste 
stream. The alternative treatment standard will provide sufficient 
latitude for CWM (Model City, NY) to treat the chromium present to meet 
universal treatment standards (UTS). We also find (obviously) that 
since the treatment standard is above the characteristic level for 
selenium, that treatment is not being required to a level below which 
threats to human health and the environment are minimized, and that 
treatment of selenium to the lower level established further minimizes 
threats posed by the waste's land disposal. Therefore, in addition to 
granting a site-specific variance to CWM (Model City, NY), EPA is 
modifying the Heritage alternative treatment standard for the Guardian 
selenium waste that EPA had previously granted so that it is consistent 
with the level that CWM (Model City, NY) has demonstrated as BDAT for 
this selenium waste.

IV. Statutory and Executive Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    Because this rule does not create any new regulatory requirements, 
it is not a ``significant regulatory action'' under the terms of 
Executive Order 12866 and is therefore not subject to OMB review. This 
variance only changes the treatment standard applicable to a D010 waste 
stream that is treated at the CWM Chemical Services, LLC facility in 
Model City, New York and at the Heritage Environmental Services LLC 
facility in Indianapolis, Indiana.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This site-specific treatment standard variance does not impose 
information collection burden on CWM (Model City) given their petition 
contains the information needed to determine effectiveness of 
treatment. All information and data used in the development of this 
treatment standard variance can be found in the RCRA docket (RCRA-2004-
0009) for this rulemaking. This action also does not change in any way 
the paperwork requirements already applicable to this waste. Therefore, 
it does not affect the requirements under the Paperwork Reduction Act.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. 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

[[Page 67652]]

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.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    This final rule is not subject to notice and comment requirements 
under the APA or any other statute because the rule will not have a 
significant economic impact on a substantial number of small entities. 
This treatment standard variance does not create any new regulatory 
requirements. Rather, it establishes an alternative treatment standard 
for a specific waste stream, and it applies to two facilities; the CWM 
Chemical Services, LLC facility in Model City, New York and the 
Heritage Environmental Services LLC facility in Indianapolis, Indiana.
    After considering the economic impacts of today's direct final rule 
on small entities, we certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
This direct final rule will not impose any requirements on small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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 the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the 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 the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector, and it does not impose any Federal 
mandate on State, local, or tribal governments or the private sector 
within the meaning of the Unfunded Mandates Reform Act of 1995. This 
rule also does not create new regulatory requirements; rather, it 
merely establishes an alternative treatment standard for a specific 
waste that replaces a standard already in effect. EPA has determined 
that this rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Thus, today's rule is not subject to the requirements of sections 202 
and 205 of the UMRA. For the same reasons, EPA has determined 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'' is 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. Today's rule does not create a 
mandate on state, local, or tribal governments. The rule does not 
impose any enforceable duties on these entities. 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'' (65 FR 67249, 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. Today's 
final rule does not significantly or uniquely affect the communities of 
Indian tribal governments. This rule issues a variance from the LDR 
treatment standards for a specific characteristic selenium waste. Thus, 
Executive Order 13175 does not apply to this rule.

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

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    Today's final rule is not subject to E.O. 13045 because it does not 
meet either of these criteria. The waste described in this treatment 
standard variance will be treated by CWM Chemical Services, LLC and 
Heritage Environmental Services LLC, and then be disposed of in a RCRA 
Subtitle C landfill, ensuring that there will be no risks that may 
disproportionately affect children.

[[Page 67653]]

H. Executive Order 13211: Actions 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 of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 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. This 
action does not involve technical standards based on new methodologies. 
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

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in clean and sustainable communities. In response 
to Executive Order 12898 and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response formed 
an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17). Today's variance applies to a 
characteristically hazardous waste stream at the CWM Chemical Services, 
LLC facility in Model City, New York and at the Heritage Environmental 
Services LLC facility in Indianapolis, Indiana. The selenium waste will 
be disposed of in a RCRA Subtitle C landfill, after appropriate 
treatment, ensuring protection to human health and the environment. 
Therefore, the Agency does not believe that today's rule will 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. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability, applying only to a 
specific waste type at two facilities under particular circumstances.
    A major rule cannot take effect until 60 days after it is published 
in the Federal Register. This action is not a ``major rule'' as defined 
by 5 U.S.C. 804 (2). This rule will be effective January 3, 2005.

List of Subjects in 40 CFR Part 268

    Environmental Protection, Hazardous waste, Variance, Selenium.

    Dated: November 10, 2004.
Thomas P. Dunne,
Assistant Administrator, Office of Solid Waste and Emergency Response.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 268--LAND DISPOSAL RESTRICTIONS

0
1. The authority citation for part 268 continues to read as follows:

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


0
2. Section 268.44, the table in paragraph (o) is amended by:
0
A. Revising the entry for ``Guardian Industries Corp.''
0
B. Adding footnote number 12.
    The revisions and additions read as follows:


Sec.  268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

                                        Table.--Wastes Excluded From the Treatment Standards Under Sec.   268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                    Wastewaters                    Nonwaste waters
                                                                         Regulated    ------------------------------------------------------------------
 Facility name \1\ and address     Waste code         See also           hazardous       Concentration                         Concentration
                                                                        constituent          (mg/L)             Notes             (mg/kg)         Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Guardian Industries Corp.,       D010..........  Standards under     Selenium........  NA...............  NA...............  28 mg/L TCLP.....  NA
 Jefferson Hills, PA 6 11 12.                     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.
* * * * *

[[Page 67654]]

 
\11\ D010 waste generated by this facility may be treated by Heritage Environmental Services, LLC. at their treatment facility in Indianapolis, Indiana.
 
\12\ D010 waste generated by this facility may be treated by Chemical Waste Management, Chemical Services, LLC. at their treatment facility in Model
  City, New York.
Note: NA means Not Applicable.


[FR Doc. 04-25716 Filed 11-18-04; 8:45 am]
BILLING CODE 6560-50-P


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