Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67647

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 18, 2005. 

Filing a petition for reconsideration 

by the Administrator of this final rule 

does not affect the finality of this rule 

for the purposes of judicial review nor 

does it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds.

Dated: October 5, 2004. 

Laura Yoshii, 

Acting Regional Administrator, Region IX.

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart F—California

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(321)(i)(C) and 

(c)(332)(i)(B) to read as follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * * 

(321) * * * 

(i) * * * 

(C) Great Basin Air Pollution Control 

District. 

(1) Rule 101, adopted on September 

24, 2003.

* * * * *

(332) * * * 

(i) * * * 

(B) Ventura County Air Pollution 

Control District. 

(1) Rule 2, adopted on October 22, 

1968, and amended on April 13, 2004.

[FR Doc. 04–25625 Filed 11–18–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 268 

[RCRA–2004–0009; FRL–7839–3] 

Land Disposal Restrictions: SiteSpecific Treatment Standard Variance 

for Selenium Waste for Chemical 

Waste Management, Chemical 

Services, LLC

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

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 seleniumbearing 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 

parra.juan@epa.gov, 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. 

67648 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

1 ‘‘Selenium’’ U.S. Geological Survey—Minerals 

Yearbook 2004.

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 seleniumbearing 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.

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. 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67649

2All four of CWM’s annual reports are in the 

docket ID No. RCRA 2003–0025.

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.

5 ‘‘Selenium’’ U.S. Geological Survey—Minerals 

Yearbook—2004.

6This waste currently has an LDR treatment 

variance based on a petition submitted by Heritage 

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

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 

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 seleniumbearing 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 seleniumbearing hazardous wastes (69 FR 6567, 

February 11, 2004).

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 sodalime silica glasses and to reduce solar 

heat transmission in architectural plate 

and automotive glass.

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.

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/cm3, 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.

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 

67650 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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.

8BDAT Background Document for Quality 

Assurance/Quality Control Procedures and 

Methodology, October 23, 1991.

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 

Guardian sample ID Se waste TCLP

(mg/L) 

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.

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.

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 welldesigned 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 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67651

9Note 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).

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.

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 sitespecific 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 

67652 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 costeffective 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. 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 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.

■ 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. Section 268.44, the table in 

paragraph (o) is amended by:

■ A. Revising the entry for ‘‘Guardian 

Industries Corp.’’

■ B. Adding footnote number 12.

The revisions and additions read as 

follows:

§ 268.44 Variance from a treatment 

standard.

* * * * *

(o) * * *

TABLE.—WASTES EXCLUDED FROM THE TREATMENT STANDARDS UNDER § 268.40 

Facility name 1 and address Waste 

code See also 

Regulated 

hazardous 

constituent 

Wastewaters Nonwaste

waters 

Concentration

(mg/L) 

Notes Concentration

(mg/kg) Notes 

*******

Guardian Industries Corp., Jefferson 

Hills, PA6 11 12.

D010 ...... Standards under 

268.40.

Selenium NA .............. NA ............... 28 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. 

* * * * * 

67654 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

1 Docket No. NHTSA 00–8633.

2 In order for a test to have good repeatability, 

there must not be undue variability in results when 

the same test is replicated at the same site. In order 

for a test to have good reproducibility, there must 

not be undue variability in results when the same 

test is replicated at different sites.

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

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

49 CFR Part 571

[Docket No. NHTSA 2004–19625] 

RIN 2127–AH96

Federal Motor Vehicle Safety 

Standards—Motor Vehicle Brake 

Fluids

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation.

ACTION: Final rule.

SUMMARY: This document amends our 

standard on brake fluids by removing 

the evaporation test and modifying the 

corrosion test. We are removing the 

evaporation test because we have 

concluded that it is unnecessary, given 

changes in brake system designs and in 

brake fluid formulations since the test 

was developed. We are modifying the 

corrosion test to improve test 

repeatability and reproducibility.

DATES: Effective Date: The effective date 

of this final rule is: November 21, 2005, 

except for the removal of S5.1.8, S6.8, 

S6.8.1, S6.8.2, S6.8.3, and S6.8.4 from 

§ 571.116, which will be effective 

January 18, 2005. Petitions for 

reconsideration: Petitions for 

reconsideration of this final rule must 

be received not later than: January 3, 

2005.

ADDRESSES: Petitions for reconsideration 

of this final rule must refer to the docket 

and notice number set forth above and 

be submitted to the Administrator, 

National Highway Traffic Safety 

Administration, 400 Seventh Street, 

SW., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: 

For legal issues: Ms. Dorothy Nakama, 

Office of the Chief Counsel, National 

Highway Traffic Safety Administration, 

400 Seventh Street, SW., Washington, 

DC 20590 (202–366–2992). Ms. 

Nakama’s fax number is: (202) 366–

3820. 

For other issues: Mr. Sam Daniel, 

Office of Crash Avoidance Standards, 

National Highway Traffic Safety 

Administration, 400 Seventh Street, 

SW., Washington, DC 20590 (202–366–

4921). Mr. Daniel’s fax number is: (202) 

366–7002.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Proposed Rule 

A. Evaporation Test 

B. Corrosion Test 

II. Comments on the Proposed Rule and 

NHTSA’s Decisions 

A. Comments on Evaporation Test and 

NHTSA’s Decision 

B. Comments on Corrosion Test and 

NHTSA’s Decision 

III. Statutory Bases for the Final Rule 

IV. Effective Dates 

V. Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act 

C. National Environmental Policy Act 

D. Executive Order 13132 (Federalism) 

E. Unfunded Mandates Act 

F. Executive Order 12778 (Civil Justice 

Reform) 

G. Paperwork Reduction Act 

H. Regulation Identifier Number (RIN) 

I. Plain Language 

J. Executive Order 13045

K. National Technology Transfer and 

Advancement Act 

Regulatory Text of the Final Rule

I. Proposed Rule 

Federal Motor Vehicle Safety 

Standard (FMVSS) No. 116, Motor 

Vehicle Brake Fluids, specifies 

requirements for fluids for use in 

hydraulic brake systems of motor 

vehicles, containers for these fluids, and 

labeling of the containers. The purpose 

of the standard is to reduce failures in 

the hydraulic braking systems of motor 

vehicles that may occur because of the 

manufacture or use of improper or 

contaminated fluid. 

On January 16, 2001, we published in 

the Federal Register (66 FR 3527) 1 a 

notice of proposed rulemaking (NPRM) 

to make technical modifications in two 

of the standard’s tests, the evaporation 

test and the corrosion test. We believed 

the proposed modifications would 

improve repeatability and 

reproducibility 2 of the tests, and thus 

improve the enforceability of the 

standard. We also requested comments 

concerning the retention of the 

evaporation test.

A. Evaporation Test 

FMVSS No. 116 specifies various 

performance requirements relating to 

evaporation that must be met when 

brake fluid is tested according to a 

specified procedure that involves 

heating the brake fluid in an oven for an 

extended period of time. Among other 

things, the loss by evaporation must not 

exceed 80 percent by weight. See S5.1.8 

and S6.8 of the standard. 

In the NPRM, we stated that for a 

number of years, we have been 

concerned that the evaporation test may 

allow too much variability in test 

results. Because of this, we sponsored a 

study titled ‘‘Evaporation Test 

Variability Study,’’ which was 

published in May 1993. The study 

sought to identify and evaluate 

parameters of the brake fluid 

evaporation test procedure of FMVSS 

No. 116 that influence the high 

variability of results between 

laboratories. It also sought to develop 

procedural improvements to increase 

the precision and reproducibility of 

brake fluid evaporation measurements. 

This included validating procedural 

modifications through conducting an 

interlaboratory round robin program 

using four designated brake fluids. 

The study identified four means by 

which test result variability could be 

reduced: (1) Using a rotating shelf in the 

oven with a 6 rpm sample rotation, (2) 

specifying the location of the shelf 

supporting the sample within the oven, 

(3) controlling the oven temperature 

monitoring point, and (4) using oven 

calibration fluid for purposes of oven 

standardization. A copy of the study is 

available in the docket at NHTSA–

2001–8633–2. 

After we published the study, the 

Society of Automotive Engineers (SAE) 

committee on brake fluids initiated 

work to consider revising its 

evaporation test procedure to address 

these points. The SAE evaporation test 

procedure is set forth as part of Motor 

Vehicle Brake Fluid—SAE J1703 JAN95. 

The SAE committee developed a draft 

procedure that uses a rotating shelf 

oven, defines shelf placement, and 

includes temperature monitoring. The 

committee did not reach agreement on 

an oven calibration fluid because of 

concerns about lot variability.