Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 6567

§ 180.153 [Amended]

■ 2. Section 180.153 is amended by 

removing the entries for cattle, meat (fat 

basis) and cattle, meat byproducts (fat 

basis) from the table in paragraph (a)(1).

§ 180.204 [Amended]

■ 3. Section 180.204 is amended by 

removing the entries for cattle, fat; cattle, 

meat; goat, fat; goat, meat; hog, fat; hog, 

meat; horse, fat; horse, meat; poultry, fat; 

poultry, meat; sheep, fat; and sheep, 

meat; from the table in paragraph (a), and 

by also removing from the table in 

paragraph (a) the ‘‘(N)’’ designation from 

any entry where it appears.

§ 180.220 [Amended]

■ 4. Section 180.220 is amended by 

removing the entries for egg; hog, fat; 

hog, meat byproducts; hog, meat; 

poultry, fat; poultry, meat byproducts; 

and poultry, meat from the table in 

paragraph (a)(1).

§ 180.254 [Amended]

■ 5. Section 180.254 is amended by 

removing the entries for cattle, fat (of 

which no more than 0.02 ppm is 

carbamates); cattle, meat (of which no 

more than 0.02 ppm is carbamates); 

cattle, meat byproducts (of which no 

more than 0.02 ppm is carbamates); goat, 

fat (of which no more than 0.02 ppm is 

carbamates); goat, meat (of which no 

more than 0.02 ppm is carbamates); goat, 

meat byproducts (of which no more than 

0.02 ppm is carbamates); hog, fat (of 

which no more than 0.02 ppm is 

carbamates); hog, meat (of which no 

more than 0.02 ppm is carbamates); hog, 

meat byproducts (of which no more than 

0.02 ppm is carbamates); horse, fat (of 

which no more than 0.02 ppm is 

carbamates); horse, meat (of which no 

more than 0.02 ppm is carbamates); 

horse, meat byproducts (of which no 

more than 0.02 ppm is carbamates); 

sheep, fat (of which no more than 0.02 

ppm is carbamates); sheep, meat (of 

which no more than 0.02 ppm is 

carbamates); and sheep, meat byproducts 

(of which no more than 0.02 ppm is 

carbamates) from the table in paragraph 

(a).

§ 180.269 [Amended]

■ 6. Section 180.269 is amended by 

removing the entries for cattle, fat; cattle, 

meat byproducts; cattle, meat; goat, fat; 

goat, meat byproducts; goat, meat; hog, 

fat; hog, meat byproducts; hog, meat; 

horse, fat; horse, meat byproducts; horse, 

meat; milk; sheep, fat; sheep, meat 

byproducts; and sheep, meat from the 

table in paragraph (a).

■ 7. Section 180.311 is revised to read as 

follows:

§ 180.311 Cacodylic acid; tolerances for 

residues.

(a) General. Tolerances are 

established for residues of the defoliant 

cacodylic acid (dimethylarsinic acid), 

expressed as As2O3, in or on the 

following raw agricultural commodity 

as follows:

Commodity Parts per million 

Cotton, undelinted seed 2.8

(b) Section 18 emergency exemptions. 

[Reserved] 

(c) Tolerances with regional 

registrations. [Reserved] 

(d) Indirect or inadvertent residues. 

[Reserved]

§ 180.368 [Amended]

■ 8. Section 180.368 is amended by 

removing the entries for hog, fat; hog, 

kidney; hog, liver; hog, meat; and hog, 

meat byproducts, except kidney and 

liver from the table in paragraph (a)(1).

§ 180.371 [Amended]

■ 9. Section 180.371 is amended by 

removing the entries for hog, fat; hog, 

liver; hog, meat byproducts, except liver; 

hog, meat; poultry, fat; poultry, liver; 

poultry, meat byproducts, except liver; 

and poultry, meat from the table in 

paragraph (a).

■ 10. Section 180.383 is amended by 

revising the table in paragraph (a) to read 

as follows:

§ 180.383 Sodium salt of acifluorfen; 

tolerances for residues.

(a) * * *

Commodity Parts per million 

Peanut ............................ 0.1

Rice, grain ...................... 0.1

Rice, straw ...................... 0.1

Soybean .......................... 0.1

Strawberry ...................... 0.05

* * * * *

■ 11. Section 180.421 is amended by 

revising the table in paragraph (a)(1) to 

read as follows:

§ 180.421 Fenarimol; tolerances for 

residues.

(a) * * * (1) * * *

Commodity Parts per million 

Apple ............................... 0.1

Apple, dry pomace ......... 2.0

Apple, wet pomace ......... 2.0

Cattle, fat ........................ 0.1

Cattle, kidney .................. 0.1

Cattle, meat .................... 0.01

Cattle, meat byproducts, 

except kidney .............. 0.05

Goat, fat .......................... 0.1

Goat, kidney ................... 0.1

Commodity Parts per million 

Goat, meat ...................... 0.01

Goat, meat byproducts, 

except kidney .............. 0.05

Horse, fat ........................ 0.1

Horse, kidney .................. 0.1

Horse, meat .................... 0.01

Horse, meat byproducts, 

except kidney .............. 0.05

Pear ................................ 0.1

Pecan .............................. 0.1

Sheep, fat ....................... 0.1

Sheep, kidney ................. 0.1

Sheep, meat ................... 0.01

Sheep, meat byproducts, 

except kidney .............. 0.05

* * * * *

§ 180.434 [Amended]

■ 12. Section 180.434 is amended by 

removing the entries for egg; poultry, fat; 

poultry, kidney; poultry, liver; poultry, 

meat byproducts, except kidney and 

liver; and poultry, meat; from the table 

in paragraph (a).

[FR Doc. 04–2956 Filed 2–10–04; 8:45 am]

BILLING CODE 6560–50–S

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 268 

[RCRA–2003–0025; FRL–7620–2] 

Land Disposal Restrictions: SiteSpecific Treatment Variances for 

Heritage Environmental Services LLC 

and Chemical Waste Management Inc.

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is today 

granting three site-specific treatment 

variances from the Land Disposal 

Restrictions (LDR) treatment standards 

for selenium-bearing hazardous wastes 

generated by the glass manufacturing 

industry. EPA is granting these 

variances because the chemical 

properties of the wastes differ 

significantly from those from the waste 

used to establish the current LDR 

standard for selenium (5.7 mg/L, as 

measured by the Toxicity Characteristic 

Leaching Procedure (TCLP)), and the 

petitions have adequately demonstrated 

that the wastes cannot be treated to meet 

this treatment standard. 

In the first action, EPA is granting a 

variance to Heritage Environmental 

Services LLC (Heritage) to stabilize a 

selenium-bearing hazardous waste 

generated by Guardian Industries Corp. 

(Guardian) at their RCRA permitted 

facility in Indianapolis, Indiana. With 

6568 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 

promulgation of this final rule, Heritage 

may treat the Guardian waste to an 

alternate treatment standard of 39.4 mg/

L, as measured by the TCLP. Heritage 

may dispose of the treated waste in a 

RCRA Subtitle C landfill, provided they 

meet the applicable LDR treatment 

standards for the other hazardous 

constituents in the waste. 

In the second and third actions, EPA 

is permanently establishing two sitespecific variances from the Land 

Disposal Restrictions treatment 

standards for Chemical Waste 

Management Inc. (CWM), at their 

Kettleman Hills facility in Kettleman 

City, California, for two seleniumbearing hazardous wastes. EPA 

previously granted treatment variances 

to these wastes on a temporary basis. 

CWM will continue to be required to 

treat these two specific wastes to 

alternative treatment standards of 51 

mg/L, as measured by the TCLP, for the 

Owens-Brockway waste, and 25 mg/L, 

as measured by the TCLP, for the St. 

Gobain (formerly Ball Foster) waste. 

CWM may dispose of the treated wastes 

in a RCRA Subtitle C landfill provided 

they meet the applicable LDR treatment 

standards for the other hazardous 

constituents in the wastes.

DATES: This final rule is effective on 

March 29, 2004 without further notice, 

unless EPA receives adverse comment 

by March 12, 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: Comments may be 

submitted by mail to: EPA Docket 

Center—OSWER Docket, Environmental 

Protection Agency, Mailcode: 5305 T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, Attention 

Docket ID No. RCRA–2003–0025. 

Comments may also be submitted 

electronically, or through hand 

delivery/courier. Follow the detailed 

instructions as provided in the 

SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For 

general information, contact the RCRA 

Hotline 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: 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 these high 

concentration selenium wastes more 

effectively, and in the case of the two 

selenium-bearing hazardous wastes 

treated by CWM, we are making 

permanent a variance that is already in 

effect, and which has already been the 

subject of notice and opportunity for 

comment. 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 these 

variances to Heritage and CWM if 

significant adverse comments are filed. 

See the SUPPLEMENTARY INFORMATION

section on how to submit comments. 

This direct final rule will be effective 

on March 29, 2004 without further 

notice unless we receive adverse 

comment on the proposed rule by 

March 12, 2004. If we receive adverse 

comment on the direct final rule, we 

will withdraw the direct final action 

and the treatment variance for Heritage 

and restore the terms and conditions of 

the three year site-specific selenium 

treatment variance to CWM. 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. 

Any parties interested in commenting 

on this direct final rule must do so at 

this time. 

A. How Can I Get Copies of This 

Variance Proposal ?

1. Docket. EPA has established an 

official public docket for this action 

under Docket ID No. RCRA–2003–0025. 

The official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the OSWER Docket 

in 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. The public may copy a 

maximum of 100 pages from any 

regulatory docket at no charge. 

Additional copies cost $0.15/page. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/.

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.epa.gov/edocket/

to submit or 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. 

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 

Variances? 

B. What is the Basis of the Current 

Selenium Treatment Standard? 

C. Previously Approved Variances for 

Selenium Waste 

D. Reasons for Lack of U.S. Secondary 

Selenium Recovery Capacity 

II. Basis for Heritage Variance Petition 

A. Waste Characteristics 

B. Chemical Properties and Treatability 

Information on Heritage’s Selenium 

Wastes 

C. Alternative Treatment Standard for 

Heritage to Treat the Guardian Selenium 

Waste 

D. What Is the Basis for EPA’s Approval of 

Heritage’s Request for an Alternative 

D010 Treatment Standard? 

E. What Are the Terms and Conditions of 

the Variance? 

III. Basis for Permanently Establishing 

Chemical Waste Management’s Selenium 

Variances 

A. History of CWM Variances 

B. What Is the Basis for Establishing 

Permanently CWM’s Alternative D010 

Treatment Standards? 

C. What Are the Terms and Conditions of 

the Variances? 

IV. Technical Correction to the Table in 

Paragraph (O) in 268.44. 

V. Administrative Requirements 

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 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 6569

1All four of CWM’s annual reports are in the 

docket supporting today’s rulemaking.

2 ‘‘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.

3 ‘‘Canadian Mineral Yearbook’’ 1995.

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

Yearbook—2003.

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 

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 

(DC 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 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? 

The current treatment standard for 

wastes exhibiting the toxicity 

characteristic for selenium is based 

upon the performance of stabilization 

treatment technology. When the Agency 

developed these treatment standards for 

selenium, EPA believed that wastes 

containing high concentrations of 

selenium were rarely generated and 

land disposed (62 FR 26041, May 12, 

1997). The Agency also stated that it 

believed that, for most waste containing 

high concentrations of selenium, 

recovery of the selenium was feasible 

using recovery technologies currently 

employed by copper smelters and 

copper refining operations (Id.). The 

Agency further stated that it did not 

have any performance data for selenium 

recovery, but available information 

indicated that recovery of elemental 

selenium out of certain types of scrap 

material and other types of waste was 

practiced in the United States. 

The Agency used performance data 

from the stabilization of a selenium 

characteristically hazardous mineral 

processing waste (waste code D010) to 

set the national treatment standard for 

selenium, which we determined at that 

time to be 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, 

which led to our establishment of 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. 

C. Previously Approved Variances for 

Selenium Waste 

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), 

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, 

we indicated that for two high-level 

selenium waste streams, we would 

propose two site-specific treatment 

variances, which we granted on May 26, 

1999 (63 FR 56886). EPA granted this 

variance for three years, and required 

CWM to conduct studies on approaches 

to further reduce the leachability of 

such treated wastes. EPA also required 

CWM to investigate alternative 

treatment technologies that might 

provide more effective treatment and 

remove the need for a treatment 

variance. EPA required CWM to report 

annually on these investigations and to 

provide any analytical data from the 

treatment studies.1 The annual reports 

include stabilization recipes being 

utilized to meet the alternative 

treatment standards, the selenium 

concentrations in the untreated wastes 

and the analytical results from leach 

testing of the treated wastes. On May 28, 

2002 (67 FR 36849), EPA renewed this 

variance for another three year term, 

and continued to require CWM to report 

on its treatability studies and to 

investigate whether more effective 

treatment is available.

D. Reasons for Lack of U.S. Secondary 

Selenium Recovery Capacity 

Primary selenium 2 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%).3 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 would 

be to recover the selenium in an 

environmentally sound manner over 

stabilization and land disposal. 

However, there was no recorded 

domestic production of secondary 

selenium in 2002.4 All potential 

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. That leaves stabilization as the 

best available treatment technology.

II. Basis for Heritage 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 

6570 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 

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 variances, but this 

is the only provision relevant to this 

action. 

On May 14, 2003, Heritage 

Environmental Services submitted their 

petition for a treatment variance to EPA. 

All information and data used in the 

development of this treatment variance 

can be found in the RCRA docket 

(RCRA–2003–0025) 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 

subject to lime injection, and 

subsequently captured in an 

electrostatic precipitator. Lime is added 

to remove sulphur compounds and 

selenium from the glass furnace gases. 

Heritage stabilizes the selenium-bearing 

waste from Guardian at their RCRA 

permitted facility in Indianapolis, 

Indiana. 

The Guardian 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. Concentrations of total 

selenium in the untreated waste vary 

between 10,000 ppm and 70,000 ppm 

(1%–7%). The dust is a D010 

characteristic waste because the 

selenium concentration exceeds 1.0 mg/

L, as measured by the TCLP. The rate of 

variation in the amount of waste is 

related to the demand, and ranges from 

20–50 tons/month. 

The land disposal restrictions found 

in 40 CFR 268.40(e) require 

characteristic wastes to meet the 

universal treatment standards (UTS) in 

40 CFR 286.48 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 is 

chromium; occasionally the dust is a 

D007 waste because the chromium 

exceeds the hazardous waste 

characteristic level of 5 mg/L, as 

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 (45 FR 74889; November 12, 

1980 and 52 FR 25942; July 9, 1987). 

B. Chemical Properties and Treatability 

Information on Heritage’s Selenium 

Wastes 

Selenium emissions from the 

Guardian glass furnace are captured by 

a lime scrubber. Lime treatment is used 

to remove sulphur compounds and 

selenium from the glass furnace gases. 

An approach to immobilize the 

selenium in the Guardian waste and to 

reduce its exposure to leaching agents is 

to stabilize it with cement. With this 

technology option, the waste is 

solidified into a solid of high 

compressive strength, thereby 

incorporating the hazardous 

components of the electrostatic 

precipitator dust into a solid matrix. 

The solid matrix 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 earlier, analytical data 

on the raw Guardian waste indicate that 

the only underlying hazardous 

constituent present is chromium. 

Heritage conducted treatability studies 

demonstrating that the addition of 

Portland cement 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. Heritage used 

ferric sulfate for this purpose. 

Heritage conducted approximately 

200 preliminary rounds of testing using 

different stabilization recipes. Heritage 

then conducted additional tests using 

the stabilization recipes used by 

Chemical Waste Management (see 

Section III). 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 0.35 parts ferrous 

sulfate combined with 1.0 part cement 

and 1.0 part cement kiln dust, resulting 

in a reagent to waste ratio of 2.35 to 1. 

Water is also added to make a thick 

paste, that upon curing, solidifies the 

treated waste into a hard cementitious 

material. 

Table I shows the results of leaching, 

as measured by the TCLP, of Guardian’s 

waste treated using the optimized 

stabilization recipe. Heritage stabilized 

the samples with reagent to waste ratios 

of 2.35 to 1. Reagents included cement, 

cement kiln dust, and iron sulfate. 

Treated selenium TCLP concentrations 

for the five samples ranged from 28.4 

mg/L to 35.6 mg/L.

TABLE I.—SUMMARY OF GUARDIAN SELENIUM WASTE

Guardian sample No. Total selenium content estimate (%) 

Untreated Se 

waste TCLP 

(mg/L) 

Treated Se 

waste TCLP 

(mg/L) 

1183982 ........................................................................ 6.7% (67,000 ppm) ....................................................... 70 30.4 

1183983 ........................................................................ 5.8% (58,000 ppm) ....................................................... 72 35.6 

1184103 ........................................................................ 6.0% (60,000 ppm) ....................................................... 66 25.6 

1184104 ........................................................................ 7.2% (72,000 ppm) ....................................................... 120 26.7 

1184340 ........................................................................ 6.3% (63,000 ppm) ....................................................... 68 28.4 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 6571

5 ‘‘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.

6BDAT Background Document for Quality 

Assurance/Quality Control Procedures and 

Methodology, October 23, 1991.

7Note that disposal in a Subtitle C landfill is 

required because the treated waste is still 

characteristic for selenium (i.e., the waste has TCLP 

values above the toxicity characteristic level for 

selenium of 1.0 mg/L ).

C. Alternative Treatment Standard for 

Heritage To Treat the Guardian 

Selenium Waste 

The glass manufacturing waste from 

Guardian is significantly different in 

chemical composition from the waste 

used in establishing the original 

selenium treatment standard. Data from 

Heritage demonstrate that wastes 

containing high concentrations of 

selenium are not easily treated using the 

BDAT technology of stabilization. As 

previously acknowledged and discussed 

by the Agency in a past rulemaking (see

62 FR 26041), 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. 

In the Phase IV rule, the Agency did 

not generally use stabilization data with 

reagent to waste ratios greater than 1.5

However, in the case for selenium, the 

existing treatment standard, as 

discussed earlier, was calculated from 

data with reagent to waste ratios ranging 

from 1.8 to 2.7.

Using the BDAT methodology 6, the 

Agency has calculated an alternative 

treatment standard of 39.4 mg/L, as 

measured by the TCLP, based on five 

data points (25.6, 26.7, 28.4, 30.4, and 

35.6 from table I) that were the result of 

stabilization treatment using a reagent to 

waste ratio of 2.35 for the waste 

generated by Guardian Industries Corp. 

The treatment recipe is consistent with 

the reagent to waste ratios used to 

establish the existing treatment standard 

of 5.7 mg/L, as measured by the TCLP, 

and the treatment data from CWM’s 

annual selenium reports (the CWM 

variance treatment standards are 

discussed in Section III of this notice).

D. What Is the Basis for EPA’s Approval 

of Heritage’s Request for an Alternative 

D010 Treatment Standard? 

After careful review of the data and 

petition submitted by Heritage, we 

conclude that Heritage has adequately 

demonstrated that the wastes satisfy the 

requirements for a treatment variance 

under 40 CFR 268.44(h)(1). Heritage 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 to two orders of 

magnitude higher than TCLP 

concentrations in the waste used to 

develop the treatment standard for D010 

hazardous wastes. Furthermore, 

Heritage 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 

operated. 

An added benefit of stabilizing the 

Guardian waste with cement is that the 

hazardous components of the 

electrostatic precipitator dust are put 

into a solid matrix. The solid matrix 

substantially lowers the surface area 

potentially exposed to leaching from 

that of very fine untreated dust. The 

TCLP results show that, even when the 

solid is ground to less 9.5 mm, the 

solidified waste should reduce leaching 

potential after the waste is disposed in 

a hazardous waste landfill. 

Before determining that stabilization 

was the best treatment technology 

option for the Guardian waste, Heritage 

explored the feasibility of selenium 

recovery technologies. Heritage 

established a pilot project to evaluate 

the extraction of selenium from raw 

waste at one of their facilities using 

hydrometallurgical recovery methods. 

Results from the pilot tests are not yet 

complete, but preliminary indications 

are that the amounts of by-product 

wastes generated during the recovery 

process exceed the amount of raw waste 

processed. In addition, the reactions are 

difficult to control, chemical 

consumption is very high, and a product 

of reasonable quality has not yet been 

achieved. Therefore, the technology 

does not appear to be economically 

viable. 

Heritage has also looked into 

techniques for modifying Guardian’s 

production processes to change the 

chemical composition of this seleniumbearing hazardous waste as it is 

generated. If workable, the selenium 

content of the waste would remain high, 

but the selenium would be in a different 

chemical form that might simplify its 

recovery or reuse. One of the concerns 

is that full-scale modifications in its 

production processes could cause 

greater selenium and SO2 air emissions. 

Finally, EPA has reviewed CWM’s 

selenium variance annual reports on the 

stabilization recipes being utilized to 

meet the alternative treatment standards 

and has determined that stabilization of 

selenium with cement and cement kiln 

dust, in addition to adding ferrous 

sulfate as a reagent for chromium, is the 

best demonstrated available technology 

for the Guardian waste. 

Therefore, EPA is today granting a 

site-specific treatment variance from the 

D010 treatment standards for the 

Guardian waste stream in question. 

Today’s alternative treatment standard 

will provide sufficient latitude for 

Heritage to treat the other metal present 

in the waste 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 note 

that Heritage Environmental Services, 

LLC would be subject to a selenium 

treatment standard of 39.4 mg/L, as 

measured by the TCLP. 

E. What Are the Terms and Conditions 

of the Variance? 

Since this rule approves a variance 

from a numerical treatment standard, 

Heritage may vary the reagent recipe it 

uses to best meet the alternative 

numerical standard. The Agency notes 

that, to avoid questions of 

impermissible dilution, Heritage 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 Heritage use a reagent 

to waste ratio of 2.35 to 1 as an upper 

limit. This is the ratio used by the 

Agency in establishing today’s 

alternative treatment standard. 

The treated waste, provided it meets 

the applicable LDR treatment standard 

for the other hazardous constituent in 

the waste,7 will be disposed in a RCRA 

Subtitle C landfill.

III. Basis for Permanently Establishing 

Chemical Waste Management’s 

Selenium Variances 

Also in today’s notice, EPA is 

establishing two permanent site-specific 

treatment variances from the LDR 

treatment standards for two seleniumbearing hazardous wastes treated by 

Chemical Waste Management (CWM). 

The Agency previously granted 

treatment variances to CWM for these 

wastes on a temporary basis. These 

variances apply to two waste streams: 

Electrostatic precipitator dust generated 

during glass manufacturing operations 

at Owens Brockway Glass Container 

Company, and dry scrubber solid from 

glass manufacturing wastes at St. 

6572 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 

8Selenium concentrations in the untreated 

Owens Brockway wastes were between 465 and 

1024 mg/L, as measured by TCLP, while the 

selenium concentration in the untreated Ball Foster 

waste was 59.8 mg/L, as measured by the TCLP.

9All four of CWM’s annual reports are in the 

docket supporting today’s rulemaking.

Gobain (formerly Ball-Foster Glass 

Container Corporation). 

Specifically, on October 23, 1998, 

EPA proposed to grant site-specific 

treatment variances for two high-level 

selenium waste streams to be stabilized 

by CWM at their Kettleman City, 

California facility (63 FR 56886). The 

temporary variances were granted to 

CWM on May 26, 1999 (64 FR 28387) 

for a three year period and required 

CWM to conduct studies on approaches 

to reduce the leachability of the treated 

wastes. EPA also required CWM to 

report on alternative treatment 

technologies being investigated and 

provide any analytical data from these 

studies. On May 28, 2002 (67 FR 36849), 

EPA renewed these variances for a 

consecutive three year term with the 

same conditions to investigate treatment 

technologies and to report on the 

effectiveness of their ongoing treatment. 

These variances expire on May 28, 2005. 

A. History of CWM Variances 

CWM has applied to the Agency for 

treatment variances for two companies. 

In these petitions and in subsequently 

reported data, CWM has shown that 

selenium TCLP concentrations in the 

untreated wastes are one to three orders 

of magnitude higher than the untreated 

mineral processing wastes that EPA 

used to develop the current D010 

selenium treatment standard 8. The data 

also show that neither treated waste 

stream could reliably meet the 

numerical treatment standard of 5.7 mg/

L, as measured by the TCLP, even 

though CWM had shown that it is using 

the BDAT treatment technology 

(properly designed and operated) on 

which EPA based the selenium 

treatment standard.

CWM submitted stabilization data 

from each facility using combinations of 

the following stabilization reagents: 

Ferrous sulfate, calcium polysulfide, 

ferric chloride, sodium bisulfate, 

Portland cement, and cement kiln dust. 

For more detailed information about 

these petitions, see the proposed rule 

(63 FR 56886, October 23, 1998), the 

docket supporting the proposed rule 

(docket number F–98–CWMP–FFFFF), 

and this direct final rule (docket number 

RCRA–2003–0025). 

As part of CWM’s current site-specific 

treatment variances, EPA required CWM 

to report on alternative treatment 

technologies being investigated and 

provide any analytical data from these 

studies 9. These annual reports include 

stabilization recipes being used to meet 

the alternative treatment standards, the 

selenium concentrations in untreated 

wastes, and the analytical results from 

these wastes. EPA has reviewed the 

stabilization recipes being utilized to 

meet the alternative treatment standards 

and has determined that stabilization of 

selenium with cement and cement kiln 

dust, in addition to adding ferrous 

sulfate as a reagent for the other toxic 

metals, is the best demonstrated 

available technology for these seleniumbearing hazardous wastes.

B. What Is the Basis for Establishing 

Permanently CWM’s Alternative D010 

Treatment Standards? 

After careful review of the data in 

CWM’s selenium variance annual 

reports, we conclude that CWM has 

continued to adequately demonstrate 

that the wastes satisfy the requirements 

for a treatment variance under 40 CFR 

268.44(h)(1). CWM has demonstrated 

that the two glass manufacturing waste 

streams differ significantly in chemical 

composition from the waste used to 

establish the original treatment 

standard. Selenium TCLP 

concentrations in the untreated wastes 

are one to three orders of magnitude 

higher than those in the waste used to 

develop the treatment standard for D010 

hazardous wastes. Furthermore, CWM is 

using stabilization as the treatment 

technology, which is consistent with 

EPA’s determination of BDAT, and the 

process is well-designed and operated. 

Treatment of these two wastes is 

especially difficult because of the 

presence of other metals (i.e., arsenic, 

cadmium, chromium, and lead) above 

their respective characteristic levels. It 

is difficult to optimize treatment for 

selenium when other metals are being 

treated because the selenium solubility 

curve differs from that of most other 

metals. 

In light of the information presented 

by CWM to the Agency, and EPA’s 

inability to find selenium recovery 

capability in the US, EPA is changing 

the status of CWM’s treatment variances 

from temporary to permanent. In 

addition, consistent with the Heritage 

treatment variance discussed in Section 

II of today’s notice, EPA is not requiring 

annual reporting on selenium recovery 

and treatment technologies. 

Therefore, EPA is today permanently 

establishing two site-specific treatment 

variances from the D010 treatment 

standards for the two waste streams in 

question. We are making this change to 

the CWM selenium treatment variances 

in this direct final rule without prior 

proposal. We view this action as 

noncontroversial since we did not 

receive any significant adverse 

comments when we renewed these 

variances in 2002.

C. What Are the Terms and Conditions 

of the Variances? 

Upon promulgation of this final rule, 

CWM will continue to treat these two 

specific wastes to alternate treatment 

standards of 51 mg/L, as measured by 

the TCLP, for the Owens-Brockway 

waste and 25 mg/L, as measured by the 

TCLP, for the St. Gobian (formerly BallFoster) waste. CWM will continue to 

dispose of the treated wastes in a RCRA 

Subtitle C landfill provided they meet 

the applicable LDR treatment standards 

for the other hazardous constituents in 

the wastes. Finally, CWM will no longer 

be required to submit annual reports on 

selenium treatment and recovery 

technologies. 

IV. Technical Correction to the Table in 

Paragraph (O) in 268.44

The table in paragraph (o) under 40 

CFR 268.44 (July 1, 2003 version) with 

the title: Wastes Excluded From the 

Treatment Standards Under § 268.40, 

includes a list of facilities that are 

excluded from the treatment standards 

under § 268.40 and are subject to 

treatment variances for specific 

hazardous constituents. The table 

includes the following footnote: (5)—

Alternative D010 selenium standard 

only applies to dry scrubber solid from 

glass manufacturing wastes. 

The Agency is revising footnote 6 as 

follows: ‘‘(6)—Alternative D010 

selenium standard only applies to 

electrostatic precipitator dust generated 

during glass manufacturing operations.’’

This footnote was inadvertently 

changed when EPA extended the sitespecific variance for CWM in May, 2002 

(67 FR 36849). This technical correction 

restores the original text that identifies 

the source of the selenium-bearing 

hazardous waste. The selenium-bearing 

hazardous waste at each facility is 

generated by emissions from their glass 

furnaces that are captured in 

electrostatic precipitators. We are 

revising the table in paragraph (o) to 

reflect this change. 

V. Administrative Requirements 

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 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 6573

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. 

B. Paperwork Reduction Act 

This rule contains no new 

information collection requirements. 

The variance only changes the treatment 

standard applicable to a D010 waste 

stream at the Heritage Environmental 

Services, LLC facility in Indianapolis, 

Indiana, and establishes permanently 

the treatment standards set for two D10 

wastes at the Chemical Waste 

Management Inc. facility in Kettleman 

City, California. These actions do not 

change in any way the paperwork 

requirements already applicable to these 

wastes. Therefore, this rule is not 

subject to the Paperwork Reduction Act.

C. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq., as amended by 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996) whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small governmental 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

This treatment variance does not 

create any new regulatory requirements. 

Rather, they establish alternative 

treatment standards for three specific 

wastes, and it applies to two facilities; 

Heritage Environmental Services, LLC 

facility in Indianapolis, Indiana and 

Chemical Waste Management Inc. 

facility in Kettleman City, California. 

Therefore, I hereby certify that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. This rule, therefore, does not 

require a regulatory flexibility analysis. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of 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 alternative treatment 

standards for specific wastes that 

replace standards 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: 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 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. The rule will 

not impose substantial costs on states 

and localities. The rule does not impose 

any enforceable duties on these entities, 

therefore, Executive Order 13132 does 

not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Under Executive Order 13175, EPA 

may not issue a regulation that is not 

required by statute, that significantly or 

uniquely affects the communities of 

Indian Tribal governments, and that 

imposes substantial direct compliance 

costs on those communities, unless the 

Federal government provides the funds 

necessary to pay the direct compliance 

costs incurred by the tribal 

governments, or EPA consults with 

those governments. If EPA complies by 

consulting, Executive Order 13175 

requires EPA to provide to the Office of 

6574 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 

Management and Budget, in a separately 

identified section of the preamble to the 

rule, a description of the extent of EPA’s 

prior consultation with representatives 

of affected tribal governments, a 

summary of the nature of their concerns, 

and a statement supporting the need to 

issue the regulation. In addition, 

Executive Order 13175 requires EPA to 

develop an effective process permitting 

elected officials and other 

representatives of Indian tribal 

governments ‘‘to provide meaningful 

and timely input in the development of 

regulatory policies on matters that 

significantly or uniquely affect their 

communities.’’ Today’s rule does not 

significantly or uniquely affect these 

communities of Indian tribal 

governments. The rule does not impose 

any mandate on tribal governments or 

impose any duties on these entities. 

This rule issues a variance from the LDR 

treatment standards for specific 

characteristic selenium wastes. 

Accordingly, the requirements of 

section 3(b) of Executive Order 13175 

do not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045, entitled 

‘‘Protection of Children From 

Environmental Health and Safety Risks’’

(62 FR 19885, April 23, 1997), applies 

to any rule that EPA determines is (1) 

‘‘economically significant’’ as defined 

under Executive Order 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. EPA interprets the Executive 

Order 13045 as encompassing only 

those regulatory actions that are risk 

based or health based, such that the 

analysis required under section 5–501 of 

the Executive Order has the potential to 

influence the regulation. This rule is not 

subject to Executive Order 13045 

because it does not involve decisions 

regarding environmental health or safety 

risks. 

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 D010 

waste stream at the Heritage 

Environmental Services, LLC facility in 

Indianapolis, Indiana and two D10 

wastes at the Chemical Waste 

Management Inc. facility in Kettleman 

City, California. These selenium wastes 

will be disposed of in RCRA Subtitle C 

landfills, 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 March 29, 

2004.

List of Subjects in 40 CFR Part 268 

Environmental Protection, Hazardous 

waste, Variance.

Dated: February 4, 2004. 

Marianne Lamont Horinko, 

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. Adding in alphabetical order the 

entry for ‘‘Guardian Industries Corp., 

Jefferson Hills, PA’’

■ b. Adding footnote number 11.

■ c. Revising footnotes 6 and 7.

■ d. Revising the entry for Owens 

Brockway Glass Container Company, 

Vernon, CA.

■ e. Revising the entry for St. Gobian 

Containers, El Monte, CA. 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Rules and Regulations 6575

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 Nonwastewaters 

Concentration

(mg/L) Notes Concentration (mg/L) Notes 

* * * * * * * 

Guardian Industries 

Corp., Jefferson Hills, 

PA6 11.

D010 Standards under 

§ 268.40.

Selenium ........ NA NA 39.4 mg/L TCLP ........... NA. 

Owens Brockway Glass 

Container Company, 

Vernon CA6 7.

D010 Standards under 

§ 268.40.

Selenium ........ NA NA 51 mg/L TCLP .............. NA. 

St. Gobain Containers, 

El Monte, CA5 7.

D010 Standards under 

§ 268.40.

Selenium ........ NA NA 25 mg/L TCLP .............. NA. 

* * * * * * * 

Note: NA means Not Applicable. 1A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7. 

*******

5Alternative DO10 selenium standard only applies to dry scrubber solid from glass manufacturing wastes. 

6Alternative D010 selenium standard only applies to electrostatic precipitator dust generated during glass manufacturing operations. 7 D010 wastes generated by these two facilities must be treated by Chemical Waste Management, Inc. at their Kettleman Hills facility in 

Kettleman City, California. 

* * * * * * * 

11 D010 wastes generated by this facility must be treated by Heritage Environmental Services, LLC. at their treatment facility in Indianapolis, 

Indiana. 

[FR Doc. 04–2821 Filed 2–10–04; 8:45 am] 

BILLING CODE 6560–50–U

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Part 12 

[USCG–2003–14500] 

RIN 1625–AA81 

Validation of Merchant Mariners’ Vital 

Information and Issuance of Coast 

Guard Merchant Mariner’s Document 

(MMDs); Correction

AGENCY: Coast Guard, DHS.

ACTION: Interim rule; correction.

SUMMARY: On January 6, 2004, the Coast 

Guard published an interim rule in the 

Federal Register implementing 

regulations for the validation of 

Merchant Mariner’s vital information 

and issuance of Coast Guard Merchant 

Mariner’s Documents (MMDs). This 

notice contains a correction to that rule.

DATE: Effective on February 11, 2004.

FOR FURTHER INFORMATION CONTACT:

Commander Dave Dolloff, Project 

Manager, National Maritime Center 

(NMC), Coast Guard, telephone 202–

493–1021.

SUPPLEMENTARY INFORMATION: The Coast 

Guard published an interim rule in the 

Federal Register of January 6, 2004, (69 

FR 526) concerning Merchant Mariners 

Documents. An essential paragraph was 

inadvertently omitted from the 

‘‘Background and Purpose’’ section. The 

omitted paragraph is needed to further 

clarify the Coast Guard’s intentions 

governing the validation of merchant 

mariners’ vital information and issuance 

of Merchant Mariner’s Documents. This 

correction adds that paragraph. 

In interim rule FR Doc. 03–32318, 

published January 6, 2004, (69 FR 526) 

make the following correction. On page 

528, in the first column, following the 

paragraph ending in the word ‘‘appeal,’’

add the following paragraph:

The Department of Homeland Security 

(DHS), under the authority of the Aviation 

and Transportation Security Act and the 

Maritime Transportation Security Act of 

2002, is developing a program that can be 

used to control access to secure areas in 

vessels, facilities, and ports. This program 

includes a system-wide transportation 

worker identification card which is currently 

under development. DHS is developing this 

program through the Transportation Security 

Administration (TSA), the Coast Guard, and 

other Federal agencies, including others 

within DHS. 

The Coast Guard will work with TSA to 

ensure that the regulations for obtaining 

Merchant Mariner Documents are consistent 

with this initiative to minimize future 

impacts on mariners.

Dated: January 30, 2004. 

T.H. Gilmour, 

Rear Admiral, U.S. Coast Guard, Assistant 

Commandant for Marine Safety, Security and 

Environmental Protection.

[FR Doc. 04–2992 Filed 2–10–04; 8:45 am] 

BILLING CODE 4910–15–U

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Part 16 

[USCG–2003–16414] 

RIN 1625–AA80 

Chemical Testing

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

SUMMARY: The Coast Guard is revising 

its chemical drug testing regulations to 

conform with the Department of 

Transportation’s (DOT) final rule 

concerning Drug and Alcohol 

Management Information System 

Reporting published in the Federal 

Register on July 25, 2003. The DOT rule 

consolidated the 21 different 

Management Information System (MIS) 

forms into one single-page form for use 

by all DOT agencies and the Coast 

Guard. This conforming amendment