64504 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 268

[No. F–97–TV2F–FFFFF; FRL–5932–5]

Clarification of Standards for

Hazardous Waste Land Disposal

Restriction Treatment Variances

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: EPA is today finalizing

clarifying amendments to the rule

authorizing treatment variances from

the national Land Disposal Restrictions

(LDR) treatment standards. The

clarifying changes adopt EPA’s

longstanding interpretation that a

treatment variance may be granted when

treatment of any given waste to the level

or by the method specified in the

regulations is not appropriate, whether

or not it is technically possible to treat

the waste to that level or by that

method. In response to comment, the

Agency is indicating in the rule the

circumstances when application of the

national treatment standard could be

found to be ‘‘inappropriate’’,

specifically where the national

treatment standard is unsuitable from a

technical standpoint or where the

national treatment standard could lead

to environmentally counterproductive

results by discouraging needed

remediation.

In addition, EPA proposed to reissue

the treatment variance granted to Citgo

Petroleum under the clarified standard.

The Agency is not taking further action

on this part of the proposal because, due

to changes in Citgo’s remediation plans

for its Lake Charles Louisiana facility,

this particular variance has become

moot. The Agency is consequently

withdrawing the Citgo variance.

EFFECTIVE DATE: These final regulations

are effective December 5, 1997.

ADDRESSES: The official record for this

rulemaking is located at the RCRA

Information Center at Crystal Gateway I,

First Floor, 1235 Jefferson Davis

Highway, Arlington, Virginia. The

RCRA Information Center is open from

9:00 a.m. to 4:00 EST p.m., Monday

through Friday, except Federal holidays.

The Docket Identification Number for

today’s action is F–97–TV2F–FFFFF.

Appointments to review docket

materials are recommended.

Appointments may be made by calling

(703) 603–9230. Individuals reviewing

docket materials may copy a maximum

of 100 pages from any one docket at no

cost. Additional copies may be made at

a cost of $0.15 per page. In addition, the

docket index and some supporting

materials are available electronically.

See the SUPPLEMENTARY INFORMATION

section for information on accessing

electronic information.

FOR FURTHER INFORMATION CONTACT: For

general information on RCRA, land

disposal treatment variances, and this

rule contact the RCRA Hotline, between

9:00 a.m. and 6:00 p.m. EST, Monday

through Friday, except Federal holidays.

The RCRA Hotline can be reached toll

free on (800) 424–9346 or, from the

Washington D.C. area, on (703) 412–

9810. Hearing impaired can reach the

RCRA Hotline on TDD (800) 553–7672

or, in the Washington D.C. area, on TDD

(703) 412–3323. For detailed

information on specific aspects of this

rulemaking, contact Elizabeth McManus

on (703) 308–8657.

SUPPLEMENTARY INFORMATION:

Accessing Today’s Rule and Supporting

Information Electronically

Today’s final rule, its docket index

and the following supporting materials

are available electronically and may be

accessed through the Internet: To access

these documents electronically: ‘‘Use of

Site-Specific Land Disposal Restriction

Treatability Variances Under 40 CFR

268.44(h) During Cleanups’’ U.S. EPA

guidance memorandum from Michael

Shapiro, Director EPA Office of Solid

Waste and Steve Luftig, Director EPA

Office of Emergency and Remedial

Response, Jan. 8, 1997.

WWW: Http://www.epa.gov/epaoswer/

hazwaste/ldr/ldr-rule.htm

FTP: ftp.epa.gov

Login: anonymous

Password: your Internet address

Files are located in /pub/epaoswer/

hazwaste/ldr/ldr-rule.htm.

Table of Contents

I. Background

II. Clarified Standard for Granting Treatment

Variances

A. Clarification of ‘‘inappropriate’’

standard

B. Compliance With Statutory Provisions

for LDR Treatment

III. Responses to Comment

IV. Withdrawal of Citgo Treatment Variance

V. State Authorization

II. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to

Executive Order 12866

B. Regulatory Flexibility Analysis

C. Unfunded Mandates Reform Act

D. Submission to Congress and the General

Accounting Office

I. Background

The essential requirement of the Land

Disposal Restrictions (LDR) statutory

provisions is that hazardous wastes

must not be land disposed until

hazardous constituent concentrations in

the wastes are at levels at which threats

to human health and the environment

are minimized, and land disposal is

otherwise protective of human health

and the environment. RCRA sections

3004 (d), (e), (g) and (m); 56 FR at

41168, August 19, 1991; 62 FR at 26062,

May 12, 1997. These requirements

normally are satisfied by prohibiting

disposal of hazardous wastes until the

wastes’ hazardous constituent

concentrations reflect the performance

achievable by the Best Demonstrated

Available Treatment technology

(BDAT). 62 FR at 26062, May 12, 1997.

EPA recognized from the inception of

the LDR program, however, that there

would be circumstances when these

technology-based treatment standards

might not be either achievable or

appropriate. Accordingly, EPA adopted

a treatment variance provision (codified

in 40 CFR 268.44; 51 FR at 40605–

40606, Nov. 7, 1986) providing that:

Where the treatment standard is expressed

as a concentration in a waste or waste extract

and a waste cannot be treated to the specified

level, or where the treatment technology is

not appropriate to the waste, the generator or

treatment facility may petition the

Administrator for a variance from the

treatment standard. The petitioner must

demonstrate that because the physical or

chemical properties of the waste differs

significantly from the wastes analyzed in

developing the treatment standard, the waste

cannot be treated to [the] specified levels or

by the specified methods.

A treatment variance takes the form of

an alternative LDR treatment standard.

Nationally applicable variances and

site-specific variances that are approved

using rulemaking procedures are

codified in the Table to § 268.44, 40 CFR

268. 44(o). Site-specific variances that

are approved using non-rulemaking

procedures are not codified.

As set out in more detail in the May

12 notice, EPA has interpreted the first

sentence of the treatment variance

provision as creating two independent

tests under which treatment variance

applications can be considered: first,

where the waste in question cannot be

treated to levels or by the methods

established in the rules; and second,

where such treatment may be possible

but is nevertheless ‘‘not appropriate’’.

62 FR at 26059, May 12, 1997. EPA has

further viewed the second sentence of

the treatment variance provision—

which refers to a demonstration that the

waste differs chemically or physically

from those the Agency analyzed in

developing the standard—as applying

only to the technical infeasibility part of

the standard. 62 FR at 26059, May 12,
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64505

1EPA is also restoring language to 40 CFR

268.44(a) and (h) that was inadvertently deleted

when EPA proposed this clarification and redrafting

the introductions to both provisions. These changes

are made to restore the inadvertently deleted text

and to make the difference between national and

site-specific variances more clear, as follows. The

40 CFR 268.44(a) national variance is wastespecific—it could apply to the same type of waste

at numerous sites. National variances are obtained

by petitioning the Administrator and, as set out in

40 CFR 268.44(b), petitions are processed using the

procedures set out in 40 CFR 260.20. The 40 CFR

268.44(h) variance is site-specific—it applies only

to a certain waste generated at a particular site. Sitespecific variances are obtained by petitioning the

Administrator, or the Administrator’s delegated

representative, or an authorized state. Petitions for

site-specific variances are processed on a site-bysite basis and are not required to be processed using

the procedures set out in 40 CFR 260.20. Further

explanation on this issue is included in the

Response to Comments Document for today’s action

in the response to comments submitted by the

Department of Energy. EPA regards the restoration

of inadvertently deleted language and the

associated clarifications as a technical correction

and may, thus, make the changes immediately in

this final rule.

2Although it should also be noted that it is often

routine and obviously appropriate to combust

organic-contaminated hazardous wastes and to

stabilize the combustion residues to reduce metal

mobility; see, e.g. treatment standards for F024

wastes in 40 CFR 268.40.

3Examples are where wastes can remain within

an ‘‘area of contamination’’, where remedy selection

requirements allow a balancing of treatment and

containment strategies and where RCRA regulations

allow the option of closing a regulated unit with

wastes left in place.

4Another recent example of such a treatment

variance was granted to Dow Chemical Co. by EPA

Region V. In this case, the company could legally

leave wastes within an area of contamination but

requested instead that the wastes be exhumed for

more secure disposal in a subtitle C landfill.

Viewing this as a net environmental benefit, and

further finding that no other treatment but

combustion was available to reduce the relatively

low levels of hazardous constituents (chlorinated

dibenzo-dioxins and furans), the Region found the

existing treatment requirement inappropriate and

granted the variance. Treatment Variance for Dow

Chemical Co., June 10, 1997, Response to Comment

Document pp. 15–17.

1997. However, EPA now recognizes

that the existing rule, as drafted, might

be read to require a demonstration that

a waste is physically or chemically

different along with a showing that it

cannot be treated to a specified level or

by a particular method whenever a

treatment variance is sought, including

situations where the otherwise

applicable treatment standard is

technically possible but, nonetheless,

inappropriate. This was not EPA’s

intent, and EPA initiated this

rulemaking to remove any drafting

ambiguity in the rule.

II. Clarified Standard for Granting

Treatment Variances

EPA is finalizing the proposed

amendment to the rule, with two

changes. First, EPA is clarifying the

situations under which treatment

variances may be approved because the

otherwise applicable LDR treatment

standard is ‘‘inappropriate.’’ Second, the

Agency is adding language that

explicitly requires alternative LDR

treatment standards approved through

the treatment variance process to satisfy

the requirement that treatment

standards result in substantial treatment

of hazardous constituents in the waste

so that threats posed by the waste’s land

disposal are minimized, and also

indicates that special considerations

may arise in satisfying this standard if

the waste is to be used in a manner

constituting disposal.1

A. Clarification of ‘‘Inappropriate’’

Standard

The Agency proposed amended

language simply stating that a treatment

variance could be granted if it is

‘‘inappropriate’’ to require treatment to

the level or by the method set out in the

rules. 62 FR at 26081, May 12, 1997. In

the preamble to the proposal, the

Agency provided examples as to the

situations when application of the

otherwise applicable standard could be

inappropriate. 62 FR at 26059–26060,

May 12, 1997. In response to comment

maintaining that the rule language was

impermissibly open-ended, EPA has

decided to include language codifying

more particularly when a standard

could be ‘‘inappropriate’’. These

circumstances are drawn from EPA’s

practice in applying the existing rule

and are consistent with the examples

discussed in the preambles to the

proposal and the HWIR-Media proposal.

61 FR at 18810, April 29, 1996.

The first circumstance is when

imposition of BDAT treatment, while

technically possible, remains unsuitable

or impractical from a technical

standpoint. The chief example is when

a treatment standard would result in

combustion of large amounts of mildly

contaminated soil or wastewater. 55 FR

at 8760 and 8761, March 8, 1990; 61 FR

at 18806–18808, April 29, 1996 and

other sources cited therein. The same

reasoning could apply when media is

contaminated with metal contaminants

and also contains low levels of organic

contaminants. In such a case, it may be

inappropriate to require combustion

treatment of the organic contaminants

both because it may be inappropriate to

combust media generally and because it

may be inappropriate to combust wastes

where metals are the chief hazardous

constituent.2 Another potential example

of where treatment for organic

contaminants may be technically

inappropriate is when a waste contains

low concentrations of non-volatile

organic contaminants (for example,

concentrations slightly exceeding a

Universal Treatment Standard) and the

waste, for legitimate reasons, has been

stabilized. If the mobility of the nonvolatile organic contaminants has been

reduced, it might be inappropriate to

require further treatment of the nonvolatile organic contaminants. Cf. 61 FR

at 55724, Oct. 28, 1996 where EPA made

a similar finding. Still another example

of a situation where the otherwise

applicable LDR treatment standard is

technically inappropriate could be a

case where BDAT treatment could

expose site workers to acute risks of fire

or explosion and an alternative

technology would not. 62 FR at 26060,

May 12, 1997. In all these types of

circumstances, notwithstanding that it

is technically possible to achieve the

standard by using the best demonstrated

available technology, it could be

inappropriate to do so.

The second set of circumstances

where treatment to the limit of best

demonstrated available technology

might be inappropriate involves cases

where imposition of the otherwise

applicable treatment standard could

result in a net environmental detriment

by discouraging aggressive remediation.

The example EPA and authorized states

have encountered most often to date is

where federal rules allow the option of

leaving wastes in place,3 and a facility

then has the choice of pursuing the legal

option of leaving the wastes in place or

opting to excavate thereby triggering

treatment to standards based on the

performance of best demonstrated

available technology, which can be very

expensive. 62 FR at 26059, May 12,

1997, and other sources there cited.4 In

these circumstances, a treatment

variance can provide an intermediate

option of more aggressive remediation,

which may include substantial

treatment of the removed waste before

disposal of that treatment residue—a net

environmental benefit over leaving

untreated waste in place. 61 FR at

55720–22, May 12, 1997. In EPA’s

experience, this situation often occurs

when BDAT treatment would require

that wastes be treated to achieve

constituent concentrations that fall

below protective site-specific cleanup

levels, thus increasing remediation costs

for treatment of excavated wastes. In

these instances, EPA has indicated that

consideration of a treatment variance is

typically warranted (because imposition

of the otherwise applicable treatment

standard would discourage aggressive

remediation and is, therefore,

inappropriate) and that, if a variance is

approved, protective, site-specific

cleanup levels may be used as
64506 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

5As EPA explained in the May 12, 1997, Federal

Register notice, however, remediation activities

involving replacement of treated soils or other

wastes onto the land is not a type of use

constituting disposal. The activity is a type of

supervised remediation, and is not the type of

unsupervised recycling activity covered by the use

constituting disposal provisions. 62 FR at 26063,

May 12, 1997.

6 It should be noted that the Subpart CC standards

do not apply to waste management units used

solely for on-site treatment or storage of hazardous

waste that is generated as the result of remedial

activities required by RCRA corrective action

authorities, CERCLA authorities, or similar Federal

or State authorities. See 40 CFR 264.1080 (b) (5) and

265.1080 (b) (5).

alternative LDR treatment standards.

See recent EPA guidance on LDR

treatment variances: Jan 8, 1997

memorandum, ‘‘Use of Site-Specific

Land Disposal Restriction Treatability

Variances Under 40 CFR 268.44(h)

During Cleanups’’ from Michael

Shapiro, Director EPA Office of Solid

Waste and Steve Luftig, Director EPA

Office of Emergency and Remedial

Response and information on

compliance with statutory provisions

for LDR treatment, below. In addition,

see ‘‘Hazardous Waste: Remediation

Waste Requirements Can Increase the

Time and Cost of Cleanups’’ U.S.

General Accounting Office, GAO/RCED–

98–4, October 1997.

EPA is accordingly codifying

qualifying language stating that

treatment variances can be granted

where the underlying standard is not

appropriate either because it is

technically inappropriate or because

requiring LDR treatment is

environmentally inappropriate in that it

could discourage aggressive

remediation.

Finally, it must be remembered that

this amended rule does not command

issuance of treatment variances any

more than the existing rule does. Like

the existing rules, the amended rules set

out circumstances when treatment

variances may be considered. The actual

determination of whether an otherwise

applicable LDR treatment standard is

‘‘unachieveable’’ or technically or

environmentally ‘‘inappropriate’’ is a

fact-specific determination depending

largely on site-and waste-specific

circumstances.

B. Compliance With Statutory

Provisions for LDR Treatment

As stated in the proposal all treatment

variances must be consistent with the

root requirement of RCRA section 3004

(m): that treatment be sufficient to

minimize threats to human health and

the environment posed by land disposal

of the waste. See 62 FR at 26060/1, May

12, 1997 (‘‘alternative treatment

standards [established by a treatment

variance] must comply with the

statutory standard of RCRA section

3004(m) by minimizing threats to

human health and the environment’’). In

order to ensure that there is no

ambiguity over application of this

requirement in the context of alternative

LDR treatment standards developed

through the treatment variance process,

EPA is adding regulatory language that

explicitly requires the decision-maker to

determine that a revised treatment

standard is sufficient to minimize

threats posed by land disposal. Cf. 61

FR at 55721, October 23, 1996 (finding

that alternate standard in treatment

variance does minimize threats posed

by land disposal). In making this

determination, however, EPA (or

authorized State) may consider risks

posed by land disposal not only of the

treated residue, but also the risks posed

by the continuation of any existing land

disposal of the untreated waste, that is,

the risks posed by leaving previously

land disposed waste in place. Thus, for

example, in a remediation setting, it is

appropriate (and likely necessary) to

consider risks posed by leaving

previously land disposed waste in place

as well as risks posed by land disposal

of the waste after it is removed and

treated. Cf. 61 FR at 55721, October 28,

1996 (fact-specific determination that

threats posed by land disposal are

adequately minimized when treatment

variance will lead to clean closure of

large surface impoundment, substantial

treatment of removed waste, and

disposal of treatment residue in a

subtitle C landfill) and 61 FR at 18808,

April 29, 1996, and other sources cited

therein (determination that the policy

considerations which argue for BDAT as

the basis for technology-based standards

for as-generated wastes do not always

support a BDAT approach in the

remediation context).

In addition, when making a

determination as to whether the

statutory provisions for LDR treatment

have been satisfied, EPA may, of course,

condition any particular variance to

apply only in certain circumstances if

the facts warrant. There is, at least, one

potentially recurring circumstance

when such conditioning may be

warranted for treatment variances.

Under current regulation, hazardous

waste-derived products can be used in

a manner constituting disposal provided

the waste meets the LDR treatment

standards. 40 CFR 266.23. The

exemption was premised on findings

that hazardous wastes would meet

requirements reflecting rigorous

treatment which typically destroys,

removes, or immobilizes hazardous

constituents to the limit of available

technology. 53 FR at 31198, August 17,

1988. In order to ascertain whether this

exemption is still justifiable for wastes

which receive treatment variances on

the ground that the treatment standard

is inappropriate, EPA is noting that as

part of a determination of whether

threats are minimized under the

circumstances, consideration should be

given to whether this exemption should

continue to apply.5 This would entail a

fact-specific determination, and notice

as to how the determination might be

made would have to accompany each

such treatment variance. For example,

in situations where the decision-maker

determines that use of a product derived

from hazardous waste in a manner

constituting disposal would likely not

be adequately protective even if that

hazardous waste derived product

complied with an alternative land

disposal treatment standard established

through a treatment variance, the

treatment variance approval could

include a condition that restricted use of

the treated hazardous waste in a manner

constituting disposal.

EPA also notes that the Subpart CC

rules, relating to control of air emissions

from tanks, containers, and surface

impoundments managing hazardous

waste, state that if a waste has met the

LDR treatment standard set out in 40

CFR 268.40 (the generally-applicable

treatment standards, normally the

Universal Treatment Standards), the

waste is not subject to further Subpart

CC controls.6 See 40 CFR 264.1082 (c)

(4) and 265.1082 (c) (4)) and 61 FR at

59941, November 25, 1996. The

limitation to wastes that have achieved

the generally-applicable treatment

standard in fact means that the

exemption is unavailable to wastes

receiving treatment variances that alter

the generally-applicable standards for

organic hazardous constituents. EPA is

confirming here that this literal reading

is intentional.

III. Responses to Comment

Most comments supported the

Agency’s proposal, or suggested that

there was no need to clarify the

standard in the existing rule. The main

negative comment came from the

Environmental Defense Fund, raising a

number of points.

First, the commenter argued that the

Agency’s own closure rules for

impoundments create the

environmentally adverse incentive to

leave wastes in place and thus create the

dilemma to adopt alternative treatment

standards. The comment urges
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64507

7The rules for most regulated units in essence

require clean closure, with wastes being allowed to

be left in place only after a showing that wastes

remaining after initial removal and

decontamination cannot be practically removed or

decontaminated. See e.g., closure standards for

piles in 40 CFR 265.258. The closure rules for

impoundments and landfills do not contain these

provisions, but rather provide alternative standards

for closing with wastes in place or for clean closure.

See, e.g., 40 CFR 265.228.

8EPA proposed regulations addressing

contaminated media at 61 FR 18780, April 29, 1996

and has not yet taken final action on this proposal.

amendment of the closure standards for

impoundments.

While it is correct that the closure

rules for surface impoundments (and

landfills) create more opportunities to

close with wastes left in place than do

closure standards for tanks, piles,

containment buildings, and drip pads,

EPA did not, and is not, reopening any

of the closure standards in this

proceeding.7 In developing the

standards for closure of surface

impoundments, EPA allowed the option

of leaving wastes in place because of the

practical difficulties of removing large

volumes of waste from impoundments,

many of which had been operating over

long periods of time, and the

recognition that, when properly capped,

some former surface impoundments can

safely contain wastes during and after

post-closure care. 47 FR at 32320 and

32321, July 26, 1982. EPA also required,

in the closure performance standards,

that releases must be minimized or

controlled at units where waste is left in

place. 47 FR at 32320 and 32321, July

26, 1982. In situations where such

minimization or control is not

achievable, the closure performance

standard would not be met and closure

with waste in place would not be

available under the regulations. In these

respects, EPA’s closure regulations for

surface impoundments are identical to

those for landfills, where waste is

purposefully disposed of in the landbased units. EPA is re-evaluating the

relationship between requirements for

closure of regulated units, including

surface impoundments, and

requirements for RCRA corrective action

and will take this comment under

consideration during the re-evaluation.

In the meantime, the Agency

nevertheless intends to act now in order

to assure that the treatment variance

option continues to provide a potential

intermediate alternative between full

removal of waste followed by treatment

to the extent of best demonstrated

technology on the one hand and no

waste removal at all on the other.

Second, the commenter argued that

the circumstances under which

treatment variances could be approved

based on the ‘‘inappropriate’’ standard

were not adequately defined. The

commenter then went on to note that

most of the situations in which the

Agency contemplated using the

‘‘inappropriate’’ standard occurred in

the remediation setting and suggested

that the Agency either wait until

completion of the ongoing rulemaking

relating to management of contaminated

environmental media, or limit the scope

of the variance to remediation

situations.8

EPA has addressed the comments

regarding the specificity of the

‘‘inappropriate’’ standard by adding

clarifying language, based on discussion

in May 12, 1997 proposal, to the final

regulations as discussed above.

Regarding the second part of this

comment, EPA does not believe it

should await the outcome of the HWIRMedia proceeding to finalize the

clarifying amendment to the treatment

variance rules. EPA also notes that

nothing in this rule forecloses any of the

actions proposed in the HWIR Media

proposal, including further definition of

situations where treatment variances are

appropriate—for example, codification

of the type of ‘‘minimize threat’’

variance determination discussed in the

HWIR-Media proposal. 61 FR at 18810–

18812, April 29, 1996. The Agency is

continuing to evaluate and review

comments on this part of the HWIRMedia proposal.

The Agency is persuaded by the

commenter’s observation regarding use

of treatment variances in the context of

remediation. Accordingly, in response

to this comment, EPA has chosen to

expressly limit approval of treatment

variances using the ‘‘environmentally

inappropriate’’ test to remediation

wastes. In this context, remediation

waste includes all solid and hazardous

wastes and all media (including

groundwater, surface water, soils and

sediments) and debris, which contain

listed hazardous waste or which

themselves exhibit a hazardous waste

characteristic when such wastes are

generated during remediation, such as

RCRA corrective action, CERCLA

cleanup, and cleanup under a state

program. This definition is consistent

with the existing definition of

remediation waste in 40 CFR 260.10

except that it is not limited to wastes

generated for purposes of corrective

action under 40 CFR 264.101 or RCRA

Section 3008(h). Since site-specific land

disposal restriction treatment variances

will undergo review and approval by

either EPA or an authorized state, EPA

does not believe it is necessary to limit

the eligible wastes to corrective action

cleanups.

Finally, the commenter went on to

argue that the open-ended proposal

effectively reopened the question of

whether site-specific treatment

variances (40 CFR 268.44 (h)) could be

issued without going through noticeand-comment rulemaking, the argument

being that each such variance would

establish a new criterion for what ‘‘not

appropriate’’ means.

Site-specific treatment variances can

be granted without using rulemaking

procedures. 53 FR at 31199–31200,

August 17, 1988. EPA did not reopen

this issue in this proceeding, which just

is adopting clarifying amendments

which reflect EPA’s longstanding

practice and interpretation of the

treatment variance rules. 62 FR at

26059, May 12, 1997. However, to

ensure there is no ambiguity over the

application of treatment variances, EPA

is restoring language to 268.44(h)

indicating that the alternative LDR

treatment standards established through

the treatment variance process are sitespecific. This language has always been

part of 268.44(h) and was inadvertently

omitted in the proposal of this clarifying

rule. In any case, the amendment

adopted today contains explicit

qualifying language so that whatever

basis, if any, existed for the

commenter’s argument is no longer

present.

The same commenter, in oral

conversations with Agency officials as

well as in public comments, maintained

the importance of allowing opportunity

for public participation whenever a sitespecific treatment variance is being

considered. These opportunities are

already provided. The Agency stated in

1988, when adopting 40 CFR 268. 44(h),

‘‘[t]he Agency agrees as a matter of

policy to allow opportunity for public

notice and comment prior to granting a

nonrulemaking variance from the

treatment standard. Because

circumstances under which one might

apply for a site-specific variance vary,

vehicles for public comment will be

specified on a case-by-case basis.’’ 53 FR

at 31200, August 17, 1988. In response

to this commenter’s concerns, however,

EPA has decided to indicate in the rule

that opportunity for public participation

must be provided when granting or

denying any site-specific treatment

variance. In doing so, the Agency is

simply repeating in the rule what it

wrote in the August 1988 preamble. The

Agency does not view this step as

creating a new regulatory requirement

or altering existing practice and, by

adding the August 1988 preamble

language to the rule, is not intending to
64508 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

9 Under RCRA section 3006(g) (42 U.S.C.

6926(g)), new requirements and prohibitions

imposed by HSWA take effect in authorized states

at the same time that they take effect in

unauthorized states. EPA is directed to carry out

these requirements and prohibitions in all states,

including the issuance of permits, until the state is

granted authorization to do so.

reopen the issue (settled in 1988) of

whether site-specific treatment

variances can be approved or denied

without going through rulemaking

procedures.

IV. Withdrawal of Citgo Treatment

Variance

EPA granted a treatment variance to

Citgo Petroleum on October 28, 1996 for

wastes presently disposed in a large

surface impoundment awaiting closure.

61 FR 55718, October 28, 1996. Because

the company had the legal option of

closing the impoundment with waste in

place (assuming the technical standards

for such closure could be justified), and

was virtually certain to pursue that

option if treatment of the waste to the

limit of best demonstrated technology

was required, EPA found that it was an

environmentally superior result to

assure clean closure and partial

treatment. Id. at 55721. The variance

was in essence used as an incentive to

assure aggressive clean closure and the

associated waste treatment. EPA, as part

of the May 12 notice, proposed to

reissue the variance under the clarified

regulatory standard. 62 FR at 26062–

26061, May 12, 1997.

Since the variance was granted, Citgo

has chosen to pursue the legal option of

seeking to close the impoundment with

waste left in place. Because of Citgo’s

decision, EPA believes there is no

longer any basis for the Citgo treatment

variance. If the company’s application

for closure in place is granted, the

variance is moot. If the application is

not granted, then the company will have

to clean close the impoundment and it

will not be necessary to use the variance

to create a voluntary incentive for them

to do so. Thus, in either case, the basis

for granting the variance no longer

exists. Accordingly, EPA is withdrawing

the Citgo treatment variance in today’s

Notice. Citgo is aware of the Agency’s

thinking, has discussed the issue with

EPA, and agrees not to oppose

withdrawal of the variance.

V. State Authorization

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce the RCRA

program within the State. Following

authorization, EPA retains enforcement

authority under sections 3008, 3013,

and 7003 of RCRA, although authorized

States have primary enforcement

responsibility. The standards and

requirements for authorization are

found in 40 CFR part 271.

Today’s rule is being promulgated

pursuant to section 3004(m) of RCRA

(42 U.S.C. 6924(m)), a provision added

by HSWA. 9 Therefore, the Agency is

adding today’s rule to Table 1 in 40 CFR

271.1(j), which identifies the Federal

program requirements that are

promulgated pursuant to HSWA. States

may apply for final authorization for the

HSWA provisions in Table 1, as

discussed in the following section of

this preamble.

EPA originally indicated that states

could not be authorized to review and

approve national treatment variances

pursuant to 40 CFR 268.44(a) because

such variances could result in

nationally-applicable standards for a

new waste treatability group. 52 FR at

25783, July 8, 1987. In the HWIR-Media

proposal, EPA clarified that states could

seek authorization to review and

approve site-specific treatment

variances pursuant to 40 CFR 268.44(h).

61 FR at 18828, April 29, 1996.

The site-specific variance provision is

less stringent than the generally

applicable LDR program (i.e., the

underlying treatment standard from

which a variance is sought). Since

today’s final rule clarifies the existing

regulations, for authorization purposes

it is considered as stringent as, but no

more stringent than the existing sitespecific variance regulations. Thus,

states are not required to adopt

regulations equivalent to 268.44(h)

either in its current form or in the

clarified form promulgated today.

Although States are not required to

adopt regulations for site-specific LDR

treatment variances, EPA strongly

encourages States to adopt and become

authorized for the clarified standards

established today and is committed to

expediting the state authorization

process for this rule. In the meantime,

EPA will continue to review and

approve (as appropriate) treatment

variance applications in all States.

VI. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant

to Executive Order 12866

Executive Order No. 12866 requires

agencies to determine whether a

regulatory action is ‘‘significant.’’ The

Order defines a ‘‘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

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; 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.’’

The Agency considers today’s final

rule to be nonsignificant as defined by

the Executive Order and therefore not

subject to the requirement that a

regulatory impact analysis has to be

prepared. Today’s rule clarifies and

codifies, in regulatory language, existing

EPA standards for the application of a

treatability variance where the treatment

standard is not appropriate for the

restricted waste subject to the standard.

Thus, because today’s rule clarifies and

codifies existing EPA interpretation of

the treatability variance provision, no

incremental costs are associated with

this rulemaking.

B. Regulatory Flexibility Analysis

Pursuant to the Regulatory Flexibility

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

the Small Business Regulatory

Enforcement Fairness Act of 1996

[SBREFA]) 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 adverse economic impact on

a substantial number of small entities.

SBREFA amended the Regulatory

Flexibility Act to require Federal

agencies to provide a statement of the

factual basis for certifying that a rule

will not have a significant economic

impact on a substantial number of small

entities. The following discussion

explains EPA’s determination.

EPA has codified regulatory language

in today’s rule that petitioners of

restricted wastes that wish to obtain a

treatment variance do not have to show

technical infeasibility when the

treatment technology is not appropriate

to the waste. This regulatory language

clarifies long standing and current

Agency interpretation of the 268.44 that

the two tests of technical infeasibility

and inappropriateness are independent.
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64509

(See above discussion and 61 FR 55718

at 55720–21, October 28, 1996; 53 FR at

31200, August 17, 1988; 55 FR 8666 and

8760, March 8, 1990; 61 FR 18780 and

18811, April 29, 1996.) Because this

regulatory language codifies existing

EPA interpretation of current

regulations, it imposes no costs or

economic impacts on small entities

applying for treatability variances.

Because this clarification does not

impose an adverse economic impact to

any small entity that is either generator

of restricted waste or an owner/operator

of a treatment, storage or disposal

facility managing such waste that is

petitioning the Agency for a variance

from the treatment standard, I hereby

certify that this rule will not have a

significant adverse economic impact on

a substantial number of small entities.

This rule, therefore, does not require a

regulatory flexibility analysis.

C. Unfunded Mandates Reform Act

Under Section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a statement to accompany any

rule where the estimated costs to State,

local, or tribal governments in the

aggregate, or to the private sector, will

be $100 million or more in any one year.

Under Section 205, EPA must select the

most cost-effective and least

burdensome alternative that achieves

the objective of the rule and is

consistent with the statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly impacted by the

rule.

Because this regulatory language

codifies current EPA interpretation of

existing treatability variance language

and thus imposes no costs, EPA has

determined that this rule does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate. As stated

above, the private sector is not expected

to incur costs exceeding $100 million.

EPA has fulfilled the requirement for

analysis under the Unfunded Mandates

Reform Act.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 268

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements.

Dated: December 1, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter 1 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 is amended to revise

paragraphs (a) and (h), add paragraph

(m), and remove paragraph (p) as

follows:

§ 268.44 Variance from a treatment

standard.

(a) Based on a petition filed by a

generator or treater of hazardous waste,

the Administrator may approve a

variance from an applicable treatment

standard if:

(1) It is not physically possible to treat

the waste to the level specified in the

treatment standard, or by the method

specified as the treatment standard. To

show that this is the case, the petitioner

must demonstrate that because the

physical or chemical properties of the

waste differ significantly from waste

analyzed in developing the treatment

standard, the waste cannot be treated to

the specified level or by the specified

method; or

(2) It is inappropriate to require the

waste to be treated to the level specified

in the treatment standard or by the

method specified as the treatment

standard, even though such treatment is

technically possible. To show that this

is the case, the petitioner must either

demonstrate that:

(i) Treatment to the specified level or

by the specified method is technically

inappropriate (for example, resulting in

combustion of large amounts of mildly

contaminated environmental media); or

(ii) For remediation waste only,

treatment to the specified level or by the

specified method is environmentally

inappropriate because it would likely

discourage aggressive remediation.

* * * * *

(h) Based on a petition filed by a

generator or treater of hazardous waste,

the Administrator or his or her

delegated representative may approve a

site-specific variance from an applicable

treatment standard if:

(1) It is not physically possible to treat

the waste to the level specified in the

treatment standard, or by the method

specified as the treatment standard. To

show that this is the case, the petitioner

must demonstrate that because the

physical or chemical properties of the

waste differ significantly from waste

analyzed in developing the treatment

standard, the waste cannot be treated to

the specified level or by the specified

method; or

(2) It is inappropriate to require the

waste to be treated to the level specified

in the treatment standard or by the

method specified as the treatment

standard, even though such treatment is

technically possible. To show that this

is the case, the petitioner must either

demonstrate that:

(i) Treatment to the specified level or

by the specified method is technically

inappropriate (for example, resulting in

combustion of large amounts of mildly

contaminated environmental media

where the treatment standard is not

based on combustion of such media); or

(ii) For remediation waste only,

treatment to the specified level or by the

specified method is environmentally

inappropriate because it would likely

discourage aggressive remediation.

(3) Public notice and a reasonable

opportunity for public comment must

be provided before granting or denying

a petition.

* * * * *

(m) For all variances, the petitioner

must also demonstrate that compliance

with any given treatment variance is

sufficient to minimize threats to human

health and the environment posed by

land disposal of the waste. In evaluating

this demonstration, EPA may take into

account whether a treatment variance

should be approved if the subject waste

is to be used in a manner constituting

disposal pursuant to 40 CFR 266.20

through 266.23.

* * * * *

[FR Doc. 97–31914 Filed 12–4–97; 8:45 am]

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