[Federal Register Volume 62, Number 234 (Friday, December 5, 1997)]
[Rules and Regulations]
[Pages 64504-64509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31914]



[[Page 64503]]

_______________________________________________________________________

Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 268



Clarification of Standards for Hazardous Waste Land Disposal 
Restriction Treatment Variances; Final Rule

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

[[Page 64504]]



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.

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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 Sec. 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,

[[Page 64505]]

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.<SUP>1</SUP>
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    \1\ EPA 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 waste-
specific--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. Site-specific 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-by-site 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.
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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.<SUP>2</SUP> 
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 non-volatile organic contaminants has been reduced, it might be 
inappropriate to require further treatment of the non-volatile 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.
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    \2\ Although 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.
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    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,<SUP>3</SUP> 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.<SUP>4</SUP> 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

[[Page 64506]]

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.
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    \3\ Examples 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.
    \4\ Another 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.
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    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.<SUP>5</SUP> 
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.
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    \5\ As 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.
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    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.<SUP>6</SUP> 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.
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    \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).
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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

[[Page 64507]]

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.<SUP>7</SUP> 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 
land-based 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.
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    \7\ The 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.
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    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.<SUP>8</SUP>
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    \8\ EPA proposed regulations addressing contaminated media at 61 
FR 18780, April 29, 1996 and has not yet taken final action on this 
proposal.
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    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 HWIR-Media 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 HWIR-Media 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 notice-and-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 site-specific. 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 site-specific 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

[[Page 64508]]

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. <SUP>9</SUP> 
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.
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    \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.
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    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 
site-specific 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.

[[Page 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:


Sec. 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]
BILLING CODE 6560-50-P