[Federal Register Volume 65, Number 233 (Monday, December 4, 2000)]
[Proposed Rules]
[Pages 75651-75656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30637]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-6910-9]


Land Disposal Restrictions: Notice of Intent to Grant a Site-
Specific Treatment Variance to Dupont Environmental Treatment--Chambers 
Works Wastewater Treatment Plant, Deepwater, New Jersey

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
proposing to grant a site-specific treatment variance from the Land 
Disposal Restrictions (LDR) standards for wastewater treatment sludge 
generated at the Dupont Environmental Treatment (DET)--Chambers Works 
Wastewater Treatment Plant located in Deepwater, New Jersey. This 
sludge is derived from the treatment of multiple listed, including 
K088, and characteristic hazardous waste. DET requests this treatment 
variance because they contend that the chemical properties of the 
sludge differ significantly from the waste used to establish the LDR 
treatment standard for arsenic in K088 nonwastewaters. Accordingly, we 
propose to grant an alternate treatment standard of 5.0 mg/L Toxicity 
Characteristic Leaching Procedure (TCLP) for the arsenic in the 
wastewater treatment sludge generated at this facility.
    If promulgated, DET may then dispose of their wastewater treatment 
sludge in their on-site RCRA Subtitle C landfill provided the sludge 
complies with the specified alternate treatment standard for arsenic in 
K088 nonwastewaters and meets all other applicable LDR treatment 
standards.

DATES: Comments must be received by December 26, 2000. Comments 
received after the close of the comment period will be stamped ``late'' 
and may or may not be considered by the Agency.

ADDRESSES: Commenters should submit an original and two copies of their 
comments referencing Docket Number F-2000-DPVP-FFFFF to: (1) If using 
regular U.S. Postal Service mail: RCRA Docket Information Center, 
Office of Solid Waste (5305G), U.S. Environmental Protection Agency 
Headquarters (EPA-HQ), 1200 Pennsylvania Avenue, NW, Washington DC 
20460-0002, or (2) if using special delivery, such as overnight express 
service: RCRA Docket Information Center (RIC), Crystal Gateway One, 
1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202.
    You may view public comments and supporting materials in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 am 
to 4 pm Monday through Friday, excluding federal holidays. To review 
docket materials, we recommend that you make an appointment by calling 
703-603-9230. You may copy up to 100 pages from any regulatory document 
at no charge. Additional copies cost $0.15 per page. (The index is 
available electronically. See the Supplementary Information section for 
information on accessing them).

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). The 
RCRA Hotline is open Monday-Friday, 9 am to 6 pm, Eastern Standard 
Time. For more detailed information on specific aspects of this 
proposal, contact Elaine

[[Page 75652]]

Eby at 703-308-8449, <a href="/cdn-cgi/l/email-protection#a2c7c0db8cc7cec3cbccc7e2c7d2c38cc5cdd4"><span class="__cf_email__" data-cfemail="fa9f9883d49f969b93949fba9f8a9bd49d958c">[email protected]</span></a>, or write her at the Office of 
Solid Waste, 5302W, U.S. Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460-0002.

SUPPLEMENTARY INFORMATION:

Electronic Comment Submission

    You may submit comments electronically by sending electronic mail 
through the Internet to: <a href="/cdn-cgi/l/email-protection#7c0e1f0e1d5118131f1719083c190c1d521b130a"><span class="__cf_email__" data-cfemail="ed9f8e9f8cc089828e868899ad889d8cc38a829b">[email protected]</span></a>. You should identify 
comments in electronic format with the docket number F-2000-DPVP-FFFFF. 
You must submit all electronic comments as an ASCII (text) file, 
avoiding the use of special characters or any type of encryption. If 
possible, EPA's Office of Solid Waste (OSW) would also like to receive 
an additional copy of the comments on disk in WordPerfect 6.1 file 
format.
    You should not submit electronically any confidential business 
information (CBI). You must submit an original and two copies of CBI 
under separate cover to: RCRA CBI Document Control Officer, Office of 
Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW, Washington 
DC 20460-0002.

Availability of Rule on Internet

    Please follow these instructions to access the rule: From the World 
Wide Web (WWW), type http://www.epa.gov/epaoswer/hazwaste/ldr/index.html.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the RIC listed in the ADDRESSES 
section at the beginning of this document.
    EPA's responses to comments, whether the comments are written or 
electronic, will be published in the Federal Register or in a response 
to comments document placed in the official record for this action. EPA 
will not immediately reply to commenters electronically other than to 
seek clarification of electronic comments that may be garbled in 
transmission or during conversion to paper form, as discussed above.

How Can I Influence EPA's Thinking on This Rule?

    We invite you to provide different views on options we propose, new 
approaches we haven't considered, new data, how this rule may effect 
you, or other relevant information. Your comments will be most 
effective if you follow the suggestions below:
    <bullet> Explain your views as clearly as possible and why you feel 
that way.
    <bullet> Provide solid technical data to support your views.
    <bullet> Tell us which parts you support, as well as those you 
disagree with.
    <bullet> Provide specific examples to illustrate your concerns.
    <bullet> Offer specific alternatives.
    <bullet> Make sure to submit your comments by the deadline in this 
notice.
    <bullet> Be sure to include the name, date, and docket number with 
your comments.
    The Agency will consider the public comments during development of 
the final rule related to this action. The Agency urges commenters 
submitting data in support of their views to include data evidence that 
appropriate quality assurance/quality control (QA/QC) procedures were 
followed in generating the data. Data the Agency cannot verify through 
QA/QC documentation may be given less consideration or disregarded in 
developing regulatory options for the final rule. For guidance see 
Final Best Demonstrated Available Technology (BDAT) Background Document 
for Quality Assurance/Quality Control Procedures and Methodology; 
USEPA, October 23, 1991.

Table of Contents

I. Why and How Are Treatment Variances Granted?
II. Why is Dupont Environmental Treatment Seeking a Treatment 
Variance?
III. EPA's Analysis of DET's Petition
IV. EPA's Proposal to Grant a Site Specific Treatment Variance to 
DET
V. Administrative Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    C. Unfunded Mandates Reform Act
    D. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Environmental Justice Executive Order 12898
    F. Paperwork Reduction Act
    G. National Technology Transfer and Advancement Act of 1995
    H. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    I. Executive Order 13132 (Federalism)

I. Why and How Are Treatment Variances Granted?

    Under section 3004(m) of the Resource Conservation and Recovery Act 
(RCRA) as amended by the Hazardous and Solid Waste Amendments of 1984, 
EPA is required to set ``levels or methods of treatment, if any, which 
substantially diminish the toxicity of the waste or substantially 
reduce the likelihood of migration of hazardous constituents from the 
waste so that short-term and long-term threats to human health and the 
environment are minimized.'' We have interpreted this language to 
authorize treatment standards based on the performance of best 
demonstrated available technology (BDAT). This interpretation was 
sustained by the court in Hazardous Waste Treatment Council vs. EPA, 
886 F. 2d 355 (D.C.Cir.1989).
    We recognize that there may be wastes that cannot be treated to 
levels specified in the regulation (see 40 CFR 268.40) (51 FR 40576, 
November 7, 1986). For such wastes, a treatment variance exists (40 CFR 
268.44) that, if granted, becomes the treatment standard for the waste 
at issue.
    Treatment variances may be generic or site-specific. A generic 
variance can result in the establishment of a new treatability group 
and a corresponding treatment standard that applies to all wastes that 
meet the criteria of the new waste treatability group (55 FR 22526, 
June 1, 1990). A site-specific variance applies only to a specific 
waste from a specific facility. Under 40 CFR 268.44(h), a generator or 
treatment facility may apply to the Administrator, or EPA's delegated 
representative, for a site-specific variance in cases where a waste 
that is generated under conditions specific to only one site and cannot 
or should not be treated to the specified level(s). The applicant for a 
site-specific variance must demonstrate that because the physical or 
chemical properties of the waste differ significantly from the waste 
analyzed in development of the treatment standard, the waste cannot be 
treated by BDAT to the specified levels or by the specified method(s). 
Although there are other grounds for obtaining treatment variances, we 
will not discuss those in this notice because this is the only 
provision relevant to the present petition.
    Dupont Environmental Treatment--Chambers Works submitted their 
request for a treatment variance in February 2000. All information and 
data used in the development of this proposal can be found in the RCRA 
docket supporting this rule.\1\
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    \1\ For purposes of this document, the term sludge, waste water 
treatment plant sludge, dewatered sludge, biosludge, and dewatered 
biosludge are used interchangeably and refer to the treated waste 
that has been dewatered and subject to analytical testing.

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[[Page 75653]]

II. Why is Dupont Environmental Treatment Seeking a Treatment 
Variance?

    Dupont Environmental Treatment--Chambers Works (herein referred to 
as ``DET'') operates a wastewater treatment plant (herein referred to 
as ``WWTP'') in Deepwater, New Jersey. The wastewater treatment 
performed at this facility can be described as an enhanced biological 
degradation system consisting of neutralization, equalization, primary 
clarification, secondary aeration and clarification, tertiary aeration 
and clarification, and sludge dewatering. Various pretreatment 
operations also are conducted on-site. DET WWTP operates as both a 
commercial treatment facility, for industrial and RCRA hazardous waste, 
and as an internal treatment operation, for Dupont's numerous 
manufacturing operations. DET WWTP processes approximately 16 million 
gallons of wastewater per day or 5.84 billion gallons per year, making 
it the largest wastewater treatment facility in the United States.
    In December 1997, DET entered into a contractual agreement with 
Safety Kleen, Incorporated to treat wastewater from Safety Kleen's 
Waynoka, Oklahoma facility. The wastewater consists of approximately 
87% multi-source leachate from an on-site Subtitle C landfill in 
Oklahoma (F039 waste) and 13% commercial wastewater pretreated by 
Safety Kleen. A portion of this commercial wastewater was shipped to 
Safety Kleen as K088 waste, i.e., potliner waste from primary aluminum 
reduction, originating as landfill leachate from a Reynolds Metals 
Company facility in Gum Springs, Arkansas. During the last three months 
of 1998, Safety Kleen shipped 192,000 gallons of this wastewater, i.e., 
the multi-source leachate and the commercial wastewater, to DET for 
treatment. In 1999, Safety Kleen transported approximately 1.3 million 
gallons of additional wastewater to DET.\2\
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    \2\ In addition to the F039 and K088 waste designations, this 
wastewater contains eighteen additional RCRA hazardous waste codes.
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    In February 2000, DET concluded, albeit belatedly, that there was a 
possibility that the continued treatment of Safety Kleen's wastewater, 
containing the K088 waste designation, at their WWTP could result in 
noncompliance for DET's WWTP sludge with the K088 nonwastewater 
treatment standard for total arsenic.\3\ While compliance monitoring 
samples, taken since October 1998, show that the dewatered sludge meets 
both the Universal Treatment Standard (UTS) for arsenic of 5.0 mg/L 
TCLP and the K088 arsenic treatment standard of 26.1 mg/kg, screening 
samples taken in 1999 suggest that the total arsenic concentration in 
the dewatered sludge could exceed the 26.1 mg/kg treatment standard in 
future compliance monitoring tests.\4\ However, these data do not meet 
EPA quality assurance and quality control requirements. Therefore, it 
is impossible for us to rely on these data in our deliberations.
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    \3\ On September 21, 1998, EPA promulgated interim replacement 
standards for K088 waste. (See 63 FR 51254, September 24, 1998). As 
part of that rulemaking, the treatment standard for arsenic in K088 
nonwastewaters was set at 26.1 mg/kg. That standard has been in 
effect since September 21, 1998 and applies to all K088 treatment 
sludge generated at DET WWTP since the effective date.
    \4\ Compliance data are generated by a contract laboratory based 
on TCLP analysis for metals on a secondary sludge sample from the 
treatment operation. The analysis is done quarterly for monitoring 
LDR compliance in accordance with DET's waste analysis plan. The 
compliance analysis for the TCLP extraction follows EPA protocol as 
specified in SW-846, Method 1311. Metals analysis is run by 
inductively coupled plasma via SW-846 Method 6010B, except for 
mercury which is done by SW-846 Method 7470A. Appropriate quality 
assurance/quality control is conducted by the contract laboratory in 
accordance with SW-846 requirements. DET's compliance data submitted 
to the Agency for the last quarter of 1998 show total arsenic 
concentrations in the WWTP sludge of 16 mg/kg. Quarterely compliance 
testing for 1999 show total asenic concentrations of 13.0, 12.3, 
10.0 and 9.9 mg/kg. All TCLP data for arsenic in the WWTP sludge 
show concentrations of arsenic less than 0.10 mg/L.
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    On February 28, 2000, DET submitted a petition to EPA requesting a 
treatment variance from the K088 treatment standard for arsenic 
nonwastewaters generated at their facility. DET acknowledges that the 
WWTP sludge has not yet exceeded the treatment standard, based on 
compliance testing samples taken since late 1998. However, DET is 
concerned that, in the future, the sludge may exceed the treatment 
standard. DET states that, even if the arsenic standard is exceeded, 
the total arsenic concentration can not be reduced to meet the existing 
treatment standard. DET believes that requesting a treatment variance 
prior to an actual violation of the treatment standard is an 
appropriate and necessary action.
    As part of their petition, in accordance with the requirements of 
40 CFR 268.44, DET contends that their waste, i.e., the dewatered WWTP 
sludge carrying the K088 waste designation, differs significantly from 
the waste used to establish the treatment standard for total arsenic in 
K088 waste. DET states that the dewatered sludge is at least a second 
derivative treatment residue that bears no resemblance, in physical 
form or composition, to generated potliners or typically thought of 
generated residues from potliner treatment. DET maintains that for 
their waste, the TCLP is an appropriate analytical test for measuring 
arsenic mobility because of the neutral pH characteristic of the 
sludge. Additionally, DET states that no further treatment can be 
applied to the sludge because arsenic is an element, and as such cannot 
be destroyed to meet the existing treatment standard--a totals analysis 
test.
    Based on these findings, DET requests that EPA grant a variance 
from the 26.1 mg/kg treatment standard for arsenic in K088 
nonwastewaters for their wastewater treatment sludge. DET requests an 
alternative standard of 5.0 mg/L TCLP for arsenic in K088 waste. This 
level is the same as the old treatment standard for arsenic in K088 
nonwastewaters, i.e., the standard that existed prior to the September 
21, 1998 rulemaking and the current UTS for arsenic nonwastewaters. DET 
contends that the old standard is more appropriate for their waste 
because: (1) the TCLP measures mobility of arsenic; (2) the sludge's 
neutral pH is well-suited for evaluating whether arsenic could migrate 
and cause harm to human health and the environment; and (3) the arsenic 
in the WWTP sludge cannot be destroyed.

III. EPA's Analysis of DET's Petition

    As just discussed, the waste at issue here is a dewatered WWTP 
sludge resulting from the treatment of wastewater carrying the K088 
waste designation.\5\ We agree with DET's main point--that this waste 
is significantly different from the waste on which the 26.1 mg/kg 
standard for total arsenic in K088 nonwastewaters is based. In 
addition, we agree that there is no available treatment to reduce the 
amount of total arsenic contained in the waste.
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    \5\ It should be noted that the WWTP sludge at issue here is 
generated by the biological treatment of a relatively small quantity 
of wastewater carrying the K088 waste designation. This K088 
wastewater accounts for less than 0.002% of the total annual 
throughput at DET WWTP.
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    The 26.1 mg/kg standard for arsenic in K088 waste, promulgated in 
1998, was developed based on performance data from a high temperature 
thermal treatment process for spent aluminum potliners from primary 
aluminum reduction used at a Reynolds Metals facility in Gum Springs, 
Arkansas. Specifically, the treatment standard was derived from an 
assay of the total acid soluble arsenic in K088 waste after spent 
potliner had been crushed, mixed with lime and sand, and sent through a

[[Page 75654]]

high-temperature rotary kiln resulting in a fused waste residue.
    As previously discussed, prior to 1998, the treatment standard for 
arsenic was 5.0 mg/L TCLP, based on the Reynolds treatment process 
that, at that time, treated much of the K088 generated in the United 
States (63 FR 51257, September 24, 1998). However, to address 
subsequent concerns regarding the elevated concentrations of arsenic in 
Reynold's landfill leachate, Reynolds changed the type of sand used in 
their thermal process to a sand with lower concentrations of arsenic. 
These 1998 revisions, to the K088 arsenic standards, were intended to 
cap arsenic concentrations in the treated potliner and to lock-in the 
Reynolds treatment process change, i.e., the change in sand type. 
Therefore, the reason for our shift to a 26.1 mg/kg total arsenic 
standard has no basis in appropriate treatment levels for WWTP sludge 
carrying the K088 waste code solely due to the derived-from 
regulations.
    In addition, Reynolds thermal treatment of K088 waste generates an 
extremely alkaline residue for which the TCLP was found to be a poor 
predictor of arsenic mobility. See Columbia Falls v. EPA, 139F.3d 914 
(D.C. Cir 1998); see also 63 FR 28571, May 26, 1998 (EPA's 
interpretation of the court's opinion). This decision also provided 
additional impetus for our 1998 change to a total arsenic standard. As 
previously noted, the WWTP sludge from DET, conversely, is not 
alkaline. It is at a pH between 6.5 and 7.5 to ensure no adverse effect 
on the treatment microbes, and the expected sludge disposal conditions 
at DET are also in a neutral pH range.\6\
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    \6\ Compliance monitoring samples taken quarterly in 1999 show 
that the pH landfill leachate values at DET's onsite hazardous waste 
landfill, where the WWTP sludge was disposed were as follows: 7.46, 
8.35, 6.59, and 8.34.
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    Based on this information, we conclude that an alternative 
treatment standard of 5.0 mg/L TCLP for arsenic in K088 dewatered 
sludge generated at DET's WWTP is warranted for several reasons. First, 
the sludge generated at DET's WWTP is not the same type of waste that 
was used to develop the 26.1 mg/kg treatment standard for arsenic in 
K088 nonwastewaters, nor does it present the same situation regarding 
the use of a total arsenic standard to lock-in treatment process 
parameters. Second, the sludge will be disposed of in a Subtitle C 
hazardous waste landfill with pH conditions in the range of 6.5 to 8.5 
and not under the alkaline conditions, i.e., pH conditions of 12 and 
above, that resulted in mobilization of arsenic at Reynold's K088 
landfill. Thus, the conditions that prompted the change in the K088 
treatment standard are absent for this site. Third, the TCLP remains an 
adequate measure of treatment efficiency for DET's WWTP sludge due to 
the non-alkaline sludge matrix and the expected disposal conditions. 
Therefore, we believe that a TCLP standard of 5.0 mg/L is a reasonable 
measure of demonstrating that threats posed by the waste's disposal 
have been minimized. Fourth, the alternative standard of 5.0 mg/L TCLP 
is currently the standard applicable to arsenic in all other hazardous 
wastes, except K088 nonwastewaters. Fifth, data submitted to the Agency 
shows that DET's dewatered WWTP sludge consistently maintains both a 
neutral pH and TCLP levels of arsenic far less than 5.0 mg/L. Finally, 
arsenic concentrations in the WWTP sludge cannot be treated to a lower 
treatment standard based on a totals analysis, i.e., arsenic must be 
immobilized, as an element cannot be destroyed.

IV. EPA's Proposal to Grant a Site-Specific Treatment Variance to 
DET

    Based on these conclusions, we propose to grant DET's petition for 
a site-specific treatment variance for their WWTP sludge. After 
consideration of public comment and a determination to grant this 
variance, we will amend 40 CFR part 268 to state that wastewater 
treatment sludge generated by Dupont Environmental Treatment--Chambers 
Works Wastewater Treatment Plant in Deepwater, New Jersey is subject to 
an arsenic treatment standard of 5.0 mg/L TCLP for all RCRA wastes. We 
also will stipulate that the waste must be land disposed in their on-
site Subtitle C landfill assuming the waste meets all applicable 
federal, state and local requirements.

V. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

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

B. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. This 
treatment variance does not create any new regulatory requirements. 
Rather, it establishes an alternative treatment standard for a 
regulated constituent. This action, therefore, does not require a 
regulatory flexibility analysis.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local,

[[Page 75655]]

and tribal governments and the private sector. Under Section 202 of the 
UMRA, EPA generally must prepare a written statement, including a cost 
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating an EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires EPA to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing education, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that this proposed rule does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more in the aggregate to either State, local, or tribal governments or 
the private sector in one year. The proposed rule would not impose any 
federal intergovernmental mandate because it imposes no enforceable 
duty upon State, tribal or local governments. States, tribes, and local 
governments would have no compliance costs under this rule. EPA has 
also determined that this proposal contains no regulatory requirements 
that might significantly or uniquely affect small governments. In 
addition, as discussed 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. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    Today's proposed rule is not subject to Executive Order 13045 
because it does not meet either of these criteria. The subject wastes 
will comply with all other treatment standards and be disposed of in a 
RCRA Subtitle C landfill. Therefore, we have identified no risks that 
may disproportionately affect children.

E. Environmental Justice Executive Order 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in clean and sustainable communities. In response 
to Executive Order 12898 and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response formed 
an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17).
    Today's proposed rule applies to wastes that will be treated and 
disposed of in a RCRA Subtitle C hazardous waste landfill, ensuring a 
high degree of protection to human health and the environment. 
Therefore, the Agency does not believe that today's action will result 
in any disproportionately negative impacts on minority or low-income 
communities relative to affluent or non-minority communities.

F. Paperwork Reduction Act

    This proposed rule would only change the treatment standards 
applicable to a subcategory of K088 wastes and does not change in any 
way the paperwork requirements already applicable to these wastes, it 
does not affect requirements under the Paperwork Reduction Act.

G. National Technology Transfer and Advancement Act of 1995

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. This action does not involve 
technical standards based on new methodologies. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

H. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input to 
the development of

[[Page 75656]]

regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's proposal does not significantly or uniquely affect the 
communities of Indian tribal governments. Today's proposal does not 
create a mandate on State, local or tribal governments, The proposal 
would not impose any enforceable duties on these entities. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this proposed rule.

I. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implication.'' 
``Policies that have federalism implication'' is defined in the 
Executive Order to include regulation that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of governments.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local government, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that had 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing proposed regulation.
    If EPA complies by consulting Executive Order 13132, it requires 
EPA to provide to the Office of Management and Budget (OMB), in a 
separately identified section of the preamble to the rule, a federalism 
summary impact statement (FSIS). The FSIS must include a description of 
the extent of EPA's prior consultation with State and local officials, 
a summary of the nature of their concerns and the Agency's position 
supporting the need to issue the regulation, and a statement of the 
extent to which the concerns of state and local officials have been 
met. Also when EPA transmits a draft final rule with federalism 
implication to OMB for review pursuant to Executive Order 12866, EPA 
must include a certification from the Agency's Federalism Official 
stating that EPA has met the requirements of Executive Order 13132 in a 
meaningful and timely manner.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus the requirements of section 6 of the Executive Order do not apply 
to this proposed rule.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: November 6, 2000.
Timothy Fields, Jr.,
Assistant Administrator for Solid Waste and Emergency Response.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:
    1. The authority citation for part 268 continues to read as 
follows:

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

    2. In Sec. 268.44, the table in paragraph (o) is amended by adding 
in alphabetical order a new entry for ``Dupont Environmental 
Treatment--Chambers Works Wastewater, Deepwater, NJ'' to read as 
follows:

PART 268--LAND DISPOSAL RESTRICTIONS.

* * * * *


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

                                         Table--Wastes Excluded From The Treatment Standards Under Sec.  268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Wastewaters                 Nonwastewaters
                                      Waste                               Regulated hazardous  ---------------------------------------------------------
   Facility name \1\ and address      code            See also                constituent       Concentration                Concentration
                                                                                                    (mg/l)         Notes         (mg/kg)        Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
          *                  *                  *                  *                  *                  *                  *
Dupont Environmental Treatment--       K088  Standards under Sec.        Arsenic..............           1.4            NA     5.0 mg/L TCLP         NA
 Chambers Works Wastewater                    268.40.
 Treatment Plant, Deepwater, NJ.
           *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
*    *    *    *    *
 Note: NA means Not Applicable.

* * * * *
[FR Doc. 00-30637 Filed 12-1-00; 8:45 am]
BILLING CODE 6560-50-P


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