Federal Register / Vol. 65, No. 233 / Monday, December 4, 2000 / Proposed Rules 75651

TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste description

*******

TABLE 2.—WASTE EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description

*******

Eastman Chemical Company ................ Longview,Texas ..... Wastewater treatment sludge, (at a maximum generation of 82,100 cubic yards

per calendar year) (EPA Hazardous Waste Nos. K009, K010) generated at

Eastman. Eastman must implement the testing program described in Table 1

of this Appendix. Waste Excluded From Non-Specific Sources for the petition

to be valid.

*******

TABLE 3.—WASTE EXCLUDED FROM COMMERCIAL CHEMICAL PRODUCTS, OFF SPECIFICATION SPECIES, CONTAINER

RESIDUES, AND SOIL RESIDUES THEREOF

Facility Address Waste description

Eastman Chemical Company ................ Longview, Texas .... Wastewater treatment sludge, (at a maximum generation of 82,100 cubic yards

per calendar year) generated by Eastman (EPA Hazardous Waste Nos.

U001, U002, U028, U031, U069, U088, U112, U115, U117, U122, U140,

U147, U154, U159, U161, U220, U226, U239, U359). Eastman must implement the testing program described in Table 1 of this Appendix. Waste Excluded From Non-Specific Sources for the petition to be valid.

*******

[FR Doc. 00–30632 Filed 12–1–00; 8:45 am]

BILLING CODE 6560–50–P

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.

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

75652 Federal Register / Vol. 65, No. 233 / Monday, December 4, 2000 / Proposed Rules

1For 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.

Eby at 703–308–8449,

eby.elaine@epa.gov, 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: rcradocket@epa.gov. 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:

• Explain your views as clearly as

possible and why you feel that way.

• Provide solid technical data to

support your views.

• Tell us which parts you support, as

well as those you disagree with.

• Provide specific examples to

illustrate your concerns.

• Offer specific alternatives.

• Make sure to submit your

comments by the deadline in this

notice.

• 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

Federal Register / Vol. 65, No. 233 / Monday, December 4, 2000 / Proposed Rules 75653

2 In addition to the F039 and K088 waste

designations, this wastewater contains eighteen

additional RCRA hazardous waste codes.

3On 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.

4Compliance 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.

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.

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% multisource 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

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.

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.

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

75654 Federal Register / Vol. 65, No. 233 / Monday, December 4, 2000 / Proposed Rules

6Compliance 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.

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

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 lockin 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 SiteSpecific 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,

Federal Register / Vol. 65, No. 233 / Monday, December 4, 2000 / Proposed Rules 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 costeffective, or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective, or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing 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 lowincome 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

75656 Federal Register / Vol. 65, No. 233 / Monday, December 4, 2000 / Proposed Rules

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 § 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.

* * * * *

§ 268.44 Variance from a treatment

standard.

* * * * *

(o) * * *

TABLE—WASTES EXCLUDED FROM THE TREATMENT STANDARDS UNDER § 268.40

Facility name 1 and address Waste

code See also

Regulated

hazardous

constituent

Wastewaters Nonwastewaters

Concentration

(mg/l)

Notes

Concentration

(mg/kg)

Notes

*******

Dupont Environmental Treatment—Chambers Works

Wastewater Treatment

Plant, Deepwater, NJ.

K088 Standards under § 268.40 .... Arsenic .......... 1.4 NA 5.0 mg/L

TCLP

NA

*******

1A 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]

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