Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33887

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137; Sections 2, 3, 4, and 4a of

the Architectural Barriers Act of 1968, as

amended, Public Law 90–480, 42 U.S.C.

4151–4157)

[FR Doc. 01–15773 Filed 6–25–01; 8:45 am]

BILLING CODE 8320–01–C

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 268

[FRL–7002–3]

Land Disposal Restrictions: Granting

of a Site-Specific Treatment Variance

to Dupont Environmental Treatment—

Chambers Works Wastewater

Treatment Plant, Deepwater, NJ

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA or Agency) is

promulgating 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 wastes,

including K088, and characteristic

hazardous waste, and differs

significantly from the waste used to

establish the LDR treatment standard for

arsenic in K088 nonwastewaters.

Accordingly, we are finalizing 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.

This treatment variance requires DET

to 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: This rule is effective June 26,

2001.

ADDRESSES: The official record for this

rulemaking is identified as Docket

Number F–2001–DPVF–FFFFF and is

located in the RCRA Docket Information

Center (RIC), Crystal Gateway One, 1235

Jefferson Davis Highway, First Floor,

Arlington, VA 22202. 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 Call

Center at 1–800–424–9346 or TDD 1–

800–553–7672 (hearing impaired). The

RCRA Call Center operates MondayFriday, 9 am to 6 pm, Eastern Standard

Time. For more detailed information on

specific aspects of this rule, contact

Elaine 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:

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.

The official record for this action will

be kept in paper form. Accordingly, EPA

has transferred any comments received

electronically into paper form and

placed them in the official record which

also includes 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.

Table of Contents

I. Why and How Are Treatment Variances

Granted?

I. Summary of the Proposed Rule

II. Comment Summary and Final Rule

III. 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

H. Consultation with Tribal Governments

I. Executive Order 13132 (Federalism)

J. Congressional Review Act

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 final

rule can be found in the RCRA docket

supporting this rule.

II. Summary of the Proposed Rule

On December 4, 2000 (65 FR 75651),

we published a proposed rule detailing

our intent to grant a site-specific

variance from the K088 treatment

standard for arsenic in nonwastewaters

to Dupont Environmental Treatment—

33888 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

1 DET WWTP operates as both a commercial

treatment facility for industrial and RCRA

hazardous waste and as an internal treatment

operation for E. I. Dupont de Nemours’ numerous

manufacturing operations. As the largest

wastewater treatment facility in the United States,

DET WWTP processes approximately 16 million

gallons of wastewater per day or 5.84 billion gallons

per year. It should be noted, however, 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.

Chambers Works (herein referred to as

‘‘DET’’) for their dewatered wastewater

treatment sludge.1 In the proposal, we

conclude that an alternative treatment

standard of 5.0 mg/L TCLP for arsenic

is warranted for the following 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 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 is an element

and as such must be immobilized, it

cannot be destroyed.

III. Comment Summary and Final Rule

We received two comments on the

proposed rule. Both commenters, the

petitioner, DET, and Alcoa

Incorporated/Reynolds Metals Company

(herein referred to as ‘‘Alcoa’’), support

all the conclusions articulated in the

proposal and recommend granting the

petition. No adverse comments were

made. Alcoa did note, however, that the

stipulation, ‘‘* * * the waste must be

land disposed in their (DET’s) on-site

subtitle C landfill***’’ (65 FR at

75654) was not specifically reflected in

the regulatory language. As such, we are

today granting DET’s petition for a sitespecific treatment variance for their

WWTP sludge and 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. Furthermore,

taking note of Alcoa’s concern, we

stipulate, and make clear in the

regulatory language, that the waste must

be land disposed in DET’s on-site

Subtitle C landfill assuming the waste

meets all applicable federal, state and

local requirements.

IV. 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 final 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 rule on small entities,

I certify that this action will not have a

significant economic impact on a

substantial number of small entities.

This final 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,

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. If a written

statement is needed, section 205 of the

UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives.

Under section 205, EPA must adopt the

least costly, most cost-effective or least

burdensome alternative that achieves

the objectives of the rule, unless the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. The provisions of

section 205 do not apply when they are

inconsistent with applicable law.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more in the aggregate to

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33889

either State, local, or tribal governments

or the private sector in one year. The

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

final rule. EPA has also determined that

this rule 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. Thus, today’s rule is not subject to

the requirements of sections 202, 204

and 205 of UMRA.

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

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this rule will

not significantly or uniquely affect small

governments. This final rule will not

impose any requirements on small

entities. This treatment variance does

not create any new regulatory

requirements. Rather, it establish an

alternative treatment standard for a

regulated constituent at the specific

facility. Today’s rule is not, therefore,

subject to the requirements of section

203 of UMRA.

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 rule is not subject to

Executive Order 13045 because it is not

economically significant as defined in

Executive Order 12866, and because the

Agency does not have reason to believe

the environmental health or safety risks

addressed by this action present a

disproportionate risk to children. 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 final 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 rule only changes the treatment

standards applicable to a subcategory of

K088 waste. It does not change in any

way the paperwork requirements

already applicable to these waste.

Therefore, this rule is not affected by the

requirements of the Paperwork

Reduction Act.

G. National Technology Transfer and

Advancement Act of 1995

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Pub. L. No.

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. Consultation With Tribal

Governments

Executive Order 13175, entitled

‘‘Consultation and Coordination with

Indian Tribal Governments’’ (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure ‘‘meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications.’’ ‘‘Policies that have tribal

implications’’ is defined in the

Executive Order to include regulations

that have ‘‘substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes.’’

This final rule does not have tribal

implications. It will not have substantial

direct effects on tribal governments, on

the relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes, as

specified in Executive Order 13175.

This treatment variance does not create

any new regulatory requirements.

Rather, it establishes an alternative

treatment standard for a regulated

constituent at the specific facility. Thus,

Executive Order 13175 does not apply

to this 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

33890 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

‘‘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

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of governments.’’

This final rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This treatment

variance does not create any new

regulatory requirements. Rather, it

establishes an alternative treatment

standard for a regulated constituent at

the specific facility. Thus, Executive

Order 13132 does not apply to this rule.

J. Congressional Review Act

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. Section 804 exempts from

section 801 the following types of rules

(1) rules of particular applicability; (2)

rules relating to agency management or

personnel; and (3) rules of agency

organization, procedure, or practice that

do not substantially affect the rights or

obligations of non-agency parties. 5

U.S.C. 804(3). EPA is not required to

submit a rule report regarding today’s

action under section 801 because this is

a rule of particular applicability.

List of Subjects in 40 CFR Part 268

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements.

Dated: June, 14, 2001.

Michael Shapiro,

Acting 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 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. 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’’ and adding a new

footnote 8 to read as follows:

§ 268.44 Variance from a treatment

standard.

* * * * *

(o) * * *

TABLE—WASTES EXCLUDED FROM THE TREATMENT STANDARDS UNDER § 268.40

Facility name 1 and

address

Waste

code See also

Regulated

hazardous

constituent

Wastewaters Nonwastewaters

Concentration

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

*******

Dupont Environmental Treatment—Chambers

Works Wastewater

Treatment Plant,

Deepwater, NJ 8.

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.

*******

8 Dupont Environmental Treatment—Chambers Works must dispose of this waste in their on-site Subtitle C hazardous waste landfill.

Note: NA means Not Applicable.

[FR Doc. 01–15880 Filed 6–25–01; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 65

[Docket No. FEMA–B–7415]

Changes in Flood Elevation

Determinations

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Interim rule.

SUMMARY: This interim rule lists

communities where modification of the

base (1% annual chance) flood

elevations (BFEs) is appropriate because

of new scientific or technical data. New

flood insurance premium rates will be

calculated from the modified BFEs for

new buildings and their contents.

DATES: These modified BFEs are

currently in effect on the dates listed in

the table below and revise the Flood

Insurance Rate Map(s) in effect prior to

this determination for each listed

community.

From the date of the second

publication of these changes in a

newspaper of local circulation, any

person has ninety (90) days in which to

request through the community that the

Acting Administrator, Federal Insurance

Administration and Mitigation

reconsider the changes. The modified

elevations may be changed during the

90-day period.

ADDRESSES: The modified BFEs for each

community are available for inspection

at the office of the Chief Executive

Officer of each community. The

respective addresses are listed in the

following table.

FOR FURTHER INFORMATION CONTACT:

Matthew B. Miller, P.E., Chief, Hazards

Study Branch, Mitigation Directorate,

FEMA, 500 C Street SW., Washington,

DC 20472, (202) 646–3461, or (e-mail)

matt.miller@fema.gov.