Daily Rules, Proposed Rules, and Notices of the Federal Government
This action applies only to U.S. Ecology Nevada located in Beatty, Nevada.
Under sections 3004(d) through (g) of the Resource Conservation and Recovery Act (RCRA), the land disposal of hazardous wastes is prohibited unless such wastes are able to meet the Land Disposal Restrictions (LDR) treatment standards (or treatment standards) established by EPA (or the Agency). Under section 3004(m) of RCRA, 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.” EPA interprets this language to authorize treatment standards based on the performance of the best demonstrated available technology (BDAT). This interpretation was upheld by the D.C. Circuit in
The Agency recognizes, however, that there may be wastes that cannot be treated to the levels specified in the regulations (
Treatment of selenium poses special difficulties. In particular, it can be technically challenging to treat wastes containing selenium in combination with other metals e.g., cadmium, lead and/or chromium because of their different chemical properties and solubility curves (62 FR 26041, May 12, 1997).
The current treatment standard for a waste exhibiting the toxicity characteristic for selenium (RCRA Hazardous Waste D010) is based upon the performance of stabilization on low concentration selenium wastes. When the Agency developed the treatment standard for selenium, EPA believed that wastes containing high concentrations of selenium were rarely generated and land disposed (59 FR 47980, September 19, 1994). The Agency also stated that it believed that, for most wastes containing high concentrations of selenium, recovery of the selenium would be feasible using recovery technologies currently employed by copper smelters and copper refining operations (Id.). The Agency further stated in 1994, that it did not have any performance data for selenium recovery, but available information indicated that some recovery of elemental selenium out of certain types of scrap material and other wastes was practiced in the United States.
In 1994, the Agency used performance data from the stabilization of a mineral processing waste, that was characteristically hazardous (RCRA Hazardous Waste D010), to set the national treatment standard for selenium. At that time, we determined that this characteristically-hazardous mineral processing waste represented the most difficult-to-treat selenium waste. This untreated waste contained up to 700 ppm total selenium and 3.74 mg/L selenium, as measured by the Toxicity Characteristic Leaching Procedure (TCLP). The resulting post-treatment levels of selenium in the TCLP leachate were between 0.154 mg/L and 1.80 mg/L, which (after considering the range of treatment process variability) led to EPA establishing a national treatment standard of 5.7 mg/L TCLP for D010 selenium nonwastewaters.
Under 40 CFR 268.44, facilities can apply for a site-specific treatment variance in cases where a waste that is generated under conditions specific to only one site cannot be treated to the specified LDR treatment standards. In such cases, the generator(s) or the treatment facility may apply to the Administrator, or to EPA's designated representative, (in this case the Assistant Administrator for Solid Waste and Emergency Response) for a site-specific variance. 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 developing the treatment standard, the waste cannot be treated to the specified levels or by the specified methods. There are other grounds for obtaining variances, but this is the only provision relevant to this action.
On September 16, 2008, U.S. Ecology Nevada (USEN) in Beatty, Nevada submitted a petition requesting a site-specific treatment variance from the LDR treatment standards for hazardous selenium-bearing waste generated by the Owens-Brockway Glass Container Company (Owens-Brockway) in Vernon, California. Owens-Brockway operates a glass manufacturing facility that generates approximately 50 to 100 tons per year of electrostatic precipitator (ESP) dust requiring management as a hazardous waste. The ESP dust is generated by the glass furnace air emissions control system and is hazardous due to its high concentrations of leachable arsenic (RCRA Hazardous Waste D004), cadmium (RCRA Hazardous Waste D006), lead (RCRA Hazardous Waste D008), and selenium (RCRA Hazardous Waste D010). USEN submitted analytical data demonstrating that the chemical properties of the waste differed significantly from the waste analyzed in developing the LDR treatment standard.
On April 6, 2011, the Agency issued a Direct Final rule (76 FR 18921) and a parallel Proposal (76 FR 19003) granting a site-specific treatment variance to USEN for the treatment and disposal of hazardous selenium-bearing waste generated by Owens-Brockway. The site-specific treatment variance provided for an alternative treatment standard of 59 mg/L TCLP with the condition that the waste to reagent ratio not exceed 1:0.45. The Agency concluded that USEN had demonstrated that the chemical properties of the waste generated by Owens-Brockway differed significantly from the waste analyzed in developing the LDR treatment standard, and that the waste could not be treated to the specified level of 5.7 mg/L TCLP for selenium, necessitating an alternative treatment standard.
The Direct Final rule and the parallel Proposal also included an action to withdraw the site-specific treatment variance issued to Chemical Waste Management (CWM) in Kettleman Hills, California for this same waste.
EPA is not taking action on the proposal to withdraw the existing site-specific treatment variance granted to CWM. EPA has authorized the State of California to grant and administer site-specific treatment variances under 40 CFR 268.44. [See 75 FR at 60401 (September 10, 2010)]. As a result, California now has sole authority to deal with issues pertaining to treatment variances for entities within its borders, including whether to withdraw the treatment variance to CWM for Owens-Brockway selenium-bearing waste, and any other issues related to that treatment variance.
EPA is promulgating, as proposed, a site-specific treatment variance, from the LDR treatment standards, for hazardous selenium bearing waste generated by Owens-Brockway and managed by USEN of Beatty, Nevada. With the information provided to the Agency as part of their petition, EPA has concluded that the chemical properties of Owen-Brockway's selenium-bearing waste differ significantly from the waste used in developing the LDR treatment standard and that the generated waste cannot be treated to the specified treatment level of 5.7 mg/L TCLP. The site-specific treatment variance provides an alternative treatment standard of 59 mg/L for selenium with the condition that the waste to reagent ratio not exceed 1:0.45 when the waste is treated and disposed at USEN's permitted hazardous waste facility. The Agency received no comments disagreeing with the Agency's proposal.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose any new information collection burden. This action grants a site-specific treatment variance to USEN for the treatment of hazardous selenium-bearing waste generated by Owens-Brockway under RCRA's LDR program. The Office of
The Regulatory Flexibility Act (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 a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
This site-specific treatment variance does not create any new requirements. Rather, it establishes an alternative treatment standard for a specific waste that applies to only one facility, USEN located in Beatty, Nevada. Therefore, we hereby certify that this rule will not add any new regulatory requirements to small entities. This rule, therefore, does not require a regulatory flexibility analysis.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. This action imposes no enforceable duty on any State, local or tribal governments or the private sector. This action would not impose any new duties on the states hazardous waste program. EPA has determined, therefore, that this rule would not contain regulatory requirements that might significantly or uniquely affect small governments in that the authority for this action exists with the Federal government. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. This 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. This action grants a site-specific treatment variance applicable to one facility. Thus, Executive Order 13132 would not apply to this action.
This action would not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action is a site-specific treatment variance that applies to only one facility, which is not a tribal facility or located on tribal lands. Thus, Executive Order 13175 would not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it would not establish an environmental standard intended to mitigate health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it would not be a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 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. 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. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this rule will not have a disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The site-specific treatment variance being finalized applies to a selenium bearing waste that will be treated and disposed in an existing, permitted RCRA facility, ensuring protection to human health and the environment. Therefore, the rule will not result in any disproportionately negative impacts on minority or low-income communities relative to affluent or non-minority communities.
The Congressional Review Act, 5 U.S.C. 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. EPA will submit a report containing this rule, when finalized, and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental Protection, Hazardous Waste, and Variances.
For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 6905, 6912(a), 6921, and 6924.
The revisions and additions read as follows:
(o) * * *