75651
Federal
Register
/
Vol.
65,
No.
233
/
Monday,
December
4,
2000
/
Proposed
Rules
TABLE
1.Ð
WASTE
EXCLUDED
FROM
NON­
SPECIFIC
SOURCESÐ
Continued
Facility
Address
Waste
description
*******

TABLE
2.Ð
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.Ð
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
TreatmentÐ
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)Ð
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
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75652
Federal
Register
/
Vol.
65,
No.
233
/
Monday,
December
4,
2000
/
Proposed
Rules
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.
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
TreatmentÐ
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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Federal
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/
Vol.
65,
No.
233
/
Monday,
December
4,
2000
/
Proposed
Rules
2
In
addition
to
the
F039
and
K088
waste
designations,
this
wastewater
contains
eighteen
additional
RCRA
hazardous
waste
codes.
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.
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
TreatmentÐ
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
standardÐ
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
pointÐ
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
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/
Vol.
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No.
233
/
Monday,
December
4,
2000
/
Proposed
Rules
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.
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
TreatmentÐ
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,

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Register
/
Vol.
65,
No.
233
/
Monday,
December
4,
2000
/
Proposed
Rules
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
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
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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
TreatmentÐ
Chambers
Works
Wastewater,
Deepwater,
NJ''
to
read
as
follows:

PART
268Ð
LAND
DISPOSAL
RESTRICTIONS.

*
*
*
*
*

§
268.44
Variance
from
a
treatment
standard.

*
*
*
*
*
(o)
*
*
*

TABLEÐ
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
*******

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]

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