Land Disposal Restrictions: Site-Specific Treatment Variance for Hazardous Selenium-Bearing Waste Treated by U.S. Ecology Nevada in Beatty, NV

Federal Register, Volume 77 Issue 163 (Wednesday, August 22, 2012)

Federal Register Volume 77, Number 163 (Wednesday, August 22, 2012)

Rules and Regulations

Pages 50622-50626

From the Federal Register Online via the Government Printing Office www.gpo.gov

FR Doc No: 2012-20504

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

EPA-HQ-RCRA-2010-0851; FRL-9715-3

Land Disposal Restrictions: Site-Specific Treatment Variance for Hazardous Selenium-Bearing Waste Treated by U.S. Ecology Nevada in Beatty, NV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA (or the Agency) is granting a site-specific treatment variance, under the Land Disposal Restrictions program, to U.S. Ecology Nevada in Beatty, Nevada for the treatment of a hazardous selenium-

bearing waste generated by the Owens-Brockway Glass Container Company in Vernon, California. The Agency has determined that the chemical properties of the waste generated by the Owens-Brockway Glass Container Corporation differ significantly from the waste used in developing the Land Disposal Restrictions treatment standard for selenium-bearing wastes, and as such cannot be treated to the specified treatment level of 5.7 mg/L for selenium, as measured by the Toxicity Characteristic Leaching Procedure (TCLP). The site-specific treatment variance provides an alternative treatment standard of 59 mg/L TCLP for selenium, with the condition that the waste-to-reagent ratio not exceed 1:0.45.

DATES: This final rule will be effective August 22, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-RCRA-2010-0851. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, because for example, it may be Confidential Business Information (CBI) or other information, the disclosure of which is restricted by statute. Certain material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. A reasonable fee may be charged for copying docket materials.

FOR FURTHER INFORMATION CONTACT: For more information on this rulemaking, contact Jesse Miller, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery (MC 5304 P), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone (703) 308-1180; fax (703) 308-

0522; or miller.jesse@epa.gov.

SUPPLEMENTARY INFORMATION:

1. Does this action apply to me?

   This action applies only to U.S. Ecology Nevada located in Beatty, Nevada.

2. Table of Contents

   1. Background

   Page 50623

1. Basis for Land Disposal Restrictions Treatment Variances

2. Basis of the Current Selenium Treatment Standard

   2. Basis for Today's Determination

   3. Development of This Variance

1. U.S. Ecology Nevada Petition

2. Notices on Granting a Site Specific Treatment Variance to USEN

   4. Granting USEN a Site Specific Treatment Variance

   5. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

2. Paperwork Reduction Act

3. Regulatory Flexibility Act

4. Unfunded Mandates Reform Act of 1995

5. Executive Order 13132: Federalism

6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

7. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

8. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

   1. National Technology Transfer and Advancement Act

10. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

11. Congressional Review Act

    1. Background

1. Basis for Land Disposal Restrictions Treatment Variances

   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 Hazardous Waste Treatment Council v. EPA, 886 F. 2d 355 (D.C. Cir. 1989).

   The Agency recognizes, however, that there may be wastes that cannot be treated to the levels specified in the regulations (see 40 CFR 268.40) because an individual waste matrix or concentration can be substantially more difficult to treat than those wastes evaluated in establishing the treatment standard (51 FR 40576, November 7, 1986) .\1\ For such wastes, EPA has a process by which a generator or treater may seek a treatment variance (see 40 CFR 268.44). If granted, the terms of the variance establish an alternative treatment standard for the particular waste at issue.

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   \1\ According to Sec. 268.44(a)(1), a petitioner may obtain a site-specific variance if ``it is not physically possible to treat the waste to the level specified in the treatment standard, or by the method specified as the treatment standard. To show that this is the case, the petitioner must demonstrate that the physical or chemical properties of the waste differ significantly from waste analyzed in developing the treatment standard, the waste cannot be treated to the specified level or by the specified method.''

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2. Basis of the Current Selenium Treatment Standard

   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.\2\

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   \2\ Because selenium is a non-renewable resource, and because the wastes in question contain high selenium concentrations, EPA's preference would be to recover the selenium in an environmentally sound manner. However, based on information contained in the Mineral Commodity Summaries 2010 published by the U.S. Department of the Interior, U.S. Geological Survey, the amount of domestic production of secondary selenium is estimated to be very small because most of the materials eligible for possible secondary smelting (e.g., scrap xerographic and electronic materials) were exported for recovery of the contained selenium.

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   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.\3\ In the Phase IV LDR final rule, the Agency determined that a treatment standard of 5.7 mg/L TCLP, continued to be appropriate for D010 nonwastewaters (63 FR 28556, May 26, 1998). The Agency also changed the universal treatment standard (UTS) for selenium nonwastewaters from 0.16 mg/L to 5.7 mg/L TCLP.

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   \3\ The calculation of the LDR treatment standard was based on a specific method, sometimes called ``C 99,'' which has been used in other LDR rulemakings. This methodology seeks to account for process variability (including variability that may be attributed to sampling and analytical processes). See 63 FR 28556, May 26, 1998 and the document, Final--Best Demonstrated Available Technology (BDAT) Background Document for Quality Assurance/Quality Control Procedures and Methodology, USEPA. October 23, 1991.

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   2. Basis for Today's Determination

      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.

      Page 50624

   3. Development of This Variance

1. U.S. Ecology Nevada Petition

   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.\4\ They also submitted data demonstrating that the waste could not be treated to the specified level of 5.7 mg/L TCLP for selenium. USEN requested an alternative treatment standard of 59 mg/L TCLP, which was calculated using analytical treatment data from a stabilization mixture of ferrous sulfate, quick lime and sodium sulfide flakes with a 1:0.45 waste to reagent ratio.\5\

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   \4\ Total selenium concentrations in the electrostatic precipitator (ESP) dust generated at the Owens-Brockway facility range from 2,400 mg/kg to 5,700 mg/kg. The untreated waste has a leachable selenium concentration ranging from 228 mg/L to 440 mg/L TCLP. In addition, the untreated waste has a leachable arsenic concentration ranging from 3.3 mg/L to 8.6 mg/L TCLP, a leachable cadmium concentration ranging from 3.9 mg/L to 11.0 mg/L TCLP, and a leachable lead concentration ranging from