[Federal Register Volume 62, Number 167 (Thursday, August 28, 1997)]
[Rules and Regulations]
[Pages 45568-45573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22949]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268 and 271
[FRL-5884-2]
RIN 2050-AD38
Second Emergency Revision of the Land Disposal Restrictions (LDR)
Treatment Standards for Listed Hazardous Wastes From Carbamate
Production
AGENCY: Environmental Protection Agency (EPA, the Agency).
ACTION: Immediate final rule.
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SUMMARY: This second emergency revision extends the time that the
alternative carbamate treatment
[[Page 45569]]
standards are in place by one additional year. The Agency is taking
this action because analytical problems associated with the measurement
of constituent levels in carbamate waste residues have not yet been
resolved.
EFFECTIVE DATES: This action becomes effective on August 21, 1997.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway One, 1235
Jefferson Davis Highway, First Floor, Arlington, VA. The Docket
Identification Number is F-96-P32F-FFFFF. The RIC is open from 9 a.m.
to 4 p.m., Monday through Friday, except for Federal holidays. The
public must make an appointment to review docket materials by calling
(703) 603-9230. The public may copy a maximum of 100 pages from any
regulatory document at no cost. Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800-424-9346 (toll-free) or 703-412-9810 locally. For
technical information on the carbamate treatment standards, contact
Shaun McGarvey, phone 703-308-8603. For information on analytic
problems associated with carbamate wastes, contact John Austin on 703-
308-0436. For information on State Authorization, contact Wayne Roepe
on 703-308-8630. For specific information about this rule, contact
Rhonda Minnick on 703-308-8771.
SUPPLEMENTARY INFORMATION:
Availability of rule on Internet
This Federal Register notice is available on the Internet System
through the EPA Public Web Page at: http://www.epa.gov/EPA-WASTE/. For
the text of the notice, choose: Year/Month/Day.
I. Background
The Phase III final rule established treatment standards for
hazardous wastes associated with carbamate pesticide production (61 FR
15583; see appendix for a list of regulated constituents). The
treatment standards were expressed as concentration levels that had to
be monitored in the treatment residue. All constituents were placed on
the Universal Treatment Standard (UTS) list. These regulations were
issued on April 8, 1996 (61 FR 15663), and corrected June 28, 1996 (61
FR 33683). The prohibition on land disposal of carbamate wastes was
effective July 8, 1996 and the prohibition on radioactive waste mixed
with newly listed or identified wastes, including soil and debris, was
effective April 8, 1998.
On November 1, 1996, the United States Court of Appeals for the
District of Columbia Circuit, in Dithiocarbamate Task Force v. EPA (98
F.3d 1394), vacated certain of the listings of carbamate wastes.
Accordingly, EPA removed from the Code of Federal Regulations those
listings vacated by the court and all references to those listings. EPA
notes that substantial portions of the decisions made in the carbamate
listing rule remain in effect and are not changed by the court's
ruling. See 62 FR 32973, June 17, 1997.
The court vacated the listings of 24 U wastes, one K-waste (K160),
and three of the K-wastes (K156, K157 and K158) only to the extent they
apply to the chemical, 3-iodo-2-propynyl n-butylcarbamate (IPBC).
Twenty-three of the vacated U wastes consisted of all the
dithiocarbamates and thiocarbamates. The other vacated U waste was
IPBC, a carbamate.
This notice applies only to the carbamate wastes that remain listed
as hazardous wastes. Carbamates that were regulated as UHCs were
unaffected by the courts decision, because the decision didn't deal
with adding carbamates as underlying hazardous constituents.
After promulgation of the Phase III rule on April 8, 1996, but
shortly before the treatment standards took effect on July 8, 1996,
several companies in the waste management industry contacted EPA,
reporting that laboratory standards were not available for some of the
carbamate waste constituents. The Agency confirmed this assertion, and
realized that the waste management industry was unintentionally left in
a quandary: they were required to certify compliance with the carbamate
waste treatment standards, but commercial laboratories were only able
to perform the necessary analyses for some of the newly regulated
constituents. Thus, it was impossible to document whether the treatment
standards were or were not achieved for those constituents which could
not be analyzed.
The problem was complicated by the LDR rules that pertain to
regulation of underlying hazardous constituents (UHCs) in
characteristic (or formerly characteristic) hazardous wastes. Because
new constituents were added to the UTS list, they thus became potential
UHCs. Whenever a generator sends a characteristic (or formerly-
characteristic) waste to a treatment facility, they must identify for
treatment not only the hazardous characteristic, but also all UHCs
reasonably expected to be present in the waste at the point of
generation. (See 40 CFR 268.2(i).) Because of the lack of laboratory
standards for all carbamate constituents, generators could not in all
cases identify the UHCs reasonably expected to be present in their
wastes, and treatment facilities and EPA could not monitor compliance
with the standards for the carbamate UHCs. Generators also reported
that commercial laboratories were unable to provide the recommended
methods.
II. The Revised Carbamate Treatment Standards
In an emergency final rule promulgated on August 26, 1996 (61 FR
43924), EPA established temporary alternative treatment standards for
carbamate wastes for a one-year period. EPA believed that one year was
sufficient time for laboratory standards to be developed and for
laboratories to take appropriate steps to do the necessary analyses for
these wastes.
The Phase III rule required treatment of carbamate wastes to UTS
levels. The temporary alternative standards promulgated in the August
26, 1996 rule provided waste handlers a choice of meeting the Phase III
treatment levels, or of using a specified treatment technology, the
specified standard being the technology upon whose performance the
numerical treatment standard was based. (See 61 FR 43925, August 26,
1996.) Combustion was the specified technology for nonwastewaters;
combustion, biodegradation, chemical oxidation, and carbon adsorption
are the specified technologies for wastewaters. If the wastes were
treated by a specified technology, there was no requirement to measure
compliance with treatment levels, thus avoiding the analytical
problems.
III. Today's Extension of the Alternative Treatment Standard Provision
EPA is extending the alternative treatment standards for carbamate
wastes for one additional year. EPA and the regulated community
initially expected that laboratory standards would be developed during
the past year, but that appears not to be the case for all carbamate
constituents. Furthermore, there appears to be confusion as to which
analytical methods can be used to measure carbamate constituents. (See
memorandum from Kevin Igli, Waste Management, Inc., to James Berlow,
EPA, dated July 16, 1997, in the docket for this rule.)
The waste treatment industry has begun a testing project that will
determine whether existing analytical methods can be extended to apply
to all carbamate constituents. (See August 8,
[[Page 45570]]
1997 letter from Kevin Igli, Waste Management, Inc., to Michael
Petruska, EPA.) The Agency believes that much can be learned from this
study. EPA estimates it will take four to six months to conduct this
study, and then additional time to review the results. If the study
verifies that analytical problems remain, EPA may issue an appropriate
notice seeking comment, and then a final rule modifying the standard.
This would all take approximately 1 year. If EPA finds there are no
serious analytical difficulties, however, the Agency may consider
reinstating the numeric standard sooner than 1 year.
Since the analytical problems which necessitated the 1996 emergency
rule remain, however, EPA is allowing the alternative treatment
standards to remain in place until the study is completed and the
results factored into a final decision on whether to retain the
alternative treatment standards permanently or to revert to the
exclusive numerical standards promulgated in the Phase III rule. (The
Agency's general preference is to establish numerical treatment
standards for hazardous wastes whenever possible because they provide
maximum flexibility in selecting treatment technologies, while ensuring
that the technologies are optimally operated to achieve full waste
treatment.)
Under the alternative treatment standards, combustion is the
specified technology for nonwastewaters; combustion, biodegradation,
chemical oxidation, and carbon adsorption are the specified
technologies for wastewaters. (Descriptions of these treatment
technologies can be found in 40 CFR 268.42, Table 1.) If the wastes are
treated by a specified technology, there is no requirement to measure
compliance with treatment levels.
Because the performance of these Best Demonstrated Available
Technologies (BDATs) were the basis of the originally promulgated
treatment levels, EPA believes that temporarily allowing the use of
these BDATs for an additional year--without a requirement to monitor
the treatment residues--fully satisfies the core requirement of the LDR
program: Hazardous wastes must be treated to minimize threats to human
health and the environment before they are land disposed.
The Agency is also suspending for an additional year inclusion of
carbamate waste constituents on the UTS list at 40 CFR 268.48. Not
including these constituents on the UTS list eliminates the need to
identify and treat them, and monitor compliance with their UTS levels,
when they are present as UHCs in characteristic hazardous wastes. The
Agency believes that suspending the carbamate constituents from the UTS
list will not have adverse environmental consequences because it will
be in effect for only one additional year. Furthermore, EPA found in
the Phase III rulemaking that these constituents are unlikely to occur
in wastes generated outside the carbamate production industry (61 FR
15584, April 8, 1996), so today's rule may not cause an adverse
environmental impact because carbamate constituents simply are not
present in most characteristic hazardous wastes.
IV. Good Cause for Foregoing Notice and Comment Requirements
This final rule is being issued without notice and opportunity for
public comment. Under the Administrative Procedure Act (APA), 5 U.S.C.
553(b)(B), an agency may forgo notice and comment in promulgating a
rule when, according to the APA, the agency for good cause finds (and
incorporates the finding and a brief statement of the reasons for that
finding into the rules issues) that notice and public comments
procedures are impracticable, unnecessary, or contrary to the public
interest. For the reasons set forth below, EPA believes it has good
cause to find that notice and comment would be unnecessary and contrary
to the public interest, and therefore is not required by the APA.
First, although both industry and EPA have endeavored to resolve
the problem during the past year, analytic laboratory standards will
continue to be unavailable for a number of the carbamate waste
constituents covered by the Phase III rule. Members of the regulated
community thus cannot fully document compliance with the requirements
of the treatment standard through no fault of their own. For the same
reason, EPA cannot ascertain compliance for these constituents.
In addition, this unavailability of analytic standards is likely to
create a serious disruption in the production of at least some
carbamate pesticides. Although the treatment of the restricted
carbamate wastes through biodegradation, carbon adsorption, chemical
oxidation (for wastewaters), and combustion is both possible and highly
effective, certification that the treatment actually meets the
treatment standard levels may not be possible in many instances.
Without the certification, disposal of the residuals left after
treatment cannot legally occur. The Agency believes this situation will
quickly impede production of certain pesticides, since legal disposal
of some carbamate wastes will no longer be available. See Steel
Manufacturers Ass'n v. EPA, 27 F.3d 642, 646-47 (D.C. Cir. 1994)
(absence of a treatment standard providing a legal means of disposing
of wastes from a process is equivalent to shutting down that process).
With regard to the suspension of certain carbamates as underlying
hazardous constituents in characteristic (and formerly-characteristic)
prohibited wastes, the Agency believes that the same practical
difficulties described for listed carbamate wastes would be created.
Furthermore, the Agency believes it is necessary for industry to
complete a study project that will provide answers to the questions
raised about the availability of analytical standards and which
analytical methods are appropriate for carbamate wastes. This study
will require a number of months to be completed, and then the Agency
must make a decision about whether or not to retain the alternative
treatment standards.
This extension of the emergency rule preserves the core of the
promulgated Phase III rule by ensuring that the restricted carbamate
wastes are treated by a BDAT before they are land disposed. At the same
time, EPA is eliminating the situation which could halt production of
carbamate pesticides, and allowing time for a study project to be
completed. For these reasons, EPA believes there is good cause to issue
the rule immediately without prior notice and opportunity for comment.
V. Rationale for Immediate Effective Date
The Agency believes that the regulated community is in the
untenable position of having to comply with treatment standards but
lacks analytical methods to measure compliance. To avoid this result,
therefore, this extension needs to take effect essentially immediately.
In addition, today's rule does not create additional regulatory
requirements; rather, it provides greater flexibility for compliance
with treatment standards. For these reasons, EPA finds that good cause
exists under section 3010(b)(3) of RCRA, 42 U.S.C. 6903(b)(3), to
provide for an immediate effective date. See generally 61 FR at 15662.
For the same reasons, EPA finds that there is good cause under 5 U.S.C.
553(b)(3) to waive the requirement that regulations be published at
least 30 days before they become effective.
[[Page 45571]]
VI. Analysis Under Executive Order 12866, the Unfunded Mandates
Reform Act of 1995, the Regulatory Flexibility Act, and the
Paperwork Reduction Act
This final rule does not create new regulatory requirements;
rather, it provides a temporary alternative means to comply with the
treatment standards already promulgated. Therefore, this final rule is
not a ``significant'' regulatory action within the meaning of Executive
Order 12866.
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. 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 cost-effective 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, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector, and does not impose any Federal
mandate on State, local, or tribal governments or the private sector
within the meaning of the Unfunded Mandates Reform Act of 1995. This
final rule does not create new regulatory requirements; rather, it
provides a temporary alternative means to comply with the treatment
standards already promulgated. EPA has determined that this rule does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. Thus, today's rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
For the same reasons, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
EPA has determined that this rule will not have a significant
economic impact on a substantial number of small entities. EPA
recognizes that small entities may own and/or operate carbamate
pesticide manufacturing operations or TSDFs that will become subject to
the requirements of the land disposal restrictions program. However,
since such small entities are already subject to the requirements in 40
CFR part 268, this rule does not impose any additional burdens on these
small entities, because this rule does not create new regulatory
requirements. Rather, it provides a temporary alternative means to
comply with the treatment standards already promulgated.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this final rule will not have a significant
economic impact on a substantial number of small entities. It does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
Today's rule does not contain any new information collection
requirements subject to OMB review under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq. Because there are no new information
collection requirements in today's rule, an Information Collection
Request has not been prepared.
VII. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
VIII. State Authority
A. Applicability of Rule in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR part 271.
Prior to HSWA, a State with final authorization administered its
hazardous waste program in lieu of EPA administering the Federal
program in that State. The Federal requirements no longer applied in
the authorized State, and EPA could not issue permits for any
facilities that the State was authorized to permit. When new, more
stringent Federal requirements were promulgated or enacted, the State
was obliged to enact equivalent authority within specified time frames.
New Federal requirements did not take effect in an authorized State
until the State adopted the requirements as State law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time that they take effect in unauthorized States.
EPA is directed to carry out these requirements and prohibitions in
authorized States, including the issuance of permits, until the State
is granted authorization to do so.
Today's rule is being promulgated pursuant to section 3004(m), of
RCRA (42 U.S.C. 6924(m)). Therefore, the Agency is adding today's rule
to Table 1 in 40 CFR 271.1(j), which identifies the Federal program
requirements that are promulgated pursuant to HSWA. States may apply
for final authorization for the HSWA provisions in Table 1, as
discussed in the following section of this preamble.
B. Effect on State Authorization
As noted above, EPA will implement today's rule in authorized
States until they modify their programs to adopt these rules and the
modification is approved by EPA. Because today's rule is promulgated
pursuant to HSWA, a State submitting a program modification may apply
to receive interim or final
[[Page 45572]]
authorization under RCRA section 3006(g)(2) or 3006(b), respectively,
on the basis of requirements that are substantially equivalent or
equivalent to EPA's. The procedures and schedule for State program
modifications for final authorization are described in 40 CFR 271.21.
All HSWA interim authorizations will expire January 1, 2003. (See
section 271.24 and 57 FR 60132, December 18, 1992.)
In general, EPA recommends that States pay close attention to the
sunset date for today's rule. If States are adopting the Phase III rule
before the sunset date of today's rule, and applying for authorization,
EPA strongly encourages these States to adopt today's rule when they
adopt the April 8, 1996, Phase III rule. States should note that after
the sunset date, the provisions of this rule may be considered less
stringent if the Agency decides to disallow use of the alternative
treatment standards. If so, States would be barred under section 3009
of RCRA from adopting this rule after August 26, 1998, and would not be
able to receive authorization for it. States that are planning to adopt
and become authorized for today's rule and the Phase III rule should
factor the sunset date into their rulemaking activities.
Appendix to the Preamble--List of Regulated Constituents
K156--Organic waste (including heavy ends, still bottoms, light
ends, spent solvents, filtrates, and decantates) from the production
of carbamates and carbamoyl oximes. (This listing does not apply to
wastes generated from the manufacture of 3-iodo-2-propynyl n-
butylcarbamate)
K157--Wastewaters (including scrubber waters, condenser waters,
washwaters, and separation waters) from the production of carbamates
and carbamoyl oximes. (This listing does not apply to wastes
generated from the manufacture of 3-iodo-2-propynyl n-
butylcarbamate.)
K158--Bag house dust, and filter/separation solids from the
production of carbamates and carbamoyl oximes. (This listing does
not apply to wastes generated from the manufacture of 3-iodo-2-
propynyl n-butylcarbamate.)
K159--Organics from the treatment of thiocarbamate wastes.
K161--Purification solids (including filtration, evaporation, and
centrifugation solids), baghouse dust, and floor sweepings from the
production of dithiocarbamate acids and their salts. (This listing
does not include K125 or K126.)
P203 Aldicarb sulfone
P127 Carbofuran
P189 Carbosulfan
P202 m-Cumenyl methylcarbamate
P191 Dimetilan
P198 Formetanate hydrochloride
P197 Formparanate
P192 Isolan
P196 Manganese dimethyldithiocarbamate
P199 Methiocarb
P066 Methomyl
P190 Metolcarb
P128 Mexacarbate
P194 Oxamyl
P204 Physostigmine
P188 Physostigmine salicylate
P201 Promecarb
P185 Tirpate
P205 Ziram
U394 A2213
U280 Barban
U278 Bendiocarb
U364 Bendiocarb phenol
U271 Benomyl
U279 Carbaryl
U372 Carbendazim
U367 Carbofuran phenol
U395 Diethylene glycol, dicarbamate
U373 Propham
U411 Propoxur
U387 Prosulfocarb
U410 Thiodicarb
U409 Thiophanate-methyl
U389 Triallate
U404 Triethylamine
Additional chemicals from carbamate production regulated in 40
CFR 268.48
Butylate
EPTC
Dithiocarbamates, total
Molinate
Pebulate
o-Phenylenediamine
Vernolate
List of Subjects
40 CFR part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR part 271
Environmental protection, Administrative practice and procedure,
Hazardous materials transportation, Hazardous waste, Penalties,
Reporting and recordkeeping requirements.
Dated: August 21, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth 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.
SUBPART D--TREATMENT STANDARDS
2. Section 268.40 is amended by revising the dates in paragraph (g)
to read ``Between August 26, 1997 and August 26, 1998''.
3. Section 268.48(a) is amended by revising the dates in footnote 6
to the table--Universal Treatment Standards to read ``Between August
26, 1997 and August 26, 1998''.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
4. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 and 1361.
SUBPART A--REQUIREMENTS FOR FINAL AUTHORIZATION
5. Section 271.1(j) is amended by adding the following entry to
Table 1 in chronological order by date of publication in the Federal
Register to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
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Promulgation date Title of Regulation Federal Register reference Effective date
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* * * * * * *
August 28, 1997.................... Second Emergency Revision of 62 FR [Insert page numbers].............. August 26, 1997 until August 26, 1998.
the Land Disposal
Restrictions (LDR) Phase III
Treatment Standards for
Listed Hazardous Wastes from
Carbamate Production.
* * * * * * *
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[[Page 45573]]
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[FR Doc. 97-22949 Filed 8-27-97; 8:45 am]
BILLING CODE 6560-50-P
