06-1073. Site-Specific Variance From the Land Disposal Restrictions Treatment Standard for 1,3-Phenylenediamine (1,3-PDA)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to revise the waste treatment standard for 1,3-phenylenediamine (1,3-PDA) for a biosludge generated at DuPont's Chambers Works facility in Deepwater, New Jersey. This variance is necessary because the facility is unable to measure compliance with the 1,3-PDA land disposal restrictions treatment standard in its multisource leachate treatment biosludge matrix. As a practical matter, therefore, the facility cannot fully document compliance with the requirements of the treatment standard. For the same reason, EPA cannot ascertain compliance for this constituent. Furthermore, faced with the inability to demonstrate treatment residual content through analytical testing for this constituent, this facility faces potential curtailment of 1,3-PDA production operations. This site-specific variance will provide alternative technology treatment standards for 1,3-PDA in multisource leachate that do not require analysis of the biosludge matrix to determine whether the numerical treatment standard is being met, thus ensuring that treatment reflecting performance of the Best Demonstrated Available Technology occurs and that threats to human health and the environment from land disposal of the waste are minimized.

DATES:

This final rule is effective April 10, 2006, unless the Agency receives adverse comment by March 9, 2006. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-HQ-RCRA-2005-0015. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other 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 www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This 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 [phone], and the telephone number for the RCRA docket is [phone].

FOR FURTHER INFORMATION CONTACT:

For more information on this rulemaking, contact Rhonda Minnick, Hazardous Waste Minimization and Management Division, Office of Solid Waste (MC 5302 W), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone [phone]; fax [phone]; or [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

EPA is publishing this rule without prior proposal because we view the site-specific treatment standard as noncontroversial. We anticipate no adverse comments because it is site-specific and the alternative treatment standard that it establishes is based on performance of the Best Demonstrated Available Technology (BDAT) that ensures treatment of constituents with similar structure and physical form. We believe that this treatment will minimize threats to human health and the environment posed by land disposal of the waste. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to grant this site-specific treatment variance, if adverse comments are filed. This direct final rule will be effective on April 10, 2006 without further notice unless we receive adverse comment by March 9, 2006. If EPA receives adverse comment on this site-specific treatment variance, we will publish a timely withdrawal in the Federal Register indicating which aspects of the variance will become effective and which are being withdrawn due to adverse comment. Any of the provisions in today's direct final rulemaking for which we do not receive adverse comment will become effective on the date set above. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this site-specific variance must do so at this time.

A. What Is the Basis for LDR Treatment Variances?

Under section 3004(m) of the Resource Conservation and Recovery Act (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.” We interpret 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).

We recognize that there may be wastes that cannot be treated to 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 we evaluated in establishing the treatment standard (51 FR 40576, November 7, 1986). 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.

B. What Is the Basis of the Current 1,3-PDA Treatment Standard?

The treatment standard for 1,3-PDA was promulgated in the Dyes and Pigments (K181) hazardous waste listing on February 24, 2005 (70 FR 9138) and it became effective on August 23, 2005. The 1,3-PDA treatment standard was placed in the Table of Treatment Standards (see 40 CFR 268.40) under “K181” (the waste code for the Dyes and Pigments listing) and under “F039” (the waste code for multisource leachate). It is the F039 treatment standard for 1,3-PDA that is addressed in this site-specific variance. We also added this constituent to the Universal Treatment Standard Table (see 40 CFR 268.48), which means that when 1,3-PDA is reasonably expected to be present in a characteristic waste at point of generation it must be considered an underlying hazardous constituent requiring treatment.

In the final rule, we set a numerical nonwastewater treatment standard of 0.66 mg/kg for 1,3-PDA, based on use of the best demonstrated available technology (BDAT) of combustion. For purposes of establishing the treatment standard, we grouped 1,3-PDA with other waste constituents (notably 1,2-PDA, but also including o-Anisidine, p-Cresidine, 2,4-dimethylaniline, aniline and 4-chloroaniline). No actual treatment data were available for 1,3-PDA. However, the 0.66 mg/kg treatment standard was based on: (1) The thermal stability index ranking system and incinerability index (if the most difficult to treat constituents can be destroyed via incineration, then all less stable constituents can also be destroyed); and (2) similar chemical structures and chemical and physical properties that are exhibited by the constituents in each treatability group (incineration should be able to destabilize and destroy each of the compounds in a similar fashion). See the “Best Demonstrated Available Technology (BDAT) Background Document for Dyes and Pigments Production Wastes,” December 2004, section 2.2.3.

II. What Is the Basis for Today's Determination?

A. What Criteria Govern a Treatment Variance?

Facilities can apply for a site-specific variance in cases where a waste that is generated under conditions specific to only one site cannot be treated to the specified levels. In such cases, the generator or treatment facility may apply to the Administrator, or a delegated representative, for a site-specific variance from a treatment standard. One of the demonstrations that an applicant for a site-specific variance may make is that it is not physically possible to treat the waste to the level specified in the treatment standard (40 CFR 268.44(h)(1)). This is the criteria pertinent to today's variance, in that it is not technically possible to measure the constituent in DuPont's biosludge treatment residual, as explained below.

B. What Does DuPont Request?

DuPont contacted EPA about an analytical problem it is having with 1,3-PDA in their multisource leachate (F039) treatment biosludge. The facility produces 1,3-PDA in their plant and then pipes the wastewaters from manufacturing 1,3-PDA to an onsite biological wastewater treatment plant. DuPont ultimately disposes of the biosolids containing 1,3-PDA into their hazardous waste landfill. The mass loading levels of the waste 1,3-PDA do not trigger the K181 listing, so such placement is not considered land disposal of a hazardous waste. However, the landfill is permitted to accept biosolids with several listed hazardous wastes and, as a result, generates F039 (a hazardous waste), which is reasonably expected to contain 1,3-PDA. The F039 is introduced by pipeline into DuPont's biological treatment system, a two-step biological process that includes the use of activated carbon. Biodegradation reduces organics in this system by approximately 99%. The treatment residual is a F039 biosludge that is high in carbon. It is this biosludge that is the basis of the requested treatability variance.

DuPont has sent the biosludge to several commercial laboratories for analysis to see if it met the treatment standard and could be legally land disposed. The laboratories have consistently been unable to detect 1,3-PDA in this high carbon matrix. When asked if they could develop a new detection method for this constituent, only one laboratory was interested in attempting to do so, but indicated that it could take a year to develop and it likely would have a detection limit around 13 mg/kg (the detection limit for a similar compound, 1,4-PDA). This detection limit is much higher than the 1,3-PDA treatment standard of 0.66 mg/kg.

DuPont pointed out that when the treatment standard for a similar compound, 1,2-PDA (1,2-phenylenediamine, o-phenylenediamine), was promulgated in the dyes and pigments listing rule, we set a treatment standard expressed as specified technologies because of method detection problems: We specified that combustion (CMBST), or chemical oxidation (CHOXD) followed by biodegradation (BIODG) or carbon adsorption (CARBN), or a treatment train of BIODG followed by CARBN are the treatment standard. DuPont requested that we provide a variance that would set specified technologies as the treatment standard for 1,3-PDA at their Chambers Works facility, as we did for 1,2-PDA. We believe that this is a reasonable request because when we evaluated the waste constituents to determine the original treatment standards, we grouped 1,3-PDA with 1,2-PDA (and other constituents) because they are similar in chemical structure and physical properties.

C. New Treatment Standard for 1,3-PDA

We are granting DuPont's request in today's site-specific variance. Under one of the criteria for a variance from the treatment standard, the applicant must demonstrate that it is not physically possible to treat the waste to the level specified in the treatment standard. We believe that today's variance falls into this category, in that it is technically impossible for DuPont to demonstrate that it complies with a treatment level when laboratories have not been able to detect the waste in DuPont's particular, site-specific biosludge matrix.^[1] Therefore, certification that this constituent has been treated in the F039 biosludge matrix is not possible, and without the certification, disposal of the F039 biosludge cannot legally occur. This situation may impede production of 1,3-PDA at the facility, because legal disposal of this waste would no longer be available. See Steel Manufacturers Association 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).

The alternative treatment standard established by today's site-specific variance is: Combustion (CMBST), or chemical oxidation (CHOXD) followed by biodegradation (BIODG) or carbon adsorption (CARBN), or a treatment train of BIODG followed by CARBN, the same treatment standard we set in the K181 listing rule for a similar constituent, 1,2-PDA. By altering the treatment standard for 1,3-PDA to allow certification of compliance based on the use of specified treatment technologies without constituent-specific testing, we can ensure that effective treatment occurs without delay and can also assure that threats to human health and the environment are minimized. We believe that DuPont's two-step biological treatment system that includes the use of activated carbon effectively treats 1,3-PDA in the F039 multisource leachate waste.^[2] And, as mentioned in footnote 1, we made a similar finding that treatment of other carbamate waste constituents would adequately treat 1,2-PDA, when we withdrew it as a constituent of concern in 1998. Likewise, we believe that treatment of the other constituents of concern in DuPont's F039 multisource leachate waste will serve as a surrogate for 1,3-PDA.

III. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether the 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 action creates no new regulatory requirements, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This action is a site-specific variance to the LDR treatment standards, which allows a specified BDAT treatment technology to be used for treating one facility's hazardous waste prior to land disposal. The facility remains subject to the unchanged Land Disposal Restrictions paperwork requirements found at 40 CFR 268.7.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

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 treatment variance does not create any new regulatory requirements. Rather, it establishes an alternative treatment standard for a specific waste stream that replaces a standard already in effect, and it applies to only one facility. Therefore, I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule, therefore, does not require a regulatory flexibility analysis.

D. Unfunded Mandates Reform Act of 1995

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. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. This action is a site-specific variance that allows a different treatment standard to be met for treating one constituent in one facility's hazardous waste prior to land disposal.

E. 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 implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action is a site-specific variance for one facility. Thus, Executive Order 13132 does not apply to this rule.

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

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. This action is a site-specific variance that applies to only one facility, which is not a tribal facility. Thus, Executive Order 13175 does not apply to this rule.

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

“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 final rule is not subject to Executive Order 13045 because it does not meet either of these criteria. The waste described in this site-specific treatment standard variance will be treated and then disposed of in existing, permitted RCRA Subtitle C landfills, ensuring that there will be no risks that may disproportionately affect children.

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

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 is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

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. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. The Agency uses established technical standards when determining the best demonstrated available technologies upon which land disposal restrictions treatment standards are based. Therefore, there is no need to provide Congress an explanation because consensus standards were used in establishing this alternative treatment standard for 1,3-PDA.

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

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 variance applies to waste that is treated in an existing, permitted RCRA Subtitle C facility, ensuring protection to human health and the environment. Therefore, today's rule will not result in any disproportionately negative impacts on minority or low-income communities relative to affluent or non-minority communities.

K. Congressional Review

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. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability, applying only to a specific waste type at one facility under particular circumstances.

A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2), however, this rule will be effective April 10, 2006.

List of Subjects in 40 CFR Part 268

• Environmental protection
• Hazardous waste
• Reporting and recordkeeping requirements

Dated: January 27, 2006.

Susan Parker Bodine,

Assistant Administrator, Office of Solid Waste and Emergency Response.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

PART 268—LAND DISPOSAL RESTRICTIONS

1. The authority citation for part 268 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

2. Section 268.44, the table in paragraph (o) is amended by adding in alphabetical order an additional entry for “DuPont Environmental Treatment Chambers Works, Deepwater, NJ” and adding a new footnote 13 to read as follows:

§ 268.44

Variance from a treatment standard.

* * * * *

(o) * * *

Table.—Wastes Excluded From the Treatment Standards Under § 268.40

Facility name 1 and address	Waste code	See also	Regulated hazardous constituent	Wastewaters		Nonwastewaters
				Concentration (mg/L)	Notes	Concentration (mg/kg)	Notes
*         *         *         *         *         *         *
DuPont Environmental Treatment Chambers Works, Deepwater, NJ	F039	Standards under § 268.40	1,3-phenylenediamine 1,3-PDA	NA	NA	CMBST; CHOXD fb BIODG or CARBN; or BIODG fb CARBN	(13)
*         *         *         *         *         *         *
(1) A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
*         *         *         *         *         *         *
(13) This treatment standard applies to 1,3-PDA in biosludge from treatment of F039.
Note: NA means Not Applicable.

Footnotes

1.  This finding is similar to a previous LDR determination. We originally promulgated a numerical treatment standard for 1,2-PDA (o-phenylenediamine) on April 8, 1996 (61 FR 15583). However, we subsequently withdrew the treatment standard because of poor method performance on September 4, 1998. We stated at that time that treatment of other constituents would provide adequate treatment for o-phenylenediamine (63 FR 47409).

2.  When we originally promulgated treatment standards for F039, we stated that constituents on the BDAT list serve as surrogates for those constituents that may be present in the multisource leachate that cannot be adequately analyzed (55 FR 22622, June 1, 1990).