[Federal Register: October 20, 1999 (Volume 64, Number 202)]
[Rules and Regulations]               
[Page 56469_56472]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc99_19]                         
_______________________________________________________________________

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 261, 262, and 268

[FRL_6458_8]
RIN 2050_AE05

Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood 
Preserving Wastewaters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical correction.

_______________________________________________________________________
SUMMARY: On May 11, 1999, the Agency published technical amendments correcting the Land Disposal Restrictions (LDR) Phase IV final rule. In today's rule, we are correcting two minor typographical errors and one omission in the May 11th rule. Also, we are correcting three other errors in the LDR Phase IV final rule that came to our attention after the May 11th technical amendments were promulgated.

EFFECTIVE DATE: This rule is effective on October 20, 1999.

ADDRESSES: The public may obtain a copy of this technical correction at the RCRA information Center (RIC), located at Crystal Gateway One, 1235 Jefferson Davis Highway, First Floor, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: For general information contact the RCRA Hotline at (800) 424_9346 (toll free) or (703) 920_9810 in the Washington, DC metropolitan area. For information on this rule contact Peggy Vyas (5302W), Office of Solid Waste, 401 M Street, SW, Washington, DC 20460, (703) 308_5477, e_mail address is ``vyas.peggy@epamail.epa.gov''.

SUPPLEMENTARY INFORMATION:

I. Reasons and Basis for Today's Action
	The Agency recently published five rules all related to various aspects of the final Phase IV Land Disposal Restrictions (LDR) rule. These are: the May 12, 1997 LDR final rule (the so_called ``Mini'' Phase IV Rule, 62 FR 25998), the May 26, 1998 LDR Phase IV final rule (63 FR 28556), the August 31, 1998 administrative stay regarding certain zinc micronutrient fertilizers (63 FR 46332), the September 4, 1998 emergency revisions to the treatment standards for carbamate production wastes (63 FR 172), and the September 24, 1998 revisions to the treatment standards for spent aluminum potliners (63 FR 51254).

	On May 11, 1999, the Agency published technical amendments correcting and clarifying certain aspects of all of these rules (64 FR 25408). The May 11th rule contained two minor typographical errors and one omission that we are correcting along with three other errors in the original May 26, 1998 LDR Phase IV final rule that have recently come to our attention.

II. Corrections to the May 11, 1999 Technical Amendments

A. Arsenic Treatment Standard in K088

	In the September 24, 1998 (63 FR 51254) revision of the treatment standards for spent potliners from primary aluminum reduction (K088), the Agency inadvertently omitted the treatment standard adopted for fluoride wastewaters from the entry for K088 in the table of treatment standards in Sec. 268.40. The May 11, 1999 technical amendments restored the fluoride wastewater treatment standard. However, in doing so, EPA inadvertently printed an incorrect measurement unit for the K088 treatment standard for arsenic (a standard which in fact required no correction at all).

	The treatment standard for the nonwastewater form of arsenic in K088 (as revised on September 24, 1998) is 26.1 mg/kg, which is to be measured by the total amount of arsenic in the treatment residue. In the May 11, 1999 rule, the treatment standard was incorrectly given as 26.1 mg/l TCLP (a more conventional leaching test not using acid digestion). Today's rule removes the erroneous reference to ``mg/l TCLP'' for the nonwastewater arsenic standard for the K088 entry in the Sec. 268.40 table.

B. Carbamate Treatment Standards

	In the September 4, 1998 (63 FR 172) revision of the treatment standards for listed hazardous wastes from carbamate production, the Agency added a paragraph (i) to Sec. 268.40, which inadvertently replaced the existing paragraph (i). The May 11, 1999 technical correction failed to properly reinstate the old paragraph. Today's rule reinserts paragraph Sec. 268.40(i) from the September 4, 1998 rule and redesignates it as Sec. 268.40(j).

C. Citation Within Sec. 262.34(a)(4)

	Part 262.34 contains the requirements for accumulating hazardous waste prior to treatment. In the May 11, 1999 technical correction, the Agency

[[Page 56470]]

amended Sec. 262.34(d)(4) to change an internal citation reference from Sec. 268.7(a)(4) to Sec. 268.7(a)(5) to reflect some other regulatory changes to LDR paperwork requirements that had been adopted on May 12, 1997 (62 FR 25998). However, a parallel correction was not made to 
Sec. 262.34(a)(4), which also contains the same outdated reference to Sec. 268.7(a)(4). Today we are amending Sec. 262.34(a)(4) to refer to Sec. 268.7(a)(5).

III. Corrections to the May 26, 1998 LDR Phase IV Final Rule

A. Vacated K_Code Wastes

	In the LDR Phase IV final rule, the Agency removed K064, K065, K066, K090, and K091 from the table of treatment standards in Sec. 268.40. These five K_code wastes were vacated on April 9, 1999 in Great Lakes Chemical Co. v EPA (No. 98_1312 (D.C. Cir.)). However, these wastes still appear in the table of K_code hazardous wastes found in Sec. 261.32. Today's rule removes these vacated K_code wastes from the list in Sec. 261.32.

B. Sec. 268.7(a)(3)(ii)

	Also in the LDR Phase IV final rule, the Agency revised paragraph Sec. 268.7(a)(3)(ii) by adding a one_time notification for shipping hazardous soil. However, in doing so, the Agency inadvertently replaced other language in that paragraph. Today's rule reinstates the original language and redesignates it as paragraph Sec. 268.7(a)(3)(iii).

C. Measuring Compliance With Soil Standards

	Lastly, the LDR Phase IV final rule promulgated treatment standards for contaminated soil. The preamble states that compliance with the 90% reduction treatment standard should be measured using the toxicity characteristic leachate procedure (TCLP) for metals and three non_
metals: carbon disulfide, cyclohexanone, and methanol (see 63 FR at 28602). Although the preamble to the final rule made it clear that the TCLP test should be used for carbon disulfide, cyclohexanone, and methanol, the regulatory language found in Sec. 268.49(c)(1)(A) did not. We are addressing this discrepancy in today's rule by amending the regulatory language to match the preamble because the preamble accurately represents the Agency's position.

IV. Analysis Under Executive Order 12866, Executive Order 12875, Executive Order 12898, Executive Order 13045, Executive Order 13084, the Unfunded Mandates Reform Act of 1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act

	Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104_4). This rule also does not require prior consultation with State, local, and tribal government officials as specified by 
Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 (63 FR 27655, May 10, 1998), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice_and_comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5_501 of the Order has the potential to influence the regulation. This rule is not subject to E.O. 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the May 12, 1997, the May 26, 1998, the September 4, 1998, and the September 24, 1998 Federal Register documents.

V. Submission to Congress and the General Accounting Office

	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 808 allows the issuing agency to make a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of October 20, 1999. EPA will submit 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 United States prior to publication of the rule in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

VI. Immediate Effective Date

	EPA is making this rule effective immediately. The rule adopts amendments which are purely technical in that they correct inadvertent printing errors, or mistakes which are clearly inconsistent with the Agency's stated intent. Comment on such changes is unnecessary within 
the meaning of 5 U.S.C. 553(b)(3)(B). For the same reasons, there is good cause to make the rule effective immediately pursuant to 5 U.S.C. 553(d)(3).

List of Subjects

40 CFR Part 261

	Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.

40 CFR Part 262

	Hazardous waste, Labeling, Manifest, Reporting and recordkeeping requirements.

40 CFR Part 268

	Hazardous waste, Reporting and recordkeeping requirements.

Dated: September 21, 1999.
Michael Shapiro,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.

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

PART 261__IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

Subpart A__General

	1. The authority citation for part 261 continues to read as follows:

	Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938.

Sec. 261.32  [Amended]

	2. The table in Sec. 261.32 is amended by removing the entries for K064, K065, K066, K090, and K091.

[[Page 56471]]

PART 262__STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

	3. The authority citation for part 262 continues to read as follows:

	Authority: 42 U.S.C. 6906, 6912, 6922_6925, 6937, and 6938.

Subpart C__Pre_Transport Requirements

	4. Section 262.34 is amended by revising paragraph (a)(4) to read as follows:

Sec. 262.34  Accumulation time.

* * * * *
	(a) *  *  *
	(4) The generator complies with the requirements for owners or operators in subparts C and D in 40 CFR part 265, with Sec. 265.16, and with 40 CFR 268.7(a)(5).
* * * * *
PART 268__LAND DISPOSAL RESTRICTIONS

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

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

Subpart A__General

	6. Section 268.7 is amended by adding paragraph (a)(3)(iii) to read as follows:

Sec. 268.7  Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities.

	(a) *  *  *
	(3) *  *  *
	(iii) If the waste changes, the generator must send a new notice and certification to the receiving facility, and place a copy in their files. Generators of hazardous debris excluded from the definition of hazardous waste under Sec. 261.3(f) of this chapter are not subject to these requirements.
* * * * *
	7. Section 268.40 is amended by revising paragraph (j), and the table at the end of the section is amended by revising the entry for K088 to read as follows:

Sec. 268.40  Applicability of treatment standards.

* * * * *
	(j) Effective September 4, 1998, the treatment standards for the wastes specified in 40 CFR 261.33 as EPA Hazardous Waste numbers P185, P191, P192, P197, U364, U394, and U395 may be satisfied by either meeting the constituent concentrations presented in the table ``Treatment Standards for Hazardous Wastes'' in this section, or by treating the waste by the following technologies: combustion, as defined by the technology code CMBST at Sec. 268.42 Table 1 of this Part, for nonwastewaters; and, biodegradation as defined by the technology code BIODG, carbon adsorption as defined by the technology code CARBN, chemical oxidation as defined by the technology code CHOXD, or combustion as defined as technology code CMBST at Sec. 268.42 Table 1 of this Part, for wastewaters.

Treatment Standards for Hazardous Wastes
[Note: NA means not applicable]
_____________________________________________________________________________________________________________________

		Regulation hazardous constituent				
Waste Code	Waste description and treatment/regulatory subcategory1	Common name	CAS 2 No.	Wastewaters__Concentration in mg/l3; of technology code4	Nonwastewaters__Concentration in mg/kg5 unless noted as ``mg/l TCLP''; or technology  code	
*	*	*	*	*	*	
K088.. 	Spent potliners from primary aluminum reduction..	Acenaphthene	83_32_9	 0.059	3.4	
		Anthracene	120-12-7	0.059	3.4	
		Benz(a)anthracene	56-55-3	0.059	3.4	
		Benzo(a)pyrene	50-32-8	0.061	3.4	
		Benzo(b)fluoranthene	205-99-2	0.11	6.8	
		Benzo(k)fluoranthene	207-08-9	0.11	6.8	
		Benzo(g, h, i)perylene	191-24-2	0.0055	1.8	
		Chrysene	218-01-9	0.059	3.4	
		Dibenz(a,h)anthracene	53-70-3	0.055	8.2	
		Fluoranthene	206-44-0	0.068	3.4	
		Indeno(1,2,3,-c,d)pyrene	193-39-5	0.0055	3.4	
		Penanthrene	85-01-8	0.059	5.6	
		Pyrene	129-00-0	0.067	8.2	
		Antimony	7440-36-0	1.9	1.15 mg/l TCLP	
		Arsenic	7440-38-2	1.4	26.1	
		Barium	7440-39-3	1.2	21 mg/l TCLP	
		Beryllium	7440-41-7	0.82	1.22 mg/l TCLP	
		Cadmium	7440-43-9	0.69	0.11 mg/l TCLP	
		Chromium (Total)	7440-47-3	2.77	0.60 mg/l TCLP	
		Lead	7439-92-1	0.69	0.11 mg/l TCLP	
		Mercury	7439-97-6	0.15	0.025 mg/l TCLP	
		Nickel	7440-02-0	3.98	11 mg/l TCLP	
		Selenium	7782-49-2	0.82	5.7 mg/l TCLP	
		Silver	7440-22-4	0.43	0.14 mg/l TCLP	
		Cyanide (Total)7	57-12-5	1.2	590	
		Cyanide (Amenable)\7\	57-12-5	0.86	30	
		Fluoride	16984-48-8	35	N.A.	

[[Page 56472]]

*                  *                  *                  *                  *                  *                  *

	8. Section 268.49 is amended by revising paragraphs (c)(1) (A) and (B) to read as follows:

Sec. 268.49  Alternative LDR treatment standards for contaminated soil.
* * * * *
	(c) * * *
	(1) * * *
	(A) For non_metals except carbon disulfide, cyclohexanone, and methanol, treatment must achieve 90 percent reduction in total constituent concentrations, except as provided by paragraph (c)(1)(C) of this section.
	(B) For metals and carbon disulfide, cyclohexanone, and methanol, treatment must achieve 90 percent reduction in constituent concentrations as measured in leachate from the treated media (tested according to the TCLP) or 90 percent reduction in total constituent concentrations (when a metal removal treatment technology is used), except as provided by paragraph (c)(1)(C)of this section.
* * * * * *
[FR Doc. 99_27138 Filed 10_19_99; 8:45 am]
BILLING CODE 6560_50_P