[Federal Register Volume 85, Number 4 (Tuesday, January 7, 2020)]
[Notices]
[Pages 754-756]
[FR Doc No: 2019-28534]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87873; File No. SR-CBOE-2019-127]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Its Fees Schedule

December 31, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on December 20, 2019, Cboe Exchange, Inc. (the ``Exchange'' or
``Cboe Options'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to adopt certain linkage fee codes. The text of the proposed rule
change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange's Fees Schedule currently provides for fee codes for
Routing Fees. In particular, the Fees Schedule currently lists fee
codes and their corresponding transaction fee for routed Customer
orders to other options exchanges specifically in Exchange Traded Funds
(``ETF'') and equity options, and for non-Customer orders routed in
Penny and Non-Penny options classes. The Exchange notes that in
connection with a recent technology migration (including the migration
of the Exchange's billing system to a new

billing system), the Exchange amended and updated a majority of its
Fees Schedule,\3\ which became effective upon the technology
migration.\4\ Prior to the migration-related amendments and updates,
the Fees Schedule had provided for a general transaction fee assessed
for all routed Customer orders in all options classes. More
specifically, it had provided that for Customer orders, in addition to
the customary Cboe Options execution charges for each Customer order
that is routed, the Exchange passed through the actual transaction fee
assessed by the exchange(s) to which the order was routed plus an
additional $0.15 per contract.
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    \3\ See Securities and Exchange Act Release No. 87495 (November
8, 2019), 84 FR 63701 (November 18, 2019) (SR-CBOE-2019-106).
    \4\ In 2016, the Exchange's parent company, Cboe Global Markets,
Inc. (formerly named CBOE Holdings, Inc.) (``Cboe Global''), which
is also the parent company of Cboe C2 Exchange, Inc. (``C2''),
acquired Cboe EDGA Exchange, Inc. (``EDGA''), Cboe EDGX Exchange,
Inc. (``EDGX'' or ``EDGX Options''), Cboe BZX Exchange, Inc.
(``BZX'' or ``BZX Options''), and Cboe BYX Exchange, Inc. (``BYX''
and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the ``Cboe
Affiliated Exchanges''). Cboe Options migrated its trading platform
to the same system used by the Cboe Affiliated Exchanges on October
7, 2019.
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    In light of the migration, the Exchange amended, among other
things, the general routing fee for Customer orders to instead provide
for an exact charge for routing per specific types of transaction and a
particular corresponding fee code, which currently exists in the Fees
Schedule today. The Exchange, however, inadvertently did not adopt a
fee code for Customer orders routed in index options, which the
Exchange had intended to adopt in the migration-related Fee Schedule
amendments along with the fee codes currently in place for Customer
orders routed in ETF and equity options, as the general routing fee for
Customer orders contained in the Fees Schedule prior to migration was
assessed for orders in all option classes. As such, the Exchange now
proposes to adopt fee codes and reinstate fees in connection with
Customer orders routed in index options. Particularly, the Exchange
proposes to adopt fee code ``RX'', which would be appended to Customer
orders routed in Mini-SPX Index (``XSP'') options \5\ and assessed a
fee of $0.19, and fee code ``RS'', which would be appended to Customer
orders routed in all other index options \6\ and assessed a fee of
$0.48. The Exchange notes that the routing rates for routed Customer
orders in index options, as proposed, would not change from when such
fees were in place prior to the migration-related amendments to the
Fees Schedule, but rather, would be expressed as their specific, single
rates by combining the $0.15 per contract fee plus the customary Cboe
Options Customer execution charges (i.e., $0.04 for XSP options and
$0.18 in all other index options) and the actual transaction fee
assessed by the Exchange to which the order was routed (i.e., $0.00 for
EDGX Options, to which orders in XSP options may be routed, and $0.15
for C2 and BZX Options, to which orders in all other index options may
be routed).\7\ The Exchange also notes that this specific single rate
is consistent with the manner in which fee codes for Customer orders in
ETF and equity options are currently provided in the Fees Schedule. The
Exchange notes that other exchanges, including its affiliated
exchanges, assess routing fees expressed as a single fee for routed
Customer orders and that the proposed fees are in line with, and
generally lower than, those fees.\8\
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    \5\ The Exchange notes the XPS options may be routed to its
affiliated exchange, Cboe EDGX Exchange, Inc. (``EDGX Options''), as
EDGX Options also lists XSP options.
    \6\ The Exchange notes that all other index options include
Russell 2000 Index (``RUT'') and Dow Jones Industrial Average Index
(``DJX'') options. Orders in RUT options may be routed to the
Exchange's affiliates, Cboe C2 Exchange, Inc. (``C2'') and Cboe BZX
Exchange, Inc. (``BZX Options''), as these exchanges also list RUT
options, and orders in DJX options may be routed to C2, as C2 also
lists RUT options.
    \7\ See supra note 5 and 6.
    \8\ See Cboe C2 Options Exchange Fee Schedule, which assesses a
fee of $0.85 per routed Customer order in both RUT and DJX options;
Cboe BZX Options Exchange Fee Schedule, which also assesses a fee of
$0.85 per routed Customer order in RUT options; Cboe EDGX Exchange
Fee Schedule, which assesses a fee of $0.25 for routed Customer
orders in XSP options. See also MIAX Options Fees Schedule which
assesses $0.65 per routed Customer order in penny classes and $0.15
in non-penny classes.
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    In addition, the Exchange also proposes to amend certain language
in the Fees Schedule under the Frequent Trader Program table.
Specifically, the Fees Schedule currently provides that the Exchange
will disperse a customer's rebates pursuant to the customer's
instructions, which may include receiving the rebates as a direct
payment or via a distribution to one or more of its Clearing Trading
Permit Holders. The Exchange notes that the integrated post-migration
billing system does not currently offer distribution to Clearing
Trading Permit Holder, therefore the Exchange proposed to remove this
payment method in connection with the Frequent Trader Program. As such,
the proposed change is designed to amend language in the Fees Schedule
in order to accurately reflect the manner in which the billing system
currently functions. Additionally, the Exchange notes that prior to the
migration-related changes made to the billing system the Exchange
generally dispersed all customers' rebates as direct payments.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\9\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \10\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with
Section 6(b)(4) of the Act,\11\ which requires that Exchange rules
provide for the equitable allocation of reasonable dues, fees, and
other charges among its Trading Permit Holders and other persons using
its facilities.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
    \11\ 15 U.S.C. 78f(b)(4).
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    The Exchange also believes the proposed fee codes for Customer
orders routed in index options are reasonable and equitable because
such fees would be reinstated for the same amount they were previously
assessed in the Fees Schedule, as the Exchange inadvertently omitted
such fees, which were prior in place, when it made migration-related
amendments and updates to a majority of its Fees Schedule. As a result,
the proposed fee codes would alleviate potential confusion and provide
clarity for market participants by ensuring the continuation of fees
that were not intended, nor announced, to be discontinued. As stated,
the manner in which the proposed single fee rates for Customer orders
routed in index options would be provided in the Fees Schedule is
consistent with the manner in which the routed fee rates are currently
provided for Customer orders routed in ETF and equity options. The
Exchange also believes its proposed fees in connection with Customer
orders routed in index options are reasonable as the

proposed fees take into account routing costs, as they did when
previously in place, and are in line with amounts assessed and
presented as single fee rates by other exchanges, including its
affiliated exchanges.\12\
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    \12\ See supra note 5 [sic].
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    The Exchange believes the proposed routing fees are equitable and
not unfairly discriminatory because the proposed fees apply equally to
all Customers who choose to use the Exchange to route orders in index
options (either in XSP or all other index options). The Exchange
highlights that routing through the Exchange is voluntary and that it
operates in a highly competitive market in which market participants
can readily direct order flow to competing venues or providers of
routing services if they deem fee levels to be excessive.
    Additionally, the Exchange believes that the proposed change to
remove the Frequent Trader Program payment method in connection with
distributions to Clearing Trading Permit Holders is reasonable because
it is intended to accurately reflect the payment methods currently
offered by the billing system post-migration, thereby providing for
clarity in the Fees Schedule and mitigating any potential confusion
surrounding the Frequent Trader Program payment options. The Exchange
also notes that the proposed change would not significantly impact
investors as prior to the migration the Exchange generally only
dispersed customer's rebates as a direct payment. The proposed change
would have no impact on the ability of customer's to receive their
payments. The Exchange further believes that the proposed rule change
is equitable and not unfairly discriminatory because, as proposed, the
same payment method would apply equally to all Frequent Trader Program
customer rebates.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change would
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange notes that the
proposed change to the payment methods in connection with its Frequent
Trader Program does not involve or impact trading on the Exchange, and
is merely intended to clarify the manner in which the Exchange's
billing system currently functions.
    Further, the Exchange does not believe that the proposed fee codes
would impose any burden on intramarket competition that is not
necessary or appropriate in furtherance of the purposes of the Act
because the proposed changes would, again, be applied equally to all
Customer orders routed in index options. As stated, the Exchange
operates in a highly competitive market in which market participants
can readily direct order flow to competing venues if they deem fee
levels at a particular venue to be excessive or incentives to be
insufficient. The proposed rule change would merely reinstate an
inadvertently omitted fee in order to continue to reflect a competitive
pricing structure designed to incentivize market participants to direct
their order flow to the Exchange, which the Exchange believes enhances
market quality to the benefit of all TPHs. The Exchange does not
believe that the proposed rule change would impose any burden on
intermarket competition that is not necessary or appropriate in
furtherance of the purposes of the Act because the proposed fee codes
are not intended as a competitive change, as these fees were prior in
place in the Fees Schedule and recently removed inadvertently. As such,
the proposed rule change is corrective and clarifying in nature.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \13\ and paragraph (f) of Rule 19b-4 \14\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2019-127 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CBOE-2019-127. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CBOE-2019-127 and should be submitted on
or before January 28, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2019-28534 Filed 1-6-20; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 173 (Friday, September 10, 2021)]
[Notices]
[Page 50750]
[FR Doc No: 2021-19667]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meetings

TIME AND DATE: 2:00 p.m. on Wednesday, September 15, 2021.

PLACE: The meeting will be held via remote means and/or at the
Commission's headquarters, 100 F Street NE, Washington, DC 20549.

STATUS:  This meeting will be closed to the public.

MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners,
the Secretary to the Commission, and recording secretaries will attend
the closed meeting. Certain staff members who have an interest in the
matters also may be present.
    In the event that the time, date, or location of this meeting
changes, an announcement of the change, along with the new time, date,
and/or place of the meeting will be posted on the Commission's website
at https://www.sec.gov.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR
200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10),
permit consideration of the scheduled matters at the closed meeting.
    The subject matter of the closed meeting will consist of the
following topics:

Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.

    At times, changes in Commission priorities require alterations in
the scheduling of meeting agenda items that may consist of
adjudicatory, examination, litigation, or regulatory matters.

CONTACT PERSON FOR MORE INFORMATION: For further information; please
contact Vanessa A. Countryman from the Office of the Secretary at (202)
551-5400.

    Dated: September 8, 2021.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2021-19667 Filed 9-8-21; 11:15 am]
BILLING CODE 8011-01-P


[Federal Register: March 6, 2008 (Volume 73, Number 45)]
[Rules and Regulations]
[Page 12017-12024]
[DOCID:fr06mr08-7]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[EPA-HQ-RCRA-2007-0936; FRL-8538-8]

Land Disposal Restrictions: Site-Specific Treatment Variance for
P and U-Listed Hazardous Mixed Wastes Treated by Vacuum Thermal
Desorption at the EnergySolutions' Facility in Clive, UT

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
issuing a direct final rule granting a site-specific treatment variance
to EnergySolutions LLC (EnergySolutions) in Clive, Utah for the
treatment of certain P and U-listed hazardous waste containing
radioactive contamination (``mixed waste'') using vacuum thermal
desorption (VTD). This variance is an alternative treatment standard to
treatment by combustion (CMBST) required for these wastes under EPA
rules implementing the land disposal restriction (LDR) provisions of
the Resource Conservation and Recovery Act (RCRA). The Agency has
determined that combustion of the solid treatment residue generated
from the VTD unit is technically inappropriate due to the effective
performance of the VTD unit. Once the P and U-listed mixed waste are
treated using VTD, the solid treatment residue can be land disposed
without further treatment. This treatment variance is conditioned upon
EnergySolutions complying with a Waste Family Demonstration Testing
(WFDT) plan specifically addressing the treatment of these P and U
listed wastes, which is to be implemented through a RCRA Part B permit
modification for the VTD unit.

DATES: This direct final rule will be effective May 5, 2008 without
further notice, unless EPA receives adverse written comment by April 7,
2008. If EPA receives significant adverse comments, EPA will withdraw
this direct final rule before it takes effect by means of a timely
withdrawal notice in the Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2007-0936, by one of the following methods: www.regulations.gov:
Follow the on-line instructions for submitting comments.
    E-mail<EMAIL_ADDRESS>and<EMAIL_ADDRESS>Attention
Docket ID No. EPA-HQ-RCRA-2007-0936.
    Fax:<PHONE_NUMBER>. Attention Docket ID No. EPA-HQ-RCRA-2007-0936.
    Mail: RCRA Docket (2822T), U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Attention Docket
ID No. EPA-HQ-RCRA-2007-0936. Please include a total of 2 copies.
    Hand Delivery: EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No EPA-HQ-RCRA-
2007-0936. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the HQ-Docket Center,
Docket ID No

EPA-HQ-RCRA-2007-0936, EPA West, Room 3334, 1301 Constitution Ave.,
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<PHONE_NUMBER>, and the telephone
number for the RCRA Docket is<PHONE_NUMBER>. A reasonable fee may be
charged for copying docket materials.

FOR FURTHER INFORMATION CONTACT: For more information on this
rulemaking, contact Juan Parra, Hazardous Waste Minimization and
Management Division, Office of Solid Waste (MC 5302 P), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>; or
<EMAIL_ADDRESS>or Elaine Eby. Hazardous Waste Minimization and
Management Division, Office of Solid Waste (MC 5302 P), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>; or
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. Why Is EPA Using a Direct Final Rule?

    EPA is publishing this rule as a direct final rule because we view
this action as noncontroversial. Based on the information and data
submitted by the petitioner for this site specific treatment variance
and the oversight being provided by the regulatory authority in the
State of Utah, we do not believe that there will be significant adverse
comments to this action. However, in the ``Proposed Rules'' section of
today's Federal Register, we are publishing a separate document that
will serve as a proposed rule should EPA receive significant adverse
comments on this action. We will not institute a second comment period
on this action. Any parties interested in commenting must do so at this
time. For further information about commenting on this rule, see the
ADDRESSES section of this document.
    If EPA receives significant adverse comment, we will publish a
timely withdrawal in the Federal Register informing the public that
this direct final rule will not take effect. We would address all
public comments in any subsequent final rule based on the proposed
rule.

B. Does This Action Apply to Me?

    This action applies only to EnergySolutions located in Clive, Utah.

C. Table of Contents

I. Summary of This Action
II. Background

III. Development of This Variance

    A. EnergySolutions' Petition
    B. What Type and How Much Mixed Waste Are Subject to This
Variance?
    C. Description of the VTD Process
IV. EPA's Reasons for Granting This Variance
V. Conditions of the Variance
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments.
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. Summary of This Action

    EPA is taking direct final action to grant a site-specific
treatment variance to EnergySolutions in Clive, Utah, for the treatment
of certain P and U-listed mixed waste using an alternative treatment
standard of VTD.\1\ The current treatment standard for these wastes is
combustion (CMBST). See 40 CFR 268.40 and 268.42.
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    \1\ Mixed waste is defined as radioactive waste that contains
hazardous waste that either: (1) Is listed as a hazardous waste in
Subpart D of 40 CFR Part 261; or (2) causes the waste to exhibit any
of the hazardous waste characteristics identified in Subpart C of 40
CFR Part 261. Mixed waste is regulated under multiple authorities:
RCRA (for the non-radioactive component), as implemented by EPA or
authorized States; and the Atomic Energy Act (AEA) (for the source,
special nuclear, or by-product material component), as implemented
by the Nuclear Regulatory Commission (NRC), NRC agreement States
(for commercially-generated mixed wastes), or the Department of
Energy (DOE) (for defense-related mixed waste generated by DOE
activities). This treatment variance is limited to the RCRA
requirements for treatment of the hazardous waste portion of the
mixed waste and does not affect the regulatory requirements under
AEA authority. As a result, absent the variance, mixed waste
identified as RCRA P and U-listed hazardous wastes are subject to
the CMBST treatment standard. This must take place in a high
temperature organic destruction unit, permitted for both the
radioactive component and for the RCRA hazardous wastes.
---------------------------------------------------------------------------

    EnergySolutions' VTD unit currently operates pursuant to a Part B
RCRA permit issued by the State of Utah which (among other things)
authorizes treatment of mixed waste containing both semi-volatile
organic compounds (SVOC) and volatile organic compounds (VOC). In 2006,
EnergySolutions submitted a petition to EPA for a site-specific
treatment variance from the LDR treatment standard of CMBST for various
P and U-listed mixed waste. The petitioner is seeking an alternative
treatment standard of VTD. EnergySolutions provided data and
information indicating that the VTD unit is capable of achieving at
least 99.99% removal of analyzable SVOC \2\ and VOC \3\ constituents in
the solid treatment residue generated from the VTD unit; analysis of
the solid treatment residue shows that the LDR concentration-based
treatment standards for these chemical constituents are consistently
achieved. (Concentration-based treatment standards for specific
chemical constituents are found in 40 CFR 268.48.) The petitioner also
supplied performance data demonstrating that the VTD unit effectively
removes chemical compounds (in the SVOC and VOC families) from the
mixed waste having similar chemical and physical properties (i.e.,
boiling points and vapor pressures) to the regulated hazardous
constituents in the P and U-listings that are the subject of this
variance. The P and U-listed wastes subject to this treatment variance
are not analyzable hence the treatment standard of CMBST.
EnergySolutions contends that additional treatment of the solid
treatment residue, using the treatment method of CMBST, would be
technically inappropriate in that substantial treatment, as measured
with the use of similar chemical compounds, has already been achieved
using the VTD unit.
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    \2\ The SVOC waste family is defined as those chemical compounds
that are detected using SW-846 Method 8270.
    \3\ The VOC waste family is defined as those chemical compounds
that are detected using SW-846 Method 8260.
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    The Agency has reviewed the information and data presented by the
petitioner and has determined that additional treatment of the solid
treatment residue (i.e., complying with the existing CMBST treatment
standard) is technically inappropriate given the documented performance
of the VTD unit. The Agency is therefore taking direct final action to
grant a site-specific treatment variance to EnergySolutions for an
alternative LDR treatment standard of VTD for certain P and U-listed
mixed wastes that have undergone treatment using the VTD process. Once
treated, the solid treatment residue can be land disposed, in this case
in EnergySolutions' on-site hazardous mixed waste landfill. As a

condition of this variance, EnergySolutions must receive and be in
compliance with a RCRA permit modification for the VTD process
specifically establishing a treatment protocol for these P and U-listed
wastes. This permit modification will consist of a WFDT plan that
establishes conditions on the treatment process that should assure
optimized treatment of the mixed waste.

II. Background

    Under sections 3004(d) through (g) of RCRA, land disposal of
hazardous wastes is normally prohibited unless wastes are able to meet
the treatment standards established by EPA. Section 3004(m) of RCRA
requires EPA to set levels or methods of treatment that substantially
diminishes the hazardous waste's toxicity or substantially reduces the
likelihood of hazardous constituents migrating from the waste so that
short-term and long-term threats to human health and the environment
posed by the waste's land disposal are minimized. EPA interprets this
language to authorize treatment standards based on the performance of
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).
    However, facilities can apply for a site-specific treatment
variance in cases when a hazardous waste that is generated cannot be
treated to the specified levels or when it is technically inappropriate
for the waste to undergo such treatment (See 51 FR 40605-40606
(November 7, 1986)). In such cases, the generator or treatment facility
may apply for a variance from a treatment standard. The requirements
for a treatment variance are found at 40 CFR 268.44.\4\
---------------------------------------------------------------------------

    \4\ In the case where the rules specify that a method of
treatment must be used to treat a particular constituent or
constituents, EPA also allows facilities to demonstrate that an
alternative treatment method can achieve a measure of performance
equivalent to that achievable by the EPA-specified treatment method
(40 CFR 268.42(b)). This demonstration of equivalency, known as a
Determination of Equivalent Treatment (DET), is typically both
waste-specific and site-specific. EPA notes that the petition
submitted by EnergySolutions appears to meet the criteria of 40 CFR
268.42(b) in that the solid treatment residue from the VTD removes
SVOC and VOC constituents with the same efficiency as hazardous
waste combustion units. However, while the Agency could choose to
evaluate the petition under the criteria developed for a DET, we are
processing EnergySolutions petition under the criteria found in 40
CFR 268.44, as requested in EnergySolutions petition to EPA. Today's
decision is thus based on the rationale provided by EnergySolutions
treatment variance petition, i.e., that it is inappropriate to
require the waste to be treated by the method specified as the
treatment standard (i.e., CMBST), even though such treatment is
technically possible (see 40 CFR 268.44(h)(2)).
---------------------------------------------------------------------------

    An applicant for a site-specific treatment variance may demonstrate
that it is inappropriate to require a waste to be treated by the method
specified as the treatment standard, even though such treatment is
technically possible (40 CFR 268.44(h)(2)). This is the criteria
pertinent to today's action in that EnergySolutions claims it is
technically inappropriate to further treat the waste (i.e., solid
treatment residue) that has already been treated to remove over 99.99%
of the hazardous organic constituents contained in the waste.

III. Development of This Variance

A. EnergySolutions' Petition

    On April 28, 2006, EnergySolutions petitioned the Agency for a
site-specific treatment variance from the treatment standard of CMBST
for certain P and U-listed mixed wastes.\5\ EnergySolutions requested
an alternative treatment standard of VTD \6\ which would allow land
disposal of the solid treatment residue from the VTD unit without
having to combust the treatment residue (as required by the CMBST
treatment standard). The petitioner contends that additional treatment
is inappropriate and would result in little if any additional reduction
of the waste's toxicity.
---------------------------------------------------------------------------

    \5\ Under 40 CFR 268.42, ``CMBST'' is defined as ``[h]igh
temperature organic destruction technologies, such as combustion in
incinerators, boilers, or industrial furnaces operated in accordance
with the applicable requirements of 40 CFR Part 264, Subpart O, or
40 CFR Part 265, Subpart O, or 40 CFR Part 266, Subpart H, and in
other units operated in accordance with applicable technical
operating requirements; and certain non-combustive technologies,
such as the Catalytic Extraction Process.'' EnergySolutions' VTD
unit does not meet this definition.
    \6\ For certain P and U-listed wastes, EPA was not able to
identify an analytical method by which treatment effectiveness could
be determined in the regulated constituent. As a result, EPA
promulgated CMBST as the treatment standard for these P and U-listed
wastes. CMBST was selected as the method of treatment because it is
relatively indiscriminate in the destruction of organics due to the
high temperatures, efficient mixing, and consistent residence times
present in a well-designed and well-operated facility (see 55 FR
22611, June 1, 1990).
---------------------------------------------------------------------------

    EnergySolutions provided data and information indicating that
treatment using their VTD unit achieves substantial reductions in the
concentrations of organic constituents (greater than 99.99%) in the
solid treatment residue. Data included SVOC and VOC concentrations in
the untreated waste, organic liquid condensate and solid treatment
residue from demonstration tests conducted in August and September of
2004 and October of 2006. The petitioner also supplied performance data
indicating that the VTD unit can remove 99.99% of organic constituents
with chemical and physical properties (i.e., boiling points and vapor
pressures) comparable to the organic constituents in the P and U-listed
hazardous waste identified in their petition.\7\ The petitioner also
provided a description of the analytical and methodological protocol
established by the State of Utah that describes how the VTD unit will
be optimized to assure continued optimized removal of hazardous organic
constituents from the P and U-listed mixed waste.
---------------------------------------------------------------------------

    \7\ The specific P and U-listed hazardous wastes associated with
the untreated mixed waste had been conservatively determined by the
facility, in consultation with the State of Utah, using the
``derived-from rule,'' described in 40 CFR 261.3(c)(2)(i). A listing
of the specific waste codes and chemicals applicable to this rule
can be found in the docket supporting this rule.
---------------------------------------------------------------------------

B. What Type and How Much Mixed Waste Are Subject to This Variance?

    The wastes subject to this treatment variance are mixed waste
consisting of discarded commercial chemical products (P and U-listed
hazardous wastes) that are required to meet a technology performance
standard of CMBST.\8\ It also includes secondary waste (e.g., carbon
filter media) generated by the EnergySolutions' VTD unit during the
processing of the mixed waste.
---------------------------------------------------------------------------

    \8\ A list of these chemicals, with associated boiling point
data, is included as part of the docket supporting this rulemaking.
---------------------------------------------------------------------------

    The Department of Energy (DOE) has identified approximately 50
cubic meters (m3) of mixed waste (tank sludges and decontamination
residues) in legacy storage in Oak Ridge, Tennessee. EnergySolutions
has also identified an additional 900 m3 of hardened tank sludge at a
commercial facility. Another potential source of hazardous waste to be
treated by EnergySolutions' VTD unit is from a commercial chemical
manufacturer. The waste can be characterized as tank sludge, much of
which is in a hardened/compressed form, identified as U053
(crotonaldehyde) and U122 (formaldehyde) mixed waste.\9\
---------------------------------------------------------------------------

    \9\ Waste codes are assigned by the generator based upon process
knowledge of raw feed materials and by-products within the chemical
manufacturing process.
---------------------------------------------------------------------------

C. Description of the VTD Process

    EnergySolutions' VTD unit holds a permit from the State of Utah as
a RCRA Subpart X miscellaneous treatment unit. This permit allows the
facility to treat mixed waste that contains SVOC and VOC waste
families. The VTD unit has

been in operation since March 2005, and has processed more than 304,000
kilograms (kg) of mixed waste. EnergySolutions' VTD process design
typically achieves a removal efficiency of 99.99% for SVOC and VOC
waste families in the VTD solid treatment residue and meets all
applicable LDR concentration-based treatment standards. Treatment
residue from the unit is land disposed at EnergySolutions' on-site
permitted hazardous mixed waste landfill after all other regulatory
requirements are met.
    The VTD unit consists of four subsystems: (1) A thermal separation
system (dryer); (2) a processed material discharge system; (3) an off-
gas treatment train; and (4) a condensate tank system.\10\ The
treatment system operates by indirectly heating the raw waste fed into
the unit, vaporizing the volatile and semi-volatile organic
constituents and capturing these constituents as a condensate. The
process has one input stream (the raw waste) and three output streams.
The three output streams are: (1) The solid treatment residue; (2) the
concentrated liquid condensate; and (3) an off-gas which is released to
the atmosphere after passing through a series of condensers and
filters. It should be noted that the liquid condensate and the off-gas
are not subject to this rulemaking. The condensate is still subject to
the CMBST treatment standard before it can be land disposed, and is
sent off-site for incineration. The off-gas emission is regulated under
the state-issued Part B Permit (its emission limits established using a
risk assessment under 40 CFR 270.32(b)(2) (the so-called omnibus
provision) and by an Air Approval Order issued by the Utah Department
of Environmental Quality).
---------------------------------------------------------------------------

    \10\ A process diagram of the EnergySolutions' VTD unit can be
found in the docket supporting this rulemaking. Schematic drawings
of the equipment are also provided.
---------------------------------------------------------------------------

    The thermal separation unit or dryer is a completely enclosed
cylindrical tank with a processing capacity of approximately 29 cubic
feet (ft3) of feed material per process cycle. Several process cycles
can be run per day. It is indirectly heated by a propane-fired furnace
and is permitted to reach process temperatures up to 650 [deg]C. Feed
material is introduced into the dryer through a hopper. The system is
maintained below atmospheric pressure by a vacuum pump. Nitrogen is
introduced to displace oxygen to a level no greater than 7%, which is
below the oxygen ignition point for volatile and semi-volatile
contaminants. The nitrogen purge gas carries the volatilized
contaminants from the dryer to the off-gas treatment train. Treatment
time and temperature in the dryer are established for each process
cycle following the characterization of the raw waste.
    The processed material discharge system is fully enclosed and
consists of a hopper with a cooling jacket, a conveyor system, and a
collection container. The system includes water spray nozzles to aid in
cooling the processed material and to provide dust control. The dry
processed material is collected in the discharge system after the
process cycle is completed. An auger conveys the discharged solid to a
metal receiving box. Post-treatment analytical samples are collected
from the box or directly from the processed material discharge system
and tested for all analyzable regulated constituents originally
identified in the waste feed. Once successful verification results are
received, the process material is land disposed at EnergySolutions' on-
site mixed hazardous waste landfill.
    Off-gas is generated within the dryer and is purged with a nitrogen
carrier gas. The off-gas treatment train, also called the air pollution
control (APC) system, consists of condensers in series, a vacuum pump,
and a filtration adsorption system with a pre-filter, HEPA filter, and
carbon adsorption beds. The nitrogen provides a relatively inert
atmosphere (oxygen content less than 7%), which prevents combustion of
the volatile or semi-volatile constituents. The gas stream then passes
through the filtration system to remove the remaining SVOC and VOC.
    Hot gas from the dryer is fed to the condensers and the condensers
cool the gas stream and the majority of the volatile and semi-volatile
compounds are brought to a liquid phase. The condensate tank system
consists of traps, for temporary storage, from which the liquid
condensate can either be transferred to permanent tanks or to portable
totes. Traps located in the liquid discharge line from the condensers
collect the condensate. It is then sent off-site for incineration at a
RCRA permitted facility.
    The liquid condensate is more amenable to combustion than the
untreated waste.\11\ Incineration of the liquid condensate optimizes
the destruction of toxic organics and yields a smaller volume of post-
incineration waste. The liquid condensate also contains only
approximately 5% of the total amount of radionucliides in the untreated
waste and presents a significantly lower potential for radioactive
materials to be emitted to the atmosphere through the combustion
process.
---------------------------------------------------------------------------

    \11\ Analytical data on the organic condensate and solid process
residuals from VTD demonstration tests completed in August and
September of 2004 and October of 2006 can be found in the docket
supporting this rulemaking.
---------------------------------------------------------------------------

    The off-gas emission is vented to the atmosphere through a stack
that discharges approximately 35 feet above ground level. The gas
emission leaves the APC system and its exit velocity is boosted with
outside air through a blower in order to provide good dispersion of any
remaining emissions. The APC system also is designed to allow the
carrier gas to be recycled back to the dryer. System data are displayed
as an electronic process flow diagram that is continuously monitored by
trained technicians. Dryer temperature, dryer pressure, oxygen level
and off-gas exit temperature are included in the parameters that are
measured.\12\
---------------------------------------------------------------------------

    \12\ More detailed information on the EnergySolutions' VTD
technology process can be found in the docket for this rulemaking.
---------------------------------------------------------------------------

    The facility currently ships separately the solid treatment
residue, containing the majority of the radionucliides (over 95%) and
negligible concentration of organics to its on-site hazardous mixed
waste landfill, and the liquid condensate, containing the majority of
the organic constituents, to an incinerator to meet the CMBST
requirement. The incineration takes place in a unit permitted for both
the radioactive component and for RCRA hazardous wastes.\13\
---------------------------------------------------------------------------

    \13\ There are only two permitted mixed waste incinerators in
the U.S. These facilities, due to the operational design of their
units, have greater available capacity to accept liquid condensate
waste and have a backlog of solid mixed wastes.
---------------------------------------------------------------------------

IV. EPA's Reasons for Granting This Variance

    EPA has determined that given the similarities in chemical and
physical properties and separation characteristics between the SVOC and
VOC mixed waste and the P and U-listed mixed wastes, that processing
the P and U-listed mixed waste through the VTD unit will achieve the
same level of treatment achieved for the SVOC and VOC mixed wastes
(i.e., 99.99% removal in the solid treatment residue). Furthermore, EPA
has concluded that subsequent combustion of the solid treatment residue
from the VTD unit will not substantially reduce its toxicity so that
subsequent treatment by the required treatment standard of CMBST is
unnecessary and will achieve no additional benefit. This is because the
solid treatment residue has negligible concentrations of the residual
organics. Put another way, EPA has determined

that additional treatment with CMBST, as required by the treatment
standard of CMBST, is technically inappropriate due to the
effectiveness of the VTD treatment unit for the removal of organic
constituents. Therefore, EPA is taking direct final action to grant a
site-specific treatment variance to EnergySolutions for an alternative
treatment standard of VTD for the land disposal of solid treatment
residue from the treatment of certain P and U-listed mixed waste.
    Not only would further treatment of the residue be technically
inappropriate, but it could have environmentally detrimental effects.
Under their state-issued Part B permit, EnergySolutions is required to
operate the VTD unit so that most (generally over 95%) of the
radioactive component remains in the solid treatment residue.\14\
Combustion of that treatment residue could release some of the
radioactive component to the atmosphere through the combustion process.
To limit this potential, the Agency believes that processing the P and
U-listed hazardous wastes through the VTD unit followed by disposal of
the solid treatment residue in the on-site hazardous mixed waste
landfill is environmentally preferable.
---------------------------------------------------------------------------

    \14\ Data relating to radiochemical properties of the condensate
generated through the process is included in the docket supporting
this rulemaking.
---------------------------------------------------------------------------

V. Conditions of the Variance

    Although EPA believes the applicant has made a technically sound
presentation, and believes further from study of the VTD process that
it should continue to result in highly effective treatment, EPA (and
the applicant, and the State of Utah (the authorized permit-issuer))
believes that conditions can and should be imposed on the treatment
process to assure its continued effective operation. Therefore, as a
condition of its RCRA permit, EnergySolutions is required to submit to
the State of Utah all the appropriate data and documentation to support
a RCRA Part B permit modification addressing the treatment of these P
and U-listed mixed wastes using VTD. Most significantly for purposes of
the treatment variance, this submission is to include a new WFDT plan
for the P and U-listed mixed wastes developed by the facility and
approved by the State of Utah. This plan identifies the surrogate
compounds that reflect treatment of the most difficult to treat CMBST-
coded organic compounds (e.g., those with the highest vapor pressures
and boiling points).\15\ Surrogates will have to be selected to measure
the level of treatment of the organic compounds that do not have
analytical methods of detection or quantification. The RCRA permit,
when modified, will require compliance with this plan for each batch of
P and U-listed mixed waste that requires CMBST.\16\ EPA's site-specific
treatment variance is conditioned on EnergySolutions' adhering to the
WFDT plan specifically addressing the treatment of these P and U-listed
wastes and implemented through a RCRA Part B permit modification for
the VTD unit.
---------------------------------------------------------------------------

    \15\ The objectives of the WFDT are: (1) Determine if the P and
U-listed hazardous wastes that have CMBST as the LDR treatment
standard are amenable to VTD processing and that the processed
material meets LDR standards for all analyzable P and U hazardous
organic constituents; (2) identify and justify representative
surrogate compounds for the demonstration for those P and U
hazardous organic constituents that do not have an analytical method
of detection; (3) determine the optimal operational and system
parameters for the new waste family that will ensure at least 99.99
percent removal efficiency is attained for such hazardous wastes;
(4) account for toxic waste constituents through material balances;
(5) verify compliance of the VTD unit with all applicable conditions
of the EnergySolutions' state-issued Part B Permit; and (6)
determine concentration levels for the hazardous organic
constituents in treatment residuals to determine they are below
analytical reporting levels, including surrogate compounds chosen
for non-analyzable or difficult to treat organics.
    \16\ If the conditions outlined in the WFDT plan are not met for
each batch of P and U-listed mixed waste, EnergySolutions must re-
treat the batch of waste to meet the conditions established in the
plan or send the waste off-site for CMBST.
---------------------------------------------------------------------------

    A WFDT plan is required in the state-issued Part B permit for every
new waste type to be treated in the EnergySolutions' VTD unit. Because
many of the organic chemicals in P and U-listed hazardous waste do not
have analytical methods for detection or quantification, the WFDT plan,
as required by the permit, will need to identify individual surrogate
compounds that reflect treatment of the non-analyzable organic
compounds in the waste family. The volatility of each target
contaminant is the most important factor in thermal desorption
separation.\17\ Most of these chemicals (99 of 139) have boiling points
less than 200[deg]C, 28 have boiling points between 200[deg]C and
300[deg]C, seven have boiling points between 300[deg]C and 400[deg]C,
four have boiling points between 400[deg]C and 500[deg]C, and only one
of the compounds has a boiling point greater than 500[deg]C; at
534[deg]C. The VTD system is permitted to operate at temperatures up to
650[deg]C. Based on the volatility of the organic constituents in the
boiling point table and the operational temperature of the VTD unit,
processing these P and U-listed hazardous waste through the VTD system
can be expected to remove the organic constituents (especially those
organics requiring CMBST) from the solid material and concentrate them
within the liquid condensate, including the surrogates chosen to
represent the non-analyzable P and U-listed organic constituents.
---------------------------------------------------------------------------

    \17\ The CMBST Code Boiling Point Table is included in the
docket supporting this rulemaking. It provides boiling point data
for those non-analyzable hazardous organics that require CMBST as
the LDR treatment standard.
---------------------------------------------------------------------------

    Surrogates are also used to measure the performance of the VTD
unit. Rather than test each specific organic constituent associated
with each waste family, the facility chooses surrogate compounds to
represent the most difficult to treat organic chemicals in the entire
waste family matrix (i.e., highest boiling points and pressure vapors).
The WFDT plan must identify these surrogate compounds to be spiked into
the waste as indicators for the entire waste family performance in the
VTD unit.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
This action grants a site-specific treatment variance to
EnergySolutions for the treatment of certain P and U-listed mixed
wastes using VTD instead of the treatment standard required under
RCRA's LDR program, CMBST. However, the Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations at 40 CFR 268.42 and .44 under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number 2050-0085. 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 site-specific treatment variance does not create any new
requirements.

Rather, it establishes an alternative treatment standard for specific
waste codes and applies to only one facility. Therefore, we hereby
certify that this rule will not add any new regulatory requirements to
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 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 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 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 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.
EnergySolutions will obtain from the State of Utah a RCRA permit
modification for their VTD unit to treat these P- and U-listed wastes.
This action, however, does not impose any new duties on the state's
hazardous waste program. EPA has determined, therefore, that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments in that the authority for this action
already exists with the State of Utah.

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'' are 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 finalizes a site-
specific treatment variance applicable to 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'' (59 FR 22951, 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 treatment variance that applies to only one
facility, which is not a tribal facility or located on tribal lands.
Thus, Executive Order 13175 does not apply to this rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
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 Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.

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. 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. Therefore, EPA
did not consider the use of any voluntary consensus standards.

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

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this direct final rule will not have a
disproportionately high and adverse human health or environmental
effects

on minority or low-income populations because it does not affect the
level of protection provided to human health or the environment. The
treatment variance being finalized applies to certain P and U-listed
mixed waste that is treated in an existing, permitted RCRA facility,
ensuring protection to human health and the environment. Therefore, the
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 Act

    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. 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. 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). This rule will be effective May 5, 2008.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Mixed waste and
variances.

    Dated: February 28, 2008.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.

0
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

0
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

0
2. In Sec.  268.42, the table in paragraph (a) is amended by adding in
alphabetical order an entry for ``VTD'' to read as follows:

Sec.  268.42  Treatment standards expressed as specified technologies.

* * * * *
    (a) * * *

------------------------------------------------------------------------
      Technology code         Description of technology-based standards
------------------------------------------------------------------------

                              * * * * * * *
VTD........................  Vacuum thermal desorption of low-level
                              radioactive hazardous mixed waste in units
                              in compliance with all applicable
                              radioactive protection requirements under
                              control of the Nuclear Regulatory
                              Commission.

                              * * * * * * *
------------------------------------------------------------------------

0
3. In Sec.  268.44, the table in paragraph (o) is amended by adding in
alphabetical order an entry for ``EnergySolutions LLC, Clive, UT'' and
adding a new footnote 14 to read as follows:

Sec.  268.44  Variance from a treatment standard.

* * * * *
    (o) * * *

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                                                                                Wastewaters                    Nonwastewaters
                                                                           Regulated     ---------------------------------------------------------------
 Facility name \1\ and  address      Waste code          See also          hazardous      Concentration (mg/             Concentration (mg/
                                                                          constituent             L)            Notes           kg)             Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                       * * * * * *
EnergySolutions LLC, Clive, UT   P and U-listed     Standards under    NA...............  NA...............  NA........  CMBST or VTD.....  NA.
 \14\.                            hazardous waste    Sec.   268.40.
                                  requiring CMBST.

                                                                      * * * * * * *
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\1\ A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
* * * * * * *
\14\ This site-specific treatment variance applies only to the solid treatment residue resulting from the vacuum thermal desorption (VTD) of P and U-
  listed hazardous waste containing radioactive contamination (``mixed waste'') at the EnergySolutions' LLC (EnergySolutions) facility in Clive, Utah
  that otherwise requires CMBST as the LDR treatment standard. Once the P and U-listed mixed waste are treated using VTD, the solid treatment residue
  can be land disposed at EnergySolutions' onsite RCRA permitted hazardous mixed waste landfill without further treatment. This treatment variance is
  conditioned on EnergySolutions complying with a Waste Family Demonstration Testing Plan specifically addressing the treatment of these P and U-listed
  wastes, with this plan being implemented through a RCRA Part B permit modification for the VTD unit. Note: NA means Not Applicable.

 [FR Doc. E8-4449 Filed 3-5-08; 8:45 am]

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