[Federal Register Volume 59, Number 34 (Friday, February 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3745]
[[Page Unknown]]
[Federal Register: February 18, 1994]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 261
Identification and Listing of Hazardous Waste, Treatability Studies
Sample Exclusion; Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-4838-5]
Hazardous Waste Management System: Identification and Listing of
Hazardous Waste; Treatability Studies Sample Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: On July 7, 1993, the Environmental Protection Agency (EPA)
proposed revisions to the Treatability Studies Sample Exemption Rule.
The rule conditionally exempts small scale treatability studies from
Subtitle C regulation.
EPA is today issuing a final rule. The principal change to the
existing rule is to increase the quantity of contaminated media which
are conditionally exempt from Subtitle C regulation when used in
conducting treatability studies.
EFFECTIVE DATE: This rule becomes effective on February 18, 1994.
ADDRESSES: The public docket for this rulemaking is located in the RCRA
docket, located in room M2427 at the U.S. Environmental Protection
Agency, 401 M St. SW., Washington, DC 20460. The telephone number for
the docket is (202) 260-9327. The record is available for inspection by
appointment only, between the hours of 9 a.m. and 4 p.m., Monday
through Friday, excluding legal holidays. Viewers may copy up to 100
pages free of charge, after which copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: Questions relating to the technical
content of this rule should be directed to Jim Cummings or John
Kingscott, Technology Innovation Office (5102W), U.S. Environmental
Protection Agency at (703) 308-8796 or (703) 308-8749. Other inquiries
should be directed to the RCRA/Superfund Hotline at (800) 424-9346 or
(703) 920-9810.
SUPPLEMENTARY INFORMATION:
Outline
I. Background
II. Discussion
A. Summary of Existing Treatability Sample Exclusion Rule
B. Need and Rationale for This Rulemaking
C. Response to Major Comments
1. Quantity Limits
2. Scope of the Exemption
3. Time Limits for Sample Retention
4. Variances for Processing Additional Quantities and Extended
Time Limits
5. Treatability Studies at Federal Facilities
6. Promulgation/State Adoption
III. State Authority
IV. Effective Date
V. Regulatory Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Background
On July 19, 1988 (52 FR 27290), EPA issued a rule that
conditionally exempted from Subtitle C hazardous waste regulation waste
samples collected for purposes of conducting small-scale treatability
studies. 40 CFR 261.4 (e)-(f). This rule was promulgated in recognition
of the inhibiting effect of the stringent Resource Conservation and
Recovery Act (RCRA) Subtitle C requirements on the development of new
treatment capacity, and the minimal public health and environmental
risks involved in conducting small-scale treatability studies. The rule
identified specific quantities of various types of wastes which could
be transported, stored and used in treatability studies without the
need for RCRA Subtitle C regulation.
On July 7, 1993 (58 FR 36367), EPA proposed amendments to the
existing rule which would increase the quantity limits for major
classes of contaminated media (specifically soil and debris) which
could be employed in treatability studies without triggering RCRA
Subtitle C requirements. The proposal was based in part on the
recognition that larger quantities of soil and debris were often needed
for treatability testing by technology developers. Larger-scale testing
also greatly increases the confidence with which remedial action
decision-makers make remedy selection decisions, thus improving CERCLA
response activities and RCRA corrective actions, see 58 FR 36367,
36370.
EPA also requested comment on the desirability of an amendment to
increase the quantity limits for other forms of remediation waste in
addition to soil and debris. The proposal also included an amendment
which would allow longer time frames for conducting treatability
studies involving bioremediation, and solicited comment on appropriate
time limits for other technologies. EPA did not request comment on, or
reopen the comment period on, the propriety of the existing exemption.
Twenty-seven comments were received in response to the proposed
rule. The comments were universally favorable regarding the need for
and desirability of increasing the treatability study quantity limits.
A substantial majority of the comments favored extending the scope
beyond soil and debris to other forms of remediation and/or hazardous
waste. General reasons offered by commenters mirror those stated in the
proposed rule, e.g., assisting technology development and increasing
confidence in remedy selection.
EPA is today issuing a final rule which increases the quantity and
time limits for contaminated media to be used in treatability studies.
The rule would increase the exempt amounts from 1000 kg up to 10,000 kg
of media contaminated with non-acute hazardous waste and from 250 kg to
2500 kg of media contaminated with acute hazardous, when used in
treatability studies.
The existing case-by-case variance provision (40 CFR 261.4(e)(3))
is increased from 500 kg to 5000 kg for media contaminated with non-
acute hazardous waste and from 250 kg to 2500 kg for media contaminated
with acute hazardous waste. The existing variance provision focuses on
allowing limited additional quantities after the initial increment of
material is processed. EPA is adding criteria to the variance provision
to allow the additional quantity to be requested in advance.
EPA is also increasing the time limits for treatability studies
involving bioremediation. Treatability studies involving bioremediation
have an initial period of two years to complete testing, and under the
case-by-case variance provisions discussed below, may request up to an
additional two years.
The remainder of the preamble discusses the major comments received
on the proposed rule and EPA's response to them. All other comments are
discussed in a background document that is available in the RCRA
docket.
II. Discussion
A. Summary of the Existing Treatability Sample Exclusion Rule
The existing Treatability Sample Exclusion rule imposes limits on
the quantity of material which may be shipped, stored or treated under
the exemption. In order to qualify for the conditional exclusion,
laboratory and test facilities must comply with the following quantity
and time limitations as well as notification, reporting and record-
keeping requirements:
Shipment--The mass of each sample shipment may not exceed 1000 kg
of ``as received'' hazardous waste, 1 kg of acute hazardous waste, or
250 kg soils, water, or debris contaminated with acute hazardous waste.
40 CFR 261.4(e)(2)(ii). ``As received'' refers to the waste shipped by
the generator or sample collector as it arrives at the laboratory or
testing facility. 40 CFR 261.4(f)(3).
Storage--The laboratory or testing facility may store up to 1000 kg
of non-acute hazardous waste. This limitation can include 500 kg of
soils, water, or debris contaminated with acute hazardous waste or 1 kg
of acute hazardous waste. 40 CFR 261.4(f)(4).
Treatment--The laboratory or testing facility, on a per waste
stream per treatment process basis, may conduct treatability tests on
up to 1000 kg of non-acute hazardous waste, 250 kg of soils, water, or
debris contaminated with acute hazardous waste, or 1 kg of acute
hazardous waste. 40 CFR 261.4(e)(2)(i). The rule imposes a treatment
initiation rate limit of 250 kg per day of ``as received'' waste for
the entire laboratory or testing facility.
Time Limits--The existing exclusion requires that the laboratory or
testing facility return the sample to the generator or sample
collector, or send it to a designated facility within 90 days of
completion of the treatability study, or no more than one year from the
time the generator or sample collector shipped the sample to the
laboratory or testing facility, whichever date first occurs. 40 CFR
261.4(f)(5).
EPA did not seek comment on the propriety of these exemption levels
or criteria, but merely sought comment on amendments that would expand
the scope of the existing rule.
B. Need and Rationale for Amendments to the Existing Rule
The preamble to the proposed rule contained an extensive discussion
of the reasons the Agency felt that amendments to the existing rule
were desirable. 58 FR 36367 (July 7, 1993). Interested readers are
referred to that document for further information.
C. Response to Major Comments
1. Quantity Limits
All commenters supported an amendment to increase the quantity
limits in the exemption for soil and debris samples by at least the
quantities proposed. Almost 50% of the comments suggested adopting
higher exemption limits on either an across-the-board or a case-by-case
basis.
Commenters noted the significant challenges posed in designing and
verifying the operational performance of treatment processes.
Commenters also noted the challenges encountered in designing and
testing ancillary system components--e.g., material handling equipment
(getting the waste material into the treatment unit in an appropriate
physical state and condition), and emission control equipment. Smaller-
scale tests conducted at the laboratory or bench scale often do not
involve ancillary system components, or may not utilize sufficient
throughput to adequately test these components.
Suggestions to further increase the quantity limits ranged as high
as 25,000 kg. Other comments suggested that quantity limits higher than
those proposed be set on a case-by-case basis. These comments
identified site size, the nature of the waste and/or the remediation
technology, the concentration of hazardous constituents in the waste
matrix, and the intent of the study as possible factors to be
considered in these case-by-case determinations.
EPA is aware that the larger the scale of the technology
development or remedy selection treatability study, the more likely the
results will represent the performance of full-scale remedial
equipment. Furthermore, EPA's proposal identified the need to address
materials handling problems as a major basis for the proposed revision.
The data adduced by EPA in the proposed rule support the conclusion
that many of the technologies can be tested within the limits proposed.
Nevertheless, EPA's own data also confirm that there are situations
where additional quantities may be necessary in order to conduct
treatability studies at an appropriate scale.
The existing rule has a provision for case-by-case approval of
additional quantities. 40 CFR 261.4(e)(3). As discussed further below,
EPA is modifying the variance provision to allow advance approval, on a
case-by-case basis, of conducting studies on additional quantities of
contaminated media. Due to the potential for delay in processing case-
by-case applications, laboratory and testing facilities should
carefully consider the tradeoffs in seeking advance approval of
additional quantities.
2. Scope of the Exemption
All comments supported the basic proposal to increase the quantity
limits for soil and debris. In response to EPA's solicitation of
comment on increasing the scope of the revision beyond soil and debris,
a substantial majority of the comments recommended extending the
quantity increases to various other forms of hazardous waste. Comments
differed on the exact scope beyond soil and debris--e.g., all hazardous
waste, `remediation waste', wastewater and/or groundwater.
Reasons suggested for increasing the scope beyond soil and debris
included the difficulty of determining the boundary between sludge and
media in, for example, unlined lagoons; the low concentration of
contaminants in groundwater; the need for longer-duration continuous
flow tests; and the need to develop integrated, optimized remediation
approaches in the case of `remediation waste' in general. A number of
commenters also suggested extending the increases to all forms of
hazardous waste, which would include newly-generated industrial
hazardous wastes.
In response to these comments, and in light of EPA's own experience
regarding the variety of contaminated media encountered in cleanup
efforts, EPA is at this time modifying the scope of the exemption to
reach contaminated media, including groundwater, surface water, soils,
sediment and debris that contain listed hazardous waste or that
themselves exhibit a characteristic. However, the proposal did not
focus on samples of newly-generated waste or waste sludges, and the
Agency is not taking final action of those materials at this time. EPA
is considering additional rulemaking to address larger scale
treatability studies on other forms of hazardous waste.1
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\1\As noted by several commenters, sludges will have often
become commingled with underlying media, and present difficulty for
those attempting to collect media samples for shipment. EPA agrees
that it may be difficult to distinguish sludges from underlying
media. Where uncontainerized sludges have come into contact with
underlying media, EPA does not expect sample collectors to undertake
extraordinary efforts to assure that samples consist only of
contaminated media.
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3. Time Limits for Sample Retention
As discussed above, EPA proposed to allow up to two years for
treatability studies involving bioremediation. EPA solicited comment on
whether these time frames were sufficient, and whether testing
involving other technologies also required longer time frames. No
negative comments were received on this proposal. Comments included
suggestions that the allowable time period be even longer and/or that
additional technologies (e.g., phytoremediation and solidification/
stabilization) be eligible for longer duration studies.
With regard to the time limits, EPA believes that two years should
be adequate for most treatability testing involving
bioremediation.2 Nevertheless, as discussed below, EPA is
modifying the case-by-case variance provisions to allow up to an
additional two years for completion of such studies.
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\2\As a point of clarification, for purposes of this rule, EPA
considers phytoremediation to be a form of bioremediation.
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EPA expects that this provision will be used judiciously.
Laboratory and testing facilities cannot exceed the limits in the rule
on the amount of material which may be stored and treated. (e.g.,
10,000 kg of media contaminated with non-acute hazardous waste plus
5000 kg if a full variance quantity request is granted). On-going
studies reduce the quantity of materials which may be stored for use in
new studies.
With regard to stabilization/solidification, EPA's experience in
the Superfund Innovative Technology Evaluation (S.I.T.E.) program
indicates that a one-year time frame is generally adequate.
Modifications discussed below which allow retaining small samples of
treated materials should address some of the concerns underlying
suggestions for allowing longer duration studies for this technology
(e.g., to ensure the long-term efficacy of the stabilization).
Several comments addressed the desirability of retaining samples of
treated material for future analysis. EPA understands that such a
provision may be useful for technologies such as solidification/
stabilization where the attributes of treated material such as
compressive strength and leachability of contaminants may change over
time, or solvent extraction where there may be issues of the long-term
biodegradability of residual solvent in treated soil.
In response to these comments, EPA is promulgating a provision
allowing up to 500 kg of treated material from a particular wastestream
from treatability studies to be stored by the laboratory or testing
facility for up to 5 years. Material archived for future analysis must
be included in the storage quantity limit for the facility--e.g., a
facility which archives two 500 kg samples from separate waste streams
may only store up to 9,000 kg (plus 5000 kg if a variance is granted)
of additional material, and must be identified as such in facility
records and reports.
4. Variances for Requesting Additional Quantities and Extended Time
Limits
Several commenters suggested that the variance provisions in the
existing rule (40 CFR 261.4(e)(3)) be increased by the same factor
applied to the base quantity allowed. For example, under the existing
rule laboratories or testing facilities could request approval for
further testing on up to an additional 500 kg from a particular
wastestream. Comments included raising the variance limit for
contaminated media by the same amount as the basic proposal. The
variance provisions allow additional quantities of materials to be used
in treatability studies on a case-by-case basis if specified conditions
are met--e.g., mechanical failure during the initial treatability study
or need to verify the results of a previously conducted study. As with
the comments relating to quantity limits in general, commenters
suggested across-the-board and case-by-case approaches to variances.
EPA finds the suggestion to allow increased quantities of
contaminated media to a set maximum on a case-by-case basis to be
reasonable. EPA is modifying the variance quantity by the same factor
by which it is increasing the basic quantity limit.
Thus, laboratory and testing facilities may request up to an
additional 5000 kg of media contaminated with non-acute hazardous
waste, or 2500 kg of media contaminated with acute hazardous waste. The
Agency considers this to be a conforming change to the general concept
of allowing larger quantity studies, and views it as a logical
outgrowth of the proposed rule.
Furthermore, as discussed above, in response to comments that
quantities beyond those proposed be allowed on a case-by-case basis,
EPA is also adding a provision that will allow laboratory and testing
facilities to apply for advance authorization for variances. Factors to
be considered in reviewing advance requests for additional quantities
include the nature of the technology, the type of process (e.g., batch
versus continuous), size of the unit undergoing testing (particularly
in relation to scale-up considerations), time/quantity of material
required to reach steady-state operating conditions, and test design
considerations such as mass balance calculations.
Finally, the case-by-case variance provision has been modified to
allow laboratory and testing facilities conducting bioremediation
treatability studies to request a variance of up to two additional
years to complete their studies.
5. Treatability Studies at Federal Facilities
Several comments requested clarification of the status of federal
facilities for purposes of eligibility for the treatability study
sample exclusion. Federal facilities are often large in size, with
numerous different contamination problems for which solutions must be
developed and applied. EPA notes that the rule identifies ``laboratory
or test facilities'' as the entities which may take advantage of the
conditional exclusion. The Agency would not consider a large federal
installation with numerous laboratories or testing sites to be a single
``laboratory or test facility'' for purposes of this rule.
Distinguishing attributes include the requirement to obtain an EPA
Identification number for each laboratory or test facility. 40 CFR
261.4(f)(2).
6. Promulgation/State Adoption
Comments on State Authorities are addressed below in the ``State
Authority'' section.
III. State Authority
A number of comments indicated that the efficacy of this rule
depends to a considerable extent on the availability of the exclusion
at the State level. Since the original treatability sample exclusion
rule was promulgated under RCRA and not the Hazardous and Solid Waste
Act Amendments of 1984 (HSWA), this revision is also promulgated
pursuant to RCRA. As with the existing rule, the revisions promulgated
today are not immediately effective in authorized States, since this
rulemaking does not impose requirements or prohibitions contained in
HSWA. Thus this regulation will be applicable only in those States that
do not have final authorization for the non-HSWA base RCRA program.
In a State authorized to implement the base RCRA program, the
proposed regulation would not be applicable until the State revises its
program to adopt equivalent regulations under State law. However, as
with the original rule these proposed changes are less stringent or
reduce the scope of the Federal program. Therefore, although EPA
strongly encourages timely adoption, authorized States are not required
to modify their programs to adopt regulations consistent with and
equivalent to this rulemaking. The Agency plans to work with States to
encourage timely adoption of this rule because of its benefits to the
development of treatment capacity.
IV. Effective Date
This rule is effective immediately upon publication. HSWA amended
section 3010 of RCRA to allow rules to become effective in less than 6
months when the regulated community does not need the 6-month period to
come into compliance. This is the case here, because this rule reduces
the existing requirements for laboratories and test facilities
conducting treatability studies on contaminated media. An effective
date 6 months after publication would impose unnecessary expense and
regulatory burden upon those persons the rule is designed to benefit,
and might delay the achievement of the rule's objective of improving
CERCLA response activities and RCRA corrective actions by facilitating
treatability studies. These reasons also provide a basis for making
this rule effective immediately upon final promulgation under the
Administrative Procedures Act, 5 U.S.C. 553(d).
V. Regulatory Analyses
A. Executive Order 12866
OMB has determined that this rule is not a significant rule within
the meaning of Executive Order 12866.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
whenever an Agency is required to publish general notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
impact of the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions).
The purpose of the original rule was to eliminate time-consuming
and costly permitting requirements. This revision extends the scope of
activities which may be conducted without requirements to obtain
permits, and will thus have additional positive effects on small
entities.
This amendment will have no adverse economic impact on small
entities. In fact, it should reduce the burden imposed on small
entities that conduct treatability studies and comply with the
provisions of this rulemaking. Accordingly, I hereby certify that this
rule will not have a significant economic impact on a substantial
number of small entities. This regulation therefore does not require a
regulatory flexibility analysis.
C. Paperwork Reduction Act
This rule does not contain any new information collection
requirements subject to OMB review under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq.
To the extent that this rule discusses information collection
requirements imposed under existing regulations, these requirements
have been approved by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and have been
assigned OMB control number 2050-0053.
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling.
Dated: February 9, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations is amended to read as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. Section 261.4 is amended by revising paragraphs (e)(2)(i) and
(e)(2)(ii), (e)(3), (f)(3), (f)(4), and (f)(5) to read as follows:
Sec. 261.4 Exclusions.
* * * * *
(e) * * *
(2) * * *
(i) The generator or sample collector uses (in ``treatability
studies'') no more than 10,000 kg of media contaminated with non-acute
hazardous waste, 1000 kg of non-acute hazardous waste other than
contaminated media, 1 kg of acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste for each process being
evaluated for each generated waste stream; and
(ii) The mass of each sample shipment does not exceed 10,000 kg;
the 10,000 kg quantity may be all media contaminated with non-acute
hazardous waste, or may include 2500 kg of media contaminated with
acute hazardous waste, 1000 kg of hazardous waste, and 1 kg of acute
hazardous waste; and
* * * * *
(3) The Regional Administrator may grant requests on a case-by-case
basis for up to an additional two years for treatability studies
involving bioremediation. The Regional Administrator may grant requests
on a case-by-case basis for quantity limits in excess of those
specified in paragraphs (e)(2) (i) and (ii) and (f)(4) of this section,
for up to an additional 5000 kg of media contaminated with non-acute
hazardous waste, 500 kg of non-acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste and 1 kg of acute hazardous
waste:
(i) In response to requests for authorization to ship, store and
conduct treatabilty studies on additional quantities in advance of
commencing treatability studies. Factors to be considered in reviewing
such requests include the nature of the technology, the type of process
(e.g., batch versus continuous), size of the unit undergoing testing
(particularly in relation to scale-up considerations), the time/
quantity of material required to reach steady state operating
conditions, or test design considerations such as mass balance
calculations.
(ii) In response to requests for authorization to ship, store and
conduct treatability studies on additional quantities after initiation
or completion of initial treatability studies, when: There has been an
equipment or mechanical failure during the conduct of a treatability
study; there is a need to verify the results of a previously conducted
treatability study; there is a need to study and analyze alternative
techniques within a previously evaluated treatment process; or there is
a need to do further evaluation of an ongoing treatability study to
determine final specifications for treatment.
(iii) The additional quantities and timeframes allowed in paragraph
(e)(3) (i) and (ii) of this section are subject to all the provisions
in paragraphs (e) (1) and (e)(2) (iii) through (vi) of this section.
The generator or sample collector must apply to the Regional
Administrator in the Region where the sample is collected and provide
in writing the following information:
(A) The reason why the generator or sample collector requires
additional time or quantity of sample for treatability study evaluation
and the additional time or quantity needed;
(B) Documentation accounting for all samples of hazardous waste
from the waste stream which have been sent for or undergone
treatability studies including the date each previous sample from the
waste stream was shipped, the quantity of each previous shipment, the
laboratory or testing facility to which it was shipped, what
treatability study processes were conducted on each sample shipped, and
the available results on each treatability study;
(C) A description of the technical modifications or change in
specifications which will be evaluated and the expected results;
(D) If such further study is being required due to equipment or
mechanical failure, the applicant must include information regarding
the reason for the failure or breakdown and also include what
procedures or equipment improvements have been made to protect against
further breakdowns; and
(E) Such other information that the Regional Administrator
considers necessary.
(f) * * *
(3) No more than a total of 10,000 kg of ``as received'' media
contaminated with non-acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste or 250 kg of other ``as
received'' hazardous waste is subject to initiation of treatment in all
treatability studies in any single day. ``As received'' waste refers to
the waste as received in the shipment from the generator or sample
collector.
(4) The quantity of ``as received'' hazardous waste stored at the
facility for the purpose of evaluation in treatability studies does not
exceed 10,000 kg, the total of which can include 10,000 kg of media
contaminated with non-acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste, 1000 kg of non-acute hazardous
wastes other than contaminated media, and 1 kg of acute hazardous
waste. This quantity limitation does not include treatment materials
(including nonhazardous solid waste) added to ``as received'' hazardous
waste.
(5) No more than 90 days have elapsed since the treatability study
for the sample was completed, or no more than one year (two years for
treatability studies involving bioremediation) have elapsed since the
generator or sample collector shipped the sample to the laboratory or
testing facility, whichever date first occurs. Up to 500 kg of treated
material from a particular waste stream from treatability studies may
be archived for future evaluation up to five years from the date of
initial receipt. Quantities of materials archived are counted against
the total storage limit for the facility.
* * * * *
[FR Doc. 94-3745 Filed 2-17-94; 8:45 am]
BILLING CODE 6560-50-P
