[Federal Register Volume 60, Number 162 (Tuesday, August 22, 1995)]
[Proposed Rules]
[Pages 43654-43699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20623]
[[Page 43653]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 148 et al.
Land Disposal Restrictions--Phase IV: Issues Associated With Clean
Water Act Treatment Equivalency, and Treatment Standards for Wood
Preserving Wastes and Toxicity Characteristic Metal Wastes; Proposed
Rule
Federal Register / Vol. 60, No. 162 / Tuesday, August 22, 1995 /
Proposed Rules
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[[Page 43654]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 148, 268, and 271
[EPA530-Z-95-011; FRL-5280-6]
RIN 2050 AE05
Land Disposal Restrictions--Phase IV: Issues Associated With
Clean Water Act Treatment Equivalency, and Treatment Standards for Wood
Preserving Wastes and Toxicity Characteristic Metal Wastes
AGENCY: Environmental Protection Agency (EPA, the Agency).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is addressing issues
arising from the September 25, 1992 decision of the U.S. Court of
Appeals in Chemical Waste Management v. EPA, 976 F. 2d (D.C. Cir. 1992)
on the equivalency of treatment in wastewater treatment systems
regulated under the Clean Water Act (CWA) to treatment required by the
Resource Conservation and Recovery Act (RCRA). Specifically, the Agency
is considering whether to regulate potential releases, to air or ground
water, of hazardous constituents from surface impoundments treating
wastes that were hazardous when generated, but have been diluted to
render them nonhazardous. Such wastes are prohibited from land disposal
unless adequately pretreated.
In addition, EPA is proposing treatment standards under the land
disposal restrictions (LDR) program for wastes from wood preserving
operations and for Toxicity Characteristic (TC) metal wastes. These
treatment standards, when finalized, must be met in order to land
dispose these hazardous wastes.
These potential requirements and treatment standards must be
proposed by August 11, 1995 to satisfy the terms of a proposed consent
decree and a settlement agreement.
Today's proposal also includes simplified land disposal
requirements, streamlined state authorization procedures, a proposal
not to ban ``nonamenable'' wastes from treatment impoundments, and
discussion of a possible exclusion from regulations for certain
recycled wastes from wood preserving operations.
DATES: Comments on this proposed rule must be submitted by November 20,
1995.
ADDRESSES: The public must send an original and two copies of their
comments to Docket Number F-95-PH4P-FFFFF, located in the EPA RCRA
Docket, U.S. Environmental Protection Agency, room 2616, 401 M Street,
SW., Washington, DC 20460. (Also see the section under SUPPLEMENTARY
INFORMATION: regarding the paperless office effort for submitting
public comments.) The RCRA Docket is open from 9:00 am to 4:00 pm
Monday through Friday, except for Federal holidays. The public must
make an appointment to review docket materials by calling (202) 260-
9327. The public may copy a maximum of 100 pages from any regulatory
document at no cost. Additional copies cost $0.15 per page. The mailing
address is EPA RCRA Docket (5305), U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT:
For general information, contact the RCRA Hotline at (800) 424-9346
(toll-free) or (703) 412-9810. For specific information, contact the
Waste Treatment Branch (5302W), Office of Solid Waste (OSW), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; phone (703) 308-8434. For technical information regarding
standards for Clean Water Act (CWA) systems, ask for Mary Cunningham or
Elaine Eby; for technical information on the treatment standards for
wood preserving wastes, ask for Jose Labiosa; for TC metal wastes, ask
for Anita Cummings. For policy questions, ask for Sue Slotnick. For
questions on the clean-up of the Part 268 regulations, ask for Douglas
Heimlich. For information on the capacity analyses, ask for Pan Lee of
the Capacity Programs Branch (OSW), phone (703) 308-8440. For
information on the regulatory impact analyses, contact Linda Martin of
the Regulatory Analysis Branch (OSW), phone (202) 260-0062.
SUPPLEMENTARY INFORMATION:
Paperless Office Effort
EPA is asking prospective commenters to voluntarily submit one
additional copy of their comments on labeled personal computer
diskettes in ASCII (TEXT) format or a word processing format that can
be converted to ASCII (TEXT). It is essential to specify on the disk
label the word processing software and version/edition as well as the
commenter's name. This will allow EPA to convert the comments into one
of the word processing formats utilized by the Agency. Please use
mailing envelopes designed to physically protect the submitted
diskettes. EPA emphasizes that submission of comments on diskettes is
not mandatory, nor will it result in any advantage or disadvantage to
any commenter. Rather, EPA is experimenting with this procedure as an
attempt to expedite our internal review and response to comments. This
expedited procedure is in conjunction with the Agency ``Paperless
Office'' campaign. For further information on the submission of
diskettes, contact the Waste Treatment Branch at the phone number
listed above.
Glossary of Acronyms and Terms
BDAT--Best Demonstrated Available Technology
CAA--Clean Air Act
CWA--Clean Water Act
EP--Extraction Procedure
HSWA--Hazardous and Solid Waste Amendments (to RCRA)
ICR--ignitable, corrosive, and reactive wastes, or, Information
Collection Request (in section XI.D.)
ICRT--ignitable, corrosive, reactive, and toxic characteristic
wastes
ICT--ignitable, corrosive, and toxic characteristic wastes
LDR--Land Disposal Restrictions
MCL--Maximum Contaminant Level
MSW--Municipal Solid Waste
MSWLF--Municipal Solid Waste Landfill
NESHAP--National Emission Standards for Hazardous Air Pollutants
NPDES--National Pollutant Discharge Elimination System
OCPSF--Organic Chemicals, Plastics, and Synthetic Fibers industry
ppmw--parts per million by weight
RCRA--Resource Conservation and Recovery Act
TC--Toxicity Characteristic
TCLP--Toxicity Characteristic Leaching Procedure
UHC--underlying hazardous constituent
UTS--Universal Treatment Standards
VOCs--volatile organic compounds
Table of Contents
I. Options to Ensure That Underlying Hazardous Constituents in
Decharacterized Wastes are Substantially Treated Rather Than
Released Via Leaks, Sludges, and Air Emissions from Surface
Impoundments
A. Summary
B. Background
C. Applicability of Potential Approaches to ``Industrial D''
Management Units
D. Potentially Affected Industries
E. Results of Sampling and Risk Assessment
1. Sampling data
2. Risks
F. Overview of Options
G. Option 1
H. Option 2
1. Introduction
2. Applicability
3. Proposed Management Standards for Air Emissions
4. Proposed Management Standards for Leaks
5. Proposed Management Standards for Sludges
6. Recordkeeping Requirements for Leaks and Sludges
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7. Sampling and Analysis
I. Option 3
II. Proposal Not to Ban Nonamenable Wastes from Land-Based
Biological Treatment Systems
A. Background
B. Rationale for Proposing Not to Ban Nonamenable Wastes From
Biological Treatment Systems
III. Improvements to Land Disposal Restrictions Program
A. Clean up of Part 268 Regulations
B. Simplification of Treatment Standard for Waste Code F039
C. POLYM Method of Treatment for High-TOC Ignitable D001 Wastes
IV. Exclusion for Recycled Wood Preserving Process Wastewaters
V. Treatment Standards for Newly Listed and Identified Wastes
A. Background
B. Treatment Standards for Soil Contaminated with Newly Listed
Wastes
C. Treatment Standards for Wood Preserving Wastes
1. Identification of wastes
2. Proposed Treatment Standards
3. Review of Available Characterization Data
4. Determination of Best Demonstrated Available Technology
(BDAT)
5. Proposed Regulation of Dioxin and Furan Constituents in F032
D. Treatment Standards for Toxic Characteristic Metal Wastes
1. Rationale for Applying Universal Treatment Standards (UTS) to
Toxic Characteristic Metal Wastes (D004-D011)
2. Proposed Revision of UTS for Beryllium
3. Treatment Standard for Previously Stabilized Mixed
Radioactive and Characteristic Metal Wastes
VI. Mineral Processing Waste Issues
VII. Environmental Justice
A. Applicability of Executive Order 12898
B. Potential Effects
VIII. Capacity Determinations
A. Introduction
B. Capacity Analysis Results Summary
1. Available Capacity
2. Surface Impoundment Sludges, Leaks, and Air Emissions
3. Newly Identified Characteristic Metal Wastes
4. Wood Preserving Wastes
5. Mixed Radioactive Wastes
6. Phase IV Wastes Injected into Class I Wells
IX. State Authority
A. Applicability of Rules in Authorized States
B. Abbreviated Authorization Procedures for Specified Portions
of the Land Disposal Restrictions Phase II, III, and IV Rules
C. Effect on State Authorization
X. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
1. Methodology Section
2. Results
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
XI. Unfunded Mandates Reform Act
I. Options to Ensure That Underlying Hazardous Constituents in
Decharacterized Wastes are Substantially Treated Rather Than Released
Via Leaks, Sludges, and Air Emissions from Surface Impoundments
A. Summary
EPA's recently proposed Phase III LDR rule (60 FR 11702, March 2,
1995), addressed wastewater discharges involving characteristic wastes
that are deactivated through dilution and treated in surface
impoundments. The Phase III rule proposed treatment standards that can
be met at or prior to the point of discharge, (also referred to as
``end-of-pipe''). Today's proposed rule addresses whether such
treatment in surface impoundments results in cross-media releases, via
leakage, air emissions, or disposal of untreated sludges, that can be
so excessive that the impoundment effectively functions as a disposal
unit.
The Agency is essentially examining standards for air emissions,
leaks to ground water, sludges, and wastewater discharges (proposed in
Phase III) at the same time. This provides an opportunity to
comprehensively examine all the risks, applicable treatment
technologies, benefits, costs, and existing regulatory controls
associated with addressing decharacterized wastes that are treated in
surface impoundments. EPA received public comments to the Phase III
rule, but because of scheduling constraints, was not able to fully
review them before issuing this notice. Decisions on controlling
releases will be made after careful consideration of public comments on
both proposals. The Agency may choose either to not promulgate LDR
requirements for these releases, or to set management standards when
warranted by excessive cross-media transfer of hazardous constituents.
A third option is to require that decharacterized wastes be treated
(not merely diluted) to meet Universal Treatment Standards (UTS) before
entry into surface impoundments. EPA is not in favor of the third
option, as it is likely to disrupt treatment needed for compliance with
the Clean Water Act (CWA) limitations and standards, and impose high
costs without targeting risks adequately.
B. Background
In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the
Resource Conservation and Recovery Act (RCRA), Congress prohibited land
disposal of hazardous waste unless the waste meets treatment standards
established by EPA. The statute requires that these treatment standards
substantially diminish the toxicity or mobility of hazardous waste such
that short- and long-term threats to human health and the environment
are minimized. RCRA section 3004(m). In response, EPA has developed a
series of rulemakings under the Land Disposal Restrictions (LDR)
Program setting forth standards for treatment of hazardous waste.
The Third Third rule (55 FR 22520, June 1, 1990) contained
treatment standards and prohibitions for hazardous wastes that
exhibited one or more of the following characteristics: Ignitability,
corrosivity, reactivity, or Extraction Procedure (EP) toxicity (40 CFR
261.21-261.24). The Agency also established a ``deactivation''
treatment standard for ignitable, corrosive, and reactive (ICR) wastes.
Under this standard, ICR wastes could be diluted until they no longer
exhibited the hazardous characteristic (i.e., the waste was
``deactivated''). Once deactivated, these wastes could be placed in
land disposal units without further treatment, unless the Agency
specifically required that hazardous constituents in the waste be
treated. The Agency further established that prohibitions on dilution
did not apply to most characteristic wastes that are decharacterized by
dilution and then managed in disposal units subject to regulation under
the CWA or the Safe Drinking Water Act.
These portions of the rule were partially vacated and remanded in
Chemical Waste Management v. EPA, 976 F. 2d 2, cert. denied 113 S.Ct.
1961 (1992). In CWM v. EPA, the court held that wastes decharacterized
by dilution may be placed in a nonhazardous surface impoundment or a
nonhazardous injection well only if the toxic constituents in that
waste are treated to the same extent as they would be under the
treatment standards mandated by RCRA section 3004(m)(1). 976 F. 2d at
23. In other words, treatment standards must result in the treatment of
all toxic constituents (i.e., the underlying hazardous constituents, or
UHCs) to minimize threats to human health and the environment.
Treatment that only removes the hazardous characteristic does not
necessarily suffice.
The principal holdings of CWM v. EPA with respect to characteristic
wastes were that: (1) EPA may require treatment under RCRA section
3004(m) to more stringent levels than those at which wastes are
identified as hazardous, 976 F. 2d at 12-14; (2) Section 3004(m)
requires that treatment standards address both short-term and long-term
potential threats posed by
[[Page 43656]]
hazardous wastes, as well as removal of the characteristic property,
id. at 16, 17, 23; as a result, dilution is permissible as an exclusive
method of treatment only for those characteristic wastes that do not
contain UHCs ``in sufficient concentrations to pose a threat to human
health or the environment'' (i.e., the minimize threat level in section
3004(m)), id. at 16; and, (3) situations where characteristic hazardous
wastes are diluted, no longer exhibit a characteristic(s), and are then
managed in centralized wastewater management land disposal units (i.e.,
subtitle D surface impoundments or injection wells) are legal only if
it can be demonstrated that hazardous constituents are reduced,
destroyed, or immobilized to the same extent as they would be pursuant
to otherwise-applicable RCRA treatment standards, id. at 7. EPA refers
to this as the ``equivalency determination'' and it is at the heart of
the discussion of potential cross-media transfers in today's rule. The
court further held that the deactivation treatment standard for
ignitable and corrosive wastes (which allowed the hazardous
characteristic to be removed by any type of treatment, including
dilution) did not fully comport with RCRA section 3004(m). This was
because the deactivation treatment standard could be achieved by
dilution, and section 3004(m) ``requires that any hazardous waste be
treated in such a way that hazardous constituents be removed from the
waste before it enters the environment.'' 976 F. 2d at 24. The court
thus remanded the rules dealing with centralized wastewater management
involving land disposal.
EPA addressed one portion of the equivalence issue when it proposed
the Phase III LDR rule (60 FR 11702, March 2, 1995). That rule
proposes, among other things, treatment standards for the end-of-pipe
discharges from surface impoundments to surface waters or POTWs. For
further information on the court decision and the Agency's responses,
see the January 19, 1993, Notice of Data Availability (58 FR 4972) and
Supplementary Information Report; the LDR emergency Interim Final rule
(58 FR 29860, May 24, 1993); the LDR Phase II rule (59 FR 47982,
September 19, 1994); and the LDR Phase III proposed rule (60 FR 11702,
March 2, 1995).
The Agency entered into a settlement agreement setting out a
schedule for fulfilling the court's mandate. The settlement agreement
reads:
EPA agrees to sign a proposed rulemaking on the issue of
equivalency of treatment in a CWA system that uses surface
impoundments . . . EPA agrees to describe in detail in that notice
of proposed rulemaking (but not necessarily recommend or endorse)
the following option: regulations limiting release from surface
impoundments used in CWA treatment systems of hazardous constituents
from ICT wastes managed in such impoundments, where the release is
due to volatilization or leakage, and treatment standards under
section 3004(m) for hazardous constituents from ICT wastes in
impoundment sludges. After considering any public comments received,
EPA agrees to sign a notice of final rulemaking taking final action
on the issue and option * * *
Therefore, the Agency is required to address these issues at this time
although there may have been higher environmental priorities if EPA had
sole discretion to order its agenda.
The central legal and policy issue addressed in this proposal is if
and when releases of hazardous constituents from surface impoundments
which are part of a treatment train for decharacterized wastes are so
extensive as to effectively invalidate the treatment process as a means
of LDR compliance. Put another way, the D.C. Circuit intended to allow
continued use of treatment surface impoundments to treat
decharacterized wastes, provided the extent of treatment is equivalent
to usual RCRA treatment. If there are releases of hazardous
constituents to the environment before treatment concludes, in the form
of air releases, leaks to ground water, or deposition in sludges, has
permanent disposal occurred so as to invalidate the treatment process?
EPA's view is that, at the least, something more than the bare
release of a hazardous constituent is needed to trigger this
invalidation. The court did not explicitly state that its equivalence
test, or any other part of the opinion, necessitated control of all
hazardous constituent releases from surface impoundments. For example,
one of the court's formulations of its holding is that ``treatment of
solid wastes in a CWA surface impoundment must meet RCRA requirements
prior to ultimate discharge into waters of the United States or
publicly owned treatment works. . . .'' 976 F. 2d at 20. The focus here
is on the wastewaters being treated, and the amount of hazardous
constituents removed from those wastewaters, not other types of wastes
(like sludges) or other types of releases. See also id. at 7, 20 (focus
on treatment of waste ``streams'', i.e. liquids in an impoundment); 23
n. 8 (reduction of mass loadings of hazardous constituents of
wastestream entering and exiting an impoundment); 24 (court indicates
that decharacterized wastes are not held permanently in impoundments,
which is true of wastewaters but not for all wastewater treatment
sludges).
The court likewise did not see that hazardous constituents in
deposited sludges must be treated. The court in fact did not speak to
the principle stated by EPA in the Third Third rule that generation of
a new treatability group is considered to be a new point of generation
and thus a new point for determining whether a waste is prohibited. 55
FR at 22661-662. Under this principle, unchallenged in the litigation,
wastewater treatment sludges not exhibiting a characteristic are not
prohibited wastes, notwithstanding that they may derive from prohibited
wastewaters.
Perhaps more fundamentally, the court clearly did not intend to
require that treatment standards be met invariably by treatment
preceding impoundment-based management systems: ``RCRA requires some
accommodation with [the] Clean Water Act''. 976 F. 2d at 20; see also
id. at 23, indicating that to some degree RCRA need not mandate
wholesale disruption of existing wastewater treatment impoundments,
providing the CWA treatment system really achieves treatment equivalent
to RCRA's: ``In other words, what leaves a CWA treatment facility can
be no more toxic than if the wastestreams were individually treated
pursuant to the RCRA treatment standards.'' A draconian reading that
any releases of hazardous constituents from a treatment impoundment
effectively invalidate that impoundment's treatment operations could
thwart the court's holding that such treatment is to be allowed
provided equivalent treatment occurs.
There are suggestions in the opinion, however, that at some point
the LDR standard is not satisfied if the magnitude of hazardous
constituent releases is sufficiently great. The whole thrust of the
opinion is to assure that RCRA treatment requirements are not thwarted
by cross-media transfers of untreated hazardous constituents, whether
by dilution or by escape from treatment units. Id. at 22, 24, 29-30;
see also id. at 17, 18 vacating treatment standards for ignitable and
reactive wastes because the Agency had done nothing to address the risk
of excessive volatilization or reactivity during the treatment process.
The court also distinguished a number of times between temporary
placement of diluted wastes in impoundments for treatment and permanent
disposal in land disposal units, stating that only the temporary
placement represents a satisfactory accommodation between RCRA and the
CWA. Id. at 24, 25. To the
[[Page 43657]]
extent hazardous constituents leak or volatilize from impoundments, or
from inadequately treated sludges, it can be argued that permanent
disposal of untreated hazardous constituents is occurring, although,
since no treatment unit is absolutely release-free (there are certainly
releases of hazardous constituents from combustion units, for example),
the more fruitful inquiry is the extent of the release.
Putting this together, EPA initially believes the best reading of
this part of the opinion to be to distinguish between impoundments
performing essentially as treatment units from those that are also
operating as permanent disposal units due to the extent of cross-media
transfers of untreated hazardous constituents. The portion of the
opinion vacating standards for ignitable and reactive wastes supports
such a reading, since the court required the Agency to find ``that the
risk of * * * emissions * * * is minimal, or * * * require actions to
minimize that risk.'' 976 F. 2d at 17, thus focusing on the extent of
release from the treatment unit, not just the fact that a release
occurred. Under this reading, the Agency could evaluate whether the
risk from the various types of releases is great enough to warrant
control. A finding that there is insufficient risk would mean that the
impoundment is not engaging in a type of cross-media transfer of
untreated hazardous constituents that invalidates its treatment
function, and therefore that decharacterized wastes can be treated in
the impoundment to effect the necessary accommodation between RCRA and
the CWA.
A second pervasive distinction in the opinion is between treatment
units (including treatment surface impoundments) and permanent disposal
units, accommodation to allow centralized wastewater management being
allowed for the former but not the latter. See, e.g., 976 F. 2d at 24,
25. There are some potential differentiations among types of surface
impoundments along these lines. A common division of wastewater
treatment is into primary, secondary, and tertiary treatment. Primary
treatment involves removal of conventional pollutants (e.g., oil and
grease, total suspended solids) or equalization. Secondary treatment
involves aggressive treatment steps to remove or destroy hazardous
constituents, examples being biological treatment for organics, or
chemical precipitation for metals. Tertiary treatment involves
polishing effluent before final discharge. Impoundments engaged in
primary treatment most clearly resemble hazardous constituent disposal
units because such units treat hazardous constituents only
incidentally. Secondary and tertiary impoundments, on the other hand,
do engage in significant treatment of hazardous constituents. Thus,
possible Phase IV controls would logically be directed at primary
impoundments, the type of wastewater management impoundment most
resembling permanent disposal due to the lesser degree of treatment
occurring in the unit.
It is also possible to argue that any leak to ground water or
deposition of hazardous constituents in sludge at levels exceeding the
UTS (or some comparable release of hazardous constituents to air)
renders treatment across a wastewater treatment system not equivalent.
EPA does not view this reading as compelled. There is no such explicit
language in the opinion. As already stated, such a reading also would
likely destroy the very accommodation between RCRA and the CWA the
court deemed necessary. Nor would such a reading make policy sense if
releases from treatment surface impoundments remain insignificant, and
the treatment system is in fact achieving the same mass reductions of
hazardous constituents, through destruction and removal rather than
through release, as conventional RCRA treatment (see 976 F. 2d at 23 n.
8).
EPA's present, preferred reading of the opinion is consequently to
establish the parameters which distinguish permanent land disposal
impoundments from those performing the type of treatment to be
accommodated under the court's opinion. These parameters can be defined
by limiting the extent of hazardous constituent releases to air, ground
water and through sludges to levels that do not pose significant risk.
In addition, primary treatment impoundments are the most natural target
for these controls.
C. Applicability of Potential Approaches to ``Industrial D'' Management
Units
Today's options to address surface impoundment releases
specifically apply to Subtitle D (nonhazardous) surface impoundments
that receive decharacterized wastes. Subtitle D surface impoundments
that do not manage decharacterized wastes are not affected. The options
in today's proposal do not necessarily set a precedent for any future
regulations concerning non-hazardous industrial wastes. The Agency, in
partnership with the States, is investigating the possibility of
developing voluntary standards for the safe management of non-hazardous
industrial wastes.
D. Potentially Affected Industries
Based on an analysis of available information, the Agency estimates
that 300 facilities are managing, in CWA treatment systems,
decharacterized wastes containing hazardous constituents above UTS.
(Hereafter, the use of the term ``CWA treatment systems'' includes CWA-
equivalent systems as defined by 40 CFR 268.37, and other nonhazardous
waste surface impoundments.) Wastewater treatment in surface
impoundments involves three basic functions:
Equalization/settling (known as primary or prebiological
treatment);
Biological treatment (known as secondary treatment); and
Postbiological settling/polishing (known as tertiary or
postbiological treatment).
Equalization/settling ponds settle solids out of the wastewaters
and equalize concentrations to subsequent treatment units. Being the
first units in the system to receive the wastewaters, they receive the
highest loadings of contaminants.
Biological treatment units function primarily to break down or
remove organic compounds in the wastewater. At this point in the
treatment process, the concentrations of organics in the surface
impoundment are greatly reduced, and therefore, the risks from leaks
and sludges are considerably lower in these units. Part of the
concentration reduction, however, is due to volatilization, and air
emissions can be significant from such units.
Postbiological treatment units will receive contaminants at
significantly reduced concentrations. As a result, lower concentrations
of hazardous constituents can be expected in the air emissions, leaks,
and sludges, and therefore resultant risks are also lower.
E. Results of Sampling and Risk Assessment
1. Sampling Data
The Agency reviewed available information on air emissions, leaks,
and sludges. These data were collected for the development of effluent
guidelines under the CWA. They cover industries that typically treat
wastewater in biological treatment systems that incorporate surface
impoundments. During the last two years, the Agency was informed by
representatives of the regulated industry that they would provide EPA
with more current and complete data characterizing wastewaters in
surface impoundments receiving decharacterized waste. At the time of
publication of this proposal, EPA had not received any such data.
[[Page 43658]]
Information available to the Agency indicates that decharacterized
wastestreams containing UHCs may leak out of surface impoundments at
levels of concern. These data also indicate that there may be a
significant number of wastestreams that could exceed the regulatory
threshold for total volatile organics. In addition, the Agency
conducted a review of the chemical concentrations of UHCs in
decharacterized wastes (based on the effluent guidelines data) and the
concentrations of constituents of concern in various RCRA F and K
wastewaters. Based on this analysis, the Agency found that in many
instances that decharacterized wastestreams have similar hazardous
constituents present and at similar concentrations as listed hazardous
wastestreams. Estimated sludge concentrations based on industrial
wastewater treatment system data indicate that surface impoundments
handling decharacterized wastes are likely to generate sludge that
contain UTS constituents in excess of the treatment standards. EPA
solicits additional data, particularly constituent concentrations from
actual sampling of wastewaters in surface impoundments receiving
decharacterized wastes. A detailed discussion of the data sources,
analyses, and specific examples of releases above UTS levels supporting
this proposal can be found in the document entitled, ``Technical
Support Document--Options for Management Standards for Leaks, Sludges,
and Air Emissions From Surface Impoundments Accepting Decharacterized
Wastes'' which is located in the RCRA docket.
2. Risks
Although the wastes affected by the court opinion and the
equivalence options in this section of the preamble are not hazardous
wastes, they are likely to contain some of the same hazardous
constituents, possibly even at the same levels, as are found in listed
and characteristic wastes. The hazardous constituents in listed and
characteristic wastes must be treated to meet UTS before land disposal.
EPA conducted a screening level risk assessment that did not take
into account site-specific hydrogeologic conditions or relative
proximity of drinking water wells to surface impoundments. Using the
sampling data described above, EPA estimated baseline (current) risks
from releases from leaks and air emissions, as well as ground water
contamination from sludge disposal. Samples were taken at: raw
wastewater, equalization ponds, influent to pre-bio ponds, pre-bio
ponds, effluent from pre-bio ponds, influent to biological ponds,
effluent from biological ponds, effluent from post-bio ponds, influent
to wastewater system, and effluent from wastewater system. (The terms
``pond'' and ``surface impoundment'' are used interchangeably in this
preamble.) Using Office of Water Effluent Guidelines data, EPA
calculated central tendency and high-end baseline risks from leaks and
sludges for wastewater treatment systems in five industries:
Pharmaceuticals; Pulp and Paper; Pesticides; Metal Products and
Machinery; and Organic Chemicals, Plastics, and Synthetic Fibers
(OCPSF). Using Generator Survey point-of-generation data, EPA
calculated central tendency and high-end baseline risks from leaks and
sludges for wastewater treatment systems from Inorganic Chemicals; and,
Electronic and Electrical Components. The Agency used standard exposure
assumptions of 1.4 liters/day ingestion, and a 9-year exposure period
for 350 days per year. Cancer risks are summed across constituents.
Following are the highest risks EPA estimated. These risks are from
pre-biological surface impoundments unless otherwise noted. (The
samples from influent to a biological pond are assumed to be measures
of constituent concentrations of wastewaters in pre-bio ponds rather
than bio ponds.) For the central tendency analysis of risks from leaks,
EPA found potentially significant health risks in the Pharmaceuticals,
OCPSF, Inorganic Chemicals, and Electronic and Electrical Components
industries. In the Pharmaceuticals industry, one raw wastewater sample
out of 11 and one biological pond influent sample out of 7 may pose
potentially significant cancer health risk exceeding the 10-5
cancer risk threshold; methylene chloride and acrylonitrile,
respectively, are the constituents of concern. In the OCPSF industry,
EPA found three raw wastewater samples out of 51 indicate cancer risks
in excess of a 10-5 individual lifetime cancer risk level.
Acrylonitrile is the most prevalent carcinogenic constituent in amounts
above levels of concern. Also in the OCPSF industry, nine samples at
the biological pond influent out of 34 at the biological pond influent
indicate cancer risks in excess of a 10-5 level, of which six
samples indicate cancer risks in excess of 10-4. In the Inorganic
Chemical industry, one point of generation sample out of 51 may pose
potentially significant cancer health risks in excess of the 10-5
cancer risk threshold, and one point of generation sample exceeds the
10-4 cancer risk threshold. Methylene chloride and beryllium are
the constituents of concern. In the Electric and Electrical Components
industry, 32 point of generation samples contain potentially
significant cancer health risks in excess of 10-5, of which 13
samples present cancer risk between 10-4 to 10-5; 11 samples
present cancer risk between 10-3 to 10-4; and, 8 present
cancer risk in excess of 10-3. Methylene chloride and beryllium
are the constituents of concern. The Agency continues to evaluate
additional industries based on available data. The risk analyses for
these data will be placed in the RCRA docket for this proposal.
In its analysis of leaks using high-end assumptions, EPA found
potentially significant health risks (above 10-5) at sampling
points in the Pharmaceuticals, Pesticides, Pulp & Paper, OCPSF,
Inorganic Chemicals, and Electronics and Electrical Components
industries. In the Pharmaceuticals industry, 14 samples out of 38 at
the raw wastewater, equalization pond, biological pond influent, and
effluent from post-biological ponds (a measure of risk from a post-bio
pond) present potentially significant cancer health risks in the range
of 10-3 to 10-5; constituents of concern include methylene
chloride, acrylonitrile, chloroform, 1,2-dichlorethane and alpha-bhc.
In the Pesticides industry, three samples out of 11 at the influent to
a pre-bio pond exceed the 10-5 cancer risk threshold; the
constituent of concern for all three samples is methylene chloride. In
the Pulp & Paper industry, three samples of 12 at the influent to the
wastewater treatment system and one sample of 15 at the effluent from
the wastewater treatment system (sample from a bio or post-bio pond)
may pose potentially significant sources of cancer risk (estimates in
the range of 10-4 to 10-5); constituents of concern are
chloroform, 1,2-dichloroethane, 1,1,2,2 tetrachloroethane and bis (2-
ethylhexyl) phthalate at the influent and methylene chloride and
chloroform at the effluent. In the OCPSF industry, about one-third (20
of 51) samples of the raw wastewater samples present cancer risks in
excess of 10-5. One half (9 samples) present cancer risks in
excess of 10-4. About one-third (13 of 34) of the biological pond
influent samples indicated cancer risks in excess of 10-5; all
samples but one indicated cancer risks in excess of 10-4. In the
Inorganic Chemicals industry, two point of generation samples present
potentially significant cancer health risk in excess of 10-3;
[[Page 43659]]
methylene chloride and beryllium are the constituents of concern.
Finally, in the Electronics and Electrical Components industry, 11
point of generation samples (out of 295) present potentially
significant cancer health risk in excess of 10-4; 21 samples
present cancer health risk in excess of 10-3; methylene chloride
and beryllium are the constituents of concern.
For sludges, EPA estimated the risks from disposal in an unlined,
nonhazardous landfill after the sludges are dredged from a surface
impoundment. Using estimated sludge concentrations in the OCPSF
industry, EPA conducted both a central tendency and high-end analysis.
In the central tendency analysis, one pre-bio sample (of 87) presents
cancer risk in excess of 10-4 and one bio sample (of 74) presents
risk in excess of 10-5; acrylonitrile is the constituent causing
both exceedances. In the high-end analysis, two pre-bio samples (of 87)
present cancer risk in excess of 10-5; and one bio sample (of 74)
presents cancer risks in excess of 10-4; acrylonitrile and 1,4-
dichlorobenzene are the causes.
To assess the potential risk posed by air emissions, EPA examined
samples at the point of generation of the wastewater. Across all
industries, one-fifth of samples (290 to 363 of 1562 samples) exceed
100 parts per million (ppmw) by weight of volatile organic compounds
(VOCs). Under the recent RCRA Subpart CC final standards, air emission
control requirements of the rule apply to affected units if hazardous
waste placed in the unit is determined to have an annual average
volatile organic concentration equal to or greater than 100 ppmw based
on the organic composition of the hazardous waste at the point of waste
origination. See Sec. 264.1083 (promulgated at 59 FR 62928 (December 6,
1994)). Preliminary results show that 15 percent of samples (87 to 117
of 690 samples) from the Pharmaceutical, Pulp and Paper, Pesticide, and
Metal Product and Machinery industries exceed 100 ppmw. In the OCPSF
industry, 48 to 59 percent of the sample facilities (75 to 92 of 157
facilities) assessed had at least one sample of wastewater that
exceeded the 100 ppmw limit. For a detailed discussion of risks and
regulatory impacts, see the background document ``Regulatory Impact
Analysis of the Proposed Phase IV Land Disposal Restrictions Rule,''
which was placed in the docket for today's proposed rule.
F. Overview of Options
In general terms, the risks due to cross-media releases have the
potential to vary from insignificant to significant. EPA is considering
three types of options for addressing this issue. The first option is
not to issue LDR requirements, but rather to rely on other Agency
programs to address these releases under current rules or future
efforts (i.e., Clean Air Act (CAA) standards, RCRA Corrective Action,
State programs, and others). The second option is to develop controls
that focus on the subset of situations that pose excessive risk and are
not addressed by existing requirements or those under development.
Finally, the third option is to require that decharacterized wastes be
treated (not merely diluted) to meet Universal Treatment Standards
(UTS) before entry into surface impoundments. This forces modification
at facilities that do, as well as those that do not, pose risks from
leaks, air emissions, and sludges. None of the options would apply to
units which satisfy the Minimum Technology Requirements or the
statutory no-migration standard.
The Agency is neutral between the first and second options. The
second option is necessarily more complicated than the other two, and
so is discussed here at greater length; it should not thereby be
inferred that this is EPA's preferred approach. The third option was
also considered, but EPA is not recommending it because of potential
disruption to needed wastewater treatment, high costs to affected
industries, and lack of targeted risk reduction.
G. Option 1
Option 1 relies on the Phase III rule to satisfy the equivalence
standard enunciated by the D.C. Circuit. As noted, that rule would link
LDR and CWA end-of-pipe standards to assure that mass removal of UHCs
occurs to the same extent in CWA impoundment-based treatment systems as
it does in conventional RCRA treatment systems. As discussed above, the
court's opinion does not explicitly require more.
If ostensible treatment impoundments generally acted as conduits
for extensive cross-media transfers of untreated hazardous
constituents, it is not clear that the standard enunciated by the court
would be satisfied. However, there are existing or forthcoming
regulatory mechanisms which tend to protect against such wholesale
releases.
Following is a brief description of what coverage federal and State
regulations may provide to control excessive releases from surface
impoundments receiving decharacterized wastes. For more information,
see the following in the RCRA Docket: ``Technical Support Document--
Options for Management Standards for Leaks, Sludges, and Air Emissions
From Surface Impoundments Accepting Decharacterized Wastes,'' and the
Executive Summary of the ``Regulatory Impact Analysis of the Proposed
Phase IV Land Disposal Restrictions Rule.''
The Toxicity Characteristic (TC), which exists for 39 of the 212
UHCs, cannot be exceeded in the wastewater or sludges contained in the
surface impoundments, and therefore, provides some control. See, e.g.
976 F.2d at 24 fn. 10. Also, approximately 42% of the facilities with
impoundments which receive decharacterized wastes are RCRA Treatment,
Storage, or Disposal Facilities (TSDFs). RCRA TSDFs have at least one
unit at the facility which requires a RCRA Subtitle C permit. Under
RCRA Sec. 3004(u), the primary cleanup authority for permitted TSDFs,
releases of hazardous constituents from solid waste management units at
such facilities are subject to corrective action. TSDFs that have not
yet received permits, and are operating under interim status, are
subject to cleanup under Sec. 3008(h), which provides EPA with similar
authority to compel corrective action. Surface impoundments affected by
today's proposed rule are solid waste management units; releases from
these impoundments are subject to corrective action on a site-specific
basis. While the State or EPA has the authority to control emissions
from Subtitle D surface impoundments at Subtitle C TSDFs not only
during corrective action, but also during normal operations, they may
choose not to do so, primarily because of priorities, resources, and
perceived risk.
EPA also is presently implementing Section 112 of the CAA to impose
technology-based standards for hazardous air pollutants at enumerated
major sources, requiring control by means of Maximum Available Control
Technology (MACT). These rules are subject to explicit deadlines, and
already address wastewater treatment impoundments in certain industries
potentially affected by the Phase IV rule (e.g. the Hazardous Organics
National Emission Standards for Hazardous Air Pollutants (NESHAP) at 59
FR 19402, April 22, 1994), or will address such impoundments. Several
rules have been promulgated addressing air emissions from portions of
the hazardous of the organic, benzene, chromium electroplating,
ethylene oxide, halogenated solvent, polymers and resins, petroleum,
and ferroalloy industries. Examples of forthcoming
[[Page 43660]]
standards are the MACT for the pharmaceutical industry and the pulp and
paper industry. In addition, NESHAPs that may affect portions of the
petroleum, metal plating, organic chemical and inorganic chemical
industries are scheduled for promulgation in 1995 and 1996. EPA
believes, however, that some surface impoundments in the potentially
affected universe of industries will not be covered by these CAA
regulations. For a detailed description of coverage by CAA rules, see
the Table entitled ``NESHAP Programs Identified in Semiannual
Regulatory Agenda'' in the ``Technical Support Document--Options for
Management Standards for Leaks, Sludges, and Air Emissions From Surface
Impoundments Accepting Decharacterized Wastes,'' and see also the
background document entitled ``Description of Process to Determine the
Potentially Affected Universe for the Phase IV LDR Rule.''
With regard to other on-going efforts, EPA is actively
investigating whether to list additional wastes as hazardous, and is
investigating the possibility of developing voluntary guidelines for
Subtitle D facility standards that would more broadly address non-
hazardous industrial wastes.
In addition to federal controls, some States have environmental
controls on surface impoundments that receive nonhazardous industrial
waste, such as ground water monitoring for hazardous constituents,
leachate collection systems, sludge management programs, and cleanup
authorities. Thirty-six States have at least some regulations that may
be relevant to the cross-media concerns in this rule. Among those
States, requirements to prevent ground water contamination from surface
impoundments vary considerably. States with the most requirements
include such controls as specific liner requirements, leachate
collection and removal systems, ground water monitoring, closure and
post-closure plans, corrective action, and permits. In contrast, States
with less comprehensive programs may require only two or three of these
requirements, or may apply them only to dischargers, only to non-
dischargers, or in other ways limit the applicability of their
programs. However, EPA does not have information on key factors to help
it assess the degree to which State programs can be relied upon to
prevent excessive releases from surface impoundments via leakage. For
example, it is not known which constituents are monitored, what
concentrations are considered acceptable levels, or whether the State
requirements mentioned above apply to existing units, or only to new
ones. For a more detailed assessment of how State programs protect
ground water from contamination from the type of surface impoundments
at issue in this rule, see ``Technical Support Document--Options for
Management Standards for Leaks, Sludges, and Air Emissions From Surface
Impoundments Accepting Decharacterized Wastes,'' in the RCRA Docket.
State controls on sludge from nonhazardous surface impoundments are
generally far less than the controls for preventing leaks. EPA's
information is that thirty-seven states have no sludge requirements.
Other states, such as Alabama, Florida, and Missouri, have minimal
requirements under their National Pollutant Discharge Elimination
System (NPDES) permits for sludge management. Pennsylvania requires
sludge to be removed annually from storage surface impoundments. In
California, sludge must be disposed in a landfill or monofill. One of
the states with more controls is Michigan, which requires a plan for
sludge monitoring, treatment, transportation, storage, and disposal,
along with a hydrogeological study if there is a threat to ground
water.
With respect to air emissions, the Agency recognizes that State
Implementation Plans, or SIPS, which are mandated under the Clean Air
Act, may provide some control. EPA solicits information on the extent
to which State and Tribal programs control leaks, sludge, and air
emissions from surface impoundments receiving decharacterized wastes.
H. Option 2
1. Introduction
Option 2 is an intermediate approach between saying the LDRs do not
apply and saying they do apply in the traditional manner. In defining
this regulatory option for consideration, EPA tried to accomplish seven
basic objectives: (1) Focus controls on those situations that present
risks that amount to significant permanent disposal; (2) avoid
duplication with other Agency requirements; (3) provide flexibility in
dealing with site-specific factors and cost-effective control
alternatives; (4) recognize the effective treatment function performed
by wastewater treatment impoundments, and avoid needlessly invalidating
such function; (5) identify controls that protect human health and the
environment; (6) minimize implementation burden; and (7) create
incentives for alternative controls (state, tribal or federal) to
address significant releases from such units and so render LDR controls
unnecessary.
2. Applicability
To focus on risks, Option 2 excludes from control those situations
which are expected to pose little risk. First it excludes wastewaters
that do not have, at the point of generation, hazardous constituents
present above the UTS. Such wastes obviously are not prohibited from
land disposal. Second, wastewaters with de minimis amounts of hazardous
constituents are excluded--i.e., not prohibited. (Criteria for
determining de minimis situations would be identical to those proposed
in the Phase III rule for discharges to UIC wells.) Third, sludges and
leaks from biotreatment and post-biotreatment units would not be
covered due to the lower risks posed by these units. Fourth,
characteristic wastes which at the point of generation do not exceed
100 ppmw of total volatile organics on an annual average would not be
subject to air emission controls. Fifth, surface impoundments
containing underlying hazardous constituents at concentrations below a
trigger level (e.g., 10 times the Maximum Contaminant Level, or MCL)
would not be addressed for leaks. Finally, none of the Option 2
standards would apply if the impoundment satisfies Minimum Technology
Requirements or the statutory no migration standard. These
applicability principles are explained in more detail below.
To avoid duplication with other requirements, EPA would defer to
other federal rules which establish controls addressing the same
situations. Deferral would occur where the existing program addressed
the specific UHCs of concern. In the case of air emissions, EPA would
defer to standards regulating total volatile organics, as adequately
covering air emissions of UHCs from this type of treatment. In addition
to existing regulations, there are some CAA air emission limits under
development. Inefficiencies and confusion could occur if Option 2
controls were applied and soon superseded by upcoming CAA standards.
Facilities subject to CAA standards for hazardous air pollutants (in
particular, those promulgated pursuant to CAA Sec. 112) in the near
future thus would not be covered by Option 2 air emission controls. In
the case of releases to ground water, EPA would defer to certain
existing programs, as is explained in more detail below.
This option also would recognize the existence of the types of
controls mentioned above in connection with
[[Page 43661]]
Option 1. Thus, if an impoundment is located at a permitted TSDF, no
further control would be adopted under Phase IV. EPA Regional, State,
or Tribal limits which control releases of specific UHCs from
impoundments also would be considered controlling and so make Phase IV
controls unnecessary.
Option 2 provides flexibility in dealing with site-specific factors
and cost-effective control alternatives. Facilities have the choice of
treating the characteristic wastestream to meet UTS before entering a
surface impoundment, thus avoiding any management standards enumerated
in the option. This option also incorporates alternative means of
compliance proposed in the Phase III rule, namely an exception for de
minimis decharacterized wastestreams (i.e., prohibited wastewaters
containing de minimis amounts of UHCs) and an option allowing the
requisite mass reduction of hazardous constituents to be achieved by
means of pollution prevention rather than wastewater treatment. For a
simplified guide to which facilities would be affected by option 2, see
the following flow chart entitled Figure 1.
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[[Page 43663]]
For those facilities which do not meet the criteria to screen out
the low risk situations, and are not subject to other federal, State,
or Tribal limits to address the UHCs of concern, Option 2 would provide
controls similar to those currently applied to other industrial wastes.
Air emissions would be subject to the substantive requirements for
surface impoundments of RCRA Subpart CC. (59 FR 62896; December 6,
1994.) Leaks would necessitate ground water monitoring for UHCs, and
corrective action would be triggered if ground water exceeds levels of
concern. Sludges would be subject to UTS when removed from the surface
impoundment. The following sections provide a more detailed description
of these potential requirements.
To minimize implementation burdens make many of the requirements
self-implementing, and set minimal reporting/recordkeeping
requirements. All of the requirements would be effective two years
after promulgation, due to a proposed national capacity variance (see
Section VIII of this rule). Under circumstances when the air emission,
leaks, or sludge control equipment required to comply with the standard
cannot be operational at an existing facility by the two-year deadline,
an implementation schedule for installation of the equipment would have
to be developed and placed in the facility operating records. In such
cases, the facility owner or operator would have to have all controls
in operation no later than 48 months after the effective date.
Furthermore, surface impoundments that have stopped receiving
decharacterized wastewaters on or before the date of promulgation would
not be subject to any of the requirements proposed today. Surface
impoundments that stop receiving decharacterized wastewaters after the
date of promulgation and on or before the date two years after
promulgation would be subject only to the recordkeeping requirements.
Where alternative non-RCRA standards are set by EPA, States, or Tribes
(e.g., CAA standards for air emissions), deferral to standards means
there is no RCRA requirement.
The following sections describe management standards the Agency is
considering for leaks, sludges, and air emissions from surface
impoundments accepting decharacterized wastes. EPA seeks comment on
these standards, including the possibility of adopting standards for
certain of the potential problems and not others, e.g., finalizing
standards for leaks and air emission control, but not for sludge
control.
Additionally, Option 2 would apply controls on air emissions for
all three types of surface impoundments (pre-biological, biological,
and post-biological), while limiting sludge and leak controls to pre-
biological units only, based on the risk findings. The statute already
specifies more lenient regulatory controls for biological and post-
biological treatment impoundments. Section 3005(j)(3) exempts from
minimum technology requirements hazardous waste biological and post-
biological surface impoundments. Such impoundments must in general be
performing aggressive biological treatment (or performing post-
biological treatment), be in compliance with CWA permits and with
generally-applicable ground water monitoring requirements, and be
achieving significant degradation of toxic pollutants. This provision
recognizes that such treatment impoundments both perform an important
treatment function and pose less risk than other impoundment types.
Today's proposal is premised on similar findings. EPA seeks comment on
all combinations of applying the three types of controls (leaks,
sludges, and air emissions) to all three types of impoundments.
3. Proposed Management Standards for Air Emissions
a. Scope. Option 2 would extend requirements of Subpart CC
regulations to surface impoundments in CWA, CWA-equivalent, or
nonhazardous wastewater treatment systems that accept wastes
decharacterized by dilution. Subpart CC rules would not apply directly
under this option, since that rule applies only to units managing
hazardous waste. Sec. 264.1080(a). However, substantive requirements,
borrowed from that rule, could apply to surface impoundments receiving
prohibited, decharacterized wastes. The specific standards in this
option would be: general standards (264.1082), waste determination
procedures (Sec. 264.1083), surface impoundment unit standards
(Sec. 264.1085), closed-vent and control device standards
(Sec. 264.1087), inspection and monitoring procedures (Sec. 264.1088),
recordkeeping requirements (Sec. 264.1089), and reporting requirements
(Sec. 264.1090). The provisions would only apply to affected surface
impoundments used to manage decharacterized wastes if the
decharacterized waste (containing UHCs above UTS at the point of
generation) placed in the unit is determined to have an average
volatile organic concentration greater than or equal to 100 ppmw based
on the organic composition of the waste at the point of generation.
Averaging periods of up to 1 year in duration would be utilized for
each individual wastestream. The types of requirements EPA is
considering are quite similar to those required generally under the CAA
for control of volatile organic hazardous air pollutants (e.g., see the
Hazardous Organic NESHAP (59 FR 19402, April 22, 1994) and the Benzene
Waste Operations NESHAP (58 FR 3072, January 7, 1993)). For a
simplified guide to the management standards for air emissions, see the
following flow chart entitled Figure 2.
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[[Page 43665]]
b. Applicability. For each surface impoundment identified in
today's rule to which the extended subpart CC requirements apply, the
owner or operator would be required to use the air emission controls
specified herein except when the decharacterized waste placed in the
surface impoundment meets certain conditions.
(i.) Volatile organic concentration exemption. Under this option, a
surface impoundment accepting decharacterized waste would not be
considered to engage in impermissible transfer of untreated hazardous
constituents to the ambient air if all the prohibited waste (i.e., the
decharacterized waste) placed in the impoundment is determined to have
an average volatile organic concentration less than 100 ppmw based on
the organic composition of the waste at the point of generation.
Establishing the trigger concentration of point of generation, rather
than point of placement in an impoundment, is designed to prevent
dilution and volatilization of organics in the waste. 59 FR at 62915.
This feature of the option thus dovetails with the central concern of
the D.C. Circuit in allowing dilution rather than destruction/removal
via treatment for hazardous constituents.
(ii.) Treated hazardous waste exemption. Under this option, each
affected surface impoundment that manages a characteristic waste that
has been decharacterized by dilution but contains UHCs above UTS and
has an average volatile organic concentration equal to or greater than
100 ppmw, as determined by the procedures found in Sec. 264.1083, is
required to be managed in accordance with the applicable Subpart CC
requirements. See Sec. 264.1085. Realizing that many organic UHCs
likely to be present in characteristic waste being treated in a surface
impoundment are also VOCs, and because the Agency wishes to be
consistent with other air regulations and therefore necessitate
control, the Agency believes that total VOCs is an appropriate measure
for determining when potential releases through air emissions would be
excessive. 976 F.2d at 17. The owner or operator would install and
operate the specified air emission controls on every affected unit used
in the waste management sequence from the point of generation (as it
applies to the specific prohibited wastestream) through the point where
the organics in the waste are removed or destroyed in accordance with
Sec. 264.1082. If the decharacterized wastestream is not treated to
meet these requirements, then all surface impoundments at the facility
used in the waste management sequence for this decharacterized waste
would be required to use the air emissions controls specified in the
extended subpart CC surface impoundment standards.
The extended subpart CC standard would thus provide owners or
operators of surface impoundments accepting decharacterized wastes with
several alternatives for determining when wastes have already been
treated sufficiently so that surface impoundments would not have to
meet the air emission control requirements. Put another way, the
organic component of the prohibited wastes would be fully treated
before land disposal and so the impoundment would not be subject to
control. Types of treatment processes that would obviate the need for
further control are an organic destruction, biological degradation, or
organic removal process that reduces the organic content of the
decharacterized waste and is designed and operated in accordance with
certain conditions specified in the rule, or combustion in an
incinerator, boiler or industrial furnace.
The requirements for a destruction, biological degradation, or
removal process that reduces the organic content of the waste are
specified in the extended Subpart CC rule as follows:
(1) It must reduce the volatile organic concentration of the
waste to meet a site-specific treatment process exit concentration
limit determined by an equation (specified in the rule) that
accounts for the portion of the reduction due to dilution; or
(2) It must be a single process that achieves an organic
reduction efficiency of 95 percent or greater on a mass basis, and
reduces the average volatile organic concentration of the
wastestream exiting the process to a level less than 50 ppmw; or
(3) It must be a biological process that either (a) achieves an
organic reduction efficiency equal to or greater than 95 percent,
and achieves an organic biodegradation efficiency for the process
equal to or greater than 95 percent, or (b) achieves a total actual
organic mass biodegradation rate for all decharacterized wastes
treated by the process equal to or greater than the required organic
mass removal rate for the process.
c. Surface impoundment management standards. If the prohibited,
decharacterized wastes are not pretreated, the requirements under the
subpart CC standards for surface impoundment air emission control
equipment specify that the owner or operator install and operate on
each affected surface impoundment a cover (an air supported structure
or cover) that is vented through a closed-vent system to a control
device meeting the requirements specified in 264.1085(d). As an
alternative, an owner or operator may place the waste in a surface
impoundment equipped with a floating membrane cover meeting the
requirements specified in 264.1085(e).
d. Closed-vent system and control device requirements. Since
emissions from impoundments would be captured and vented, this option
contains provisions to assure that the vented emissions are treated
properly before release. See 976 F.2d at 17. The subpart CC standards,
which would be utilized under this option, require that each control
device achieve at least a 95 percent reduction in the total organic
content of the vapor stream vented to the device or, in the case of an
enclosed combustion device, a reduction of the total organic content of
the vapor stream to a level less than or equal to 20 ppmw on a dry
basis corrected to 3 percent oxygen. These requirements are generally
the same as those used in EPA air rules. See 59 FR 19402 and 59 FR
62896.
e. Inspection and monitoring. To ensure that emission control
equipment is properly operated and maintained, the extended subpart CC
standards would require the owner and operator to visually inspect
certain emission control equipment items semiannually. For example,
emission control equipment covers on surface impoundments would be
checked semiannually by facility employees to ensure that (1) equipment
is being used properly (e.g., covers are closed and latched except when
an opening must be used to add, remove, inspect, or sample the waste in
the surface impoundment or to inspect, maintain, replace, or repair
equipment located inside the surface impoundment or to vent gases or
vapors from the surface impoundment) and (2) equipment is being
maintained in good condition (e.g., no visible holes, gaps, tears, or
splits have developed in covers).
Continuous monitoring of control device operation is required under
the subpart CC standards. This involves the use of automated
instrumentation to measure critical operating parameters that indicate
whether the control device is operating correctly or is malfunctioning.
Semiannual leak detection monitoring using Method 21 under 40 CFR part
60, appendix A, is required for certain cover components to ensure
gaskets and seals are in good condition and for closed-vent systems to
ensure all fittings remain leak-tight. In addition, each closed-vent
system must be monitored for leaks using Method 21 at least once per
year.
The extended subpart CC standards would require that the owner or
[[Page 43666]]
operator repair a cover fitting found to be leaking within 15 days of
detection. Repair of control equipment on a surface impoundment may be
delayed beyond 15 calendar days under certain circumstances. To delay
repair, the owner or operator would have to document that the repair
cannot be completed without emptying the contents of the unit and also
that removing the unit from service would result in the unscheduled
cessation of production from the process unit or operation of the waste
management unit that is generating the decharacterized waste. Repair of
this control equipment would have to be completed the next time the
process unit or waste management unit is generating the decharacterized
waste managed in the surface impoundment is shut down.
f. Recordkeeping requirements. The extended requirements of the
subpart CC standards would require the owner or operator to record
certain information in the on-site facility operating logs or files.
This information is to be readily available for review by authorized
representatives of the EPA. Consistent with 40 CFR 264.73 and 40 CFR
265.73, the rule requires that air emission control equipment design
records and certain other records be maintained in the facility
operating record until facility closure. Records and results of waste
determinations, inspections, and monitoring are required to be kept for
at least three years from the date of entry.
The information to be collected and recorded includes: the results
of all waste determinations such as of volatile organic concentrations
at the point of waste generation and organic vapor pressure; design
specifications for closed-vent systems and control devices and certain
control equipment; emission control equipment inspection and monitoring
results; Methods 27 test results; control device exceedances and
actions taken to remedy them; leak repairs; management of carbon
removed from carbon adsorption systems; identification of incinerators,
boilers, or industrial furnaces used to treat decharacterized waste in
accordance with the general requirements of the rule; documentation for
biological wastewater treatment units using air emission controls in
accordance with the rule requirements; and identification of equipment
fittings designated as unsafe or difficult to monitor or inspect.
g. Reporting requirements. The extended requirements of subpart CC
standards would require an owner or operator to submit reports to the
EPA only when circumstances occur at the facility resulting in
noncompliance with certain provisions of the rule. Each report required
under the extended subpart CC standards would be submitted to the EPA
Regional office having jurisdiction for that particular location. The
report would be signed and dated by an authorized representative of the
facility owner or operator.
An owner or operator subject to the extended requirements of 40 CFR
264 subpart CC would have to report to the EPA all circumstances
resulting in placement of a decharacterized waste in a surface
impoundment subject to the proposed rule and not using air emission
controls required by the rule when either of the following conditions
occur: (1) The characteristic waste has a volatile organic
concentration equal to or greater than 100 ppmw as determined on a
mass-weighted average basis at the point of waste origination, or (2)
the process used to treat the characteristic waste fails to meet the
applicable conditions specified in the rule. The owner or operator
would have to submit a written report within 15 calendar days of the
time that the owner or operator becomes aware of the circumstance.
An owner or operator subject to the extended requirements of 40 CFR
part 264, subpart CC and using a control device in accordance with the
requirements of the rule would be required to submit a semiannual
written report to the EPA. This report would describe each occurrence
during the previous 6-month period when a control device is operated
continuously for 24 hours or longer in noncompliance with the
applicable operating values defined in 40 CFR 264.1035(c)(4) or when a
flare is operated with visible emissions as defined in 40 CFR
264.1033(d). An owner or operator would not be required to submit this
report for a 6-month period during which all control devices at a
facility subject to the extended subpart CC standards are operated by
the owner or operator so that during no period of 24 hours or longer
did a control device operate continuously in noncompliance with the
applicable operating values defined in the rule.
4. Proposed Management Standards for Leaks
a. Scope. If surface impoundments receiving decharacterized wastes
(i.e., prohibited wastes) are leaking excessively, arguably disposal of
untreated UHCs is occurring at a level which invalidates the treatment
function of the impoundment (i.e., which constitutes an impermissible
cross-media transfer of hazardous constituents. 976 F.2d at 17.). In
addressing this possibility, this option presents facilities with a
sequence of monitoring, detection, and correction mechanisms to assure
that impoundments do not leak UHCs at these levels, and thus allows
continued use of the impoundment as part of a system achieving RCRA-
equivalent treatment. Thus, facilities choosing to adopt the ground
water protection approach set out below could continue to use
impoundments to treat decharacterized wastewaters.
An alternative to adopting a ground water protection program is to
treat decharacterized wastes before they reach the impoundment, to
segregate them altogether, or to retrofit the impoundment so that it
meets section 3005(j)(11) minimum technology requirements. These
options remain available at any time to a facility, so that a facility
would not be locked in to the ground water protection alternative if it
wishes to pursue alternative means of compliance. There is a caveat,
however. If a facility chooses to comply with the ground water
protection alternative and later detects impermissible levels of
contamination in the ground water at the well sites, the contamination
would still have to be remediated as set out in this proposed rule,
even if the facility begins to divert or pretreat the prohibited
characteristic wastestream at that time. The logic for this is that
there would have been documented disposal of prohibited wastes not
treated to meet LDR standards. In such circumstances, the Agency has
available to it the remedy that the illegally disposed waste must be
retrieved and properly managed. (See U.S. v. Structural Metals, Inc.
Civil Action No. SA--91--CA--201 (W.D. TX May 27, 1992)--a consent
decree requiring that 3600 tons of illegally disposed hazardous waste
be removed from a landfill and properly treated before being disposed.)
Option 2 would adopt, with modifications, certain sections of the
Municipal Solid Waste Landfill rule (referred to herein as the MSWLF
rule) at 40 CFR Part 258 Subpart E, for the control of leaks and the
application of corrective action to the following affected units:
surface impoundments in CWA, CWA-equivalent, or nonhazardous wastewater
treatment systems that accept wastes decharacterized by dilution. The
specific standards in this option include portions of ground water
monitoring systems (Sec. 258.51); ground water sampling and analysis
requirements (Sec. 258.53); assessment monitoring program
(Sec. 258.55); assessment of corrective action measures (Sec. 258.56);
selection of remedy (Sec. 258.57); implementation of the corrective
action
[[Page 43667]]
program (Sec. 258.58). For a simplified guide to applicability criteria
and management standards for leaks, see Figure 3.
BILLING CODE 6560-50-P
[[Page 43668]]
[GRAPHIC][TIFF OMITTED]TP22AU95.002
BILLING CODE 6560-50-C
[[Page 43669]]
b. Applicability. The proposed management standards for leaks would
only apply to owners and operators of facilities that generate
characteristic wastes that at the point of generation (and prior to
decharacterization) contain UHCs at concentrations that are greater
than UTS levels. The UHCs that are present at greater than UTS are
known as ``regulated constituents.'' Only these regulated constituents
must be considered in complying with the management standards for
leaks. UHCs present in a characteristic waste at levels less than or
equal to UTS are not subject to the proposed management standards for
leaks. If these decharacterized wastes are discharged to a surface
impoundment that meets the substantive minimum technology requirements
of 40 CFR 268.4, the Phase IV leak requirements would not apply.
The Agency's primary concern with regard to leaks from these
surface impoundments is the potential for regulated constituents to
migrate to the ground water in significant concentrations. The most
direct method available for assessing the presence of regulated
constituents in the ground water is groundwater monitoring. However,
the Agency believes it would be overly burdensome and unnecessary to
achieve the rule's intended purposes to require every surface
impoundment that manages decharacterized wastes to install ground water
monitoring wells. As a result, the Agency is proposing that regulated
constituents for which an MCL has been promulgated under section 1412
of the Safe Drinking Water Act (SDWA), codified under 40 CFR part 141,
must be present at concentrations in the surface impoundment
wastewaters that meet or exceed 10 times the MCL before ground water
monitoring is warranted. Thus, if the MCL for a hazardous constituent
is 1 mg/l and the hazardous constituent is present in surface
impoundment wastewaters at less than 10 mg/l, no groundwater monitoring
would be required. The Agency believes that the use of MCLs as a
trigger level for ground water monitoring is appropriate because MCLs
are a reasonable benchmark of risk posed to human health from a
drinking water source. By using a trigger of 10 times the MCL, the
Agency is taking into account the reasonable dilution and attenuation
that would occur as constituents migrate in the substrate. This trigger
level corresponds to the dilution and attenuation factor (DAF) of 10
(at the point of release to the aquifer) currently under consideration
for the Hazardous Waste Identification Rule (HWIR) proposal.
For UHCs that do not have MCLs, the Agency is proposing the
following approach. In the absence of an MCL, the state or tribal risk-
based number (i.e., 10 times the state or tribal ground water
protection number) would be used for the regulated constituent (see 40
CFR 258.55(i)). In the absence of both an MCL and state or tribal risk-
based number, the UTS level--the directly RCRA-equivalent level--would
be used for the regulated constituent.
c. Surface impoundment management standards. The Agency is
proposing to use annual sampling of the wastewaters in the surface
impoundment to determine if regulated constituents are present at
concentrations that exceed the trigger level. Sampling and analysis
need only be conducted for those regulated constituents identified in
the characteristic waste at the point of generation. If a new
decharacterized wastewater is accepted by the surface impoundment, then
the owner or operator would be required to characterize the new
decharacterized wastewater at point of generation to identify
additional regulated constituents prior to the next annual sampling
date. Annual sampling must be continued for as long as the unit is
receiving decharacterized wastes. Sampling and analysis is discussed in
further detail in the technical support document entitled, ``Technical
Support Document for Leaks, Sludges, and Air Emissions--Phase IV.''
To determine if a trigger level has been exceeded, the owner or
operator would calculate an annualized average concentration for each
regulated constituent identified. This annualized average will account
for process fluctuations and process upsets and would appropriately
represent the wastewaters in the surface impoundment. At a minimum, the
owner or operator would be required to include at least four sampling
events (i.e. quarterly), and a minimum of four independent samples from
each sampling event. (See ``Technical Support Document--Options for
Management Standards for Leaks, Sludges, and Air Emissions From Surface
Impoundments Accepting Decharacterized Wastes'' in the RCRA docket for
more information on sampling.)
d. Ground water and corrective action management standards. EPA is
proposing that the ground water monitoring and corrective action
regulations for municipal solid waste landfills (MSWLFs) under the
Subtitle D program (Solid Waste Disposal Facility Criteria, 56 FR
50978, October 9, 1991) be adopted with minor modifications for the
monitoring and remediation of surface impoundments subject to today's
proposed rulemaking. EPA believes that the ground water monitoring and
corrective action standards in the MSWLF rule, as modified in today's
rule, are appropriate and protective for the surface impoundments
subject to today's rulemaking. Thus, under this option, an impoundment
choosing to operate with these measures would be considered a treatment
impoundment not engaging in permanent disposal of waste. Put another
way, the impoundment could be part of a treatment process that can
perform LDR-equivalent treatment. EPA is not, however, intending that
the approach outlined in today's proposed rule is necessarily
appropriate for other industrial solid waste management units.
Many states have ground water protection programs that include
ground water monitoring and corrective action that may apply to the
types of units that EPA is covering in today's proposal. To the extent
that state programs require ground water monitoring and corrective
action that include the UTS constituents of concern (or can be modified
to cover those constituents) and are substantially similar to today's
proposal (i.e., frequency of monitoring, requirements regarding ground
water monitoring wells), EPA would defer to those State and Tribal
Programs. The owner/operator would have to demonstrate that there
exists a State or Tribe numerical limit for each regulated constituent
and document that in their operating records. For those constituents
not covered by State or Tribal limits, today's rule would apply.
Further, facilities affected by today's rulemaking that have existing
ground water monitoring and corrective action programs that are not
required by State or federal government may be able to continue those
programs in lieu of the regulations proposed here.
(i) MSWLF rule. Under this option, EPA is proposing to adopt some,
but not all provisions of the MSWLF regulations, which are promulgated
under 40 CFR Parts 257 and 258. The sections of Part 258 that EPA would
adopt with minor modifications are in Subpart E: Ground Water
Monitoring and Corrective Action. These are: Ground Water Monitoring
Systems (Sec. 258.51); Ground Water Sampling and Analysis Requirements
(Sec. 258.53); Assessment Monitoring Program (Sec. 258.55); Assessment
of Corrective Measures (Sec. 258.56); Selection of Remedy
(Sec. 258.57); and Implementation of the Corrective Action Program
(Sec. 258.58). The section in Subpart E not being considered in today's
rule is
[[Page 43670]]
section Sec. 258.54, which requires a ground water monitoring detection
program. General descriptions of the sections and changes that EPA is
proposing for adoption in today's rule are provided below and under the
following section titled ``Specific Requirements''.
Self-Implementing Provisions
The MSWLF regulations are structured to be either self-implemented
by an owner or operator or implemented in ``approved states'' through
approval and interaction with state regulatory agencies. The MSWLF rule
was designed so that states with federally approved programs could
define ground water protection and corrective action programs for
individual MSWLFs that accounted for site-specific factors.
In referencing the MSWLF rule for ground water monitoring and
corrective action activities for surface impoundments under today's
rule, the Agency is proposing to adopt only those provisions that are
self-implementing. EPA would modify the applicability of the MSWLF rule
such that any provisions that require state approval would not apply.
EPA is aware, however, that some of the site-specific provisions in the
MSWLF rule that would not be available under today's proposed rule
might be reasonable approaches for monitoring surface impoundments. For
example, Sec. 258.51(b) allows the director of an approved state to
approve a multi-unit ground-water monitoring system, rather than
require separate ground water monitoring systems for each unit.1
At some facilities subject to today's rule with closely spaced surface
impoundments, multi-unit monitoring may be protective and less
expensive to install and monitor. EPA seeks comment on whether the
multi-unit provision and any other site-specific provisions in the
MSWLF rule that would not be available should be allowed to be self-
implemented by facilities subject to ground-water monitoring and
corrective action under the Phase IV rulemaking.
\1\ The multi-unit system must be as protective of human health
and the environment as individual monitoring systems, based on
factors including the number, spacing, and orientation of the units,
the hydrogeologic setting, site history, engineering design of the
units, and type of waste accepted in the units. In addition to
approval of the multi-unit system, Sec. 258.51(d) requires that the
number, spacing, and depths of monitoring systems must be certified
by a ``qualified ground water scientist'' or by the director of an
approved state. In today's rulemaking, certification by the
qualified ground waster scientist would be required, rather than
approval by the state. In the absence of state approval, this
certification would help ensure that a protective multi-unit
monitoring system was installed (independent certification of
certain ground water monitoring and corrective provisions is
discussed further below).
---------------------------------------------------------------------------
Certification of a Self-Implementing Program
In the MSWLF rule, the Agency stated that independent party review
and certification of certain self-implemented programs or
demonstrations required by the rule is necessary to ensure technical
adequacy of critical ground water monitoring and corrective action
milestones. Four provisions adopted from the MSWLF rule require
certification by an independent ``qualified ground water scientist'':
(1) Number, spacing and depths of monitoring systems (Sec. 258.51(d));
(2) determination that contamination was caused by another source or
that a statistically significant increase resulted from an error in
sampling analysis or evaluation (Sec. 258.55(h)(2)); (3) determination
that compliance with a remedy requirement is not technically
practicable (Sec. 258.58(c)(1)); and (4) completion of remedy
(Sec. 258.58(f)).
The Agency defined a ``qualified ground water scientist'' at
Sec. 258.50 and discussed the relevant background and experience needed
for these professionals to certify ground water monitoring and
corrective action requirements in the MSWLF rule. This definition is
also promulgated under Sec. 260.10 for certain ground water monitoring,
but not corrective action, certifications under the hazardous waste
program. Individuals who qualify to certify ground water regulatory
milestones under either the Subtitle D or C programs would also qualify
to certify the ground water requirements adopted under today's
rulemaking. Owners or operators of surface impoundments that undergo
corrective action under today's rulemaking should ensure that any
``qualified ground-water scientists'' working in the Subtitle C program
are qualified to certify corrective action requirements in addition to
ground water monitoring requirements.
(ii) Ground water monitoring. Installing a ground water monitoring
system. For today's proposed rule, EPA would require within one year of
triggering ground water monitoring (that is, when a regulated
constituent is detected at levels above regulatory concern in the
surface impoundment), the owner/operator must install a ground water
monitoring system and begin monitoring those wells for all regulated
constituents. The Agency believes that it is appropriate to monitor for
all the regulated constituents in the wells for the following reasons:
(1) There will no longer be any type of monitoring conducted in the
surface impoundment (as long as the chemical composition of the waste
remains the same at the point of generation); (2) monitoring of all
regulated constituents is similar to the requirements established under
the MSWLF rule where analysis of a number of constituents is required
to determine the severity of a leak; and (3) it is essential to
accurately characterize the chemical composition of a ground water
release in order to aid in the corrective action plan, if necessary.
EPA believes that allowing one year will enable owner/operators
sufficient time to properly characterize their site and install ground
water monitoring wells that will meet the performance standards of 258
Subpart E. EPA is aware that many sites with less complex hydrogeology
and few units may not need the entire year to install their systems and
commence monitoring. Facilities with existing monitoring systems that
meet the applicable performance standards of Subpart E, Part 258 ground
water monitoring systems will be required to begin monitoring for the
UTS constituents regulated under today's rule at the next planned
monitoring period under existing monitoring programs, or within one
year.
Establishing a Ground Water Monitoring Program
The ground water monitoring program in today's proposed rule
focuses on a different set of constituents than those in the MSWLF
rule. Owners or operators subject to today's rule are required to
sample waste water in the affected surface impoundments to determine if
they have to install ground water monitoring systems. If ground water
monitoring is triggered, owners or operators are required to undertake
a monitoring program under Sec. 258.55 of the MSWLF rule to monitor for
only those UHCs that are present in the decharacterized waste prior to
its dilution and disposal in the surface impoundment treatment system.
The ground water monitoring system must include a sufficient number
of wells at the appropriate location and depth to determine background
level and the quality of the ground water at the relative point of
compliance. The relative point of compliance is required to be less
than or equal to 150 m from the waste management unit boundary located
on land owned by the facility. The MSWLF rule allowed for the director
of an approved state to determine an alternative boundary. Today's rule
is not allowing an alternative boundary, but rather requires the owner/
operator to select the relative
[[Page 43671]]
point of compliance as stated above, and document this in the
facility's records.
If statistically significant levels of these constituents are
detected above the constituent-specific ground water protection
standards as determined by Sec. 258.55(h) of the MSWLF rule, the owner
or operator is required to undertake corrective action to bring levels
of the regulated constituents in the ground water to below the ground
water protection standards. In contrast, under the MSWLF detection
monitoring regulations, which are not being considered under this
option, owners or operators are required to monitor for a list of
constituents from specified lists (see Appendix I to Part 258).
Constituents on this list are generally thought to be present at
MSWLFs, have physical and chemical properties that cause them to be
early indicators of a release from a unit and are easy and inexpensive
to analyze. The MSWLF rule has provisions to modify the detection
monitoring list via the overseeing regulatory authority if parameters
are not reasonably expected to be found in ground water at the site. In
contrast, the UHCs that the owner or operator is monitoring for under
proposed Option 2 may not have fate and transport characteristics that
would provide earliest indication of a release. However, EPA does not
at this time have information to indicate whether the list of indicator
parameters monitored for under the MSWLF detection monitoring program
are present at the surface impoundments subject to today's proposed
rule. Monitoring for constituents that are not present obviously would
not provide protection from releases of site-specific UHCs. For these
reasons, EPA is not proposing to adopt the requirement for facilities
to monitor the ground water under the detection ground water monitoring
program specified in 258.54. EPA is, however, proposing to require
facilities to directly implement a program to monitor the regulated
constituents in the ground water.
Detecting Releases
Today's proposed rule also would have a different approach when
releases have been detected. When constituents are found under MSWLF
rule detection monitoring at levels that trigger the next phase of
monitoring (assessment), the owner/operators are required to analyze
the ground water for a broad list of constituents (Appendix II to Part
258 of the MSWLF rule) that may be present to better characterize the
nature of the release. Facilities that move to corrective action
generally are required to address all ground water contamination,
rather than a subset of facility-specific UHCs. Today's proposed rule
does not require facilities to scan for the Sec. 258 Appendix II
constituents because EPA's authority is limited to the UHCs in the
prohibited wastes that are required to receive RCRA-equivalent
treatment. Rather, owner/operators under today's rule would be required
to move directly to assessment of corrective measures upon detecting
that releases are statistically significant.
Corrective Action
If corrective action is required, this means that untreated UHCs
are being released to the environment at an excessive level. The
impoundment thus is not performing equivalent treatment. An operator
can, however, capture and treat the constituents via corrective action,
which would have the effect of re-validating the surface impoundments
treatment function.
EPA is aware that owners or operators undertaking corrective action
under today's proposed approach might de facto remediate constituents
other than the regulated constituents in the ground water. For example,
a ground water extraction system with an air stripping treatment unit
designed to remove site-specific regulated constituents could also
strip and collect other VOCs present in the ground water. Facilities
may also be required to remediate all ground water contamination under
other state or federal actions or may remediate additional
contamination voluntarily because of concern over liability associated
with leaving ground water partially contaminated.
Alternatives to Ground Water Monitoring
EPA is aware that the MSWLF rule does not adequately allow for
alternatives to ground water monitoring when ground water monitoring is
not practicable or would not detect early releases. For example, some
landfills are located in arid regions where depth to ground water may
exceed many hundreds of feet. In such a situation, ground water
monitoring wells located at the margin of a unit might not intercept a
release, as it might move laterally as well as vertically prior to
intercepting the ground water at great depth. In addition, such wells
would not detect a release until considerable contamination has entered
the subsurface. EPA is currently developing a proposed rule to allow
for alternative monitoring systems for remote, small arid landfills
where monitoring of the unsaturated zone would afford early detection
of releases before the release migrates to the ground water. EPA has
not included a related provision in today's proposed rule, because
existing information indicates that the affected facilities are located
adjacent to bodies of water, where ground water under the facility
would be close to the surface. As with other ground water monitoring
programs, EPA encourages owners or operators to install innovative
monitoring systems, such as vadose zone monitoring, in addition to
ground water monitoring, if those systems would aid in the early
detection of releases.
(iii) Integration of option 2 with existing programs.--EPA is aware
that many of the facilities that would be subject to the requirements
of Option 2 will be undergoing ground water monitoring and corrective
action under existing state or federal authorities. Approximately one
half of the universe of affected facilities will be RCRA hazardous
waste treatment, storage, or disposal facilities (TSDFs) that are
permitted or operating under interim status. As noted above, at these
facilities, the surface impoundments subject to the Phase IV rule will
be ``solid waste management units'' (SWMUs) that are eligible for
corrective action under Sec. 3004(u) and (v), Sec. 3008(h), Sec. 7003,
and other authorities, such as CERCLA Sec. 106. These surface
impoundments, as SWMUs, may or may not be undertaking ground water
monitoring or corrective action when the Phase IV rule becomes
effective. Similarly, certain states already require ground water
monitoring or corrective action of surface impoundments, regardless of
their status under RCRA Subtitles C or D. Further, some facilities
affected by today's rulemaking may be conducting ground water
monitoring and corrective action activities that are not required by a
State or federal government.
As stated above, to the extent that state programs require ground
water monitoring and corrective action that include the UTS
constituents of concern (or are modified to cover those constituents)
and are substantially similar to today's proposal (i.e., frequency of
monitoring, requirements regarding ground water monitoring wells), EPA
is deferring to those State and Tribal programs. However, EPA
anticipates that many of these state or federal corrective action
ground water monitoring programs will not require monitoring of all of
the regulated constituents identified by facilities subject to today's
rule. Owners or operators could need to modify existing ground water
monitoring programs to add any UHCs (and their associated
[[Page 43672]]
ground water protection standards under 258.55(h)) that are not
currently being monitored to avoid any of the potential Phase IV
controls.
EPA also seeks comment on a ground-water monitoring approach not
proposed in today's rule. As an alternative, facilities that are
triggered into ground water monitoring under today's rule would be
required to undertake a detection monitoring program under 258.54,
rather than commence directly with an assessment program. The purpose
of a detection monitoring program in the MSWLF rule is to detect
releases by monitoring a set of constituents or parameters that provide
a reliable indication of ground water contamination. In the MSWLF rule,
Appendix I to Part 258 was developed as a list of organic and inorganic
constituents that are likely to be found in the ground water if
releases occur from a MSWLF. As stated earlier, EPA does not believe
that this list is appropriate for the facilities that are subject to
today's rulemaking, as they do not have the type and variety of wastes
that are typically found in landfills. Under this alternate option, EPA
would not require facilities under today's rulemaking to monitor for
Appendix I Part 258 parameters under their detection monitoring
programs. Instead, facilities would be required to monitor for
indicator parameters (such as specific conductance, total organic
carbon, or total organic halogen), waste constituents, or reaction
products that provide a reliable indication of the presence of
hazardous constituents in ground water. If statistically significant
levels were detected above background conditions of these indicator
parameters, the facility would be required to undertake assessment
monitoring, wherein the facility would analyze for the presence of UTS
constituents, assess the potential for offsite releases, and initiate
an assessment of corrective measures. This approach would shift the
focus of the initial ground water monitoring program to the detection
of releases, rather than the detection of site-specific UHCs that are
regulated in today's rule. The MSWLF rule, under 258.54(1) and (2),
lists several factors to allow an owner or operator to deviate from the
Appendix I list under the approval of a state director. Under this
alternative approach, facilities would establish an alternate list
through self-implementation, rather than by state approval.
(iv) Summary of specific requirements for ground water monitoring
and corrective action from the MSWLF rule Sec. 258.51 ground water
monitoring systems.--This section requires ground water monitoring
systems (if constituent levels in impoundments exceed certain levels)
to meet certain requirements and design specifications. Systems are
required to monitor both background water quality and ground water at
the point of compliance.
Sec. 258.53 Ground Water Sampling and Analysis. This section
requires that the owner/operator follow certain sampling and analysis
procedures, including quality assurance and quality control, and
specifies the number of samples taken and the statistical procedures to
be followed.
Sec. 258.55 Assessment Monitoring Program. As discussed above, EPA
is proposing to require that owners or operators that would be
compelled to undergo ground water monitoring under today's rule bypass
the MSWLF rule detection monitoring program and undertake assessment
monitoring directly. The purpose of the assessment monitoring program
in today's proposed rule would be to monitor ground water for the
presence of site-specific regulated constituents determined to be
present in the decharacterized wastestream at the point of generation,
and to assess whether any statistically significant releases need to
undergo corrective action. The assessment monitoring program contains
requirements for sample number and determination of background for
constituents, criteria for moving into corrective action and additional
monitoring requirements under corrective action. This section also
requires the owner/operator to establish ground water protection
standards for each of the regulated constituents as follows: (1) If an
MCL is available, the MCL is the ground water protection standard; (2)
if there is no MCL, the background concentration is used as the ground
water protection standard; and (3) if the background concentration is
greater than the MCL, the background level is the ground water
protection standard. The Agency believes that it may not be reasonable
to require the owner or operator to reduce the concentrations of
hazardous constituents below background. (See 56 FR 51087, October 9,
1991). Although background levels are not health-based standards, they
are a practical measurement of what can be achieved by remediation and
today's proposal would not preclude a State or other entity from
requiring an owner or operator to clean up contamination below
background levels where it is warranted. As noted earlier, specific
federal (e.g., 3004(u) corrective action), state, local, or tribal
levels also could be used in lieu of these levels.
Furthermore, in light of the self-implementing nature of these
specific standards for leaks for surface impoundments, the Agency is
not adopting the provisions of 268.55(i) which address the site
specific protection standards.
As discussed above, EPA will not require owner/operators under
assessment monitoring to scan the ground water for constituents listed
in Appendix II to Part 258. Instead, facilities will move directly to
assessment of regulated constituents as required in Sec. 258.56 if
statistically significant levels of contaminants are found to exceed
the ground water protection standard. More information on the required
monitoring program can be found in ``Technical Support Document--
Options for Management Standards for Leaks, Sludges, and Air Emissions
From Surface Impoundments Accepting Decharacterized Wastes'' in the
RCRA Docket.
Sec. 258.56 Assessment of corrective measures.--Within 90 days of
finding that any of the regulated constituents have been detected at a
statistically significant level exceeding the ground water protection
standards, the owner/operator must undertake an assessment of
corrective measures that addresses specified criteria.
As discussed above, today's rule would also introduce the new
requirement into Sec. 258.57 that once it is determined that corrective
measures are necessary, the facility would be required to implement one
of the following: (1) cease discharge of the decharacterized
wastestream into the surface impoundment as soon as is practical (i.e.,
reroute decharacterized wastestream to a tank) or (2) installation of a
double liner and leachate collection system.
Sec. 258.57 Selection of remedy. Based on the results of the
assessment required by Sec. 258.56, the owner/operator must select a
remedy that meets several protectiveness standards. This section also
requires that the owner/operator consider several evaluation factors
when selecting a remedy and establish a schedule for initiating and
completing the remedial activities. This section also allows for no
remediation under enumerated circumstances, e.g., ground water is
already contaminated by multiple sources and clean up of release would
provide no significant reduction of risk. The Agency has determined
that since these remediation waivers are not self-implementing, they
will not be adopted as part of this proposal.
[[Page 43673]]
Sec. 258.58 Implementation of the corrective action program. This
section requires that once a remedy is selected, the owner/operator
must implement a corrective action program that demonstrates compliance
with the ground water protection standards established under
Sec. 258.55. If necessary, the owner/operator must also take interim
measures to protect human health and the environment. Other
requirements in this section include implementing alternative methods
or techniques for remediation if the selected remedy is not effective,
and criteria for establishing when meeting the ground water protection
standard cannot practicably be achieved.
5. Proposed Management Standards for Sludges
a. Scope. Under Option 2, the Agency would require management
standards for sludges from prebiological surface impoundments in CWA,
CWA-equivalent, or nonhazardous wastewater treatment systems that
accept decharacterized wastes, when the sludges are removed from the
impoundments for land disposal elsewhere. Data available to the Agency
indicate that UHCs may be present in the decharacterized wastewaters
and may be transferred to sludges in these impoundments at
concentrations that pose a threat to human health and the environment.
The Agency has limited data indicating biological or post-biological
surface impoundment sludges do not pose significant risks when
disposed. Nor would the Agency expect significant concentrations of
hazardous constituents to be present. A more detailed discussion of
today's proposed rule can be found in the technical support document
entitled, ``Technical Support Document for Leaks, Sludges, and Air
Emissions--Phase IV.''
b. Rationale. The approach for sludges under this option is
conceptually similar to that proposed for the ground water and air
exposure scenarios. If sludges contain hazardous constituents in excess
of levels that pose a risk to human health or the environment (see 976
F. 2d at 17), this form of cross-media transfer of hazardous
constituents could be considered too excessive to allow the impoundment
to be considered an equivalent form of treatment, unless the sludges
were to be treated to remove that risk. Under this option, the
evaluation would be made at the time sludges are removed from the
impoundment, not while the sludges remain within an impoundment. This
is because EPA does not believe in-place sludges would be a release
pathway separate from the leaks pathway. Put another way, by
controlling leaks (as explained in the previous section), any risks
posed by sludges while in the impoundment should be accounted for.
Consequently, any potential incremental risk would arise when the
sludges are disposed elsewhere. (Cf. RCRA section 3005 (j) (11)
indicating that treatment standards for hazardous sludges do not apply
while sludges are in the impoundment, and thus apply only when the
sludges are removed and land disposed).
EPA is proposing the technology-based UTS as the benchmark for
evaluating whether sludges are capable of posing significant risk. This
approach could be replaced when the Agency develops risk-based levels
through the Hazardous Waste Identification Rule process. In the
interim, the UTS standards serve as the best available measure of when
threats are minimized, and treatment to those levels certainly
satisfies any requirement of equivalent treatment.
EPA also reiterates that, as a legal matter, it can be argued that
even no treatment of sludges is equivalent to subtitle C LDR controls.
This is because generation of sludges is usually a new point of
generation at which the newly-generated waste is reevaluated to
determine if it is subject to the LDR standards. If non-hazardous, the
sludges would not be so subject (i.e., would not be prohibited wastes).
See 55 FR 22661-62. Thus, literal application of an equivalence test
would result in no treatment of these sludges, since the sludges will
be non-hazardous wastes by definition (they cannot be hazardous wastes
because they are being generated in subtitle D impoundments), and so
would not require further treatment under the standard subtitle C
approach.
c. Applicability. For a simplified guide to applicability criteria
and management standards for sludges, see Figure 4.
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d. Determining UHC concentrations in surface impoundment sludges.
The Agency would require sampling of the sludges removed from
prebiological surface impoundments at the time the sludges are removed
to determine if the concentrations of UHCs in the removed sludge exceed
UTS. Representative sampling and analysis of the sludge need only be
conducted for those UHCs identified in the characteristic wastewater at
the point of generation. A more detailed discussion of representative
sampling and analyses is provided in the technical support document
entitled, ``Technical Support Document for Leaks, Sludges, and Air
Emissions--Phase IV.''
e. Management standards. If the concentration level of one or more
of the UHCs exceeds UTS, then the sludge must be treated by means other
than dilution to meet UTS. If the surface impoundment will no longer be
receiving decharacterized wastewaters, then the owner or operator would
be required to conduct representative sampling of the sludges when
sludges are next removed from the impoundment. No further sampling of
removed sludges would be required after decharacterized wastes are no
longer received by the unit.
6. Recordkeeping Requirements for Leaks and Sludges
Under Option 2, the Agency would establish recordkeeping
requirements for leaks and sludges. An owner or operator that utilizes
surface impoundments in CWA, CWA-equivalent, or non-hazardous
wastewater treatment systems to manage decharacterized wastes would
have to maintain records of any test results, waste analyses, or other
determinations for at least three years.
7. Sampling and Analysis
The Agency would like to point out that the sampling and analysis
requirements are not overly burdensome. Owners and operators that would
be affected by today's proposed Phase IV rules would only be required
to perform a minimum number of analyses. Generator knowledge could be
used in lieu of sampling and analysis. See section I.D.3.c. for a
discussion of what constitutes acceptable generator knowledge.
I. Option 3
A final option to address the potential problem of releases of
hazardous constituents from decharacterized wastes in surface
impoundments is to require that such wastes meet UTS for the UHCs
before entering the impoundment (unless the impoundment satisfies
Minimum Technology Requirements or the statutory no migration
standard). A waste could be aggregated and diluted, but achievement of
UTS for the hazardous constituents would have to be accomplished by
mass removal/destruction before entering a surface impoundment. The
pollution prevention compliance alternative and the de minimis
exemption would be allowed for Option 3. For a simplified guide to
Option 3, see Figure 5.
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It should be noted that this option is already available as a means
of complying with any of the requirements in Option 2. The question
here is whether this should be the only alternative allowed. EPA's view
is that it should not be the exclusive approach, for reasons of law and
policy. This approach destroys the very accommodation between the CWA
and RCRA upheld by the D.C. Circuit. It would invalidate impoundment-
based treatment systems, even if such treatment systems can be shown to
be equivalent to RCRA treatment within the meaning of the opinion.
Since the court hinted that RCRA ``requires'' some accommodation with
the CWA on this issue (976 F. 2d at 20), there is some question whether
EPA even has the authority to mandate the approach. The Agency believes
the approach unwise in any case, and has so stated in the Third rule
itself as well as later discussions. Very simply, impoundment-based
wastewater treatment systems can be effective means of treating
decharacterized wastewaters, and can do so without undermining core
values of RCRA and the LDR program. Consequently, such treatment should
not be effectively invalidated by requiring all treatment of
characteristic wastes to occur upstream of impoundments.
II. Proposal Not to Ban Nonamenable Wastes From Land-Based Biological
Treatment Systems
Summary: EPA believes that prohibiting certain decharacterized
wastes from land-based wastewater treatment systems on the basis of
whether the constituents in those wastes are ``amenable'' to biological
treatment is unnecessary at this time. Instead, EPA is proposing to
prevent excessive environmental contamination of hazardous constituents
that leave surface impoundments. Technical obstacles present another
reason not to ban nonamenable wastes.
A. Background
The Environmental Technology Council (ETC) has suggested that EPA
develop regulations restricting Subtitle D surface impoundment disposal
of organic compounds and metals resistant to biological degradation in
these units. The Chemical Manufacturer's Association (CMA) provided EPA
with comments on ETC's suggested approach. These strategies focused on
identifying those constituents which are relatively resistant to
biological degradation in order to develop regulations setting maximum
acceptable concentrations for these constituents in surface impoundment
influent. The Phase III proposed LDR rule summarizes the ETC and CMA
positions, and discusses several technical issues (41 FR 11717). ETC's
comment is included in the rulemaking docket for the Phase III
proposal.
B. Rationale for Proposing Not to Ban Nonamenable Wastes From
Biological Treatment Systems
EPA has carefully considered the policy and technical issues raised
by the suggestion to ban nonamenable wastes from biological treatment
impoundments. The Agency believes that the key issue of whether such
impoundments serve as transfers of nonamenable constituents to air,
leaks, sludges, or discharges to surface waters is best addressed by
the Phase III end-of-pipe limits on constituents, coupled with the
options in Section I of this preamble. The provisions in Phase III and
Phase IV are designed to protect human health and the environment from
hazardous constituents in surface impoundments, therefore, there is no
need to regulate nonamenable wastes. Additionally, if constituents are
not excessively migrating to ground water through leaks, to air through
emissions, adsorbing onto sludge sediments, or being discharged at the
end of pipe, then EPA can be reasonably certain that treatment in the
impoundment is adequate.
Furthermore, EPA believes that the technical impediments to banning
nonamenable wastes from biological treatment impoundments are
significant. First, the design and operating conditions of biological
treatment can vary widely. Second, the ``amenability'' of constituents
at the point of generation may not reflect the ultimate amenability in
the biological treatment system. Finally, variations in the influent
stream composition, acclimation of the biomass, and the effect of other
constituents add another level of uncertainty to the process of
determining the amenability of a particular waste stream. These
multiple uncertainties make an accurate assessment of amenability on
the level of the stream or of the constituent extremely difficult.
III. Improvements to Land Disposal Restrictions Program
A. Clean Up of Part 268 Regulations
In today's rule, EPA is proposing to ``clean up'' existing
regulatory language that is outdated, confusing, or unnecessary. Some
sections are clarified, some have been condensed, while others are
altogether removed. Comments are solicited on the proposed changes that
follow.
1. Section 268.4
Section 268.4(a)(2)(iv) would be changed to read, ``Recordkeeping.
The sampling, analysis, and recordkeeping provisions of Secs. 264.13
and 265.13 apply.'' The existing language in Sec. 268.4 duplicates the
substantive requirements of Secs. 264.13 and 265.13. Referencing the
Secs. 264.13 and 265.13 requirements in Sec. 268.4 clarifies that there
are no additional recordkeeping requirements at Sec. 268.4; the general
facility recordkeeping requirements apply, thus the LDR program does
not add additional burden.
2. Section 268.5
Section 268.5(e) would be amended to clarify that an applicant
could be granted additional time (up to one year) beyond the one-year
case-by-case extension; when first applying for the case-by-case
extension, the applicant would be required to show that the additional
time (beyond the extension in the first year) would be necessary to
provide capacity to treat the applicant's waste. Comments are requested
on this issue.
3. Section 268.7
Much of the language specifying what must be included on LDR
notifications at Sec. 268.7 needs revision; therefore, this section is
proposed to be rewritten to reflect changes, clarify the existing
notification requirements, and generally simplify the requirements for
generators of hazardous waste. The proposed changes in Sec. 268.7(a)
would result in renumbering of the paragraphs. The new numbering scheme
for this section is used in this discussion. Also, the generator
paperwork requirements are proposed to be consolidated into a table at
Sec. 268.7(a)(4), and the treatment facility requirements into a table
at Sec. 268.7(b)(4).
References in Part 268 to LDR treatment standards that have
previously been found in tables in Secs. 268.41, 268.42, and 268.43,
are proposed to be changed to refer to the consolidated table in
Sec. 268.40--Treatment Standards for Hazardous Wastes.
References to Sec. 268.32 and RCRA 3004(d), California List wastes,
are removed, because the treatment standards for these wastes have been
superseded by subsequent treatment standards.
In Sec. 268.7(a)(3), the rule requires that to each receiving land
disposal facility, a notification must go with each shipment of
restricted waste that meets
[[Page 43678]]
the LDR treatment standards as generated. The notice must identify the
waste and applicable subcategories, the manifest number, and other
information, along with a certification statement saying that the waste
meets the treatment standards. As a streamlining measure in today's
rule, the Agency is proposing that when a generator whose waste meets
the appropriate treatment standards, and the composition of these
wastes or the process generating the waste does not change, then they
are only required to submit a one-time notification and certification
to the receiving facility. A copy of the notification and certification
must be kept in the generator's file. If the waste changes, then the
generator must send a new notice and certification to the receiving
facility, and place a copy in their files.
In Sec. 268.7(a)(5), if generators are managing prohibited wastes
in tanks, containers, or containment buildings, they are required to
submit a waste analysis plan to the EPA Regional Administrator or
authorized State for their review of the testing plan. As a
streamlining measure, EPA is proposing to delete the requirement that
generators submit the waste analysis plans to States and Regions.
Comments are requested on this issue.
The record retention time period in Sec. 268.7(a)(8) is proposed to
be changed from five to three years, in order to make LDR requirements
consistent with other RCRA record retention periods.
The lab pack notification requirements of Sec. 268.7(a)(8) are
proposed to be streamlined to include only the requirements of
Secs. 268.7(a)(2), 268.7(a)(6), and 268.7(a)(7). This is possible
because the alternative treatment standard for lab packs specifies a
method of treatment rather than concentration levels that would have to
be monitored after treatment. There is, therefore, no need to know
whether the wastes in the lab packs are wastewaters or nonwastewaters
or are hazardous debris (these are data items proposed to be deleted
from the lab pack notification). The Agency solicits comments on this
assumption.
In Sec. 268.7(b), the first sentence--Treatment facilities must
test * * * as required by Sec. 264.13 or Sec. 265.13--is proposed to be
clarified so that it is more obvious that Sec. 264.13 contains the
requirements for permitted treatment, storage and disposal facilities
and Sec. 265.13 contain the requirements that apply to interim status
facilities.
In addition, the sentence, ``* * * test method described in
appendix I of this part or using any methods required by generators
under Sec. 268.32 of this part * * *'' is changed to read, ``* * * test
method described in `Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,' EPA Publication SW-846.'' Specific reference to EPA
Publication SW-846 for the Toxicity Characteristic Leaching Procedure
gives the regulated community a more direct reference for details of
the test method. Furthermore, the Agency is proposing to add a table
that more clearly indicates the items to be included on notifications
under this section, and is changing all references to Secs. 268.41,
268.42, and 268.43 to refer to the Table of Treatment Standards in
Sec. 268.40.
In section 268.7(c)(2), the sentence, ``* * * test method described
in appendix I of this part or using any methods required by generators
under Sec. 268.32 of this part * * *'' is changed to read, ``* * * test
method described in `Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,' EPA Publication SW-846.'' Specific reference to EPA
Publication SW-846 for the Toxicity Characteristic Leaching Procedure
gives the regulated community a more direct reference for details of
the test method.
6. Section 268.9
In section 268.9, paragraphs (a), and (b) are proposed to be
revised to clarify how wastes should be identified when they are both
listed and characteristic wastes. The revisions do not propose any
substantive changes to these paragraphs. The existing regulations
require that for the LDR notification, a waste must be identified as a
listed waste and also as a characteristic waste unless the listed waste
has a treatment standard for the constituent or addresses the hazardous
characteristic that causes the waste to also be characteristically
hazardous. If the listed waste has treatment standards that address all
characteristics, then the characteristic waste codes do not attach.
In paragraph (d)(1)(ii), the language has been edited to clarify
that if all underlying hazardous constituents reasonably expected to be
present in a characteristic waste will be monitored, then the generator
need not list any of them on the LDR notification. If, however, a
subset of underlying hazardous constituents will be monitored, they
must be included on the LDR notification. This is not a substantive
change, because such language was already placed in 40 CFR 268.7(a) in
the technical correction to the Phase II final rule (60 FR 245, January
3, 1995).
5. Sections 268.30-268.37
Sections 268.31-268.37 are proposed to be removed because the
treatment standards for wastes in these sections are now in effect,
thus all these wastes are now prohibited from land disposal. The
sections are, thus, no longer needed and are proposed to be removed.
Old Sec. 268.30 is proposed to be replaced by a new section that
provides the prohibition dates of the wastes included in this proposed
rule.
6. Appendices
Appendix I is proposed to be removed and reserved because the TCLP
test method reference to SW-846 will be incorporated into the text of
the regulatory language.
Appendix II to Part 268 is also proposed to be removed and reserved
because it incorrectly refers to treatment standards in Secs. 268.41,
268.42, and 268.43 (they are now in Sec. 268.40); furthermore, there is
no longer a need for a reference to the solvent treatment standards.
Appendix III is proposed to be removed and reserved because the
California List treatment standards have been superseded by Universal
Treatment Standards, thus there is no need for a listing of halogenated
organic compounds because they are California List wastes.
Appendix VI is proposed to be amended to clarify that
characteristic wastes that also contain UHCs must be treated not only
by a ``deactivating'' technology to remove the characteristic, but also
treated to achieve the UTS for UHCs.
Appendix VII is proposed to be removed and reserved because all the
wastes in the table have treatment standards now in effect, thus there
is no need to know the effective dates, waste by waste. Likewise,
Appendix VIII is proposed to be removed and reserved because the
effective dates for these wastes when injected into deep injection
wells are past, thus are no longer needed.
Appendix IX is proposed to be removed because as of the Phase IV
rule, all characteristic metal treatment standards are based on
toxicity using the TCLP rather than the Extraction Procedure (EP).
There is no longer any need for a reference to the EP.
Appendix X is proposed to be removed and reserved because it
summarizes paperwork requirements that are proposed to be changed in
the Phase III proposal and this proposal. Furthermore, if the Agency
finalizes the paperwork tables discussed in this section of the
preamble in Secs. 268.7(a)
[[Page 43679]]
and 268.7(b), there is no need for summary tables in the appendix.
The Agency is committed to identifying new ways the LDR program can
be simplified, and will continue to seek additional opportunities for
such streamlining efforts in the future.
B. Simplification of Treatment Standard for Waste Code F039
Summary: Today's proposal simplifies the presentation of the
treatment standard for multisource leachate, which is waste code F039.
Discussion: With the promulgation of the Universal Treatment
Standards (UTS) in the Phase II rule (59 FR 47982), there is no longer
a need for the separate list of constituents for F039 which currently
appears in the table titled ``Treatment Standards for Hazardous
Wastes'' at 40 CFR 268.40. EPA proposes that F039 meet all the UTS for
the constituents at Sec. 268.48, with the exceptions of fluoride,
vanadium, and zinc. In other words, while F039 remains the waste code
for leachate from hazardous waste disposal facilities, the treatment
standards for wastewater and nonwastewater forms of individual
constituents now reference the UTS (Sec. 268.48), with the exceptions
of fluoride, vanadium, and zinc.
C. POLYM Method of Treatment for High-TOC Ignitable D001 Wastes
Summary: EPA proposes to add polymerization (POLYM) to the set of
required methods of treatment designated Best Demonstrated Available
Technology (BDAT) for high-TOC ignitable (D001) wastes resulting from
commercial polymerization processes.
Discussion: Polymerization (POLYM) processes convert deactivated
waste into a chemically stable plastic in the same manner that
commercial plastics were formed with the reagent which is being
disposed of as a high-TOC D001 waste.
The National Marine Manufacturer's Association contacted EPA with
concerns that the May 1993 Interim Final Rule (58 FR 29860) prohibited
the practice of polymerizing excess polyester/styrene waste left over
from the manufacture of modular shower stalls and recreational boats.
The prohibition was actually established in the 1990 Third Third (55 FR
22520). In these manufacturing processes polyester/styrene reacts with
methyl ethyl ketone peroxide in a mold to form fiberglass. The
ignitable waste polyester/styrene and MEK peroxide are the wastes of
concern.
Waste polyester/styrene monomers and MEK peroxide are commonly
disposed of by reacting small quantities together to create fiberglass
scraps. The waste polyester/styrene monomers and MEK peroxide are
currently regulated as high-TOC ignitable wastes for which the current
standard is treatment by CMBST (combustion) or by RORGS (recovery of
organics) before land disposal. Neither CMBST nor RORGS allows for
polymerization of high-TOC ignitable wastes into inert materials which
do not exhibit any characteristics of toxicity, ignitability,
corrosivity or reactivity. The Agency believes that the ongoing
practice of polymerizing characteristic wastes to a noncharacteristic
inert mass adequately protects human health and the environment.
Today's rule proposes POLYM as an alternative to CMBST or RORGS for
those high-TOC D001 wastes which are chemical components in the
manufacture of plastics. POLYM requires the addition of a polymerizing
component or catalyst to the discarded high-TOC D001 monomer stream
intended for land disposal. POLYM is defined as ``Formation of complex
high-molecular weight solids through polymerization of monomers in
high-TOC D001 nonwastewaters.'' The Agency notes that the accumulation
time provisions for on-site storage of hazardous waste in tanks (40 CFR
262.34) allow facilities to store waste monomers and catalysts up to 90
days after the ignitable components are discarded provided that these
wastes are kept in adequate tanks. (40 CFR 262.34(a)(1)(ii)).
IV. Exclusion for Recycled Wood Preserving Process Wastewaters
Summary: In response to wood preserving industry concerns that
production wastewaters being reclaimed are improperly classified as
solid waste under RCRA Subtitle C, EPA is providing an opportunity for
the industry to supply information that could potentially form the
basis for an industry-wide variance.
Discussion: EPA has recognized that certain wastes from wood
preserving and surface protection, most notably drippage, are reclaimed
and then returned to the wood preserving process for reuse (see 53 FR
53311). The Agency received numerous comments to its proposed wood
preserving rule claiming that waste recycling and reuse practices at
wood preserving and surface protection plants should be excluded from
the definition of solid waste.
In its December 6, 1990 wood preserving listing, EPA rejected that
claim. The Agency stated that the current regulations correctly
classify drippage and wastewaters from the wood processing industry
destined for reclamation as solid waste since the capture and
conveyance mechanisms used in the operation do not meet the terms of
the Sec. 261.4(a)(8) closed-loop exclusion (see 53 FR 50460). While
rejecting any broad attempt to exclude these wastes from the definition
of solid waste, the Agency did point out a variance provision in the
regulations, Sec. 260.30 and Sec. 260.31(b), that could apply to the
wood preserving industry. The provision allows for variances to be
granted on a case-by-case basis to individual facilities, provided that
an EPA Regional Administrator or authorized State Director makes a
determination that a particular reclamation operation is an essential
part of the production process, taking into account a number of
criteria, including how carefully the material is handled before it is
reclaimed (see 53 FR 50460).
The Agency's rationale for creating the Sec. 260.30 and
Sec. 260.31(b) variance was that it may be inappropriate to regulate a
reclamation process under RCRA when the process is an essential part of
production, assuming the secondary materials being reclaimed are not
part of the waste disposal problem. Section 260.31(b) lists a number of
criteria to be considered by a regulator when determining whether a
reclamation operation meets the terms of this provision. Although this
variance was originally intended to be granted on a case-by-case basis,
if these criteria can be demonstrated on an industry-wide basis, EPA
will consider a conditional exclusion. Comments are requested on the
extent to which the reclamation of production wastewaters from the wood
preserving industry meet the criteria found in Sec. 260.31(b).
Section 260.31(b)(3), which requires the regulator to take into
account ``the extent to which the material is handled before
reclamation to minimize loss,'' is of particular interest in evaluating
this reclamation operation. In the wood preserving industry, this would
certainly apply to releases from a drip pad, clearly a waste and
clearly a potential part of the waste management problem (damage cases
described in 53 FR 53323), and the extent to which such releases could
be prevented. It appears that prevention of drip pad releases could be
adequately achieved through compliance with 40 CFR 264, Subpart W (drip
pads). EPA is interested in receiving comments on any alternative and
perhaps better ways that the industry might meet the Sec. 260.31(b)(3)
standard.
As part of an ongoing effort to revise the current definition of
solid waste, EPA is taking a close look at the regulations for on-site
recycling. In the
[[Page 43680]]
meantime, we are willing to consider quicker action on wood processing
production wastewaters, provided we receive adequate information to
make an industry-wide determination that the reclamation operation is
an essential part of production and that the secondary materials being
reclaimed are not likely to be a part of the waste disposal problem.
V. Treatment Standards for Newly Listed and Identified Wastes
A. Background
The Hazardous and Solid Waste Amendments (HSWA) to RCRA, which were
enacted on November 8, 1984, largely prohibit the land disposal of
untreated hazardous wastes. RCRA requires EPA to promulgate treatment
standards for a waste within six months after determining it is
hazardous (RCRA section 3004(g)(4)).
The Agency did not meet this latter statutory deadline for all of
the wastes identified or listed after the 1984 amendments. As a result,
a suit was filed by the Environmental Defense Fund (EDF). EPA and EDF
signed a consent decree that establishes a schedule for adopting
prohibitions and treatment standards for newly identified and listed
wastes. (EDF v. Reilly, Cir. No. 89-0598, D.D.C.). Today's notice
proposes treatment standards for two of those waste groups: wood
preserving wastes and metal wastes that are considered hazardous under
the revised Toxicity Characteristic (TC).
B. Treatment Standards for Soil Contaminated With Newly Listed Wastes
The Agency has stated a presumption that the treatment standards
for as-generated wastes are generally inappropriate or unachievable for
soils contaminated with hazardous wastes, within the meaning of 40 CFR
268.44(a) (see 55 FR 8759-60, March 8, 1990). It has been the Agency's
experience that contaminated soils are significantly different in their
treatability characteristics from the wastes that have been evaluated
in establishing the BDAT standards, and thus, will generally qualify
for a treatability variance under 40 CFR 268.44. For guidance on
treatability variances for soils, see the EPA Fact Sheet entitled
``Regional Guide: Issuing Site-Specific Treatability Variances for
Contaminated Soils and Debris from Land Disposal Restrictions'' (OSWER
Publication 9839.3-08FS). For RCRA actions, the Regional Administrator
was delegated the authority to deny or grant these variances in a non-
rulemaking procedure under 40 CFR 268.44(h) on April 22, 1991. These
variances may be granted by State agencies in States authorized for
Sec. 268.44. Variance authority for CERCLA actions is discussed in LDR
Guides 6A (revised Sept. 1990) and 6B (OSWER 9347.3-06FS and 9347.3-
06BFS).
EPA is proposing a national capacity variance for soil and debris
contaminated with Phase IV newly listed wastes. If the capacity
variance is made final, any site-specific treatability variance would
not be necessary during the period the capacity variance is in effect.
C. Treatment Standards for Wood Preserving Wastes 2
\2\ These listings do not include K001 bottom sediment sludge
from the treatment of wastewater from wood preserving processes that
use creosote and/or pentachlorophenol.
---------------------------------------------------------------------------
Summary: NEPA is proposing to apply Universal Treatment Standards
(UTS) to wood preserving wastes (F032, F034, and F035).
1. Identification of Wastes
F032--Wastewaters, process residuals, preservative drippage, and
spent formulations from wood preserving processes generated at plants
that currently use or have previously used chlorophenolic
formulations.3
\3\ This treatment standard would apply except where potentially
cross-contaminated wastes have had the F032 waste code deleted in
accordance with section 40 CFR 261.35 and where the generator does
not resume or initiate use of chlorophenolic formulations.
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F034--Wastewaters, process residuals, preservative drippage, and
spent formulations from wood preserving processes generated at plants
that use creosote formulations.
F035--Wastewaters, process residuals, preservative drippage, and
spent formulations from wood preserving processes generated at plants
that use inorganic preservatives containing arsenic or chromium.
Wastes from the wood preserving industry, F032, F034, and F035,
were listed as hazardous on December 6, 1990, (see 55 FR 50450). EPA is
proposing to regulate specific constituents from each of these
hazardous wastes groups. (A list of the hazardous constituents proposed
for regulation are found within the Table at the end of this preamble
discussion.) These wastes are generated during the treatment or
preservation of wood products such as poles, crossarms, timbers, rail
road ties, and fence posts. Pentachlorophenol, creosote, and inorganic
arsenical and/or chromated salts are the primary active ingredients
that are used to preserve wood products. The application of these
chemicals generate wastewaters, process solid residuals, preservative
drippages, and spent formulations. The listing document for F032, F034,
and F035 provides additional information on the processes generating
each of these wastes.
2. Proposed Treatment Standards
After reviewing the available characterization data on untreated
and treated wastes that are believed to be at least as difficult to
treat as F032, F034, and F035, EPA has determined that UTS are
technically achievable for the constituents proposed for regulation in
F032, F034, and F035. (The BDAT background document provides
information on EPA's rationale for developing and applying UTS to these
wastes. Also see LDR Phase II final rule, 59 FR 47982, September 19,
1994, for further discussion of UTS.) EPA is thus proposing that each
constituent proposed for regulation in F032, F034, and F035 comply with
its applicable UTS in the treatment standard table at 40 CFR 268.40, as
a prerequisite for land disposal.
EPA believes that this proposal is consistent with EPA's efforts to
ease compliance burdens by setting one treatment standard for the same
regulated constituent in various wastes. Wood preserving facilities
currently manage these hazardous wastes at commercial hazardous waste
management facilities that manage wood preserving wastes as well as
other hazardous wastes prohibited from land disposal. These commercial
treatment facilities will likely commingle wood preserving wastes with
other similar wastes in treatment trains that achieve UTS. Furthermore,
the data available on the treatment of wastes believed to be as
difficult, or more difficult, to treat as F032, F034, and F035 support
the achievability of UTS.
3. Review of Available Characterization Data
EPA has reviewed available characterization data on F032, F034, and
F035 from documents supporting the listing of these wastes as
hazardous. EPA has also used additional data gathered by EPA on F035
during 1991 (EPA's 1991 study), which include data on untreated and
treated F035 wastes (with the exception of one study that describes the
bench scale treatment of a CCA formulation believed to simulate the
treatment of F035 wastewaters) from three wood preserving facilities;
from untreated and treated F035 wastes commingled at a hazardous waste
treatment facility prior to their
[[Page 43681]]
stabilization with lime and cementious agents; from an EPA in-house
treatability study of F035 via stabilization with lime, fly ash, and
cementious agents; and, from an EPA in-house feasibility study to
selectively remove arsenic, chromium, and copper from a synthetic
simulated F035 wastewater.
Other literature consulted includes EPA's Preliminary Data Summary
for the Wood Preserving Segment of the Timber Products Processing Point
Source Category, September 1991 (EPA 440/l-91/023) (referred to here as
the 1991 Preliminary Data Summary of the Wood Preserving Industry (1991
PDSWPI)). Other documents reviewed include 1986-1990 summary abstracts
on the treatment of F032, F034, and F035 contaminated soils at
Superfund sites, other literature published on the treatment of wood
preserving and petroleum refining contaminated soils, and data
submitted by commenters on the Advanced Notice of Proposed Rulemaking
of October 21, 1990 (ANPRM) (see 56 FR 55160) and the LDR Phase II rule
of September 19, 1994 (59 FR 47980).
4. Determination of Best Demonstrated Available Technology (BDAT)
a. Nonwastewaters. For nonwastewater forms of F032 and F034, the
proposed treatment standards of each of the organic constituents are
based on the combustion of wastes believed to be as difficult, or more
difficult, to treat as F032 and F034. For metals in nonwastewater forms
of F032, F034, and F035, EPA has determined that stabilization is BDAT
for chromium (total), and that vitrification is BDAT for arsenic.
b. Wastewaters. For wastewater forms of F032 and F034, the proposed
UTS for each organic constituent are based on treatment technologies
such as biological treatment, steam stripping, carbon absorption, or by
a train of two or more wastewater treatment technologies. The proposed
treatment standards for metals in wastewater forms of F032, F034, and
F035 are based on lime addition followed by sedimentation, and
filtration for arsenic and in chemical precipitation followed by
sedimentation for chromium. Like chromium, copper, lead, and zinc are
also amenable to chemical precipitation followed by filtration.
EPA believes that the treatment technologies supporting the
proposed UTS are also BDAT for F032, F034, and F035. This is because
they are demonstrated for wastes as difficult or more difficult, to
treat. EPA also believes that none of the hazardous constituents in
F032, F034, and F035 are likely to interfere with the treatment of the
constituents proposed for regulation. In addition, EPA reviewed the
performance of other thermal and non-thermal treatment or recovery
technologies demonstrated on wastes similar to F032, F034, and F035.
EPA believes that these other technologies can reach or can be
optimized to meet the proposed UTS limits. Therefore, the Agency is not
prohibiting the use of other technologies capable of achieving the
proposed treatment standards except for those constituting land
disposal or impermissible dilution.
5. Proposed Regulation of Dioxin and Furan Constituents in F032
EPA has found in F032 homologues of polychlorinated di-benzo-p-
dioxins (PCDDs) and polychlorinated di-benzofurans (PCDFs). These
homologue-isomers are a result of impurities from formulations that
employ chlorophenolic chemicals such as pentachlorophenol (PCP) and
other chlorinated aromatic hydrocarbons. EPA is proposing treatment
standards that would require meeting a concentration that does not
exceed l ppb (also expressed as ug/kg) for all the PCDD and PCDF
homologue and isomer constituents proposed for regulation. EPA also
requests data on the treatment of these constituents.
Commenters to the ANPRM of April 1991, were concerned that the
selection of PCDD and PCDF as hazardous constituents in nonwastewater
forms of F032 could result in commercial treatment facilities refusing
to manage F032 wastes due to public sensitivities about these
chemicals. Some commenters urged EPA not to regulate PCDD and PCDF but
rather, to regulate surrogate constituents such as pentachlorophenols,
gross parameters such as total suspended solids and oil and grease
levels, or precursor constituents of PCDD and PCDF such as
``hexachlorobenzene, 1,2,4-trichlorobenzene, and 1,2,4,5-
tetrachlorobenzene''. Only one commenter, however, submitted data on
the use of alternate constituents. The data consisted of the influent
characterization data for wastewaters treated via biological treatment
and the end-of-pipe treated effluents. The data did not include the
concentrations of PCDD and PCDF that were achieved in the biosludges
and end-of-pipe treated wastewater effluents; thus EPA is unable to
determine how the monitoring of alternative constituents or gross
parameters can ensure the destruction of PCDD and PCDF constituents.
Other commenters requested that EPA defer or forgo the regulation
of PCDD and PCDF in F032. They believe that regulation of other
hazardous constituents in F032 will provide PCDD and PCDF with adequate
treatment. No data were provided to support these statements.
EPA believes that the regulation of PCDD and PCDF is necessary to
ensure their destruction. PCDD and PCDF are relatively insoluble in
wastewaters. Because they tend to adhere to suspended particles, they
may go untreated through wastewater treatment systems. Also, PCDD and
PCDF can be solubilized in oils, and thus may go untreated through
biological treatment systems. In contrast, EPA has data from the
combustion of hazardous wastes and soils which shows that the
combustion of PCDD- and PCDF-constituents wastes in two stage
combustion devices leaves behind incineration ash and other residues
with PCDD and PCDF levels below 1 ppb. Other performance data include
residues from other thermal destruction devices such as supercritical
oxidation (Hubber Process) and infrared incineration (Shirco reactor).
Another consideration in proposing regulation of PCDD and PCDF is
that FO32 can potentially contain concentrations of up to 300 ppb in
wastewaters and between 1 ppb to 140,000 ppb in nonwastewaters. These
concentrations become more significant if they are allowed to go
untreated in non-thermal treatment technologies such as separation and
filtration. EPA has identified one commercial facility currently
permitted to combust wastes that may have PCDD and PCDF constituents
with concentrations one to two orders of magnitude higher than those
levels found in F032.
For nonwastewater forms, the proposed treatment standards are based
on the performance of combustion. For wastewater forms, the proposed
treatment standards are based on the performance of biological
treatment. As mentioned earlier, other aggressive oxidation
technologies such as infrared incineration (Shirco process),
supercritical oxidation (Hubber process), and pyrolytical destruction
devices can also achieve the proposed treatment standards. EPA requests
comments on the use of non-thermal treatment technologies that have
been optimized to treat PCDD and PCDF in wastes as difficult to treat
as F032. In particular, EPA requests comments on whether non-thermal
technologies such as chemical dechlorination via the use of the
Alkaline Polyethylene Glycolate (APEG or KPEG) process or the Based
Catalyzed Decomposition process and
[[Page 43682]]
ultraviolet (uv) photolysis are also capable of achieving limits at or
below the proposed UTS limits for dioxins and furans in wastewater and
nonwastewater forms of F032. EPA has been testing the applicability of
the BCD Process and APEG on various chlorinated wastes and contaminated
soil, and wood preserving wastes. EPA expects to make the results of
the BCD treatability studies available to the public in the fall of
1995.
Proposed BDAT Standards for F032, F034, F035
[Wastewaters and nonwastewaters]
----------------------------------------------------------------------------------------------------------------
Wastewaters Nonwastewaters Constituents proposed for regulation
maximum for any maximum for --------------------------------------------
24 Hr. any grab
composite sample
Constituent ---------------------------------
Total Total F032 F034 F035
composition(mg/ composition
l) (mg/kg)
----------------------------------------------------------------------------------------------------------------
Phenols:
Phenol........................ 0.039 6.2 x
2,4-Dimethylphenol............ 0.035 14.0 x .............
2,4,6-Trichlorophenol......... 0.035 7.4 x
2,3,4,6-Tetrachlorophenol..... 0.035 7.4 x
Pentachlorophenol............. 0.089 7.4 x
PAHs:
Acenaphthene.................. 0.059 3.4 x x
Anthracene.................... 0.059 3.4 x x
Benz(a)anthracene............. 0.059 3.4 x x
Benzo(a)pyrene................ 0.061 3.4 x x
Benzo(k)fluoranthene.......... * 0.11 * 6.8 x x
Chrysene...................... 0.059 3.4 x x
Dibenz (a,h) anthracene....... 0.055 8.2 x x
Fluorene...................... 0.059 3.4 x x
Indeno(1,2,3-c,d)pyrene....... 0.0055 3.4 x x
Naphthalene................... 0.059 5.6 x x
Phenanthrene.................. 0.059 5.6 x x
Pyrene........................ 0.067 8.2 x x
Dioxins and Furans:
Tetrachlorodibenzo-p-dioxins.. 0.000063 0.001 x
Pentachlorodibenzo-p-dioxins.. 0.000063 0.001 x
Hexachlorodibenzo-p-dioxins... 0.000063 0.001 x
Tetrachlorodibenzofurans...... 0.000063 0.001 x
Pentachlorodibenzofurans...... 0.000035 0.001 x
Hexachlorodibenzofurans....... 0.000063 0.001 x
Inorganics:
Arsenic....................... 1.4 5.0 x x x
Chromium (total).............. 2.77 0.86 x x x
----------------------------------------------------------------------------------------------------------------
* Because Benzo(b)fluoranthene and Benzo(k)fluaranthane coelute on gas chromatography columns, this constituent
is regulated as a sum of the two compounds.
D. Treatment Standards for Toxic Characteristic Metal Wastes
1. Rationale for Applying Universal Treatment Standards (UTS) to Toxic
Characteristic Metal Wastes (D004-D011)
In the Third Third LDR Rule (55 FR 22520), EPA established
treatment standards for the metal wastes that were characteristic by
the Extraction Procedure (EP) test. Since promulgation of the TC rule
in September 1990, the Toxic Characteristic Leaching Procedure (TCLP)
is used to determine whether a metal waste is characteristic. Wastes
that are characteristic by the TCLP but not by the EP are considered
newly identified wastes and are not currently subject to the land
disposal restrictions. Today, EPA is proposing to apply treatment
standards to all characteristic metal wastes. In addition, the Agency
is proposing to change the treatment standard levels for characteristic
metal wastes from those established in the Third Third rule at the
characteristic levels to previously promulgated UTS levels for metal
constituents. Furthermore, when promulgated, the characteristic metal
wastes must be treated not only to meet today's proposed treatment
standards, but also to meet treatment standards for any UHCs reasonably
expected to be present in those wastes at the point of the wastes'
generation. This approach is consistent with the promulgated
requirements for other characteristic wastes (D012-D043) (see 59 FR
47982 September 19, 1994).
EPA promulgated the UTS for organic, metal, and cyanide
constituents on September 19, 1994 (see 59 FR 47982). The UTS
eliminated differences in concentration limits for the same constituent
in order to provide a better assessment of treatability, to reduce
confusion, and to ease compliance and enforcement. (The complete table
of UTS is located at 40 CFR 268.48 and the levels have been
incorporated in the treatment standard table at Sec. 268.40.) The UTS
replaced the existing metal constituent treatment standards for all
listed wastes, and constituted applicable levels for underlying
hazardous metal constituents (metal UHCs) in ignitable, corrosive and
TC organic wastes. As explained above, they did not apply to TC waste
codes D004-D011, nor did they replace the treatment standards
promulgated in the Third Third rule for EP metals.
EPA performed a comprehensive reevaluation of the available
treatment performance data from both listed and characteristic wastes
for all metal constituents in the UTS table in order to
[[Page 43683]]
determine whether the metal UTS levels are appropriate to transfer to
TC metals. The Agency has determined that a transfer of UTS is
appropriate based on treatment levels achieved for the characteristic
wastes and the metal concentrations in untreated wastes used for UTS
being more highly contaminated than the characteristic wastes. Some of
the historic data on treatment of characteristic wastes simply reflects
a design to remove the characteristic, not a true measure of the
treatability by stabilization and HTMR (see ``BDAT Background Document
for Toxicity Characteristics Metal Wastes D004-D011)'' in the RCRA
docket). EPA is proposing that the metal UTS are the LDR treatment
standards for characteristic metal wastes. This means, in effect, that
most of the metal treatment standards are proposed to be changed,
however, a few treatment standards are not. Tables at the end of this
section provide the old level, the new level, and whether or not the
treatment standard is proposed to be changed.
The UTS for metal nonwastewaters can be achieved by high
temperature metals recovery (HTMR) or stabilization. HTMR is a common
technology for the extraction and recovery of metals from complex
matrices. HTMR is based primarily on pyrometallurgical separation
principles. HTMR has been demonstrated to be applicable to almost all
metals in a relatively wide variety of matrices. This is primarily due
to the thermodynamic and kinetic reactivity of these metals (and other
inorganics present) at the high temperatures and oxidation states in
the unit. Depending on the type of HTMR unit and the temperatures
utilized, nonwastewater residues that would be classified as slags, are
likely to be produced.
Conventional stabilization technologies include cementious and
pozzolanic stabilization with the potential addition of specialized
reagents for the enhancement of structural stability, curing time, and/
or reduced leachability. The reduction in leachability of the hazardous
metal constituents of the wastes is accomplished by the formation of a
lattice structure (i.e., chemical bonds) that binds or entraps the
metals in a solid matrix. Before addition of the stabilizing agents,
the forms of the metals in the wastes need to identified. Often
pretreatment involving chemical conversion of the metals in the wastes
to a more favorable oxidation state or to a different metallic salt
must be performed or the stabilization could be relatively ineffective
or incomplete.
2. Proposed Revision of UTS for Beryllium
In today's rule, EPA is proposing to change the UTS for beryllium
to 0.04 mg/l TCLP. After UTS were promulgated, additional data on TC
metals were submitted to the Agency. These grab sample data were from a
HTMR facility and were comprised of 480 data points from their in-house
metal treatment processes. These data were submitted as ``Confidential
Business Information.'' While UTS nonwastewater limits for metals
specify a grab sample, the data used to develop the standards included
both grab and composite samples. These data demonstrated HTMR could not
necessarily achieve the limits using grab samples. Out of the 40 data
points for beryllium, five exhibited levels exceeding the UTS level of
0.014 mg/l TCLP. A log-normal statistical analysis, based on QA/QC
Methodology, was performed on these beryllium data points. Based on
this analysis, the Agency is proposing to modify the beryllium UTS
level to 0.04 mg/l TCLP. The Agency believes that this proposed level
provides assurance that metal nonwastewater standards can comply with
UTS using grab samples.
The Agency also reevaluated the new cadmium data submitted. Based
on a log-normal statistical analysis the cadmium data, the UTS level of
0.19 mg/l TCLP is essentially at the 99th percentile. The Agency,
therefore, does not see a need to modify this standard and is not
proposing a change in the previously promulgated cadmium UTS level.
However, due to the two data exceedances out of the 40 data point
samples submitted, the Agency is soliciting further data.
The issue of grab versus composite sampling has been raised as
needing clarification. As previously promulgated, these metal treatment
standards specify grab samples. If grab sampling creates
inconsistencies in achieving UTS levels for a treatment process, the
facility should evaluate its process and submit data to EPA in support
of their treatment process (40 CFR 268.41 and 55 FR 22539 June 1,
1990). The use of grab versus composite standards does not mean more
frequent sampling is necessary. Grab samples normally reflect maximum
process variability, and thus will reasonably characterize the range of
treatment system performance. The sampling analysis for both wastewater
and nonwastewater is composite and grab respectively (40 CFR 268.41 and
268.43).
3. Treatment Standard for Previously Stabilized Mixed Radioactive and
Characteristic Metal Wastes
Some radioactive wastes which exhibit a hazardous characteristic
for a metal have been stabilized to meet the existing LDR standards,
but may not be land disposed until after Phase IV is finalized. Such
circumstances could result in treated wastes not meeting the revised
standards. For example, as part of the West Valley Demonstration
Project, approximately 21,000 drums of mixed radioactive/formerly metal
characteristic wastes have been stabilized to meet the current LDR
treatment standards for metals.) The wastes at the West Valley site are
being stored awaiting development of disposal capacity. Because of
siting difficulties for radioactive wastes, it is expected to take more
than three years to develop disposal capacity. There is a good
possibility that when these treated wastes are disposed, the Phase IV
final rule will be in effect and the metal portion will be subject to
the more stringent Universal Treatment Standard levels. If this were
the case, the wastes would require re-treatment to achieve UTS prior to
disposal. Such a practice would present significant risks. Opening the
drums and grinding the already treated mass of stabilized waste to re-
treat could expose workers, and possibly others, to unacceptable levels
of metal containing dusts and radioactivity.
The Agency believes the prior stabilization of such wastes achieves
the statutory minimized threat standard, and to require re-treatment
would not only minimize threat, but could increase it. Therefore, the
Agency is proposing to allow characteristic metal mixed wastes, that
have undergone stabilization prior to the effective date of the Phase
IV final rule, to comply with the LDR metal standards that were in
effect at the time the waste was stabilized. Mixed radioactive/
characteristic metal wastes that are stabilized after the effective
date of Phase IV would be subject to the metal treatment standards in
the Phase IV rule.
[[Page 43684]]
Proposed Changes for TC Metals (Nonwastewater) (D004-D011)
------------------------------------------------------------------------
Old TC
level New UTS N.C.=no
TC metal (mg/l level(mg/l change
TCLP) TCLP)
------------------------------------------------------------------------
Arsenic (D004).......................... 5.0 5.0 N.C.
Barium (D005)........................... 100 7.6
Cadmium (D006).......................... 1.0 .19
Chromium (Total) (D007)................. 5.0 .86
Lead (D008)............................. 5.0 .37
Mercury-retort residues (D009).......... 0.20 .20 N.C.
Mercury--all others (D009).............. .20 .025
Selenium (D010)......................... 1.0 .16
Silver (D011)........................... 5.0 .30
------------------------------------------------------------------------
Proposed Changes for TC Metals (Wastewaters) (D004-D011)
------------------------------------------------------------------------
Old TC New UTS
TC metal level(mg/ level(mg/ N.C.=no
l TCLP) l) change
------------------------------------------------------------------------
Arsenic (D004).......................... 5.0 1.4
Barium (D005)........................... 100 1.2
Cadmium (D006).......................... 1.0 .69
Chromium (Total) (D007)................. 5.0 2.77
Lead (D008)............................. 5.0 .69
Mercury-retort residues (D009).......... .20 NA
Mercury--all others (D009).............. .20 .15
Selenium (D010)......................... 1.0 .82
Silver (D011)........................... 5.0 .43
------------------------------------------------------------------------
VI. Mineral Processing Waste Issues
EPA is planning revisions to the regulations pertaining to mineral
processing wastes, including the definition of solid waste, the rules
applying to mixtures of Bevill-exempt wastes and those which are not
Bevill-exempt, application of land disposal to characteristic mineral
processing wastes, and responses to various court remands. The Agency
plans to address these issues in a supplemental proposal to today's
rule.
VII. Environmental Justice
A. Applicability of Executive Order 12898
EPA is committed to address environmental justice concerns and is
assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities. In response to
the Executive Order and to concerns voiced by many groups outside the
Agency, EPA's Office of Solid Waste and Emergency Response formed an
Environmental Justice Task Force to analyze the array of environmental
justice issues specific to waste programs and to develop an overall
strategy to identify and address these issues (OSWER Directive No.
9200.3-17).
B. Potential Effects
Today's proposed rule covers several wastes: wood preserving
wastes, TC metals, and leaks/sludges/and emissions from surface
impoundments. The rule involves not one site, but will possibly affect
many facilities nationwide. Because of the locations of some of these
facilities and surface impoundments, the potential exists for impacts
to minority or low income communities.
Today's rule is intended to reduce risks of hazardous and
characteristic wastes as proposed, and to benefit all populations. As
such, this rule is not expected to cause any disproportionate impacts
to minority or low income communities versus affluent or non-minority
communities.
The Agency is soliciting comment and input from all stakeholders,
including members of the environmental justice community and members of
the regulated community. The Agency encourages all interested parties
to provide comments or further information that might be necessary on
the data, analysis, and findings contained in this section. The Agency
is interested in receiving additional information and/or comment on the
following:
Information on facilities with surface impoundments that
have evaluated potential ecological, human health (taking into account
subsistence patterns and sensitive populations) and socioeconomic
impacts to minority or low-income communities.
Information on facilities with surface impoundments that
have conducted human health analyses identifying multiple and
cumulative exposures (populations at risk) from leaks, emissions,
sludges.
Information on releases (leaks, emissions) that have
occurred in the community and their health and environmental effects;
and possible effects of exposure to the chemicals in the community.
Information on hazardous materials stored, used, and
transported in the community.
VIII. Capacity Determinations
A. Introduction
This section summarizes the results of the capacity analysis for
the wastes covered by this proposal. For background information on data
sources, methodology, and a summary of the capacity analyses for each
group
[[Page 43685]]
of wastes covered in this rule, see ``Background Document for Capacity
Analysis for Land Disposal Restrictions, Phase IV--Issues Associated
with Clean Water Act Treatment Equivalency, and Treatment Standards for
Wood Preserving Wastes and Toxicity Characteristic Metal Wastes.
In general, EPA's capacity analysis focuses on the amount of waste
to be restricted from land disposal that is currently managed in land-
based units and that will require alternative treatment as a result of
the LDRs. The quantity of wastes that are not managed in land-based
units (e.g., wastewaters managed only in RCRA exempt tanks, with direct
discharge to a Publicly Owned Treatment Works (POTW)) is not included
in the quantities requiring alternative treatment as a result of the
LDRs. Also, wastes that do not require alternative treatment (e.g.,
those that are currently treated using an appropriate treatment
technology) are not included in these quantity estimates.
EPA's decisions on whether to grant a national capacity variance
are based on the availability of alternative treatment or recovery
technologies. Consequently, the methodology focuses on deriving
estimates of the quantities of waste that will require either
commercial treatment or the construction of new on-site treatment as a
result of the LDRs. Quantities of waste that will be treated adequately
either on site in existing systems or off site by facilities owned by
the same company as the generator (i.e., captive facilities) are
omitted from the required capacity estimates.\4\
\4\ Traditionally, capacity analyses have focused on the demand
for alternative capacity once existing on-site capacity and captive
off-site capacity have been accounted for. However, for some of the
wastes at issue in this rule it may not be feasible to ship wastes
off site to a commercial facility. In particular, facilities with
large volumes of wastewaters may not readily be able to transport
their waste to treatment facilities. Alternative treatment for these
wastes may need to be constructed on site.
---------------------------------------------------------------------------
B. Capacity Analysis Results Summary
1. Available Capacity
EPA estimates that there are 115,900 tons per year of commercial
sludge/solid combustion capacity and 1,145,000 tons per year of
commercial liquid combustion capacity available to meet the treatment
requirements of Phase IV wastes. EPA estimates that there are over one
million tons of available stabilization capacity. In addition, EPA
estimates that there are approximately 47 million tons per year of
available wastewater treatment capacity.
EPA believes that some facilities may face logistical problems in
complying with the sludges, leaks, and air emissions standards. For
example, if the standards require alternative management of
characteristic wastes, modifications (e.g., waste segregation, plant
replumbing, the installation of a new waste treatment system or
pollution prevention mechanisms) might require significant time. If EPA
determines that on-site treatment capacity will not be available when
the final rule is promulgated, and that there would be no feasible way
for generators to transport their wastes to commercial treatment
facilities, EPA may grant a capacity variance for up to two years. EPA
requests comments on the types of modifications that might be necessary
at facilities that need to manage their Phase IV wastes on-site, and
the time required to make such modifications.
2. Surface Impoundment Sludges, Leaks, and Air Emissions
EPA is considering several regulatory options for surface
impoundment sludges, leaks, and air emissions. Details of the
methodology and estimates of affected facilities and waste quantities
are provided in the capacity analysis technical background document.
EPA estimates that for the regulatory option that relies on Phase
III rulemaking and other EPA regulatory activities (e.g., CAA) to
achieve RCRA-equivalent levels of control (Option 1), no facilities or
quantities will be affected by the Phase IV rule.
The other regulatory options apply some additional controls beyond
treatment standards for surface impoundment wastewaters regulated under
the Phase III rule. EPA analyzed these other regulatory options by
focusing on the 15 industry sectors identified in the Phase III LDR
capacity analysis as the industries most likely to be affected by the
Phase IV LDR rule.
EPA estimates that for Option 2, the wastewater affected by the air
emissions standard for surface impoundments in CWA or CWA-equivalent
treatment systems will be about 0.4 billion to 5.8 billion tons of
decharacterized wastewater per year. About 0.3 billion to 3.7 billion
tons of decharacterized wastewater could be affected by the leak
standard. The facilities generating affected wastewater may need to
conduct ground water monitoring, install liners, or conduct ground
water remediation. EPA estimates that 0.1 million to 3.5 million tons
per year of sludges might be affected by the sludges component of the
Phase IV LDR rule. For Option 3, EPA estimates that 2.4 billion to 16
billion tons of decharacterized wastewater will be affected each year
by the air emissions, leaks, and sludges standards.
For Options 2 and 3, EPA believes that some affected facilities
need time to reconfigure their waste management systems or to build
treatment capacity for these wastes, since the volumes of waste
affected are large enough to make off-site treatment impractical for
many facilities. EPA is proposing to grant a two-year national capacity
variance for surface impoundment sludges, leaks, and air emissions
under the regulatory options that require additional management of
these wastes beyond the Phase III standards (i.e., Options 2 and 3).
EPA requests comments on this proposal and data on the number of
affected facilities and the quantities of affected wastes.
3. Newly Identified Characteristic Metal Wastes
EPA estimates 41,250 tons per year of newly identified D008 (lead)
nonwastewaters will require stabilization as a result of the TCLP test.
EPA believes that any additional quantities of other newly identified
TC metal wastes are very small. Since there are over 1 million tons of
stabilization capacity available to treat these wastes, EPA is
proposing to not grant a variance to TC metal wastes.
4. Wood Preserving Wastes
EPA estimates that very small quantities of wood preserving
wastewaters (approximately 340 tons of organic wastewater and 40 tons
of inorganic wastewater per year) will require alternative treatment
capacity in order to comply with the proposed LDRs. EPA estimates that
approximately 28,000 per year tons of nonwastewaters (24,860 tons of
organic nonwastewaters and 2,880 tons of inorganic nonwastewaters) will
require alternative treatment as a result of the proposed LDRs.
EPA believes that incineration should be able to meet the proposed
treatment standards for organic wastewaters and nonwastewaters,
stabilization should be able to meet the proposed treatment standards
for inorganic nonwastewaters, and chemical precipitation should be able
to meet the treatment standards for the inorganic wastewaters. There is
sufficient liquid and sludge/solid combustion capacity for both the
organic wood preserving wastewaters and nonwastewaters. In addition,
EPA believes that there is sufficient chemical precipitation capacity
for the inorganic wastewaters. Finally, there are over 1 million tons
of stabilization capacity for the inorganic nonwastewaters.
[[Page 43686]]
Therefore EPA is proposing not to grant a variance for the newly listed
wood preserving wastes. Although many commenters to the ANPRM (56 FR
55160) expressed concern that treatment facilities would not accept
F032 waste if the treatment standards include a dioxin concentration,
EPA believes that its Combustion Strategy will alleviate this problem.
Given the potentially large quantity of soil and debris
contaminated with newly listed wood preserving wastes and the lack of
adequate treatment capacity to meet this demand, EPA is proposing to
grant a two-year capacity variance to soil and debris contaminated with
newly listed wood preserving wastes. The Agency requests comments on
this proposal, including data on the quantities of soil and debris
contaminated with wood preserving wastes that are generated.
5. Mixed Radioactive Wastes
Despite the uncertainty about quantities of mixed radioactive
wastes containing wastes that will require treatment as a result of
today's proposed rule, any new commercial capacity that becomes
available will be needed for mixed radioactive wastes that were
regulated in previous LDR rulemakings and whose variances have already
expired. Thus, EPA has determined that sufficient alternative treatment
capacity is not available, and is proposing to grant a two-year
national capacity variance for mixed RCRA/radioactive wastewaters and
nonwastewaters contaminated with wastes whose standards are being
proposed today.
6. Phase IV Wastes Injected Into Class I Wells
EPA estimates that approximately 11 million tons of newly
identified and listed wastes are being injected in Class I injection
wells. These injected volumes vary in amount by facility and are all
disposed on site. None of these facilities transport their waste off
site or currently have the necessary capacity to treat their waste on
site by acceptable means. Additionally, for those facilities affected
by the proposed prohibitions which are unable to make a successful no
migration demonstration and/or are unable to meet the requirements of
other proposed options, constructing a treatment facility on site would
require a significant amount of time. Therefore the Agency is proposing
to grant a two-year national capacity variance for these wastes.
EPA requests comments on the above capacity determinations. In
particular, EPA requests data on the generation, characteristics, and
management of the wastes discussed above. In addition, EPA requests
data on the availability of treatment capacity for any of these wastes.
Table 1 lists each category of RCRA wastes for which EPA is today
proposing LDR standards. For each category, this table indicates
whether EPA is proposing to grant a national capacity variance for
land-disposed wastes.\5\
\5\ The term ``land-disposed wastes'' denotes wastes that are
managed in land-based units at any time during the waste's storage,
treatment, or disposal.
Table 1.--Variances for Newly Listed and Identified Wastes
[``Yes'' indicates EPA is proposing to grant a variance] \1\
------------------------------------------------------------------------
Deep well-injected
Waste description Surface-disposed wastes wastes
------------------------------------------------------------------------
Phase IV Sludges \2\... Yes.................... N/A.
Phase IV Leaks \2\..... Yes.................... N/A.
Phase IV Air Emissions Yes.................... N/A.
\2\.
Newly Identified TC No..................... Yes.
Metals (D004-D011).
Newly Listed Wood No..................... Yes.
Preserving Wastes
(F032, F034, F035).
Soil and Debris Yes.................... N/A.
Contaminated with
Newly Listed Wood
Preserving Wastes.
Phase IV Mixed Yes.................... Yes.
Radioactive Wastes.
------------------------------------------------------------------------
\1\ Treatment capacity variances are for two years.
\2\ The variance determinations listed here apply only to wastes derived
from surface impoundments in CWA or CWA-equivalent systems that manage
decharacterized ICRT wastes.
IX. State Authority
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR Part 271.
Prior to HSWA, a State with final authorization administered its
hazardous waste program in lieu of EPA administering the Federal
program in that State. The Federal requirements no longer applied in
the authorized State, and EPA could not issue permits for any
facilities that the State was authorized to permit. When new, more
stringent Federal requirements were promulgated or enacted, the State
was obliged to enact equivalent authority within specified time frames.
New Federal requirements did not take effect in an authorized State
until the State adopted the requirements as State law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time that they take effect in unauthorized States.
EPA is directed to carry out these requirements and prohibitions in
authorized States, including the issuance of permits, until the State
is granted authorization to do so.
Today's rule is being proposed pursuant to sections 3004(d) through
(k), and 3004(m), of RCRA (42 U.S.C. 6924(d) through (k), and 6924(m)).
The rule would be added to Table 1 in 40 CFR 271.1(j), which identifies
the Federal program requirements that are promulgated pursuant to HSWA.
States may apply for final authorization for the HSWA provisions in
Table 1, as discussed in the following section of this preamble. Table
2 in 40 CFR 271.1(j) is also modified to indicate that this rule is a
self-implementing provision of HSWA.
B. Abbreviated Authorization Procedures for Specified Portions of the
Land Disposal Restrictions Phase II, III, and IV Rules
Under the current authorization structure, all revisions to
authorized state hazardous waste programs, no matter how minor the
change, are reviewed under the same procedures and standard of review.
While these procedures may be appropriate for significant changes to
the RCRA program, EPA believes they are too detailed for minor changes.
EPA is aware that this situation may result in unnecessary costs and
delays in authorizing States and add costs for the Agency to process
these revisions. Because of these problems, EPA believes that the
procedures for authorization should reflect the different scope of new
rules. For example, a State should be able to gain authorization for
minor revisions to a basic aspect of the program (i.e., the Land
Disposal Restrictions) in an expedited fashion if that State is
authorized for that major part of the program. Therefore, EPA is today
proposing to create an expedited authorization procedure that would be
applied to certain minor revisions to the
[[Page 43687]]
LDR program in the Phase II, III, and IV rules.
Under this proposed approach, EPA's review and approval of a
State's authorization application would be expedited. A State would be
required to certify that provisions it has adopted provide authority
that is equivalent and no less stringent than the Federal provisions.
Within 60 days of receiving a complete application, EPA would provide
notice to the public approving a complete State application. Then, the
public would have an opportunity for comment, as provided by the
existing regulations governing authorization revisions. A detailed
explanation of today's proposed procedures is provided below.
Today's Phase IV proposal contains two very distinct types of
changes to the Land Disposal Restrictions program. The abbreviated
authorization process that EPA is proposing today would apply to minor
changes to the existing program. Specifically, the new process would
apply to the regulation of newly identified wastes under BDAT, and to
several clarifications and improvements to the existing LDR program.
These provisions involve minor and routine changes to the Land Disposal
Restrictions (LDR) regulations. The other part of today's Phase IV
proposal would potentially expand the scope of EPA's program under RCRA
in significant ways. Specifically, EPA is proposing options that would
address the management of decharacterized wastes in surface
impoundments that are not subject to RCRA Subtitle C. Depending on the
option that the Agency chooses, the universe of facilities covered by
Subtitle C could significantly increase. The regulatory approach that
EPA may use for these surface impoundments may also differ from
previous regulatory schemes. EPA would use the existing authorization
procedures for this part of the Phase IV proposal, except for option
one in the management of decharacterized wastes. This option would use
existing non-RCRA regulatory authorities to address these units, and
therefore RCRA regulatory amendments would not be required. Thus, a
State's authorization would not need to be revised.
EPA is also proposing to apply the same abbreviated authorization
procedures to the more minor changes in the March 2, 1995, proposed
Phase III LDR rule (see 60 FR 11702) that are similar to those in
today's Phase IV proposal, as they also are routine changes to the LDR
program. EPA also believes that the revised numerical values
represented by the Universal Treatment Standards (UTS) in Secs. 268.40
and 268.48 that were promulgated in the Phase II LDR rule (see 59 FR
47982, September 1, 1994) are changes appropriate for the abbreviated
process.
Basis/Rationale for Streamlined Authorization
EPA believes that an abbreviated procedure can and should be used
to authorize States for sections of the Phase II, III, and Phase IV LDR
rules (discussed below) for several reasons. First, the applicable
portions of these rules are relatively minor in nature. Over time,
changes such as these have become a routine part of the LDR program.
Second, the States that would use this procedure would already be
authorized for the Third Third LDR rule. During the authorization
process for the LDR rules up to and including the Third Third rule, EPA
would have already determined whether the State has an LDR program that
is consistent with the Federal program, and also whether there is
adequate enforcement. Third, since the State has been implementing the
LDR program, EPA will be familiar with the State's implementation
performance. Last, EPA believes that implementation of the LDR program
will be enhanced by expedited authorization of these provisions, since
authorization will remove any confusion about who is the implementing
Agency for specific requirements.
Section 3006(b) of RCRA establishes the legal standard for State
program approval. EPA believes that for the routine changes in the
Phase II, III, and IV LDR rules, the certification submitted to EPA by
the State provides an adequate basis for EPA to propose approval of the
program revision, as this certification simply updates EPA's previous
findings regarding the LDR program. EPA also believes that by virtue of
a State having obtained authorization for the LDR program, the State
has demonstrated its capability both in the administration and
implementation of the program, and in its understanding of the
requisite legal requirements. States that are authorized for
significant portions of the LDR program are familiar with the type of
rule changes needed, have adopted all or most of the underlying LDR
program, and have experience in implementing and enforcing the rules.
Thus, EPA will give great weight to the statements and legal
certification submitted by the State. Accordingly, the Agency believes
that a second detailed evaluation by EPA is not warranted under such
circumstances.
Proposed Streamlined Authorization Procedures
Today's notice proposes to amend 40 CFR Part 271 to create a
streamlined authorization procedure in new section 271.28. EPA is
proposing today to apply this procedure only to the specific parts of
the Phase II, III, and IV rules that are identified in paragraph (a) of
section 271.28. EPA is also soliciting comment, however, on whether
this approach should be applied to other aspects of the land disposal
program.
The parts of the Phase III proposal to which today's streamlined
authorization proposal would be applicable are: (1) Treatment standards
for newly listed wastes, (2) improvements to the existing land disposal
restrictions program, (3) revisions and corrections to the treatment
standards in Secs. 268.40 and 268.48, and (4) the prohibition of
hazardous waste as fill material. The preamble discussion for these
parts of the Phase III proposal is in Sections VI, VII, and VIII of the
March 2, 1995, notice (see 60 FR 11702). The applicable parts of
today's proposed Phase IV rule are: (1) Treatment standards for newly
listed and identified wastes and (2) improvements to the land disposal
restrictions program. In the final Phase II rule, the applicable parts
are the treatment standards in Secs. 268.40 and 268.48.
Note that EPA is not proposing the use of this streamlined
procedure for the authorization of those sections of the Phase III rule
that address end-of-pipe treatment standards for (1) Clean Water Act
and equivalent wastewater treatment systems, and (2) Class I non-
hazardous injection wells. The streamlined procedures would also not be
used for the authorization of the option the Agency chooses in the
Phase IV final rule to address the management of leaks, sludges, and
air emissions of toxic constituents from decharacterized wastes. As
explained earlier, EPA has tentatively concluded that these
requirements would involve significant expansions of the program
deserving more detailed review.
Paragraph (a) of proposed Sec. 271.28 also specifies that the State
must already be authorized for the Third Third LDR rule (see 55 FR
22520, June 1, 1990) to be able to use the proposed streamlined
procedure to gain authorization for the Phase II, III, and IV rules.
EPA is proposing this approach because the structure of the LDR program
is essentially complete with the Third Third rule, and few changes have
been made since this rule, EPA believes that it is appropriate to
require LDR program authorization up to and including this
[[Page 43688]]
rule as a condition for using the proposed streamlined procedures. As
of May 31, 1995, 19 States have been authorized to implement the Third
Third LDR rule. At the same time, EPA recognizes that this proposed
approach may unnecessarily limit the benefits of streamlined
authorization procedures. Therefore, EPA solicits comment on (1)
whether the use of the streamlined procedure should be expanded to
other Land Disposal Restrictions rules, and (2) whether a State should
only be required to be authorized for the Solvents and Dioxins rule (51
FR 40572, November 7, 1986) to use this procedure, since this rule put
in place the basic structure of the LDR program.
Under proposed section 271.28(b), a State would submit an
abbreviated application (primarily consisting of a certification from
the State) that the laws of the State provide authorities that are
equivalent to, and no less stringent than the Federal authorities. The
certification would also include appropriate citations to the specific
statutes, administrative regulations and where appropriate, judicial
decisions. The cited State statutes and regulations would also have to
be fully effective at the time the certification is signed. As
discussed above, in the case of routine or minor program changes, EPA
believes that this certification will provide an adequate basis for
EPA's authorization of a program revision under RCRA section 3006
(absent contrary information in the possession of EPA, or supplied in
comments during the public comment period).
Under proposed section 271.28(c), within 30 days of receipt of the
application EPA would be required to notify the State if EPA determines
that the application, including the certification, is not complete.
Accordingly, when the application is received, EPA would conduct a
completeness check to determine whether the application contains all
the required components. EPA will address the extent of this
completeness check in future authorization guidance. However, EPA does
not intend that this completeness check involve a detailed and
substantive review. EPA specifically requests comment on what
activities this check should be limited to. The reasons why EPA could
determine that an application is not complete are specified in section
271.28(d). To minimize any errors such as these, EPA continues to
encourage States to submit draft rules to EPA for review. If EPA does
find that an application is incomplete or contains errors, EPA will
summarize the deficiencies in the completeness notice sent to the State
under Sec. 271.28(c). After the deficiencies are corrected, the State
would resubmit the application to EPA.
When EPA determines that a State's application is complete, EPA
would issue an immediate final rule under section 271.28(e) within 60
days of receiving the application under paragraph (c). Thus, if a
State's initial application is complete, this notice would be published
no later than 30 days after EPA finishes its completeness check. This
immediate final rule is similar to the notice used in Sec. 271.21 for
other revision authorization decisions. Thus, the public would have the
same ability to comment as for other authorization decisions. The
notice would provide for a 30-day public comment period, and would go
into effect 60 days after publication unless a significant adverse
comment is received by EPA. An example of a significant adverse comment
would be that the State did not have the necessary authority to
implement the new requirements.
EPA solicits comments on this proposed approach, as well as
suggestions of possible modifications or alternative approaches. For
example, is the step of a 30-day completeness review necessary? Are the
criteria in Sec. 271.28(d) for completeness appropriate? Are there
further efficiencies that could be made, for example, in the approval
process for program changes that are purely technical? Does the
proposed process provide adequate assurance that the State program will
be consistent with and no less stringent than the Federal program?
Although EPA has proposed to use this streamlined authorization
procedure only for portions of the Phase II, III, and IV LDR rules, EPA
is considering this procedure for other aspects of the Land Disposal
Restrictions and other rules in the future. Future proposals will
further discuss EPA's plans for improving and streamlining the state
authorization program. EPA is planning to propose to use a similar
authorization approach for the upcoming Hazardous Waste Identification
Rule (HWIR) for contaminated media. This different procedure would
provide for additional EPA review of the State's authorization
application. EPA expects that the procedure proposed today would
constitute the most expedited authorization procedure available to
States.
C. Effect on State Authorization
Because today's proposed Phase IV LDR rule is being proposed under
HSWA authority, when finalized, those sections of today's proposal that
expand the coverage of the LDR program (e.g., to newly identified
wastes) would be implemented by EPA in authorized States until their
programs are modified to adopt these rules and the modification is
approved by EPA. However, some of the regulatory amendments proposed
today are less stringent than, or reduce the scope of, the existing
Federal requirements. Others are neither more or less stringent.
States that are authorized for provisions that would be amended in
a less stringent manner by today's proposal would not be required to
modify their program to adopt the revised provisions. Those provisions
are described in Section VI of today's preamble, entitled Improvements
to Land Disposal Restrictions Program. The regulatory provisions that
are considered to be less stringent are in sections: 268.4, 268.5,
268.7, 268.30-37, waste code F039 in the table titled ``Treatment
Standards for Hazardous Wastes'' in Sec. 268.40, and the use of
polymerization as a treatment method for certain D001 wastes in Table 1
of Sec. 268.42.
Other provisions are neither more or less stringent. EPA clarified
in a December 19, 1994, memorandum (which is in the docket for today's
proposal) that EPA would not implement the Universal Treatment
Standards (promulgated under HSWA authority in the Phase II LDR rule)
separately for those States for which the State has received LDR
authorization. EPA views any changes from the existing limits to be
neither more or less stringent since the technology basis of the
standards has not changed. Accordingly, EPA will not implement the
amendments to the UTS that are proposed in the LDR Phase III and IV
proposals.
States should note that EPA is also proposing to include newly
identified wastes under the LDR program. Because these more stringent
HSWA provisions expand the scope of LDR coverage, EPA would generally
implement them in authorized States on the effective date of today's
rule. EPA's authorization guidance for the final rule will identify in
more detail which provisions in these sections will be implemented.
However, EPA strongly encourages States that are authorized for the
Land Disposal Restrictions program to make these proposed improvements
to their regulations because of the clarity they will give to the
regulated community and to the Agency.
[[Page 43689]]
Because today's rule is proposed pursuant to HSWA, a State
submitting a program modification may apply to receive interim or final
authorization under RCRA section 3006(g)(2) or 3006(b), respectively,
on the basis of requirements that are substantially equivalent or
equivalent to EPA's. The procedures and schedule for State program
modifications for final authorization are described in 40 CFR 271.21.
It should be noted that all HSWA interim authorizations will expire
January 1, 2003. (See Sec. 271.24(c) and 57 FR 60132, December 18,
1992.)
Section 271.21(e)(2) requires that States with final authorization
must modify their programs to reflect Federal program changes and to
subsequently submit the modification to EPA for approval. The deadline
by which the State would have to modify its program to adopt these
regulations is specified in section 271.21(e). This deadline can be
extended in certain cases (see section 271.21(e)(3)). Once EPA approves
the modification, the State requirements become Subtitle C RCRA
requirements.
States with authorized RCRA programs may already have requirements
similar to those in today's proposed rule. These State regulations have
not been assessed against the Federal regulations being proposed today
to determine whether they meet the tests for authorization. Thus, a
State is not authorized to implement these requirements in lieu of EPA
until the State program modifications are approved. Of course, states
with existing standards could continue to administer and enforce their
standards as a matter of State law. In implementing the Federal
program, EPA will work with States under agreements to minimize
duplication of efforts. In most cases, EPA expects that it will be able
to defer to the States in their efforts to implement their programs
rather than take separate actions under Federal authority.
States that submit official applications for final authorization
less than 12 months after the effective date of these regulations are
not required to include standards equivalent to these regulations in
their application. However, the State must modify its program by the
deadline set forth in Sec. 271.21(e). States that submit official
applications for final authorization 12 months after the effective date
of these regulations must include standards equivalent to these
regulations in their application. The requirements a State must meet
when submitting its final authorization application are set forth in 40
CFR 271.3.
X. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Executive Order No. 12866 requires agencies to determine whether a
regulatory action is ``significant.'' The Order defines a
``significant'' regulatory action as one that ``is likely to result in
a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients; or
(4) raise novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles set forth in the
Executive Order.''
The Agency estimated the costs of today's proposed rule to
determine if it is a significant regulation as defined by the Executive
Order. The analysis considered compliance cost and economic impacts for
ensuring adequate control of underlying hazardous constituents in air
emissions, leaks, and sludges produced in surface impoundments used to
treat decharacterized ICRT wastewaters. Also covered under this rule
are three wood preserving wastes (F032, F034, and F035) and TC metals
(D004-D011). The analysis considered compliance cost and economic
impacts for both characteristic wastes and newly listed wastes affected
by this rule. The Agency would like to have better information
regarding how many facilities and waste management units are
potentially affected, waste volumes, constituents, concentrations, how
often and under what circumstances additional treatment is required,
and treatment costs.
Detailed discussions of the methodology used for estimating the
costs, economic impacts and the benefits attributable to today's
proposed rule, followed by a presentation of the cost, economic impact
and benefit results may be found in the background document,
``Regulatory Impact Analysis of the Proposed Phase IV Land Disposal
Restrictions Rule,'' which is in the docket for today's proposed rule.
1. Methodology Section
Three regulatory options were considered to establish ``RCRA
equivalency'' for decharacterized ICRT wastes. In other words, wastes
decharacterized by dilution may be placed in a nonhazardous surface
impoundment only if the toxic constituents are treated to the same
extent that they would be under the treatment standards mandated by
RCRA section 3004(m)(1). The analysis of these regulatory options
involved characterizing the affected universe of facilities in terms of
current management practices, waste volumes, and constituent
concentrations in wastewater (i.e., characterizing baseline
conditions).
Agency estimated the volumes of waste affected by today's rule to
determine the national level incremental costs (for both the baseline
and post-regulatory scenarios), economic impacts (defined as the
difference between the industrial activity under post-regulatory
conditions and the industrial activity in the absence of regulation),
and benefits (including estimation of pollutant loadings reductions,
estimation of reductions in exceedances of health-based levels, and
qualitative description of the potential benefits.) The procedure for
estimating the volumes of decharacterized ICRT wastes and newly listed
wood preserving wastes affected by today's proposed rule is detailed in
the background document ``Regulatory Impact Analysis of the Proposed
Phase IV Land Disposal Restrictions Rule,'' which was placed in the
docket for today's proposed rule.
2. Results
a. Volume results. The Agency has estimated the volumes of
decharacterized ICRT wastes potentially affected by today's proposed
rule in the background document ``Regulatory Impact Analysis of the
Proposed Phase IV Land Disposal Restrictions Rule,'' which was placed
in the docket for today's proposed rule.
The Agency requests comment on waste volumes affected by the
proposed Phase IV LDR rule.
b. Cost results. The Agency has prepared a cost and impacts
analysis for the options previously described in this preamble. Under
Option 1, the Agency proposes to defer to existing regulations, and as
a result, expects minimal impacts to occur. The Agency has estimated
that roughly 300 facilities (with approximately 800 surface
impoundments) under Option 2 and roughly 850 facilities (with
approximately 2,000 surface impoundments) under Option 3 may manage
decharacterized wastewaters containing constituents exceeding UTS.
[[Page 43690]]
The Agency estimates that total annual compliance costs for facilities
under Option 2 range from $10 to $65 million. Total annual compliance
costs for facilities under Option 3 are estimated to be in the range of
$200 to $300 million. The Agency requests comment and data regarding
how often additional treatment may be required.
The Agency has estimated that minimal impacts will occur as the
result of setting treatment standards for TC metals.
c. Economic impact results. The Agency has estimated the economic
impacts of today's proposed rule to be small. Results of the analysis
were included in the docket for today's proposed rule. The Agency
requests comment on anticipated economic impacts resulting from the
proposed Phase IV LDR rule.
d. Benefit estimate results. The Agency has estimated the benefits
associated with today's proposed rule to be small. Screening risk
results for air emissions suggest that 20 to 25 percent of samples (306
to 349 of 1,562 facilities for which data are available) exceed the 100
parts per million by weight (ppmw) control limit set by the Subpart CC
rule.
Central tendency screening risk results for leaks to groundwater
indicate that samples from the pharmaceutical and OCPSF industries have
potential individual lifetime cancer risk exceedances of 10-\5\ at
the raw wastewater and biological pond influent sampling points. In the
pharmaceutical industry, methylene chloride and acrylonitrile are the
constituents of concern; in the OCPSF industries, acrylonitrile is the
constituent of concern. Point of generation data indicate the potential
for risks from leaks, however, surface impoundment data are not
available for all industries.
Central tendency screening risk results for sludges from the OCPSF
industry indicate that two samples present individual lifetime cancer
risk in excess of 10-\5\, where acrylonitrile is the constituent
of concern. The Agency requests comment on anticipated benefits
resulting from the proposed Phase IV LDR rule.
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et
seq., when an agency publishes notice of rulemaking, for a rule that
will have a significant effect on a substantial number of small
entities, the agency must prepare and make available for public comment
a regulatory flexibility analysis that considers the effect of the rule
on small entities (i.e.: small businesses, small organizations, and
small governmental jurisdictions.) Under the Agency's Revised
Guidelines for Implementing the Regulatory Flexibility Act, dated May
4, 1992, the Agency committed to considering regulatory alternatives in
rulemakings when there were any economic impacts estimated on any small
entities. See RCRA sections 3004 (d), (e), and (g)(5) which apply
uniformly to all hazardous wastes. Previous guidance required
regulatory alternatives to be examined only when significant economic
effects were estimated on a substantial number of small entities.
In assessing the regulatory approach for dealing with small
entities in today's proposed rule, for both surface disposal of wastes
and underground injection control, the Agency considered two factors.
First, EPA is not aware of any data on potentially affected small
entities. Second, due to the statutory requirements of the RCRA LDR
program, no legal avenues exist for the Agency to provide relief from
the LDRs for small entities. The only relief available for small
entities is the existing small quantity generator provisions and
conditionally exempt small quantity generator exemptions found in 40
CFR 262.11-12, and 261.5, respectively. These exemptions basically
prescribe 100 kilograms (kg) per calendar month generation of hazardous
waste as the limit below which one is exempted from complying with the
RCRA standards.
Given these two factors, the Agency was unable to frame a series of
small entity options from which to select the lowest cost approach;
rather, the Agency was legally bound to address the land disposal of
the hazardous wastes covered in today's proposed rule without regard to
the size of the entity being regulated.
C. Paperwork Reduction Act
The information collection requirements in today's proposed rule
have been submitted for approval to the Office of Management and Budget
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Request (ICR) document was prepared by EPA and a copy may
be obtained from Sandy Farmer (EPA ICR #1442.10), Environmental
Protection Agency, Regulatory Information Division, 401 M. Street, S.W.
(mail code 2136), Washington, D.C. 20460, or by calling (202) 260-2740.
Only incremental burdens are discussed in the ICR. This burden will
eventually be merged with the LDR program ICR.
The overall reporting and recordkeeping burden is estimated to be
approximately 66,000 hours. The average recordkeeping burden per
respondent is approximately 3 hours. The public reporting burden for
this collection is estimated to average 16 hours per respondent. This
includes time for reviewing instructions, gathering and compiling data,
maintaining the data, and preparing and submitting data.
The public should send comments regarding the burden estimate, or
any other aspect of this collection of information (please refer to EPA
ICR# 1442.10 and OMB# 2050-0085) including suggestions for reducing
burden to: Sandy Farmer (EPA ICR 1442.10), Environmental Protection
Agency, Regulatory Information Division, 401 M. Street, S.W. (mail code
2136), Washington, D.C. 20460; and to Jonathan Gledhill (OMB 2050-
0085), Office of Management and Budget, Office of Information and
Regulatory Affairs, Washington, D.C. 20460.
XI. Unfunded Mandates Reform Act
Under Section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a statement to
accompany any rule where the estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, will be $100
million or more in any one year. Under Section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objective of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly impacted by the rule.
EPA has completed an analysis of the costs and benefits from the
proposed Phase IV LDR rule and has determined that this rule does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local or tribal governments in the
aggregate. As stated above, the private sector may incur costs
exceeding $100 million per year depending upon the option chosen in the
final rulemaking. EPA has fulfilled the requirement for analysis under
the Unfunded Mandates Reform Act, and results of this analysis have
been included in the background document ``Regulatory Impact Analysis
of the Proposed Phase IV Land Disposal Restrictions Rule,'' which was
placed in the docket for today's proposed rule.
List of Subjects
40 CFR Part 148
Administrative practice and procedure, Hazardous waste, Reporting
and recordkeeping requirements, Water supply.
[[Page 43691]]
40 CFR Part 268
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 271
Administrative practice and procedure, Hazardous materials
transportation, Hazardous waste, Penalties, Reporting and recordkeeping
requirements.
Dated: August 11, 1995. `
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations as proposed to be amended at 60 FR 11702
(March 2, 1995) is further proposed to be amended as follows:
PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS
1. The authority citation for part 148 continues to read as
follows:
Authority: Section 3004, Resource Conservation and Recovery Act,
42 U.S.C. 6901, et seq.
2. Section 148.18 is amended by redesignating paragraphs (a), (b),
and (c), as paragraphs (b), (c), and (d), and by adding paragraph (a)
to read as follows:
Sec. 148.18 Waste specific prohibitions--Newly Listed and Identified
Wastes.
(a) Effective August 22, 1997, the wastes specified in 40 CFR 261
as EPA Hazardous waste numbers F032, F034, and F035, D004--D011 (as
measured by the Toxicity Characteristic Leaching Procedure), and mixed
D004-D011 TC/radioactive wastes, are prohibited from underground
injection.
* * * * *
PART 268--LAND DISPOSAL RESTRICTIONS
3. The authority citation for Part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart A--General
4. Section 268.1 is amended by revising paragraph (e)(4)(ii) to
read as follows:
Sec. 268.1 Purpose, scope and applicability.
* * * * *
(e) * * *
(4) * * *
(ii) Characteristic wastes which are injected into Class I
nonhazardous waste wells or placed in a Clean Water Act (CWA) or CWA-
equivalent wastewater treatment surface impoundment, whose combined
volume is less than one per cent of the total flow at the wellhead, or
at the surface impoundment influent, on an annualized basis; and for
which any underlying hazardous constituents in the characteristic
wastes are present, at the point of generation, at levels less than ten
times the treatment standards found at Sec. 268.48.
* * * * *
5. Section 268.4 is amended by revising paragraphs (a)(2)(iv), and
(a)(4) introductory text to read as follows:
* * * * *
Sec. 268.4 Treatment surface impoundment exemption.
(a) * * *
(2) * * *
(iv) Recordkeeping: Sampling and testing and recordkeeping
provisions of Secs. 264.13 and 265.13 of this chapter apply.
* * * * *
(4) The owner or operator submits to the Regional Administrator a
written certification that the requirements of Sec. 268.4(a)(3) have
been met. The following certification is required:
* * * * *
6. Section 268.5 is amended by revising paragraph (e) to read as
follows:
Sec. 268.5 Procedures for case-by-case extensions to an effective
date.
* * * * *
(e) On the basis of the information referred to in paragraph (a) of
this section, after notice and opportunity for comment, and after
consultation with appropriate State agencies in all affected States,
the Administrator may grant an extension of up to one year from the
effective date. The Administrator may grant additional time, up to one
additional year, if requested in the application for the original
extension of the effective date, or if requested at a later date, so
long as the demonstration can be made that additional time beyond one
year is necessary. In no event will an extension extend beyond 24
months from the applicable effective date specified in Subpart C of
Part 268. The length of any extension authorized will be determined by
the Administrator based on the time required to construct or obtain the
type of capacity needed by the applicant as described in the completion
schedule discussed in paragraph (a)(5) of this section. The
Administrator will give public notice of the intent to approve or deny
a petition and provide an opportunity for public comment. The final
decision will be published in the Federal Register.
* * * * *
7. Section 268.7 is amended by removing paragraph (b)(2) and
redesignating paragraph (b)(3) as (b)(2), (b)(4) as (b)(3), (b)(5) as
(b)(4), (b)(6) as (b)(5) and (b)(7) as (b)(6; by revising the heading,
paragraph (a), the introductory text of paragraph (b), (b)(1), (b)(2),
(b)(3), (b)(4) introductory text, (b)(4)(i) introductory text,
(b)(4)(ii) introductory text, (b)(4)(iii) introductory text, (c)(1),
and (c)(2) to read as follows:
Sec. 268.7 Testing, tracking, and recordkeeping requirements for
generators, treaters, and disposal facilities.
(a) Requirements for generators:
(1) Determine if the waste has to be treated before being land
disposed, as follows: A generator of a hazardous waste must determine
if the waste has to be treated before it can be land disposed. This is
done by determining if the hazardous waste meets the treatment
standards in Sec. 268.40 or Sec. 268.45. This determination can be made
in either of two ways: testing the waste or using knowledge of the
waste. If the generator tests the waste, testing would normally
determine the total concentration of hazardous constituents, or the
concentration of hazardous constituents in an extract of the waste
obtained using test method 1311 in ``Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods,'' EPA Publication SW-846, as
referenced in Sec. 260.11 of this chapter, depending on whether the
treatment standard for the waste is expressed as a total concentration
or concentration of hazardous constituent in the waste's extract. In
addition, some hazardous wastes must be treated by particular treatment
methods before they can be land disposed. These treatment standards are
also found in Sec. 268.40, and are described in detail in Sec. 268.42,
Table 1. These wastes do not need to be tested. If a generator
determines they are managing a waste that displays a hazardous
characteristic of ignitability, corrosivity, reactivity, or toxicity,
they must comply with the special requirements of Sec. 268.9 of this
part in addition to any applicable requirements in this section.
(2) If the waste does not meet the treatment standard: With each
shipment of waste, the generator must notify the treatment or storage
facility in writing. The notice must include the information in column
``268.7(a)(2)'' of the Notification Requirements Table in
Sec. 268.7(a)(4).
(3) If the waste meets the treatment standard: The generator must
send a one-time notice and certification to each treatment or storage
facility receiving the waste. The notice must state that the
[[Page 43692]]
waste meets the applicable treatment standards set forth in Sec. 268.40
or Sec. 268.45. The notice must also include the information indicated
in column ``268.7(a)(3)'' of the Notification Requirements Table in
Sec. 268.7(a)(4). However, generators of hazardous debris excluded from
the definition of hazardous waste under Sec. 261.3(e)(2) of this
chapter are not subject to these requirements. If the waste changes,
the generator must send a new notice and certification to the receiving
facility, and place a copy in their files.
(4) For reporting, tracking and recordkeeping when exceptions allow
certain wastes that do not meet the treatment standards to be land
disposed: There are certain exemptions from the requirement that
hazardous wastes meet treatment standards before they can be land
disposed. These include, but are not limited to case-by-case extensions
under Sec. 268.5, disposal in a no-migration unit under Sec. 268.6, or
a national capacity variance under subpart C of this part. If a
generator's waste is so exempt, then the generator must submit a one-
time notice and certification to each land disposal facility receiving
the waste. The notice must include the information marked off in column
``268.7(a)(4)'' of the Notification Requirements Table below. If the
waste changes, the generator must send a new notice and certification
to the receiving facility, and place a copy in their files.
Paperwork Requirements Table
----------------------------------------------------------------------------------------------------------------
Required Information Sec. 268.7(a)(2) Sec. 268.7(a)(3) Sec. 268.7(a)(4)
----------------------------------------------------------------------------------------------------------------
1. EPA Hazardous Waste and Manifest Numbers.........
2. The constituents for F001-F005, F039, and
underlying hazardous constituents, unless the waste
will be treated and monitored for all constituents
(in which case none are required to be listed). The
notice must include the applicable wastewater/
nonwastewater category (see Secs. 268.2(d) and
(f)) and subdivisions made within a waste code
based on waste-specific criteria (such as D003
reactive cyanide)..................................
3. Waste analysis data (when available).............
4. Date the waste is subject to the prohibition.....
5. Certification statement: I certify under penalty
of law that I personally have examined and am
familiar with the waste through analysis and
testing or through knowledge of the waste to
support this certification that the waste complies
with the treatment standards, or is subject to an
exmeption from the treatment standards, specified
in 40 CFR part 268 subpart D. I believe that the
information I submitted is true, accurate, and
complete. I am aware that there are significant
penalties for submitting a false certification,
including the possibility of a fine and
imprisonment.......................................
6. For hazardous debris, when treating with the
alternative treatment technologies provided by Sec.
268.45: the contaminants subject to treatment, as
described in Sec. 268.45(b); and an indication
that these contaminants are being treated to comply
with Sec. 268.45..................................
----------------------------------------------------------------------------------------------------------------
(5) If a generator is managing prohibited waste in tanks,
containers, or containment buildings regulated under 40 CFR 262.34, and
is treating such waste in such tanks, containers, or containment
buildings to meet applicable treatment standards under subpart D of
this part, the generator must develop and follow a written waste
analysis plan which describes the procedures the generator will carry
out to comply with the treatment standards. (Generators treating
hazardous debris under the alternative treatment standards of Table 1,
Sec. 268.45, however, are not subject to these waste analysis
requirements.) The plan must be kept on site in the generator's
records, and the following requirements must be met:
(i) The waste analysis plan must be based on a detailed chemical
and physical analysis of a representative sample of the prohibited
waste(s) being treated, and contain all information necessary to treat
the waste(s) in accordance with the requirements of this Part,
including the selected testing frequency.
(ii) Such plan must be kept in the facility's on-site files and
made available to inspectors.
(iii) Wastes shipped off-site pursuant to this paragraph must
comply with the notification requirements of Sec. 268.7(a)(4).
(6) If a generator determines that the waste is restricted based
solely on his knowledge of the waste, all supporting data used to make
this determination must be retained on-site in the generator's files.
If a generator determines that the waste is restricted based on testing
this waste or an extract developed using the test method 1311 in ``Test
Methods for Evaluating Solid Waste, Physical/Chemical Methods,'' EPA
Publication SW-846, as referenced in Sec. 260.11 of this chapter, and
all waste analysis data must be retained on-site in the generator's
files.
(7) If a generator determines that he is managing a restricted
waste that is excluded from the definition of hazardous or solid waste
or exempt from Subtitle C regulation, under 40 CFR 261.2 through 261.6
subsequent to the point of generation, he must place a one-time notice
stating such generation, subsequent exclusion from the definition of
hazardous or solid waste or exemption from RCRA Subtitle C regulation,
and the disposition of the waste, in the facility's file.
(8) Generators must retain on-site a copy of all notices,
certifications, waste analysis data, and other documentation produced
pursuant to this section for at least three years from the date that
the waste that is the subject of such documentation was last sent to
on-site or off-site treatment, storage, or disposal. The three year
record retention period is automatically extended during the course of
any unresolved enforcement action regarding the regulated activity or
as requested by the Administrator. The requirements of this paragraph
apply to solid wastes even when the hazardous characteristic is removed
prior to disposal, or when the waste is excluded from the definition of
hazardous or solid waste under 40 CFR 261.2-261.6, or exempted from
Subtitle C regulation, subsequent to the point of generation.
[[Page 43693]]
(9) If a generator is managing a lab pack waste and wishes to use
the alternative treatment standard for lab packs found at
Sec. 268.42(c), with each shipment of waste the generator must submit a
notice to the treatment facility in accordance with paragraph (a)(2) of
this section. If the lab pack contains characteristic hazardous wastes
(D001-D043), underlying hazardous constituents (as defined in
Sec. 268.2(i)) need not be determined. The generator must also comply
with the requirements in paragraphs (a)(6) and (a)(7) of this section
and must submit the following certification, which must be signed by an
authorized representative:
I certify under penalty of law that I personally have examined
and am familiar with the waste and that the lab pack contains only
wastes that have not been excluded under appendix IV to 40 CFR part
268. I am aware that there are significant penalties for submitting
a false certification, including the possibility of fine or
imprisonment.
(10) Small quantity generators with tolling agreements pursuant to
40 CFR 262.20(e) must comply with the applicable notification and
certification requirements of paragraph (a) of this section for the
initial shipment of the waste subject to the agreement. Such generators
must retain on-site a copy of the notification and certification,
together with the tolling agreement, for at least three years after
termination or expiration of the agreement. The three-year record
retention period is automatically extended during the course of any
unresolved enforcement action regarding the regulated activity or as
requested by the Administrator.
(b) Treatment facilities must test their wastes according to the
frequency specified in their waste analysis plans as required by 40 CFR
264.13 (for permitted TSDs) or 40 CFR 265.13 (for interim status
facilities). Such testing must be performed as provided in paragraphs
(b)(1), (b)(2) and (b)(3) of this section.
(1) For wastes with treatment standards expressed as concentrations
in the waste extract (TCLP) the owner or operator of the treatment
facility must test the treatment residues, or an extract of such
residues developed using test method 1311 (the Toxicity Characteristic
Leaching Procedure, described in ``Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods,'' EPA Publication SW-846 as
incorporated by reference in Sec. 260.11 of this chapter), to assure
that the treatment residues or extract meet the applicable treatment
standards.
(2) For wastes with treatment standards expressed as concentrations
in the waste, the owner or operator of the treatment facility must test
the treatment residues (not an extract of such residues) to assure that
the treatment residues meet the applicable treatment standards.
(3) A notice must be sent with each waste shipment to the land
disposal facility except that debris excluded from the definition of
hazardous waste under Sec. 261.3(e) of this chapter (i.e., debris
treated by an extraction or destruction technology provided by Table 1,
Sec. 268.45, and debris that the Director has determined does not
contain hazardous waste) is subject to the notification and
certification requirements of paragraph (d) of this section rather than
these notification requirements. The notice must include the
information in the Notification Requirements Table in this section.
Paperwork Requirements Table
------------------------------------------------------------------------
Required information Sec. 268.7(b)
------------------------------------------------------------------------
1. EPA Hazardous Waste and Manifest numbers............
2. The constituents for F001-F005, F039, and underlying
hazardous constituents, unless the waste will be
treated and monitored for all constituents (in which
case none are required to be listed). The notice must
include the applicable wastewater/nonwastewater
category (see Secs. 268.2 (d) and (f)) and
subdivisions made within a waste code based on waste-
specific criteria (such as D003 reactive cyanide).....
3. Waste analysis data (when available)................
------------------------------------------------------------------------
(4) The treatment facility must submit a certification with each
shipment of waste or treatment residue of a restricted waste to the
land disposal facility stating that the waste or treatment residue has
been treated in compliance with the applicable performance standards
specified in subpart D of this part. Debris excluded from the
definition of hazardous waste under Sec. 261.3(e) of this chapter
(i.e., debris treated by an extraction or destruction technology
provided by Table 1, Sec. 268.45, and debris that the Director has
determined does not contain hazardous waste), however, is subject to
the notification and certification requirements of paragraph (d) of
this section rather than the certification requirements of this
paragraph.
(i) For wastes with treatment standards expressed as concentrations
in the waste extract or in the waste under Sec. 268.40 of this part,
the certification must be signed by an authorized representative and
must state the following:
* * * * *
(ii) For wastes with treatment standards expressed as technologies
in Sec. 268.40 (described in Sec. 268.42) of this part, the
certification must be signed by an authorized representative and must
state the following:
* * * * *
(iii) For wastes with treatment standards expressed as
concentrations in the waste pursuant to Sec. 268.40, if compliance with
the treatment standards in subpart D of this part is based in part or
in whole on the analytical detection limit alternative specified in
Sec. 268.43(c), the certification also must state the following:
* * * * *
(c) * * *
(1) Have copies of the notice and certifications specified in
paragraph (a) of this section.
(2) Test the waste, or an extract of the waste or treatment residue
developed using test method 1311 (the Toxicity Characteristic Leaching
Procedure), described in ``Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods,'' EPA Publication SW-846 as incorporated by
reference in Sec. 260.11 of this chapter), to assure that the wastes or
treatment residues are in compliance with the applicable treatment
standards set forth in subpart D of this part. Such testing must be
performed according to the frequency specified in the facility's waste
analysis plan as required by Sec. 264.13 or Sec. 265.13 of this
chapter.
* * * * *
8. Section 268.9 is amended by revising paragraph (a), and
paragraph (d)(1)(ii) to read as follows:
Sec. 268.9 Special rules regarding wastes that exhibit a
characteristic.
(a) The initial generator of a solid waste must determine each EPA
Hazardous Waste Number (waste code) applicable to the waste in order to
[[Page 43694]]
determine the applicable treatment standards under subpart D of this
part. For purposes of part 268, the waste will carry the waste code for
any applicable listed waste under 40 CFR part 261, subpart D. In
addition, where the waste exhibits a characteristic, the waste will
carry one or more of the characteristic waste codes under 40 CFR part
261, subpart C, except when the treatment standard for the listed waste
operates in lieu of the treatment standard for the characteristic
waste, as specified in paragraph (b) of this section. If the generator
determines that their waste displays a hazardous characteristic (and is
not D001 nonwastewaters treated by CMBST, RORGS, or POLYM of
Sec. 268.42, Table 1), the generator must determine the underlying
hazardous constituents (as defined in Sec. 268.2), in the
characteristic wastes.
* * * * *
(d) * * *
(1) * * *
(ii) A description of the waste as initially generated, including
the applicable EPA hazardous waste code(s), treatability group(s), and
underlying hazardous constituents (as defined in Sec. 268.2(i)), unless
the waste will be monitored for all underlying hazardous constituents,
in which case no constituents need be specified on the notification.
* * * * *
Subpart C--Prohibitions on Land Disposal
Secs. 268.31, 268.32, 268.33, 268.34, 268.35 and 268.36 [Removed and
Revised]
9. In Subpart C, Secs. 268.31, 268.32, 268.33, 268.34, 268.35, and
268.36 are removed and reserved, and Sec. 268.30 is revised to read as
follows:
Sec. 268.30 Waste specific prohibitions--wood preserving wastes, and
characteristic wastes that fail the toxicity characteristic.
(a) Effective November 20, 1995, the wastes specified in 40 CFR 261
as EPA Hazardous Waste numbers D004-D011 (as measured by the Toxicity
Characteristic Leaching Procedure), F032, F034, and F035, are
prohibited from land disposal.
(b) Effective August 22, 1997, soil and debris contaminated with
F032, F034, F035; and radioactive wastes mixed with EPA Hazardous waste
numbers D004-D011 (as measured by the Toxicity Characteristic Leaching
Procedure) are prohibited from land disposal.
(c) Between November 20, 1995 and August 22, 1997, hazardous wastes
F032, F034, F035; radioactive wastes mixed with EPA Hazardous waste
numbers F032, F034, F035, and soil and debris contaminated with these
wastes, may be disposed in a landfill or surface impoundment only if
such unit is in compliance with the requirements specified in
Sec. 268.5(h)(2) of this Part.
(d) The requirements of paragraphs (a), and (b) of this section do
not apply if:
(1) The wastes meet the applicable treatment standards specified in
Subpart D of this part;
(2) Persons have been granted an exemption from a prohibition
pursuant to a petition under Sec. 268.6, with respect to those wastes
and units covered by the petition;
(3) The wastes meet the applicable alternate treatment standards
established pursuant to a petition granted under Sec. 268.44; or
(4) Persons have been granted an extension to the effective date of
a prohibition pursuant to Sec. 268.5, with respect to these wastes
covered by the extension.
(e) To determine whether a hazardous waste identified in this
section exceeds the applicable treatment standards specified in
Sec. 268.40, the initial generator must test a sample of the waste
extract or the entire waste, depending on whether the treatment
standards are expressed as concentrations in the waste extract or the
waste, or the generator may use knowledge of the waste. If the waste
contains constituents (including underlying hazardous constituents in
characteristic wastes that have been diluted to remove the
characteristic) in excess of the applicable Universal Treatment
Standard levels of Sec. 268.48 of this Part, the waste is prohibited
from land disposal, and all requirements of part 268 are applicable,
except as otherwise specified.
Subpart D--Treatment Standards
10. Section 268.40 is amended by revising paragraph (e), and in the
Table of Treatment Standards adding in alpha-numerical order entries
for F032, F033, and F034, and revising the entries for D001 High TOC
Subcategory, D003 Explosives, D004 through D011, and F039 to read as
follows:
Sec. 268.40 Applicability of Treatment Standards.
* * * * *
(e) For characteristic wastes subject to treatment standards in the
following table ``Treatment Standards for Hazardous Wastes,'' all
underlying hazardous constituents (as defined in Sec. 268.2(i)) must
meet Universal Treatment Standards, found in Sec. 268.48, Table UTS,
prior to land disposal.
* * * * *
Treatment Standards for Hazardous Wastes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulated Hazardous Constituent Wastewaters Nonwastewaters
-------------------------------------------------------------------------------------------
Waste description and Concentration in mg/
Waste Code treatment/regulatory Concentration in mg/ kg \5\ unless noted
subcategory \1\ Common Name CAS \2\ No. l \3\; or technology as ``mg/l TCLP'' or
code \4\ technology code
--------------------------------------------------------------------------------------------------------------------------------------------------------
D001 * * * * * *
High TOC Ignitable NA............................... NA NA.................. RORGS; or CMBST; or
Subcategory based on 40 CFR POLYM.
261.2(a)(1)--Greater than
or equal to 10% total
organic carbon (Note: this
subcategory consists of
nonwastewaters only)
* * * * * * *
D003 * * * * * *
[[Page 43695]]
Explosives Subcategory based NA............................... NA DEACT and meet Sec. DEACT and meet Sec.
on Sec. 261.23(a)(6), (7), 268.48 standards 268.48 standards.
and (8)
* * * * * * *
D004 Wastes that exhibit, or are Arsenic.......................... 7440-38-2 1.4................. 5.0 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for arsenic
D005 Wastes that exhibit, or are Barium........................... 7440-39-3 1.2................. 7.6 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for barium
D006 Wastes that exhibit, or are Cadmium.......................... 7440-43-9 0.69................ 0.19 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for cadmium
* * * * * * *
D007 Wastes that exhibit, or are Chromium (Total)................. 7440-47-3 2.77................ 0.86 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for chromium
D008 Wastes that exhibit, or are Lead............................. 7439-92-1 0.69................ 0.37 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for lead
* * * * * * *
D009 * * * * * *
Nonwastewaters that exhibit, Mercury.......................... 7439-97-6 NA.................. 0.20 mg/l TCLP.
or are expected to exhibit,
the characteristic of
toxicity for mercury; and
contain less than 260 mg/kg
total mercury. (Low Mercury
Subcategory)
All D009 wastewaters........ Mercury.......................... 7439-97-6 0.15................
* * * * * * *
D010 Wastes that exhibit, or are Selenium......................... 7782-49-2 0.82................ 0.16 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for selenium
D011 Wastes that exhibit, or are Silver........................... 7440-22-4 0.43................ 0.30 mg/l TCLP.
expected to exhibit, the
characteristic of toxicity
for silver
[[Page 43696]]
* * * * * * *
F032 Wastewaters, process Pentachlorodibenzofurans......... NA 0.000063............ 0.001
residuals, preservative Tetrachlorodibenzofurans......... NA 0.000063............ 0.001
drippage, and spent Arsenic.......................... 7440-38-2 1.4................. 5.0 mg/l TCLP.
formulations from wood Chromium (Total)................. 7440-47-3 2.77................ 0.86 mg/l TCLP.
preserving processes
generated at plants that
currently use or have
previously used
chlorophenolic formulations
(except potentially cross-
contaminated wastes that
have had the FO32 waste
code deleted in accordance
with section 40 CFR 261.35
and where the generator
does not resume or initiate
use of chlorophenolic
formulations). This listing
does not include K001
bottom sediment sludge from
the treatment of wastewater
from wood preserving
processes that use creosote
and/or pentachlorophenol
F034
Wastewaters, process Acenaphthene..................... 83-32-9 0.059............... 3.4
residuals, preservative Anthracene....................... 120-12-7 0.059............... 3.4
drippage, and spent Benz(a)anthracene................ 56-55-3 0.059............... 3.4
formulations from wood Benzo(a)pyrene................... 50-32-8 0.061............... 3.4
preserving processes Chrysene......................... 218-01-9 0.059............... 3.4
generated at plants that 2,4-Dimethylphenol............... 105-67-9 0.036............... 14
use creosote formulations. Fluorene......................... 86-73-7 0.059............... 3.4
This listing does not Hexachlorodibenzofurans.......... NA 0.000063............ 0.001
include K00l bottom Hexachlorodibenzo-p-dioxins...... NA 0.000063............ 0.001
sediment sludge from the Naphthalene......................
treatment of wastewater 91-20-3 0.059............... 5.6
from wood preserving
processes that use creosote
and/or pentachlorophenol
Pentachlorodibenzo-p-dioxins..... NA 0.000063............ 0.001
Pentachlorophenol................ 87-86-5 0.089............... 7.4
Phenanthrene..................... 85-01-8 0.059............... 5.6
Phenol........................... 108-95-2 0.039............... 6.2
Pyrene........................... 129-00-0 0.067............... 8.2
Tetrachlorodibenzo-p-dioxins..... NA 0.000063............ 0.001
2,3,4,6-Tetrachlorophenol........ 58-90-2 0.030............... 7.4
2,4,6-Trichlorophenol............ 88-06-2 0.035............... 7.4
Arsenic.......................... 7440-38-2 1.4................. 5.0 mg/l TCLP.
Chromium (Total)................. 7440-47-3 2.77................ 0.86 mg/l TCLP.
F035 Wastewaters, process Acenaphthene..................... 83-32-9 0.059............... 3.4
residuals, preservative Anthracene....................... 120-12-7 0.059............... 3.4
drippage, and spent Benz(a)anthracene................ 56-55-3 0.059............... 3.4
formulations from wood Benzo(a)pyrene................... 50-32-8 0.061............... 3.4
preserving processes Chrysene......................... 218-01-9 0.059............... 3.4
generated at plants that 2,4-Dimethylphenol............... 105-67-9 0.036............... 14
use inorganic preservatives Fluorene......................... 86-73-7 0.059............... 3.4
containing arsenic or Naphthalene...................... 91-20-3 0.059............... 5.6
chromium. This listing does Pentachlorophenol................ 87-86-5 0.089............... 7.4
not include K00l bottom Phenanthrene..................... 85-01-8 0.059............... 5.6
sediment sludge from the Phenol........................... 108-95-2 0.039............... 6.2
treatment of wastewater Pyrene........................... 129-00-0 0.067............... 8.2
from wood preserving 2,3,4,6-Tetrachlorophenol........ 58-90-2 0.030............... 7.4
processes that use creosote
and/or pentachlorophenol
2,4,6-Trichlorophenol............ 88-06-2 0.035............... 7.4
Arsenic.......................... 7440-38-2 1.4................. 5.0 mg/l TCLP.
Chromium (Total)................. 7440-47-3 2.77................ 0.86 mg/l TCLP.
[[Page 43697]]
* * * * * * *
F039 Leachate (liquids that have Universal Treatment Standards in NA Universal Treatment Universal Treatment
percolated through land Sec. 268.48 apply, with the Standards in Sec. Standards in Sec.
disposed wastes) resulting exceptions of flouride, 268.48 apply, with 268.48 apply, with
from the disposal of more vanadium, and zinc the exceptions of the exceptions of
than one restricted waste vanadium and zinc vanadium and zinc.
classified as hazardous
under subpart D of this
part. (Leachate resulting
from the disposal of one or
more of the following EPA
Hazardous Wastes and no
other Hazardous Wastes
retains its EPA Hazardous
Waste Number(s): F020,
F021, F022, F026, F027, and/
or F028)
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * *
11. Section 268.42(a)(3) is amended by adding ``POLYM'' in
alphabetical order to Table 1 to read as follows:
Sec. 268.42 Treatment standards expressed as specified technologies.
* * * * *
(a) * * *
(3) * * *
Table 1.--Technology Codes and Description of Technology-Based Standards
----------------------------------------------------------------------------------------------------------------
Technology code Description of technology-based standards
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
POLYM............................ Formation of complex high-molecular weight solids through polymerization of
monomers in high-TOC D001 nonwastewaters.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
12. Section 268.44 is amended by revising the introductory text of
paragraph (o), the title of the table, and the ``see also'' column of
the table to read as follows:
Sec. 268.44 Variance from a treatment standard.
* * * * *
(o) The following facilities are excluded from the treatment
standards under Sec. 268.40 and are subject to the following
constituent concentrations:
Table 2.--Wastes Excluded From the Treatment Standards Under Sec. 268.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wastewaters Nonwastewaters
Facility name and Regulated -----------------------------------------------------------------------------
address Waste code See also hazardous Concentrations (mg/ Concentrations (mg/
constituent l) Notes kg) Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * Sec. 268.40 * * * * * *
* * * * * * Sec. 268.40 * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 43698]]
* * * * *
Appendix I, Appendix II, Appendix III, Appendix VII, Appendix VIII,
Appendix IX and Appendix X to Part 268 [Removed and Reserved]
13. Appendix I, Appendix II, Appendix III, Appendix VII, Appendix
VIII, Appendix IX, and Appendix X to Part 268 are removed and reserved,
and Appendix VI to Part 268 is amended by revising the introductory
text to read as follows:
Appendix VI to Part 268--Recommended Technologies to Achieve
Deactivation of Characteristics in Section 268.40
The treatment standard for many subcategories of D001, D002, and
D003 wastes as well as for K044, K045, and K047 wastes is listed in
Sec. 268.40 as ``Deactivation and meet UTS.'' EPA has determined
that many technologies, when used alone or in combination, can
achieve the deactivation portion of the treatment standard.
Characteristic wastes that also contain underlying hazardous
constituents (see Sec. 268.2) must be treated not only by a
``deactivating'' technology to remove the characteristic, but also
to achieve the universal treatment standards (UTS) for underlying
hazardous constituents. The following appendix presents a partial
list of technologies, utilizing the five letter technology codes
established in 40 CFR 268.42 Table I, that may be useful in meeting
the treatment standard. Use of these specific technologies is not
mandatory and does not preclude direct reuse, recovery, and/or the
use of other pretreatment technologies, provided deactivation is
achieved and, if applicable, underlying hazardous constituents are
treated to achieve the UTS.
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
14. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
Subpart A--Requirements for Final Authorization
15. Section 271.1(j) is amended by adding the following entries to
Table 1 in chronological order by date of publication in the Federal
Register, and by adding the following entries to Table 2 in
chronological order by effective date in the Federal Register, to read
as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of Regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
[Insert date of publication Land Disposal [Insert FR page numbers] [Insert date of 90 days from
of final rule in the Federal Restrictions Phase IV. date of publication of final
Register (FR)]. rule].
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Effective date Self-implementing provision RCRA citation reference
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
[Insert date 90 days from Prohibition on land disposal 3004(g)(4) (C) and 3004 [Insert date of
date of publication of final of newly listed and (m). publication of final
rule]. identified wastes. rule] 59 FR [Insert
page numbers].
[Insert date 2 years from Prohibition on land disposal 3004(m)................. Do.
date of publication of final of radioactive waste mixed
rule]. with the newly listed or
identified wastes, including
soil and debris.
........................... 3004(g)(4)(C) and Do.
3004(m).
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
16. Section 271.28 is added to read as follows:
Sec. 271.28 Streamlined authorization procedures.
(a) The procedures contained in this section may be used by a State
when revising its program by applying for authorization for the
following rules, or parts of rules:
(1) The following changes promulgated by the Land Disposal
Restrictions Phase Two rule (59 FR 47980, September 19, 1994) if a
State is authorized for Land Disposal Restrictions rules up to the
Third Third (55 FR 22520, June 1, 1990):
(i) New Table in Sec. 268.40; and
(ii) New Sec. 268.48.
(2) The following changes proposed by the Land Disposal
Restrictions Phase Three rule (proposed at 60 FR 11702, May 2, 1995) if
a State is authorized for Land Disposal Restrictions rules up to the
Third Third (55 FR 22520, June 1, 1990):
(i) Amendments to Secs. 266.20(b), 268.2, 268.7, 268.39, the Table
to 268.40, 268.48; and
(ii) Removal of Secs. 268.8, 268.10-12.
(3) All provided regulatory provisions of the proposed Land
Disposal Restrictions Phase Four rule ([insert date of publication of
final rule] FR
[[Page 43699]]
[Insert FR page number]), except amended Sec. 268.1, if a State is
authorized for Land Disposal Restrictions rules up to the Third Third
(55 FR 22520, June 1, 1990).
(b) An application for a revision of a State's program for the
provisions stated in paragraph (a) of this section shall consist of:
(1) A certification from the State that its laws provide authority
that is equivalent to and no less stringent than the provisions
specified in paragraph (a), and which includes references to the
specific statutes, administrative regulations and where appropriate,
judicial decisions. State statutes and regulations cited in the State
certification shall be fully effective at the time the certification is
signed; and
(2) Copies of all applicable State statutes and regulations.
(c) Within 30 days of receipt by EPA of a State's application for
final authorization to implement a rule specified in paragraph (a) of
this section, if the Administrator determines that the application is
not complete, the Administrator shall notify the State that the
application is incomplete. This notice shall include a concise
statement of the deficiencies which form the basis for this
determination.
(d) For purposes of this section an incomplete application is one
where:
(1) Copies of applicable statutes or regulations were not included;
(2) The statutes or regulations relied on by the State to implement
the program revisions are not yet in effect;
(3) The State is not authorized to implement the prerequisite RCRA
rules as specified in paragraph (a) of this section; or
(4) In the certification, the citations to the specific statutes,
administrative regulations and where appropriate, judicial decisions
are not included or incomplete.
(e) Within 60 days after receipt of a complete final application
from a State for final authorization to implement a rule or rules
specified in paragraph (a) of this section, absent information in the
possession of EPA, the Administrator shall publish an immediate final
notice of the decision to grant final authorization as follows:
(1) In the Federal Register;
(2) In enough of the largest newspapers in the State to attract
Statewide attention; and
(3) By mailing to persons on the State agency mailing list and to
any other persons whom the Agency has reason to believe are interested.
(f) The public notice under paragraph (e) of this section shall
summarize the State program revision and provide for an opportunity to
comment for a period of 30 days.
(g) Approval of State program revisions under this section shall
become effective 60 days after the date of publication in the Federal
Register in accordance with paragraph (e) of this section, unless a
significant adverse comment pertaining to the State program revision
discussed in the notice is received by the end of the comment period.
If a significant adverse comment is received, the Administrator shall
so notify the State and shall, within 60 days after the date of
publication, publish in the Federal Register either:
(1) A withdrawal of the immediate final decision; or
(2) A notice containing a response to comments and either affirming
that the immediate final decision takes effect or reversing the
decision.
[FR Doc. 95-20623 Filed 8-21-95; 8:45 am]
BILLING CODE 6560-50-P
