Wednesday
May 20, 1992
Part II
Environmental
Protection Agency
40 CFR Parts 260, 261, 262, 264, and 268
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste; Proposed Rule
Printed on Recycled Paper
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Federal Register / Vol. 57, No. 98 / Wednesday. May 20. 1992 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260, 261, 262, 264, and
268
[FRL-4130-5]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule, tentative
response to Chemical Manufacturers
Association petition, and request for
comments.
SUMMARY: The Environmental Protection
Agency (EPA) today is proposing two
approaches for amending its regulations
under the Resource Conservation and
Recovery Act (RCRA) for hazardous
waste identification. Today's proposed
rule is called the Hazardous Waste
Identification Rule (HWIR). The first
approach would establish
concentration-based exemption criteria
(CBEC) for listed hazardous wastes,
wastes mixtures, derivatives, and media
(including soils and ground-water)
contaminated with certain listed
hazardous wastes for exiting RCRA
Subtitle C management requirements.
The second approach proposed would
establish "characteristic" levels for
listed hazardous wastes, wastes
mixtures, derivatives, and media
(including soils and ground-water)
contaminated with certain listed
hazardous wastes for both entering and
exiting RCRA Subtitle C via an
expansion of the number of toxic
constituents in the Toxicity
Characteristics (TC) rule. This approach
is referred to as the Expanded
Characteristics Option (ECHO).
Under the CBEC approach, listed
wastes and contaminated media
meeting this CBEC would no longer be
subject to some of the hazardous waste
management requirements under
subtitle C of RCRA. The Agency is
proposing that the exemption be self-
implementing for both wastes and
media. Generators wishing to take
advantage of the CBEC exemption must
test their wastes, submit a notification
and certification to the Agency
providing specified information on the
waste and, the process from which the
waste is generated, and waste
management practices. No Agency
review of sampling plans or waste
analysis data, or prior Agency approval,
would be required before wastes or
media could be managed as non
hazardous. Generators would be
required to re-test their wastes or media
and re-submit notifications and
certifications annually for the first two
years, and every three years thereafter.
Under the ECHO approach, listed
wastes and contaminated media which
do not exhibit a characteristic would not
be regulated by the hazardous waste
management requirements under
subtitle C of RCRA. To implement this
approach, today's notice proposes to
revise the current TC rule to include as
many additional appendix viii
constituents as possible. For all listed
wastes whose constituents are included
in the expanded characteristics, the
mixture and derived-from rules would
not apply. Consistent with the current
TC, generators (whose hazard could be
evaluated with the expanded TC) could
test their wastes or rely on their
knowledge of the waste to determine if
their waste exhibited a characteristic.
Generators would be required to provide
the authorized State (or EPA) with a one
time notice for wastes exiting the
subtitle C requirements.
The Agency has endeavored to
develop exemption requirements which
have a practical impact and make the
exemptions available to all generators
managing listed waste and
contaminated media meeting the
exemption levels proposed in today's
notice. The implementation provisions
of today's proposal reflect a balancing
of the Agency's informational needs for
oversight and enforcement with the
practical resource considerations of the
* generator.
This notice also contains the Agency s
tentative response to a petition for
rulemaking submitted by the Chemical
Manufacturers Association. The Agency
requests comment on all aspects of this
proposal.
DATES: EPA will accept public
comments on this proposed rule until
July 20,1992. Comments postmarked
after this date may not be considered.
Any person may request a public
hearing on this proposal by filing a
request with Mr. David Bussard, whose
address appears below, by June 4,1992.
ADDRESSES: The public must send an
original and two copies of their
comments to: EPA RCRA Docket (S-212)
(OS-305), 401 M Street, SW.,
Washington, DC 20460. Place "Docket
number F-92-HWEP-FFFFF" on your
comments. The Office of Solid Waste
(OSW) docket is located in room 2427 at
the above address, and is open from 9
a.m. to 4 p.m., Monday through Friday,
excluding Federal holidays. The public
must make an appointment to review
docket materials by calling (202) 260-
9327. The public may copy material from
any regulatory docket at a cost of $0.15
per page. Copies of the background
documents, Integrated Risk Information
System (IRIS) chemical files, and other
references (which are not readily
available) are available for viewing and
copying only in the OSW docket.
Requests for a public hearing should
be addressed to Mr. David Bussard,
Director, Characterization and
Assessment Division, Office of Solid
Waste (OS-330), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT:
The RCRA/Superfund Hotline at (800)
424-9346 or at (202) 260-3000. For
technical information contact Mr.
William A. Collins, Jr., Office of Solid
Waste (OS-333), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460, (202) 260-4791.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. Overview^-A National Waste
Management System
B. The Current Hazardous Waste
Management Program
C. Relationship to Today's Proposed Action
to Current Hazardous Waste
Identification Program
D. Chemical Manufactures Association
Rulemaking Petition
E. Legal Authority for Defining Hazardous
Waste Based on Actual Management
Practices
III. Options for Establishing Hazardous
Waste Identification Criteria
A. Overview of Approaches
B. Concentration-Based Exemption Criteria
(CBEC) Approach
C. Expanded Characteristics Option
(ECHO)
D. Contingent Management
E. Contaminated Media
IV. Waste Applicability
A. Eligibility
B. Waste Management Units
C. Existing Regulatory Exemptions from the
Mixture and Derived-from Rules
V. Selection of Constituents of Concern
A. Universe of Hazardous Constituents
B. Development of the Exemption
Constituent List
C. Evaluation of Constituents Omitted from
Exemption List
VI. Health-Based Levels
A. Health Effects
1. Non-carcinogens
2. Carcinogens
B. Exemption Scenarios
C. Exposure Assumptions
1. Contaminated Groundwater Scenario
2. Scenario 'for Wastes Not Placed in
Controlled Units
VII. Analysis and Limits of Detection
A. Standardized Analytical Methods
1. SW-846 Methods and Quality Assurance
2. Alternate Methods
B. Need for Quantitation Limits
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C. Development of Exemption Quantitation
Criteria (EQC)
VIII. Synthetic Precipitation Leaching
Procedure
IX. Additional Exemption Criteria Under
Consideration
X. Dilution
XI. Implementation
A. Overview
1. ECHO
2. CBEC
3. Contingent Management Exemptions
B. Implementation of the ECHO Approach
C. Implementation of the CBEC Approach
1. Sampling Requirements for CBEC
Exemptions
2, Testing Requirements for CBEC
Exemptions
3. Notification Requirements
4. When CBEC Exemptions Become
Effective
D. Implementation of Contingent
Management
1. Sampling Requirements for Contingent
Management Exemptions
2. Testing Requirements for Contingent
Management Exemptions
3. Notification Requirements for Contingent
Management Exemptions
4. When Contingent Management
Exemptions Become Effective
5. Duty of a Generator Claiming a
Contingent Management Exemption to
Manage Wastes in Accordance with the
Management Standards of the Exemption
E. Recordkeeping Requirements for ECHO,
CBEC Exemptions and Contingent
Management Exemptions
F. Compliance Monitoring and Enforcement
for ECHO, CBEC Exemptions and
Contingent Management Exemptions
1. Compliance Monitoring
2. Enforcement
G. Exports of Wastes Eligible for CBEC or
Contingent Management Exemptions
H. Public Participation in CBEC or
Contingent Management Exemptions
XII. Other Proposed Changes to 40 CFR 261
XIII. Relationship to Other RCRA Regulatory
Programs
A. Characteristics of a Hazardous Waste
B. Requirements for Treatment, Storage,
and Disposal Facilities and Interim
Status Facilities
C. Hazardous Waste Listings
D. Delisting
E. Closure
F. Subtitle C Corrective Action
G. Land Disposal Restriction Program
H. RCRA Emission Standards
XIV. CERCLA Program
XV. State Authority
A. Applicability of Rules in Authorized
States
B. Effect of State Authorizations
XVI. Economic Assessment
A. Background
B. Potentially Affected Wastes
1. Process Wastes
2. Contaminated Media
C. Estimated Costs Savings
1. Health-Based Approach
2. Expanded Characteristics Option
(ECHO)
3. Technology-Based Approach
4. Contingent Management Approach
5. Comparison of the Options
D. Potential Health and Environmental
Impacts
E. Economic Impacts
F. Limitations of the Analysis
G. Data Needs—Requests for Comment
XVII. Regulatory Flexibility Act
XVIII. Paperwork Reduction Act
XIX. References
Appendices
I. Authority
These regulations are proposed under the
authority of sections 1006, 2002(a), 3001, 3002,
3004 and 3006 of the Solid Waste Disposal
Act of 1970, as amended by the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended by the Hazardous and
Solid Waste Amendments of 84 (HSWA), 42
U.S.C. 6905, 6912{a), 6921, 6922, 6924 and 6926,
II. Background
A. Overview—A National Waste
Management System
The Resource Conservation and
Recovery Act (RCRA], directs the
Environmental Protection Agency (EPA)
to develop a national program governing
waste management that both promotes
the protection of human health and the
environment and conserves valuable
material and energy resources. This
national waste management program
involves all levels of government—
federal, state and local—all of whom
have major roles in the achievement of
these national goals. The program
potentially encompasses a huge and
diverse universe of wastes currently an
estimated 13 billion tons per year—
including hazardous and nonhazardous
industrial wastes, special wastes {e.g.,
from mining, oil and gas production) and
municipal solid waste. These wastes
present varying degrees of risk if
mismanaged, thereby creating the need
for a waste management program able
to deal effectively with a variable
universe of was, risks, and waste
management practices.
For the last decade, however, the
federal government has focused the bulk
of its efforts on defining and
implementing the hazardous waste
program under subtitle C of RCRA.
These efforts, along with increased
liability for cleanup costs under
CERCLA and comparable State statutes,
have resulted in dramatic changes in
how U.S. industries manage hazardous
waste. EPA's early regulatory decisions
in defining hazardous waste reached
broadly to ensure that wastes presenting
hazards were quickly brought into the
hazardous waste management system.
This was accomplished, in part, through
the promulgation of the "mixture" and
"derived-from" rules (40 CFR
261.3(a)(2)(iv) and 40 CFR 261.3(c)(2)(i),
respectively) which define as hazardous
certain waste mixtures and materials
derived from hazardous waste. The
Agency promulgated the "mixture" and
"derived-from" rules to close what it
believed were potentially major
loopholes in the subtitle C management
system (see 45 FR 33084, 33095).
However, as this definition has been
implemented many have recognized that
it has resulted in the regulation of
certain low hazard wastes as hazardous.
Many of these problems became of
increasing significance with changes in
RCRA, its regulations, and industrial
practices since 1980.
In 1984 Congress amended RCRA to
ban all hazardous waste land disposal
. unless and until it had been with the
best demonstrated available technology
(BDAT). As treatment of hazardous
waste began, the volume of residuals
derived from treatment grew. These
residuals often have low concentrations
of hazardous constituents. EPA's
analysis indicates that millions of tons
of mixtures and derived-from residuals
that must be managed as hazardous
waste because of their history (i.e., what
they were mixed with or derived from)
may actually pose quite low hazards.
Additionally, as EPA sought to list
those hazardous waste streams which
could pose a threat to public health over
the past twelve years, important
differences have emerged between the
concentrations of the same hazardous
constituents in different waste streams.
This is because EPA bases a listing
determination on a variety of factors
and not just on concentrations of certain
hazardous constituents/Some of these
factors (e.g., historic mismanagement
practices) are not quantifiable. The
overall result in the listing program is
that there are no eat concentrations
above which a waste is hazardous, and
below which it is not. Moreover,
because listings identify wastes based
on its origin or process, two waste
streams containing similar hazardous
constituents can have different
regulatory status (one being regulated
while the other is not) if they have a
different origin.
Over time, particularly with increased
treatment, the disparity between the
potential risks a material poses to
human health and the environment and
the degree of regulatory control over the
material has increased. Consistent with
its continuum of control approach, EPA
believes that low risk waste should not
be subject to full subtitle C regulation. It
is EPA's view that the subtitle C
program is intended to address
situations where there may be
substantial present or potential to
human health or the environment from
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mismanagement of waste (see RCRA
section 1004(5)(B)}.
Accordingly, the purpose of this
rulemaking is to take an initial step
toward defining wastes which do not
merit regulation under subtitle C, and
which can and will be safely managed
under other regulatory regimes. The first
step in what the Agency refers to as the
"RCRA Reform Initiative," is proposing
modifications to the RCRA regulatory
framework which will address over-
regulatory situations created by the
'.'mixture" and "derived-from" rules. The
Agency intends to promulgate regulatory
modifications no later than April 28,
1993 and requests comment on all the
options in today's notice. The Agency is
not opposed to implementing further
regulatory reforms that are both
desirable and technically feasible by
April 1993. The Agency requests
comment from the regulated community,
and all other interested parties, on input
and information to assist in this effort.
This rule and other ongoing and future
EPA actions will help to define a
continuum of control for waste
management. EPA favors an approach
that tailors waste management
requirements to the risk posed by waste.
The concept of a continuum of control
involves two essential elements. First, it
involves tailoring waste management
requirements to waste risk under a
coordinated, efficient management
structure. Waste management covers a
large variety of wastes posing diverse
risks—some which pose no risk, others
which pose significant risks and still
others that may pose some risk under
certain circumstances. Under a
continuum of control, high hazard
wastes would require a high level of
control, and lower hazard wastes would
require corresponding lower levels of
control. Second, the continuum also
involves defining the appropriate roles
for various levels of government in
regulating these wastes. For example,
RCRA creates an assertive Federal role
in setting national standards for the
subtitle C hazardous waste system.
However, RCRA establishes a more
limited Federal role for management of
solid wastes where risks are lower.
EPA believes it is time to look at
developing a viable continuum of
control. The RCRA national waste
management program is nearly twelve
years old and EPA, the States and the
regulated community have gained
significant experience in managing
wastes. EPA and the States have made
significant strides in developing a
regulatory framework for hazardous and
nonhazardous wastes, particularly in
applying treatment technologies and
instituting waste reduction practices.
This proposal is one of a number of
activities which, as part of the RCRA
Reform Initiative the Agency is either
considering or has begun, will re-target
subtitle C management towards wastes
presenting the most significant risks. For
example, the Agency is re-addressing
the impact of the definition of solid
waste on hazardous waste recycling.
The goal is to develop a program that
encourages recycling while continuing to
ensure that such recycling is
environmentally sound. Future activities
will reduce regulatory barriers to
hazardous waste recycling and tailor the
requirements to fit the actual risk posed.
In this notice, EPA is proposing to
define the conditions under which
certain hazardous wastes no longer
present a substantial threat to human
health and the environment and
therefore do not merit regulation under
subtitle C of RCRA. EPA is considering
several conceptual approaches to
address this issue. The first approach is
to eventually set consistent
concentration-based levels for exiting
subtitle C management across all listed
waste streams and all hazardous
constituents. Under this approach, the
current waste identification system of
listings, characteristics, and the mixture
and derived-from rules would continue
to define "entry" to the subtitle C
program; this approach would define
new "exit" criteria for wastes and media
to leave subtitle C control and to be
managed under subtitle D of RCRA and
State and local waste management
requirements. There are several options
to determine these concentration-based
levels. One option is to set a single
exemption multiple above risk-based
concentration levels (i.e., the exemption
concentration for each hazardous
constituent is either equal to or a fixed
multiple above a health-based
concentration for that constituent). A
second option is to vary the multiple for
each hazardous constituent to reflect the
different chemical properties of the
constituent. A third option is to set
technology-based concentration levels
(i.e., the exemption concentration for
each hazardous constituent is based on
the Land Disposal Restriction
requirements at CFR part 268).
The second approach is to set
consistent characteristic levels for both
entering and exiting subtitle C
management across all waste streams.
For example, the hazardous waste
toxicity characteristics is the approach
EPA uses under RCRA to identify
testable parameters, such that any solid
waste which has a concentration above
the toxicity characteristics level must be
managed under subtitle C until it has a
concentration below the toxicity
characteristics level—the "entrance" is
the same concentration as the "exit."
There are several options in today's
notice that uses this approach to replace
the mixture and derived-from rules. One
method is to expand the hazardous
constituents regulated under the current
characteristics.
In addition to these two structural
approaches, the Agency is also
considering the use of management
standards in conjunction with these
alternatives as a way of providing a
continuum of management. Under this
approach, wastes within certain
concentration ranges would be
contingently exempt from subtitle C
regulation if certain waste management
practices are followed. For example, if
these wastes are disposed in a lined
landfill or in areas of low precipitation,
then they could be exempted from
subtitle C regulation. Section III
discusses in greater detail the way in
which management standards could be
combined with each of the structural
approaches to provide a more effective
continuum of management for these
wastes. All of these approaches will be
discussed in more detail in the section
III of this proposal. All are in line with
the Agency's continuum of control
concept. Each has advantages and
disadvantages. ,
In the near term, the Agency
recognizes the necessity of addressing,
in a timely manner, comments received
on the reinstatement by EPA of the
mixture and derived-from rules
remanded on procedural grounds in
Shell Oil Company v. U.S.
Environmental Protection Agency, 950
F.2d 751 (D.C. Cir. 1991). EPA seeks
comment specifically on how well the
exemption approaches presented in
today's notice minimizes or eliminates
the extent to which the existing mixture
and derivedrfrom rules may operate to
regulate wastes which do not need to be
managed under subtitle C.
The contingent management approach
is an approach that, by definition, is
tailored to provide different, less
stringent exemption criteria for a waste
if it is managed in a particular way.
Under this approach, the level of control
can directly tied to the risk posed by the
waste. However, in the past, the Agency
has found significant implementation
obstacles to contingent management
(see 55 FR11807; March 29,1990). As a
result, the Agency is actively engaged in
identifying alternative ways to refine the
nation's hazardous waste management
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system and seeks comment on all the
approaches included in this notice.
It is the Agency's intention to move
toward the implementation of a
continuum of control. Today's notice
represents a step in that direction. EPA
requests comment on all aspects of this
proposal.
B. The Current Hazardous Wastes
Identification Program
1. Characteristics and Listings
Section 1004(5) of RCRA defined
"hazardous waste," in part, as a "solid
waste" which may "pose a substantial
present or potential hazard to human
health and the environment when
improperly treated, stored, transported,
or disposed of, or otherwise managed."
Pursuant to subtitle C, the Agency was
required to develop and promulgate
criteria for identifying : characteristics
of hazardous waste and to list particular
wastes as hazardous.
Currently, the Agency designates
wastes as hazardous in one of two
ways. One way is to identify properties
or "characteristics" which, if exhibited
by a waste, indicate a potential hazard
if the waste is improperly managed. To
date, the Agency has identified four
types of characteristics: ignitability,
corrosivity, reactivity, and toxicity (see
55 FR11798, March 29,1990, for the
expanded toxicity characteristics). Each
person generating a solid waste is
responsible for determining whether
such solid waste exhibits any of these
characteristics. Any solid waste that
exhibits any of the characteristics
remains hazardous until it no longer
exhibits the characteristics.
The other way the Agency designates
wastes as hazardous is by "listing." The
Agency has studied wastes generated by
many industrial activities and has
determined that these wastes should be
defined as hazardous waste (listed) for
various reasons, such as they contain
significant levels of toxic and or
carcinogenic constituents, manifest one
or more of the hazardous waste
characteristics, or have the potential to
exert specific detrimental effects on the
environment. As discussed in the
preambles and in associated dockets
accompanying the listings, EPA
determined that the listed wastes
typically and frequently contain
hazardous constituents at levels that
"pose a substantial present or potential
threat to human health or the
environment if the wastes are
improperly treated, stored, transported,
disposed of, or otherwise managed."
The wastes thus meet the definition of
"hazardous waste" under section 1004(5)
of RCRA. In general, under EPA's
regulations, the Agency has interpreted
"posing a substantial threat" to mean
that these wastes contain toxic
constituents at levels many times
greater than acceptable for human
exposure and that these toxicants are
sufficiently mobile and persistent to
reach environmental or human
receptors.
On May 19,1980, as part of the final
and interim final regulations
implementing section 3001 of RCRA,
EPA published two lists of hazardous
wastes: One composed of wastes
generated from non-specific sources
[e.g., spent solvents) and one composed
of wastes generated from specific
sources [e.g., distillation bottoms from
the production of benzyl chloride). The
Agency also published two lists of
commercial chemical products that are
hazardous wastes when discarded,
intended for discard, or spilled. These
four lists have been amended several
times, and are currently published in 40
CFR 261.31, 261.32, 261.33(e) and (f),
respectively.
2. Origins of the "Mixture", "Derived-
from" and "Contained-In" Rules
On December 18,1978 (43 FR 58946),
EPA published a proposed rule that
outlined the Agency's intended
approach to regulating hazardous waste
management, including a definition of
hazardous waste. Under this proposal, a
solid waste would have been defined as
a hazardous waste if it specified
characteristics, or if it was specifically
listed by EPA as a hazardous waste.
Furthermore, if a particular listed
hazardous waste stream did not exhibit
any of the characteristics, generators
could show it to be nonhazardous and
thus exempt from regulation as a
hazardous waste. In the proposed rule,
the Agency introduced eight possible
characteristics of hazardous waste, of
which four have been adopted
(ignitability, corrosivity, reactivity, and
toxicity). The proposed rule also
included a proposal to list a number of
hazardous waste streams.
On May 19,1980 (45 FR 33066), the
Agency published final rules governing
the management of hazardous waste.
Under the final rules, the definition of
hazardous waste included characteristic
hazardous wastes, listed hazardous
wastes, and mixtures of solid wastes
and one or more listed hazardous
wastes. Wastes are characteristically
hazardous if they exhibit any of the four
characteristics, if they meet certain
toxicity criteria or if they contain certain
toxic constituents (see 40 CFR 261.10-
24).
The provision governing mixtures of
solid waste and listed hazardous waste
is known as the "mixture" rule
(currently 40 CFR 261.3(a)(2)(iv)). As
promulgated in May 1980, it required
that a mixture be managed as hazardous
unless it has been delisted. "Delisting"
is a procedure whereby a person may
file a petition with EPA to remove a
specific waste from the hazardous waste
listing by demonstrating that the waste
in question does not pose a hazard (see
40 CFR 260.22).
In addition, the May 19,1980, final
rules included the "derived-from" rule
(currently 40 CFR 261.3 (c)(2)(i) and
(d)(2)). It states that any solid waste
generated from the treatment, storage, or
disposal of a listed hazardous waste,
including any sludge, spill residue, ash,
emission control dust or leachate,
remains a hazardous waste unless or
until delisted.
Further, 40 CFR 261.3(c)(2)(i) specifies
that any waste (such as rags, clothing,
absorbants) that contains a listed waste
must be managed as if it were
hazardous waste ("contained-in" rule).
The Agency has interpreted the
"contained-in rule" to apply to media
that are not solid wastes, but contain a
listed waste (such as contaminated soil
and groundwater).1 That is, media that
are contaminated with hazardous waste
must be managed as if they were
hazardous wastes until they no longer
contain the listed waste, exhibit a
characteristic as defined at 40 CFR
261.3(a)(2)(i), or are delisted. The
Agency has not issued any specific rules
as to when, or at what levels,
environmental media contaminated with
hazardous wastes are no longer
considered to "contain" those hazardous
wastes.
The three rules described above
("derived-from", "mixture", and
"contained-in") apply regardless of the
concentrations and mobilities of
hazardous constituents in the "derived
from" or "mixture" waste, or in the
material or media containing the listed
waste.
3. Status of "Mixture" and "Derived-
from" Rules
Numerous petitions for judicial review
were brought to challenge the May 19,
1980, final rules. One of the challenges
alleged that the definition of hazardous
waste proposed on December 18,1978,
did not adequately discuss the
"mixture" and "derived-from" rules
promulgated in the final regulations. The
petitioners thus argued that they were
1 EPA's application of the "contained in rule" to
contaminated media was upheld by the D.C. Circuit
Court of Appeals in Chemical Waste Management,
Inc. v. U.S. EPA, 869 F.2d 1526 (D.C. Cir. 1989).
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deprived of adequate notice and
opportunity to comment as required by
the Administrative Procedures Act
(APA, 5 U.S.C. 553(b)). Most other issues
raised by the petitioners were resolved
by settlement, by subsequent statutory
or regulatory revisions, or by the failure
of petitioners to pursue them. However,
the question of whether the Agency gave
adequate notice of the "mixture" and
"derived-from" rules was not resolved.
On December 6,1991, the court agreed
with the petitioners that the 1978
proposal did not adequately provide
notice of either rule and that the
petitioners thus did not have sufficient
opportunity to comment (Shell Oil Co. v.
EPA, 950 F.2d 751 [D.C. Cir. 1991)]. The
court vacated the rules and remanded
them to the Agency because of
procedural defects but did not reach any
of the substantive issues raised by the
petitioners. However, the court also
recognized the problems with vacating
long-standing rules that are essential to
the hazardous waste management
program, and suggested that the Agency
could reinstate the rules "in whole or in
part" on an interim final basis under the
"good cause" exemption of the APA.
The Agency, concerned about the
dangers that may be posed by a
discontinuity in the regulation of
hazardous waste, reinstated the rules on
an interim basis under section
553(b)(3)(B) of the APA (57 FR 7628;
March 3,1992).
In the May 19,1980, preamble to the
"mixture" and "derived-from" rules,
EPA recognized that designating all
waste mixtures and derived-from
wastes containing listed wastes as
hazardous wastes may lead to some
wastes unnecessarily being managed
under subtitle C (45 FR 33095). Given the
information available on industrial
wastes in 1980, and the waste
management practices in effect at that
time, the Agency was concerned with
generators evading subtitle C
requirements by simply commingling
listed wastes with nonhazardous solid
waste. The Agency believed that the
delisting program would provide
individual facilities relief by excluding a
waste mixture and derived-from waste if
the facility could show that the waste is
not hazardous.
With nearly twelve years of
experience implementing 40 CFR part
261, regulators are in a much better
position to make judgments about the
degree of risk presented by certain
wastes. The Agency recognizes that the
"mixture" and "derived-from" rules
have resulted in unnecessarily stringent
requirements for certain low risk
wastes. The reinstatement gives EPA the
time needed to sort through the
implications of alternative regulatory
approaches without jeopardizing human
health and the environment. Comments _
received on both the reinstatement
notice and a notice of proposed
rulemaking soliciting comment on other-
approaches to regulating waste mixture
and residues (57 FR 7636; March 3,1992)
will be made part of the record of this
final rule and will be considered in
combination with comments received on
today's proposed action.
Because EPA anticipates that it may
take up to one year to finalize any
alternative regulatory approaches, the
Agency added a termination date of
April 28,1993 to the reinstated rules.
The unmodified "mixture" and "derived-
from" rules will expire on April 28,1993,
unless EPA, after considering comments,
acts to change this provision.
C. Relationship of Today's Proposed
Action to Current Hazardous Waste
Identification Program
Currently, listed wastes (including
wastes derived from or mixed with
listed waste) remain hazardous unless
they are delisted according to general
procedures set forth in 40 CFR 260.20
and specific delisting procedures set
forth in 40 CFR 260.22. Today's proposal
presents a number of options under
consideration by the Agency where
regulation of listed hazardous waste
under the jurisdiction of RCRA subtitle
C would cease without the need for a
delisting petition. Today's proposal
addresses wastes, contaminated media,
and other materials [e.g., contaminated
rags, absorbants) that, under current
rules, continue to be designated as
"hazardous wastes" despite treatment
and detoxification that reduces
constituents concentrations to levels of
minimum risks. With respect to the
existing subtitle C continuum of control,
promulgation of one of these options
would represent the line of demarcation
below which wastes would no longer
require subtitle C control.
Today's proposal provides the
opportunity for self-implementing
exemption through demonstration that
wastes or contaminated media contain
relatively low levels of hazardous
constituents. While facilities generating
such wastes can petition for delisting by
rulemaking, today's proposal would not
be as resource intensive to the Agency
nor as time-consuming to the regulated
community. In addition, the Agency
hopes to create incentives for effective
and innovative treatment and reduce
unnecessary demand for subtitle C
disposal capacity.
In today's action, the Agency
proposes to remove the termination
provision (i.e., 40 CFR 261.3(e)-Sunset
Provision) from the "mixture" and
"derived-from" rules. Upon final
promulgation of one of the options
noticed in today's action, the "mixture"
and "derived-from" rules will remain,
but their scope will be limited. For the
set of options under the first conceptual
approach, the exemption levels would
supplement the current de-listing
process rules providing an easier way to
exempt a particular waste. For the set of
options under the second conceptual
approach, the mixture and derived-from
rules would not apply to any waste
which would otherwise be covered
under the characteristics approach.
These solid wastes would be managed
as hazardous as long as they exhibit a
characteristic.
D. Chemical Manufacturers Association
Rulemaking Petition
The Agency has received a
rulemaking petition from the Chemical
Manufacturers Association (CMA) to
establish concentration-based
exemption criteria for the mixture rule,
derived-from rule, and contaminated
media rule/interpretation." CMA
submitted this petition because it
believes that the mixture rule, derived-
from rule, and contaminated media rule/
interpretation are over-inclusive in that
they require hazardous waste
management of mixtures, residues and
contaminated media that contain
"innocuous" levels of hazardous
constituents. Because CMA's petition is
included as one of the options presented
in today's proposal (i.e., Option 1), the
Agency believes that today's notice
serves as a tentative response to this
petition, in accordance with 40 CFR
260.20(c).
E. Legal Authority for Defining
Hazardous Waste Based on Actual
Management Practices
As noted above, section 1004(5) of
RCRA defines "hazardous waste" to
include solid waste which, because of
its quantity, concentration, or
characteristics "may * * * pose a
substantial present or potential hazard
to human health or the environment
when improperly treated, stored,
transported, or disposed of, or otherwise
managed." Section 3001 required EPA to
establish criteria for listing or otherwise
identifying hazardous waste "which
should, be subject to" subtitle C
hazardous waste management
requirements, taking into account a
variety of hazardous properties, such as
toxicity, persistence, and degradability.
EPA has established the criteria for
listing hazardous waste in 40 CFR 261.11
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and for identifying hazardous waste
characteristics in 40 CFR 261.10.
Since 1980, EPA has implemented the
section 1004(5) definition by considering
the plausible types of mismanagement
that a waste could be subject to and
determining the hazards presented by
the waste under that scenario. See 45 FR
33113 (May 19,1980); 55 FR 11800 (March
29,1990). Thus, in analyzing whether a
waste should be identified as
"hazardous" EPA has not generally
determined whether that waste is in fact
mismanaged under the scenario, but
only whether it could be. Thus, EPA's
hazardous waste definitions capture
wastes which could be hazardous if
mismanaged, not wastes which are
necessarily hazardous under all
circumstances.
As explained in more detail below,
however, EPA does not believe that the
statute requires that the hazardous
waste designation always assume
mismanagement of the waste in
question. Moreover, because the Agency
has acquired 12 years of experience in
implementing the hazardous waste
program and a more detailed knowledge
concerning actual waste management
practices, the Agency believes that it is
appropriate to begin tailoring the scope
of its hazardous waste program to
reflect how wastes are actually
managed, rather than how they might be
managed under a worst-case analysis.
Today's rule reflects this more tailored
approach.
This approach is authorized by the
definition of "hazardous waste" in
RCRA section 1004(5). Section 1004(5)(B)
defines as "hazardous" wastes which
may present a hazard "when
mismanaged," thus authorizing EPA to
determine whether, and under what
conditions, a waste may present a
hazard and regulating the waste only
under such conditions, i.e., when
mismanaged. (Note that this in contrast
to section 1004(5)(A) under which EPA
regulates as hazardous wastes which
are inherently hazardous no matter how
managed.)
In addition, EPA believes that section
3001 provides EPA with the flexibility to
consider the necessity for, and
appropriateness of, hazardous waste
regulation for wastes which meet the
section 1004(5) criteria. Section 3001
specifies that EPA must make a
determination of whether such wastes
"should" be subject to the provisions of
subtitle C in determining whether to list
or otherwise identify wastes as
hazardous under that section. Thus,
section 3001 authorizes EPA to
determine whether subtitle C regulation
is appropriate in determining whether to
designate a waste as "hazardous." EPA
thus may determine that subtitle C
regulation is not appropriate because
such wastes are not "hazardous" when
properly managed and, based on
information available to the Agency,
unlikely to be mismanaged. Regulation
of such wastes under subtitle C would
not be "necessary to protect human
health or the environment" (see RCRA
sections 1003(a)(4), 3002(a), 3003(a),
3004(a)).
Moreover, EPA interprets its existing
regulatory criteria for listing hazardous
waste as providing the flexibility to
consider actual management of the
waste in order to determine whether to
designate such waste as "hazardous."
EPA's listing criteria at 40 CFR 261.11
include such factors as the plausible
types of improper management to which
the waste could be subjected and
actions taken by other programs to
address the hazards posed by the waste
and any other appropriate factors.
Where mismanagement of the waste is
likely to be implausible or has been
adequately addressed by other
programs, EPA need not list the waste
as hazardous under the regulatory
criteria. Similarly, EPA's criteria for
identifying hazardous waste
characteristics codifies the statutory
definition of hazardous waste and thus
provides EPA with the same flexibility
accorded by the statute to consider
actual management practices in
determining whether a waste is
hazardous.
III. Options for Establishing Hazardous
Waste Identification Criteria
A. Overview of Approaches
The purpose of today's proposal is to
establish criteria where the regulation of
listed hazardous waste under the
jurisdiction of RCRA subtitle C, the
federal hazardous waste management
system, ceases. The first approach
presented proposes consistent and
generic risk-based exemption levels for
exiting subtitle C management. These
exempting criteria can be based on risk,
technological performance, or a
combination of both. The second
approach proposes consistent and
generic exemption levels for both
entering and exiting subtitle C
management using hazardous waste
characteristics. To implement this
approach, new characteristics could be
added or the scope of the existing
characteristics expanded, or both.
Additionally, a contingent management
system based on the concept that
disposal can modify the actual risk
posed by a waste, could augment either
approach and is proposed as well.
Lastly, three alternatives are proposed
for establishing exemption levels for
media contaminated with listed
hazardous waste. The Agency is
proposing and setting forth these
approaches for comment today.
The first approach involves setting a
single risk-based number for toxicants
in the listed waste. To exit subtitle C
regulations as a listed hazardous waste,
the waste (and waste mixed with,
derived from, or containing listed
wastes) 2 toxicants must be in
concentrations less than or equal to the
numeric exemption criteria. These
concentration-based exemption criteria
(CBEC) could be determined by
estimates of residual risk, by the
performance of treatment technologies,
or by some combination of both.
The second approach relies on the
current characteristics approach,
modified by expanding the number of
toxic constituents listed in Toxicity
Characteristics (TC). Since hazardous
waste characteristics determine both
entry and exit from the hazardous waste
management system, any waste, waste
mixture, treatment residual, contained-
in waste, or contaminated media could
exit subtitle C control if the generator
determines that a representative sample
of the waste no longer exhibits any of
the four types of characteristics:
ignitability, corrosivity, reactivity, and
toxicity. Today's notice presents an
option under this approach—the
Enhanced Characteristics Option
(ECHO)—in which the Toxicity
Characteristics is expanded. Since
ECHO would expand the scope of a
characteristic, this approach is the only
one presented today which could bring
some new solid waste streams into
subtitle C, while deregulating
substantial volumes of wastes currently
managed under subtitle C.
These two approaches could be
implemented in combination with a
"contingent management" approach
under which a waste would be
exempted from subtitle C contingent
upon compliance with certain waste
management practices. For example,
under the first approach wastes with
concentrations higher than the CBEC
levels could be conditionally exempt
from subtitle C if the waste is managed
in certain controlled environments.
Under the second approach, wastes
which are characteristically hazardous
under ECHO could be found
conditionally not characteristic if
2 This approach would be an alternative means
for exiting subtitle C and would not replace the
generators right to petition the Agency to exempt a
specific listed hazardous waste (i.e., delist) from
regulation under RCRA subtitle C.
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managed under certain conditions. This
approach could entail simple
management requirements or could be
very detailed and address a variety of
specific management practices. Later
sections of this preamble present
different contingent management
options.
There are two issues that impact both
the CBEC and ECHO approaches. First,
an important factor in determining the
impact of today's proposal is the
relationship between the concentration-
based exemption criteria and ECHO
levels proposed today and the RCRA
land disposal restriction standards.
Section 3004(m) of RCRA requires that
hazardous wastes be treated to a level
at which "short-term and long-term
threats to human health or the
environment are minimized" prior to
land disposal. In the "Third Third" land
disposal restriction rulemaking, 55 FR
22520 (June 1,1990), the Agency
explained in detail its interpretation that
the statute leaves to EPA the
determination of whether the LDR
treatment standards attach at the point
of waste generation or at the point of
disposal. Id. at 22651-22563.
In the Third Third rule, EPA explained
why the Agency believed that the point
of generation approach would generally
better meet the goals and purposes of
the LDR program than a point of
disposal approach. Id, at 22652.
However, EPA also explained that the
point of disposal approach is
appropriate in certain circumstances,
such as when applying LDRs at the point
of generation would seriously disrupt
the implementation of other
environmental regulatory programs. Id.
at 22653. One of the policy rationales for
exercising its discretion under the
statute to generally require full BDAT
treatment for wastes that are hazardous
at the point of generation was the
inadequacy of existing hazardous waste
identification programs; specifically
wastes identified as hazardous for a
particular characteristic might still be
toxic, due to the presence of non-TC
constituents, even when that
characteristic is removed. See Id..at
22652. Such waste thus would not meet
the section 3004[m) "minimize threat"
land disposal standard even after it is
no longer "hazardous".
The decision concerning which LDR
approach to utilize with respect to the
low hazard waste subject to today's
proposal may significantly affect the
practical impact of the options proposed
today. For example, a waste which is
hazardous when generated but treated
to CBEC or ECHO levels may still, under
a point of generation approach, require
treatment to any more stringent LDR
level prior to land disposal. Thus, many
CBEC or ECHO wastes may require LDR
treatment prior to disposal in a subtitle
D unit.
However, to the extent that the CBEC
or ECHO proposal here provide a more
comprehensive way of determining the
hazards presented by hazardous wastes,
requiring treatment beyond the levels at
which a waste is hazardous may no
longer be necessary to "minimize
threats." For that reason, EPA is taking
comment on some aspects of adopting
the point of disposal as the point at
which LDR standards attach as one
alternative way of addressing the
interaction between the CBEC and
ECHO approaches proposed today and
the RCRA land disposal restrictions. For
example, the Agency is considering this
alternative in addressing the problems
raised by the cleanup of contaminated
media (see further discussion in section
III. E.) In addition, under the ECHO
approach, EPA is requesting comment
on this alternative for addressing the
issues raised by the land disposal
restrictions' relationship to
characteristic wastes. EPA requests
comment on this issue.
Section 3004(m) of RCRA provides
that treatment standards for hazardous
waste prior to land disposal cannot be
below levels,at which "short-term and
long-term threats to human health and
the environment are minimized." See
also HWTC v. EPA (HWTC III), 886 F.2d
355, 362 (D.C. Cir. 1989), cert, denied 111
S.Ct. 139 (1990). To date, the Agency has
been unable to define risk-based levels
which meet the section 3004(m)
standard. See 55 FR 6640 (February 26,
1990). EPA expects to address the issue
of the relationship between the BDAT
standards and the section 3004(m)
"minimize threat" standard in more
detail in the upcoming LDR "phase two"
proposal, to be published this summer.
However, EPA also recognizes that the
levels proposed in this rule can be
related to the "minimize threat"
standard; therefore, as a second way of
addressing this issue, the Agency is
proposing that any exemption criteria
promulgated will become minimized
threat levels for the LDR program. If the
CBEC or ECHO levels are also the
"minimize threat" standard, then wastes
that are treated to levels below the
exemption level would also have met
their obligation under the LDR program
and could accordingly be land disposed
without further treatment. The Agency
asks for comment on whether the levels
proposed in this rule should be the
"minimize threat" level that bounds the
LDR treatment standards.
The second issue concerns State
programs. To the extent any of the
options are a narrowing in scope of the,
or establishing a less stringent, federal
program, these new exemptions will
have little practical impact unless and
until adopted by States. As a result, it is
very important to the Agency that we
receive State input on the options
presented here. EPA intends to work
closely with its counterparts in State
governments to develop and implement
HWIR options.
The following options discussed in
today's proposal are presented for
comment. The Agency specifically
requests comment on all aspects of
these options, including the exposure
scenarios on which the levels were
developed as well as the levels
themselves.
B. Concentration-Based Exemption
Criteria (CBEC) Approach
As stated above, the first approach
involves establishing a single set of
numeric criteria where RCRA subtitle C
jurisdiction ends for listed wastes.
Under this set of options, numeric levels
for wastes can be set generically for all
constituents found in waste streams.
When a waste contains constituents at
concentrations at or below these levels,
management requirements are left to the
subtitle D program and the States. The
levels could be a risk-based number, a
technology-based number, or a
combination of the two. Wastes that
contain toxicants at concentrations
below the exemption levels would not
be regulated under subtitle C.
Under this approach, the Agency is
proposing to establish generic
exemption levels for hazardous
constituents found in listed hazardous
wastes using a risk-based approach.
These exemption levels represent
baseline levels (i.e., levels that the
Agency believes are not hazardous, and
therefore, should not be regulated under
the subtitle C program). These numbers,
for the first three options, would apply
generically to all wastes regardless of
their ultimate disposal manner or their
origin. Although there are many ways to
define the point where the risk
presented by wastes is below the
hazardous level that determines subtitle
C jurisdiction, today's notice offers three
options. The Agency has evaluated the
risk for all options in terms of the hazard
posed to humans due to groundwater
contaminated by toxic constituents
leaching from a waste, with the
groundwater used as source of drinking
water by an individual over a period of
time. The proposed risk-based
exemption levels are based on
Maximum Contaminant Levels (MCLs)
proposed or promulgated under the Safe
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Drinking Water Act. Otherwise, Risk
Specific Doses (RSDs) and Reference
Doses (RfDs) are utilized for carcinogens
and systemic toxicants, respectively.
Listed waste which leaches toxicants at
concentrations lower than the
exemption levels would no longer be
regulated as hazardous. Toxicant leach
levels in waste are determined using the
Toxicity Characteristics Leaching
Procedure (TCLP) The TCLP is
discussed in section VI of today's notice.
Appendix 1 lists the health-based
number for each of toxicant in
alphabetical order. Alternative
exemption levels derived from the same
health-based numbers are included in
this table as well.
An alternative exposure scenario
which could be evaluated is direct
human exposure to the waste through
incidental ingestion. The Agency
requests comment on the
appropriateness of the contaminated
groundwater exposure scenario and
alternative scenarios. Exposure
assumptions, scenarios, and simulation
techniques are fully discussed in section
VI of this document.
The Agency will rely on scientific
evidence used in past rulemakings [i.e.,
the TC rule) 3 and the information
presented in section VI of today's
proposal to evaluate the CBEC levels.
However, the Agency today requests
comment on two different approaches to
setting those levels: a single multiplier
(100,10,1, etc.) for all constituents or an
individual multiplier for each
constituent.
Under the first of these alternatives,
EPA would assign a single multiplier for
each constituent. A multiplier of 100 was
used for the constituents in the 1980
Extraction Procedure (EP), for example.
As discussed in section VI, this multiple
incorporates the expected physical
dilution and attenuation of a constituent.
This approach assumes that the same
value adequately represents the dilution
and attenuation characteristics of all the
constituents in different chemical
classes—metals, aromatics, phenols,
and others. A single multiplier may
reduce the administrative burden and
complexity for the Agency and the
regulated community.
EPA prefers the use of a single
multiplier for all constituents because it
could easily be implemented within the
timeframe EPA has set for promulgating
interim improvements to the mixture
3 The Toxicity Characteristics (TC) rule (see 55
FR 11826, March 39,1990) currently list 39 different
constituents and whose health-based number are
multiplied by 100. EPA deferred additional organic
constituents until better health data and models
became available.
and derived-from rules. The Agency
requests comments on this alternative
and the appropriate level of the
multiplier.
Under the second alternative, EPA
would determine constituent-specific
multipliers for all constituents. For
example, EPA could determine separate
multipliers for each constituent [i.e., the
multiplier for silver could be 10, while
the multiplier for phenol could be 10,000,
and so on for each appendix VIII
constituent). Recently, EPA has been
developing constituent-specific
multipliers (see 55 FR 11798; March 29,
1990). While a major expansion of this
effort could pose significant challenges
to the Agency's resources in the short-
run, it would also allow EPA to
incorporate available information on
contaminant fate and transport in the
environment. It would also better tailor
the regulation of a constituent to the
potential threat that a chemical poses to
human health and the environment
through different routes of exposure.
The Agency requests comments on this
alternative.
EPA believes there are at least three
choices for developing levels for CBEC.
One is to determine levels the Agency is
very confident do not pose a risk, such
as using a multiplier of 1 to develop
regulatory levels from MCLs. EPA
believes that a multiplier of 10 might
also be justified under this approach; it
is derived from using the EPACML
model and the assumptions described in
more detail in section VI, using the 95th
percentile on the curve. This percentile
is higher (more protective) than the level
used in deriving TC levels. The
multiplier of 100 represents another
approach which is to develop a level
that EPA concludes is the demarcation
of where the Federal interest in
regulating wastes ends. Under this
approach, the multiplier of 100 is based
on using the 85th percentile as was done
to develop TC levels.
Option 1: Health-based Numbers
(HBN)XIOO
The first option would establish the
generic exemption levels one hundred
times the health-based number. That is,
listed waste which leaches toxicants at
levels one hundred times or less the
corresponding health-based number
would no longer be regulated as listed
hazardous wastes. This option was
suggested to the Agency by the
Chemical Manufactures Association
(CMA) in a petition for rulemaking in
1989. This option is also the same
approach that was used to establish TC
levels. At that time, EPA considered
these to be levels which identify wastes
that are "clearly hazardous".
EPA is considering CBEC at 100 times
health-based numbers for a number of
reasons. First, such an approach would
harmonize the listings.and
characteristics programs by using the
same number used for the TC. EPA has
received numerous requests for a
straight forward approach to identifying
hazardous wastes. Choosing a multiplier
of 100 would unify both the TC and the
exit level for listed waste thereby
simplifying hazardous waste
identification while allowing for a
concentration-based exemption. (If
future modifications to the TC involve
changing the multipliers, EPA currently
expects that the Agency would consider
making parallel changes to the CBEC
levels.)
A multiplier of 100 corresponds to a
cumulative frequency close to the 85th
percentile from the EPACML
simulations used to support the TC rule.
In other words, in this exposure
scenario, an estimated 15 percent of the
drinking water wells closest to unlined
municipal landfills could have
contaminated concentrations above
MCLs, if the landfill within a mile of the
well receives wastes at or just below the
possible exemption levels of 100 times
the health-based numbers. As the
distance between a landfill and a well
increases, the probability of exceeding
MCLs decreases. It is important to note
that the information on landfills used for
this analysis is at least six years old,
and conditions such as size, proximity to
drinking water wells, management
practices, disposal practices, etc, may
have changed.
Option2:HBNX!0
Another option for establishing
numeric exemption criteria would be
setting criteria at ten times the health-
based numbers. That is, listed waste
which leaches toxicants at levels ten
times or less the corresponding health-
based number would no longer be
considered hazardous. Therefore, this
option is slightly more protective than
the delisting program which exempts
specific listed hazardous waste from
subtitle C regulation using somewhat
more conservative multipliers depending
on volume (see delisting discussion,
section XIII). A multiplier of 10
corresponds to approximately the 95th
percentile levels generated from
EPACML simulations used to support
the TC. This means that an estimated 5
percent of the wells closest to unlined
municipal landfills will experience
concentrations of leachate above health-
based numbers, as surveyed in 1986
(EPA Solid Waste (subtitle D) Landfill
Survey, 1986). At a multiplier of 10, EPA
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believes it is possible, but unlikely, that
any individual will be continuously
exposed at concentration above health-
based levels of concern for any
pollutant.
Preliminary analysis preformed by the
Agency indicate that a few treatment
residuals and very dilute waste
mixtures, such as waste waters, may be
exempted from subtitle C control under
this option. This option may have little
practical impact on other low waste
mixtures and treatment residuals. See
appendix 1 in appendix X where these
exemption levels are listed.
Option 3: HBN With a Multiplier of 1
Yet another option establishes
numeric exemption criteria for toxicants
in wastes at concentrations equal to the
toxicants' health-based number. Health-
based numbers are concentrations
below which toxicants are considered
by EPA to present an acceptable risk to
human health. This option is the most
protective option presented for comment
today. These levels are considered
protective even under worst case
exposure scenarios. Preliminary
analysis preformed by the Agency
indicates that because the risk
presented by wastes that meet this
exemption criteria are de minimis, very
few treatment residuals and only
extremely dilute waste mixtures may be
exempted from subtitle C control under
this option. Therefore, this option will
have little practical impact on low
hazard waste mixtures and treatment
residuals.
Option 4: BOAT
Under this option, the Agency is
proposing that listed hazardous waste
which has been treated to the applicable
treatment standard would also be
exempt from subtitle C management.
Technology-based generic exemption
levels could be developed by
establishing numbers based on toxicant
concentration levels found in waste
residuals which have been treated using
proven treatment technologies. This
approach, which is consistent with the
LDR program, would require that all
listed hazardous wastes meet treatment
levels prior to disposal. The Land
Disposal Restrictions (LDR) Program
establishes treatment standards for
hazardous wastes. Persons managing
those wastes must demonstrate that
their wastes meet these standards
before the wastes can be land disposed.
The standards are promulgated in
subpart D of 40 CFR part 268. While
some of these standards require that
certain wastes be treated by specific
treatment technologies before land
disposal, the majority of the treatment
standards are numerical standards for
subsets of toxicants commonly found in
individual listed wastes. These
standards were developed by evaluating
the effectiveness of the best
demonstrated available treatment
[BOAT) technologies for individual
listed wastes. If the numerical BOAT
technology standards for individual
waste streams were used as exit criteria
for listed hazardous waste, residuals
which were treated in accordance to
BOAT would no longer have to be
managed in a subtitle C facility when
disposed. The BDAT standards, as
currently promulgated, are solely
technology-based and do not consider
risk. As a result, the treatment
standards are in some cases higher and
in other cases lower than risk-based
levels discussed above. Setting
exemption criteria equal to LDR
treatment standards implies that the
treatment standards render the risks
presented by wastes to acceptable
levels given the use of best ,
demonstrated available technology.
The Agency believes BDAT levels per
se are inappropriate as exemption
criteria, because these levels are purely
technology-based and do not consider
risk. However, the use of these levels as
CBEC has been suggested to the Agency
because in many cases treatment to
these levels can substantially reduce the
risk presented by the waste, these levels
are widely implemented throughout the
hazardous waste program, and often
these levels result in wastes that are
below or close to the risk-based levels
of some of the options discussed above.
The use of BDAT levels as exit criteria
gives more confidence to some
interested parties who prefer to rely on
the performance of technology, rather
than the performance of risk
assessment. Therefore, the Agency
requests comment on the
appropriateness of considering these
levels as CBEC.
Option 5: BDAT Capped With HBN
Another option the Agency is
proposing for comment today is to
establish generic exemption levels
through a combination of the technology
and risk options discussed above. These
options could be merged in different
ways to modify an approach based on
BDAT levels. The first, is to recognize
that there may be some wastes for
which there is some significant residual
risk even after achieving technology-
based treatment levels. There may be
some wastes for which best
demonstrated and available treatment
technology cannot routinely get below
the figure of 100 times health-based
levels, for example. Under this option,
for those wastes, a risk-based leach
level such as 100 times health-based
numbers would be the CBEC level rather
than the BDAT standard.
Finally, EPA notes that the concept of
merging BDAT and risk-based
approaches is complex because BDAT
standards are sometimes set as total
concentrations in the waste, levels
measured in a leach test, or mandated.
The Agency solicits comment on the
problems that result from that
complexity as well as on this approach
generally.
As stated in Option 4, some parties
prefer BDAT treatment levels because in
many cases treatment to these levels
substantially reduces the risk presented
by the waste and these levels are widely
implemented throughout the hazardous
waste program. Including either a risk-
based modification to these treatment
levels retains the advantages of Option
4, while removing some of the'
disadvantages. The Agency requests
comment on the appropriateness of
considering these levels as exemption
criteria.
C. Expanded Characteristics Option
(ECHO)
The second conceptual approach is
based on the current hazardous
characteristics approach for identifying
hazardous wastes subject to subtitle C.
This approach would establish the same
characteristic (concentration) threshold
for determining whether a waste stream
would be covered as a subtitle C waste
(i.e., "entry" to the subtitle C waste
system) and when a waste stream
would be exempt from subtitle C
regulation. Therefore, RCRA
characteristics—ignitability, reactivity,
corrosivity, arid toxicity—would
determine both entry to and exit from
the hazardous waste management
system; this would assure a consistent
regulation of wastes. This
rationalization of entry and exit
constituent levels would dramatically
simplify waste identification under the
RCRA regulatory system.
There are three important advantages
to such an approach. First, the
characteristic approach would largely
replace the current approach based on
the combination of waste listings and
the "mixture" and "derived-from" rules.
As noted above, this system has
required the management of millions of
tones of low risk wastes within the
subtitle C hazardous waste management
system. The characteristic approach
would tailor waste management
requirements to levels the Agency
believes minimizes the short- and long-
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term threats to the protection of human
health and the environment.
Second, the characteristic approach
would also provide important
programmatic advantages over the
concentration-based approaches
outlined above. Currently the Agency
must devote significant resources to
investigate and list each hazardous
waste stream. At the current pace,
listing all potentially hazardous waste
streams could take several decades. By
developing a set of comprehensive
hazardous waste characteristics, the
Agency could reallocate its resources
away from waste stream identification
and focus instead on ensuring that
generators properly carry out the tests to
determine whether their solid waste
exhibits a characteristic.
In addition, this approach will give
generators and waste handlers
substantial incentives to develop new
information about the characteristics of
their waste streams. Under the
concentration-based approach,
generators, etc. have little incentive to
develop such information and, as a
consequence, EPA must devote
substantial resources to develop
information on the transport and fate of
waste constituents in the environment.
Third, the characteristic approach
would achieve a much larger portion of
the potential cost savings associated
with addressing the overly broad
regulation of wastes under the current
"mixture" and "derived-from" rules.
Therefore, the Agency is proposing
the Enhanced Characteristic Option
(ECHO) below as a way to move to a
system of characteristics. The Agency
requests comment on all aspects of this
issue.
Option 6. ECHO
EPA has developed four
"characteristic" tests for identifying
hazardous waste—the Corrositivity,
Ignitability, Reactivity, and Toxicity
characteristics. This approach would
rely on this set of characteristics,
augmented by a substantial revision of
its toxicity characteristic test to address
the chronic and carcinogenic effects of
as many additional appendix VIII
constituents as possible. The current
Toxicity Characteristic (TC) was
devised to address the potential adverse
health-based effects of 39 heavy metal
and hazardous organic constituents
when improperly placed in an unlined
landfill.
Under this option, the Agency would
expand the Toxicity Characteristic from
its current list of 39 [40 CFR part 261}
appendix VIII hazardous constituents to
as many appendix VIII constituents as
possible. The TC then would address all
of the chronic and carcinogenic effects
of the appendix VIII constituents for
which there is a peer-reviewed health
based concentration level and an
analytic method for detecting the
constituent.
During the TC rulemaking, the Agency
received many comments from the
environmental community suggesting
that the Agency expand the TC to
consider other toxicants in addition to
the 39 incorporated in the final rule. The
ECHO would respond to those concerns.
As in the current TC rule, the
characteristic level for these new
constituents would be a multiple of the
health based limit (HBLs). The multiple
would be derived from the EPA
Composite Model for Landfills
(EPACML) to reflect the diffusion and
attenuation of the constituent during
ground water transport.
In addition to determining the scope
of the expanded toxicity characteristic,
the Agency must determine the
characteristic level for each constituent.
As discussed in Option 1 above, there
are two options: A single multiple above
the health-based limits for all appendix
VIII constituents or constituent-specific
multiples which vary for each toxicant.
Since ECHO could potentially expand
the waste streams regulated under
subtitle C, EPA believes that
constituent-specific characteristic levels
are appropriate. As described in section
IV, the Agency has information for
approximately 200 constituents and is
requesting any additional data to assist
the Agency's efforts in making these
determinations. If constituent specific
data is not available, EPA will use a
DAF of 100 for the remaining
constituents with health based levels
and verifiable test methods. The Agency
would propose that this level minimizes
short and long-term threats to human
health and the environment for all
constituents since it is based on very
conservative physical dilution and
attenuation assumptions. (See section VI
for further discussion of exposure
pathways and EPA's proposed
justification of this finding.)
As explained later in this notice, EPA
has quantifiable health risk data and
appropriate analytic methods for about
200 constituents now in appendix VIII. It
is these constituents which would be
added to the TC under ECHO. For listed
wastes containing other toxicants for
which data is not available, the mixture
and derived-from rules would continue
to apply. In addition, testing methods
would have to be available for detecting
the constituents in the waste. Thus,
under ECHO, the TCLP or other EPA
approved test method would be used.
Section IV describes the constituents
eligible under this proposal.
Although implementation issues are
discussed in more detail in section XI,
the Agency summarizes them here.
Under this option, generators who
currently manage a listed waste would
have to submit a one-time notification to
the Agency that their previously listed
waste now does not exhibit a
characteristic. Generators would have to
submit testing information and a
certification to verify their claim. The
Agency considers this one-time
notification essential to its proper
management of a transition from the
current hazardous waste identification
and tracking system to a system under
ECHO. EPA would need to receive
notice of changes in the status of these
waste streams in order to allow EPA to
review and enforce against changes that
are not properly supported.
After the one-time notification, the
ECHO approach would be implemented
like the current characteristic system.
Generators are responsible for
determining whether their waste
exhibits a characteristic. Generators
may either test their waste or use their
knowledge of the waste to determine
whether it is characteristic. As
envisioned under EPA's 1978 hazardous
waste identification proposal and under
this approach, the list of hazardous
waste list would serve as a default list
to allow generators an alternative
method to identify (without the burden
of continually having to test their
wastes) those waste streams which
almost always exhibit at least one
characteristic. Generators of a listed
hazardous waste could simply manage
the waste stream under subtitle C.
Contingent Management Approach
The previous options for listed
hazardous waste apply in all situations
and, therefore, do not reflect the fact
that the way in which waste is managed
can modify the actual risks posed by a
waste. If a waste is placed in a
protectively designed landfill, the actual
risk posed by the waste is significantly
reduced. Therefore, EPA is also
presenting several "contingent
management" options, under which the
ultimate disposal of a waste may
influence the level at which it is
exempted from subtitle C. The basic
reasoning is that if a waste is managed
safely, the criteria against which it is
judged can be less stringent. Proven safe
disposal can allow more concentrated
waste out of subtitle C without
increasing risk to human health and the
environment so long as the waste is
disposed of in accord with the
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contingent management criteria. This
approach could complement either the
CBEC or the ECHO approaches.
If wastes could exit subtitle C control
at different concentration levels
contingent upon different waste
management practices, the Agency will
have made a significant step in
transforming the current binary
regulatory system (subtitle C/not
subtitle C) to a system more focused on
risk. Such a system could better tailor
regulatory control to the variations in
potential risks posed by the large
volume of waste materials currently
subject to subtitle C regulation.
To decide on the appropriate
management practices that afford
assurance that wastes leaving subtitle C
control will be well managed, the
expected route of potential exposure
must be determined. The Agency is in
this proposal limiting its contingent
management options to wastes disposed
of in landfill. In previous rulemakings,
the Agency has determined that the
primary route of exposure will be
consumption of groundwater
contaminated with leachate from the
disposal landfill. Therefore, the Agency
is today presenting contingent
management options which diminish the
likelihood of the occurrence of this route
of exposure.
As discussed in section IX of this
proposal, the Agency has modeled
environmental releases from landfills
using the EPACML model. The model
was constructed to simulate the
potential hazards from mismanagement
of hazardous waste. In summary, the
model assumes that hazardous waste is
placed in an unlined, municipal solid
waste landfill. Precipitation falls on the
landfill and leaches hazardous
constituents as it moves through the
landfill. Leachate from the landfill then
flows through the soil to the
groundwater and then to drinking water
wells.
Under the contingent management
approach, the Agency intends to focus
on actual management, not
mismanagement, conditions if they can
be reasonably assured. Thus, there are
many potential ways to use the
EPACML model to reflect actual
conditions. For example, in section IX of
today's notice, the Agency proposes
using a less acidic leaching procedure to
better model the actual leaching process
if waste is place in a monofill {i.e., not
co-disposed with municipal solid waste).
The EPACML model was not
specifically developed for modeling
potential ground water contamination at
individual sites. Rather, its purpose was
to provide the Agency with a tool for
projecting impacts to ground water on a
national basis. Although the CML model
is used in making delisting
determinations (see 56 FR 32993, July 18,
1991), the volume of waste is the only
parameter which is varied. The model is
not recommended for developing site-
specific DAFs taking into account the
exact physical/chemical attributes of a
site. Instead, the Agency requests
comment on whether to and how to
tailor DAFs to site conditions. Can this
be done on a national basis, using
certain factors that can be projected to
affect DAFs uniformly across the
country? Or should DAFs be tailored
specifically to a site, using the
conditions of the site and a more
appropriate site-specific model to adjust
the DAFs? Can a system using a
combination of both approaches be
employed?
The contingent management options
presented in today's Notice involve
consideration of five specific factors
which affect DAFs. Each involves the
actual conditions existing at a landfill
site. Those conditions can act
individually or in combination to
mitigate the potential for leachate to
contaminate ground water. The five
factors are described below.
First, one factor influencing contingent
management option is disposal in a
lined landfill with specific design
criteria. The Agency promulgated on
October 9,1991 performance and design
criteria for subtitle D municipal solid
waste landfills (see 56 FR 50978). To
satisfy the performance standard, these
criteria require a low hydraulic
Conductivity soil cover on the landfill
and a composite liner, consisting of
flexible membrane liner and a two-foot
barrier soil layer under the landfill.
Second, the amount of potential
exposure also varies with the average
amount of precipitation that falls on a
landfill. Precipitation is the primary
source of leachate; lower amounts of
precipitation would cause less leachate
and less leachate migration beyond the
barriers of the landfill. Another possible
contingent management option would
determine different DAFs based upon
the average expected precipitation rate
in the region the landfill is located. The
Agency could determine geographic
regions based upon climatic zones,
could require precipitation data from the
most appropriate certified rain gauge, or
could require site-specific information.
However, in order to do this the Agency
would need to verify that the other
model inputs are appropriate for each of
the regions or else develop new region-
specific inputs. Therefore, the Agency
solicits data and comment on
technically appropriate ways to set
DAFs based on rainfall levels.
A third factor which could warrant a
contingent management option is the
size of the landfill. In the TC rulemaking,
the Agency used a national distribution
of municipal landfill sizes—an
appropriate approach given the national
scope of the regulation and the assumed
mismanagement scenario. The Agency
recognizes that the DAF varies
significantly with the size of the landfill.
For any given distance from the landfill
boundary, larger landfills have lower
DAFs. Therefore, when considering
actual management practices at specific
landfills, the size of the landfill will be
known. One of the contingent
management option below is to allow a
landfill to petition for a specific DAF
(and thus contingent exemption from
subtitle C under CBEC or ECHO) based
on the landfill size. EPA points out that
this is similar to the delisting program
where the volume of waste dictates the
DAF used, thus implicitly taking landfill
size into account. The Agency notes that
landfills which accept only hazardous or
industrial solid waste are generally
smaller than municipal solid waste
landfills.
A fourth factor which significantly
influences the potential migration of
contaminants is the hydraulic
conductivity of the soil surrounding the
landfill. If leachate infiltrates out of the
landfill, it must flow through the
surrounding soil to reach a well or
surface water body. If the hydraulic
conductivity of surrounding soil is
relatively low-^-such as in soils
dominated by clays—then the flow of
any potentially contaminated leachate
could be effectively retarded for long
periods of time. Thus, the Agency
believes that landfills located in soils
with low hydraulic conductivities (for
example, 10~6cm/s or lower) could
provide an extra level of environmental
protectiveness worthy of a contingent
management exemption option. EPA
believes this factor may not be
appropriate to generate national DAFs,
using the EPACML model since the
other model inputs may also vary in
areas of soils with low hydraulic
conductivity. The Agency seeks
comment on several implementation
issues for this option. The Agency could
issue national DAFs or multiples above
existing DAFs corresponding to different
hydraulic conductivities—one for 10~6
em's, one for 10~7 cm/s, etc.
Alternatively, the Agency could require
petitioners to obtain site-specific
measurement of local soil conductivity.
If the Agency asked for site-specific
information, the Agency requests
comment on the level of detail
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appropriate for a contingent exemption
based on soil conditions.
Finally, the fifth possible contingent
management factor would be a
demonstration that no operating
drinking water wells lie within a specific
radial distance from the facility. To
account for this factor, landfill operators
could show that if the nearest drinking
water well was a certain radial distance
(1000 feet, 2000 feet, etc.) from the
facility, the landfill could manage
wastes contingently exempt from
subtitle C at a higher concentration than
excluded under CBEC or ECHO. This
higher concentration level or DAF could
be determined with the EPACML. The
Agency requests comment on how,
under such an approach, a facility could
assure that wells would not be located
closer to the site in the future.
Contingent Management Options
In today's Notice, EPA is proposing
two alternative approaches combining
the structural approaches outlined
above (i.e., CBEC and ECHO) with
contingent management. The first one
involves setting exemption criteria
contingent on disposal in a landfill
meeting certain design requirements.
This option would apply nationally
rather than on a site-specific basis. The
second option involves determining a
threshold at which a waste would
become characteristically hazardous
even with disposal in a landfill with
specific design criteria dependant upon
size, location, and climatic conditions.
These, too, would be applied on a
national basis. Finally, the Agency is
also interested in comment on applying
the contingent management approach on
a site-specific basis by altering the
exemption criteria based on the site-
specific conditions of hydraulic
conductivity and the distance to a
private drinking water well.
Option 7. CBEC Modified by Contingent
Management
The Agency is proposing a hybrid
option which incorporates aspects of the
risk-based, technology-based and
contingent management options
discussed above, for establishing a
concentration-based exit from subtitle
C. This option establishes two sets of
risk-based levels: one set is more
conservative and does not condition
subsequent management of the waste
(tier 1); the second set is less
conservative and requires subsequent
management of the waste in a specified
manner (tier 2). If listed hazardous
wastes (including residuals and
mixtures) leach concentrations of toxic
constituents at or below the more
conservative set of health-based levels,
the waste would no longer remain under
subtitle C jurisdiction (note: these
wastes will still remain subject to the
characteristics defined at 40 CFR 261
subpart C). This set of risk-based levels
are the levels described in the first set of
options where wastes, treatment
residuals, and waste mixtures, which
contain levels of toxicants at or below
the risk-based exemption levels would
be exempt from subtitle C control. These
levels might also be considered
minimum threat levels under section
3004(m) of RCRA (i.e., the LDR program)
meaning that BDAT treatment would not
be required below this level. The
Agency is proposing that these levels
(tier 1) be ten times the health-based
number for each toxicant, which is
slightly below the most conservative
levels for which wastes have been
delisted. The Agency believes that
selecting these levels, which are
presented in Appendix 1 of today's
notice, would be one way to harmonize
today's proposed rule with other RCRA
programs. This factor (10) represents a
level which may be fully protective in
the context of setting national levels at
which subtitle C jurisdiction ends. A
multiplier of 10 corresponds to
approximately the 95th percentile levels
generated from EPACML simulations
used to support the Toxicity
Characteristics (TC) rule (See 55 FR
11826). For situations where unusual site
conditions may dictate a factor of less
than 10, the Region or authorized State
would be able to require, as necessary, a
more stringent factor (See Regional
Override Authority discussion in section
IX of today's notice). The Agency
requests comment on the
appropriateness of selecting a factor of
10 times health-based numbers for levels
where subtitle C jurisdiction ends
without condition of subsequent
management.
The second set of risk-based
exemption criteria (tier 2) is contingent
upon specified waste management.
Today's notice is proposing, as a first
phase, to allow only listed hazardous
wastes which has met the applicable
Land Disposal Restriction (LDR)
treatment requirements to be eligible for
the contingent management exemption
(contaminated media are addressed
separately in Today's proposal). Once
the LDR requirements are met,
concentrations of toxic constituents
which leach from the residual are
compared with the less conservative set
of health-based exemption levels which
is tied to specific management
standards. The Agency is proposing to
establish the less conservative set of
risk-based levels at one hundred times
the health number for toxic constituents.
LDR residuals which leach toxicants at
concentrations greater than ten times
the health numbers, but at or below one
hundred times the health number and
are managed according to the
requirements set forth at 40 CFR part
258 subpart D, the municipal solid waste
disposal facility design criteria
promulgated on October 9,1991 (56 FR
50978), or State equivalent, will not be
regulated under RCRA subtitle C. The
municipal solid waste landfill
regulations would set out default design
and operating requirements. The Agency
is proposing less conservative risk-
based exemption levels contingent upon
management in a landfill that meets
specified design requirements because
of the degree of protectiveness provided
by the design standards. The Agency
requests comment on alternative risk-
based exemption levels coupled with
this management practice as well as
other management practices. These
levels are also listed in appendix 1.
EPA proposes that CBEC wastes in
this contingent tier would be able to be
exempt based on management in an
alternative design approved by the
Federal government, either for municipal
solid waste (approved through
authorization of the State municipal
solid waste program) or for CBEC
wastes (approved through authorization
of the State's hazardous waste program
but meeting the design standard for the
municipal solid waste landfills in 40
CFR part 258).
EPA proposes that at a minimum, the
design and construction requirements of
40 CFR part 258 would be necessary
pieces of this conditioned exemption.
This would include liners unless there
was an approved State alternative
design. EPA believes these elements
could realistically be installed and
relied upon in the context of a self-
implementing regulation. The Agency
seeks comment, however, on the need
for other components of the 40 CFR part
258 standards, including elements such
as covers, groundwater monitoring
phased in on the same timeframe as for
municipal solid waste landfills, financial
assurance and others. EPA also seeks
comment not just on whether these
elements are necessary, but also
whether they realistically can be
elements of a largely self-implementing,
conditional exemption.
Residuals which leach toxicants at
concentrations greater than one hundred
times the health numbers, even after
achieving the specified LDR treatment
standards, will remain regulated under
RCRA subtitle C. Figure 1 depicts the
two tiers of exemption levels and the
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jurisdictional authority associated with these levels. The Agency requests comment on all aspects of this proposed option.
Figure 1: Depiction of CBEC Contingent Management Option for Wastes
100X
10X
Option 8. ECHO Modified by Contingent
Management
The Agency is also proposing today
another hybrid option which combines
the ECHO structural approach with
contingent management options. While
the ECHO approach sets uniform entry
and exit levels for subtitle C
management, for the reasons discussed
above the Agency believes that
establishing additional exit levels based
on specific disposal practices would
begin to implement the Agency's
contingent management structure and
would provide adequate protection of
human health and the environment.
Under this proposal the Agency would
adopt the ECHO approach discussed
above in Option 6 for wastes entering
and exiting subtitle C control and site-
specific contingent management
exemptions.
In the ECHO approach, the
characteristic level which determines
whether a waste is hazardous under
subtitle C is the product of the health-
based limit and a constituent-specific
factor. The factor reflects the expected
dilution or attenuation of the constituent
as it moves from the waste to the
receptor. In the TC rulemaking and the
ECHO approach, the Agency has
identified the potential consumption of
contaminated groundwater as the key
pathway of concern. This pathway, as
Subtitle C
Conditionally Exempt from Subtitle C
modified by EPACML, will be used to
develop new, higher thresholds at which
a waste would become
characteristically hazardous even with
managed disposal.
Therefore in considering the greater
degree of protection from alternative
contingent management options, EPA
proposes to develop input data for the
EPACML model to reflect the landfill
disposal scenarios for each contingent
management option. The EPACML will
be used to develop new, higher
thresholds at which a waste would
become characteristically hazardous
even with managed disposal.
One contingent management option
under this proposal would be disposal in
a lined landfill meeting specific design
criteria. The Agency promulgated
specific design and construction criteria
as the default option in the recent
subtitle D rulemaking (40 CFR 258). EPA
believes these elements could
realistically be installed and relied upon
for a self-implementing regulation. The
Agency proposes to use this data to
develop a new, higher threshold at
which wastes would become
characteristic wastes even though these
wastes are disposed in a facility meeting
these stringent design criteria. The
Agency proposes to set a generic
threshold under this option, which, like
the TC rulemaking, would be a
composite factor to account for
distribution across the continental
United States of different soil and
climatic conditions. The Agency
requests comments on this approach.
Landfill size may also affect the risks
associated with waste disposal. The
Agency proposes to set different
national thresholds for landfills with
different sizes. For example, using the
EPACML model for a fixed landfill size,
the Agency may find that a 40 acre
landfill yields a factor of 500 above the
health based levels, a 100 acre landfill a
factor of 200, etc. The Agency requests
comment on this approach.
Another contingent management
option would set different thresholds for
landfill located in areas with low
precipitation. As discussed above, the
Agency believes that low precipitation
will generate less leachate from a
landfill. The Agency proposes to use the
same precipitation modeling techniques
for setting thresholds under this
proposal as was done in the TC
rulemaking. The Agency requests
comment on this approach. Unlike the
other options above, EPA believes that
this issue may require changing more
than one input parameter in EPACML to
derive the appropriate thresholds. For
example, two other EPACML input
parameters—soil types and depth to the
unsaturated zone—vary with the
amount of precipitation a region
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21463
receives. Therefore, the Agency is
proposing that, if EPA adopts this
option, it would recalculate the nation
weights used in the TC rulemaking to
account for the regional limits of this
proposal.
Finally, the Agency is considering an
alternative option that would allow
generators to petition EPA to adjust the
characteristic level for wastes based on
site-specific conditions. The Agency is
considering two contingent management
options based on site-specific
conditions: one option for landfills
located at sites with low hydraulic
conductivity and the second option for
landfills with wells located within
certain greater radial distances from the
landfill. The characteristic values for the
constituents would be multiplied by a
factor which takes into account low
hydraulic conductivity or proximity to
nearest well to determine the contingent
management threshold. The Agency
requests comments on alternative site-
specific contingent management
approaches.
As discussed above, the Agency is
concerned that EPACML may not be the
appropriate model to use for site-
specific determinations of contingent
management. The Agency could require
petitioners to submit a site-specific
groundwater fate and transport model
with site-specific inputs. This approach
would give more confidence that the
model's predictions accurately predict
the actual hydrogeology of the landfill
site. The Agency also could use the
EPACML model and require a certain
number of site-specific inputs, e.g., soil
conditions, depth of unsaturated zone.
The Agency requests comments on this
issue.
Commenters should keep in mind a
principal concern regarding site-specific
modeling. Assigning site-specific
threshold levels could result in a
significant resource burden to regulatory
agencies and the regulated community.
When a large number of petitioners seek
thresholds tailored to their sites,
regulatory authorities must analyze the
modeling approach, the assumptions
inherent in the modeling approach, and
the input parameters to determine their
validity.
Finally, the Agency requests comment
on how should the Agency determine
thresholds for landfills that meet two or
more contingent management
conditions—a landfill constructed with
the subtitle D design criteria located in
an arid area. One option is to add the
generic factors to determine the
threshold. The Agency also requests
comments on how to assign thresholds
for landfills with a combination of
generic and site-specific factors.
In their March 18,1992 letter to the
Agency, the Department of Energy
(DOE) said that "some hazardous and
radioactive mixed wastes streams
managed by the Department, energy
industries, and other affected parties,
contain minute concentrations of listed
hazardous constituents, pose no
appreciable risk to human health or the
environment, but are nevertheless
subject to costly regulation under
subtitle C." DOE suggested to the
Agency that hazardous wastes mixed
with radioactive wastes may be more
appropriately regulated under the
existing requirements of the Atomic
Energy Act (AEA). EPA expects that the
general approach in today's proposed
regulation would allow for exemption of
mixed wastes that contain very low
concentrations of chemically-hazardous
constituents for RCRA subtitle C
requirements. However, there is also a
suggestion that for mixed wastes with
higher concentrations of chemically-
hazardous constituents regulated
because of RCRA listings, regulation
under the AEA already requires
measures intended to control exposure
to and releases of radioactive hazards
that would also protect human health
and the environment by limiting
exposure to, and release of chemically-
hazardous constituents from mixed
wastes. EPA solicits comment as to
whether it would be reasonable to
develop a contingent management
approach for mixed wastes where the
conditional exemption criteria would be
compliance with the regulations that
exist to control the radioactivity
hazards.
Phasing
Lastly, an issue that impacts both
approaches proposed today is phasing.
The CBEC approach will require
phasing, because there are only 200
toxic constituents for which the Agency
has health-based number and analytical
methods. As a first phase, the Agency
could promulgate CBEC levels for these
200 and the remaining appendix VIII
constituents could be added as methods
and health-based numbers are
developed (see discussion of CBEC
approach in part B of this section and
discussion in section IV).
For the same reason, the ECHO
approach will require phasing while
methods and health-based numbers are
developed for the remaining appendix
VIII constituents as well. During the
transition period, the mixture and
derived-from rules would remain hi
effect for wastes containing toxicants
which were not included as part of
ECHO. Also, until constituent-specific
DAFs could be developed for all toxic
constituents, a default DAF of 100 would
be used until a DAF for each constituent
could be developed (see discussion of
the ECHO approach in part C of this
section and discussion in section IV).
Also, phasing could also be directed
towards certain wastes types or
facilities for implementation and
resource reasons (see phasing
discussion in section IV). In summary,
under the CBEC approach, the Agency
proposes that all wastes, residuals, and
media be eligible for the CBEC
exemptions. However, the Agency is
considering two possible phased options
based on waste type: A limitation only
to treatment residuals and a limitation
only to media under a supervised
remediation. In contrast, under the
ECHO approach, the Agency would
likely not phase in this approach by
waste type, but by constituent; wastes
containing hazardous constituents not
included in the toxicity characteristics
would remain subject to the mixture and
derived-from rules. The Agency requests
comment on the advantages and
disadvantages of phasing and on
alternative approaches to phasing.
Additionally, should comments
support incorporation of contingent
management in either the CBEC or the
ECHO approach, the Agency may find it
necessary, due to time constraints and
implementation concerns to phase in
portions of this approach. This could
mean first promulgating the more
conservative exemption criteria under
CBEC or ECHO and later promulgating
less conservative exemption criteria
contingent upon specified management
under either approach. In addition, in
this rulemaking the Agency proposes to
allow contingent management only in
landfills.
E Approaches for Contaminated Media
In developing today's proposed
rulemaking, EPA considered a number
of issues regarding how the two
conceptual approaches (CBEC and
ECHO), which could be modified with
contingent management, should be
applied to contaminated media; that is,
soils, groundwater, surface water and
sediments that are contaminated with
listed hazardous wastes. Substantial
volumes of contaminated media are
commonly generated and managed in
the course of RCRA and CERCLA
remedial actions. Thousands of other
sites across the country may also
potentially involve cleanup of media
that may be subject to RCRA subtitle C
requirements. It has been the Agency's
experience with remedial programs to
date that determinations of when such
materials are subject to the RCRA
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hazardous waste management
standards can affect not only the costs
of cleanup actions, but also the
technical approach used, timing of the
cleanup, and procedural requirements,
such as the need to obtain a RCRA
permit before conducting certain
cleanup activities.
RCRA subtitle C regulations have to
date generally not distinguished
between wastes and contaminated
media. Units in which contaminated
soils and groundwater are treated,
stored or disposed of must meet the
same design and operating standards as
those for "as generated" hazardous
wastes. Other RGRA requirements, such
as the land disposal restrictions, also
apply to contaminated media, although
some LDR treatment standards are
being developed specifically for
contaminated soils.
Today's proposal is expected to have
an important and positive impact on the
Agency's remedial programs. It should
define much more clearly the
jurisdiction of subtitle C in relation to
contaminated media; in addition it
should enhance the flexibility of
remedial decisionmakers to apply
management standards to materials that
are contaminated but do not merit the
full subtitle C level of protection.
Under the ECHO approach, one
option for the Agency would be to
consider contaminated media to be like
other RCRA subtitle C wastes. Similar to
their responsibilities for solid wastes,
generators would have to test or rely on
their knowledge of the media to
determine whether it exhibits one of the
characteristics. This approach for media
would have the benefit of the simplicity
of a characteristic-based system. For
example, the tests for media would be
the same as waste. However, the
Agency has long recognized the special
features of media which could warrant
special regulation. These are described
below.
EPA believes that there may be sound
reasons for developing some explicit
provisions under the subtitle C system
for contaminated media. For one thing,
the physical characteristics of
contaminated media can be quite
different from as generated wastes.
Contaminated soils, for example, are
highly variable in their composition and
handling characteristics. Treatment of
such soils can thus be particularly
difficult. It should also be understood,
however, that some contaminated media
can be essentially identical to as
generated wastes—contaminated
groundwater, for example, may be very
similar to dilute wastewaters generated
from industrial processes.
Although some contaminated media
might be distinguished from as
generated wastes on the basis of their
inherent physical/chemical properties,
perhaps a more important distinction
has to do with the type and amount of
Agency oversight that is given to
cleanup activities under RCRA and
CERCLA, as opposed to ongoing
generated waste streams. Remedial
actions under these authorities are
typically conducted with substantial
Agency oversight; remedial decisions
are made by the Agency based on a
thorough study of the nature and extent
of the contamination problems at the
site. In contrast, most RCRA subtitle C
regulations are uniform, national
standards, and as such must require a
level of protection sufficient for a highly
diverse universe of facilities and
environmental settings.
In addition, EPA has found that
subtitle C requirements, when applied to
contaminated media generated during
cleanups (and indeed, more broadly, to
remediation wastes), can act as a
disincentive to more protective
remedies, and can limit the flexibility of
a regulatory decisionmaker in choosing
the most practicable remedy at a
specific site. In contrast, RCRA subtitle
C regulations, when applied to newly
generated wastes, ensure that the
wastes are handled according to
stringent national standards; due to the
cost of subtitle C management, they also
create a significant incentive for waste
minimization and process changes to
eliminate hazardous waste generation.
Yet these same requirements, when
applied to contaminated media, provide
a comparable incentive for leaving
wastes in place, or for selecting other
remedies that minimize regulation under
subtitle C.
EPA recognizes, of course, that both
Superfund and RCRA provide it the
authority to compel specific remedies, as
long as the remedies are consistent with
the goals of the statutes; under the
current programs, the Agency can
require facility owner/operators or
responsible parties to excavate
contaminated media (e.g., soils) and
manage them fully in compliance with
subtitle C. Similarly, in a fund-financed
remedy under Superfund, EPA can use
CERCLA funds to effect a similar
remedy. Thus, through its regulatory
authority, EPA can at least in theory
override any regulatory disincentive
against a given remedy. In its conduct of
the Superfund and RCRA programs,
however, EPA has come to recognize the
fact that RCRA subtitle C requirements
will apply to some remedies and not to
others, and can influence the remedy
selection process in undesirable ways.
For example, compliance with subtitle C
disposal requirements may completely
eliminate from consideration remedies
that would otherwise meet Superfund or
RCRA remedial standards and that
might be the most sensible remedy from
a technical point of view. In such cases,
the regulatory decisionmaker might be
faced with the dilemma of choosing
between two or more extreme options,
such as a remedy involving containment
in place versus removal and
management according to full RCRA
subtitle C standards, without having the
opportunity to consider a middle option
that might be fully protective, in
compliance with Superfund or RCRA
cleanup goals, and acceptable to the
local community. In such cases,
practical considerations and the need
for prompt action may often force the
decisionmaker to select the less
protective of the available extremes.
More broadly, under Superfund and
RCRA corrective action, the regulatory
decisionmaker must address a situation
that is already unacceptable—that is, a
situation which needs remediation. The
decisionmaker's goal in such a case is to
select a remedy that is fully protective,
yet that reflects the technical and
practical realities of the site. In
addressing that situation, the
decisionmaker needs the flexibility to
consider a full range of strategies so that
one may be selected that promptly,
effectively, and permanently addresses
the problem. EPA believes that
constraining this range of strategies by
requiring compliance with subtitle C
disposal, standards for wastes
"generated" during remediation can
often lead to remedies that are not cost-
effective and that in some cases may
actually be less protective solutions
than the remedies that otherwise would
be chosen.
The above considerations—the
physical and chemical differences often
found between contaminated media and
as-generated wastes; the level of
Agency oversight over remedial actions;
and the counterproductive constraints
that subtitle C requirements can impose
on the remedy selection process—
suggest that a somewhat different
approach to regulating contaminated
media (and perhaps remediation wastes)
may be appropriate under RCRA
subtitle C. In light of this, the Agency is
proposing for comment in today's rule
three alternatives for handling
contaminated media that would allow
EPA to consider certain site-specific
conditions in making subtitle C
exemption decisions in the context of
remedial actions. The three alternative
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regulatory approaches for media are
discussed below.
Media Alternative 1: Contingent
Management
This alternative would be essentially
the same as contingent management for
wastes, as described previously in this
preamble. Thus, media contaminated
with listed hazardous wastes would be
exempted from subtitle C if the
constituent concentration levels were at,
or lower than, the levels specified for
lower tier (e.g., more stringent tier) of
CBEC or ECHO, or for the upper tier
(e.g.t less stringent tier) if the media
were disposed contingent upon specified
management. For CBEC, the upper tier
would be contingent upon disposal in a
landfill meeting the design criteria
specified in 40 CFR 258 subpart D or
State equivalent. For ECHO, the upper
tier would be contingent upon the
landfill meeting the criterion proposed in
Option 8.
In the case of soils that meet the lower
tier exemption levels, management and
ultimate disposition of the soils could
essentially be unrestricted. It is possible,
therefore, that direct contact exposure
(e.g., ingestion by children) to such soils
could occur. However, the lower tier
exemption levels are {except for metals)
specified as leachate concentrations,
and do not take into account direct
contact exposure. It is therefore possible
that contaminated soils that meet the
lower tier (leachate) exemption levels
could have total concentrations of
constituents that might not be fully
protective from the standpoint of direct
contact exposure. The Agency requests
comments as to whether for soils, the
lower tier exemption levels should be
specified as both leachate levels and
levels based on direct human contact
with the soils.
Relationship with LDRs. In a separate
rulemaking, scheduled to be published
in the Federal Register later this year,
EPA intends to propose treatment
standards for hazardous soils, for
compliance with the RCRA land
disposal restrictions (LDRs). In
developing the HWIR and LDR
proposals, the Agency has considered a
number of issues relating to how the
LDR treatment standards for soils will
relate to the HWIR exemption levels for
soils. Although further discussion of
these issues will be included in the
forthcoming LDR proposal, EPA believes
that it is important in today's proposal
to outline the relationship between the
subtitle C exemption levels and LDR
standards for soils.
The final HWIR rule will determine
which soils contaminated with listed
hazardous wastes will be subject to
subtitle C regulation, including the
LDRs. The LDRs will specify the
standards to which contaminated soils
must be treated before they may be
disposed. Although the regulatory effect
of the two rules is different, the general
objectives in establishing the specific
levels for soils in both rules are in many
ways consistent.
In the LDR rule, EPA expects to
propose levels based on minimized risk
for soils that are protective assuming
direct contact (e.g., ingestion) and
leaching of constituents to groundwater.
These concentration levels thus
represent the levels that the Agency
believes pose minimal threats to human
health and the environment. The
"minimal threats" levels will be the
"floor" standards for treatment; that is,
treatment of soils will not be required
below those levels. For some
constituents, where the minimal threats
levels cannot be achieved because of
treatment technology limitations, a
higher, technology-based level would be
specified as the applicable treatment
standard for that constituent. EPA is
proposing that any of the options in this
rule which are promulgated as final
exemption criteria (not contingent upon
management) would also represent a
"minimized threat" level which also
would become the BOAT floor. The
Agency requests comment on this
alternative for contaminated media.
EPA also requests comment on the
relationship between the contingent
management approach and LDRs.
Media Alternative 2: Contingent
Management with Provisions for Site
Specific "Contained-In" Determinations
This alternative would adopt the
lower and upper tier exemption levels,
but would also provide a mechanism for
determining alternative exclusion levels
based on site-specific and waste-
specific conditions. This alternative
would thus codify the existing
"contained in" rule for determining
when contaminated media no longer
"contain" listed hazardous wastes, and
thus are no longer subject to RCRA
subtitle C. Fundamentally, this
alternative is based on the premise that
it is important and necessary for the
Agency to be able to consider, in certain
situations, site-related conditions and
waste-specific characteristics in
establishing subtitle C exclusion levels.
The lower and upper tier exclusion
levels as proposed today are intended to
be generic, national standards that are
protective of human health and the
environment in all but highly unusual
situations. They are thus based on a set
of assumptions regarding potential
exposure, fate and transport in the
environment, and human health effects.
In developing such generic, protective
levels, it is recognized that, given
particular site conditions and waste
characteristics, higher concentrations
could be fully protective in some cases.
For example, it may make sense to
exclude soil from subtitle C regulations
if the soil is contaminated only slightly
above the lower tier levels, is in a
remote location, or where groundwater
is not of drinking water quality. For such
situations, the current contained-in rule
would allow the Agency to determine
that the soil does not "contain" listed
hazardous wastes. Alternative 2 would
codify the contained-in rule and provide
an administrative mechanism for
determining when contaminated media
will be exempted from subtitle C, based
on site specific conditions. The Agency
intends to propose specific regulations
for codifying the contained-in rule,
including procedures and decision
factors for making such determinations,
in the forthcoming LDR "Phase II"
proposal for contaminated soils.
EPA proposes that contained-in
determinations would be made based on
the inherent characteristics of the
contaminated media and the
environmental conditions at the site.
Contained-in determinations would
therefore not take into account the
lessening of exposure or risk potential
that might occur if the contaminated
media were managed in any particular
way. For example, in the case of a site
with contaminated soil, the decision as
to what a protective contaminant
concentration level might be based on or
otherwise affected by the fact that the
soils would be placed in a lined and
capped landfill. The Agency intends that
contained-in determinations would be
based on conservative evaluations of
risk to human health and the
environment, assuming essentially
unconstrained disposition of the
contaminated media.
Relationship to LDRs. In terms of
applicability of LDRs to contaminated
media, a site-specific contained-in
determination would have the same
effect as a CBEC, ECHO, or lower tier
exclusion. Media contaminated at levels
below the contained-in concentrations
as determined by the Agency for those
media at that site would no longer be
subject to Subtitle C of RCRA and
would satisfy the LDRs, because they
would meet minimum threat levels.
Thus, LDR treatment of media would not
be required below the site-specific
contained-in levels. EPA solicits
comments on this alternative for
applying subtitle C exemption levels to
contaminated media.
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The Agency notes, however, that if it
selected this alternative (or any of the
other media alternatives), certain types
of dilution to achieve the exemption
levels would not be allowed. The legal
authority to limit dilution comes from
section 3004(a)(3) of HSWA as well as
the goals and language for the LDR
provisions (see 55 FR 22664).
Media Alternative 3: Contingent
Management with Provisions for Site-
Specific Contingent Management
Determinations
The contingent management approach
being proposed today for wastes would
allow subtitle C exclusion
determinations to at least partially
account for how the wastes will be
disposed. The disposition of wastes in a
lined landfill would thus be considered
as a factor as to the potential risks
posed to human health and the
environment by that waste [i.e., its
"hazardousness"). The third alternative
being proposed today for applying
exemption levels to contaminated media
would extend this concept to allow such
factors to be evaluated on a site-specific
basis, in the context of RCRA or
CERCLA remedial decisions.
This alternative would be similar to
Alternative 2, in that it would provide
the Agency with a mechanism to
consider waste-specific and site-specific
conditions in determining when
contaminated media at a site should be
subject to subtitle C regulation. While a
contained-in determination would not
be made contingent on any particular
disposal method for the contaminated
media, a site-specific contingent
management determination would allow
such waste management factors to be
considered. In practice, EPA believes
this approach could be beneficial in
providing greater flexibility for remedial
decision makers to apply management
standards to contaminated media that
would be proportionate to the actual
risks posed by those media at a given
site. If, as EPA believes, the concept of
subtitle C exclusion levels based on
contingent management is
fundamentally sound, it may be
reasonable to allow the Agency to apply
the concept on a site-specific basis,
where the Agency has sufficient
knowledge of site conditions, and
control over the management and
disposition of contaminated materials.
The legal basis for this alternative is
similar to the legal basis for the
contingent management approach for
wastes: Because EPA would be able to
ensure that remedial wastes managed
under the Agency's oversight would not
be "mismanaged", the waste would not
be "hazardous" under RCRA section
1004 and "should" not be regulated as
hazardous under RCRA section 3001(a).
To illustrate how this alternative
might be applied, an example situation
could be a site with two areas (A and B)
of soil that is contaminated with the
same listed wastes, at generally the
same concentrations. An effective and
protective remedial approach could be
to install a cap over the contaminated
soils. This would not trigger subtitle C
requirements, since the hazardous soils
would not be treated, stored, or
disposed of. However, if the soils from
Area A were to be excavated and
consolidated into Area B, the soils from
area A would be subject to subtitle C, in
that placement of the hazardous soils
into Area B would constitute disposal.
Under the proposed Alternative 3,
however, the Agency could determine
that the soils in Area A, when disposed
of in Area B, could be excluded from
subtitle C due to the low potential risks
that would be posed to human health
and the environment by the soils, when
they were disposed of in the capped
unit.
An important feature of this
alternative approach would be that the
contaminated media would be subject to
subtitle C standards prior to their
disposal. Thus, if the contaminated soils
in the above example were to be treated
in a tank before being placed in the
disposal unit, the tank would be subject
to the applicable subpart J standards of
part 264 or 265. Likewise, the Agency
proposes that contaminated media that
are disposed of off-site would not be
eligible for site-specific contingent
management determinations.
In making site-specific contingent
management determinations, EPA would
have to carefully consider considerable
amounts of data pertaining to the
contaminated media, site
characteristics, and the nature and long-
term effectiveness of the engineered
containment systems [i.e., caps, liners,
etc.) of the disposal unit. Due to the
amount of information and oversight
that EPA believes would be needed in
making site-specific contingent
management determinations, it is
proposed that such determinations
would only be applicable in the context
of corrective actions conducted pursuant
to RCRA or CERCLA cleanup
authorities. EPA believes that, given the
implications of such determinations, and
the need to ensure that contingent
management determinations are based
on sound technical judgment and a
thorough knowledge of the site, only
RCRA and CERCLA actions provide the
requisite degree of Agency oversight to
ensure the soundness of such decisions.
Similarly, EPA believes this approach
should be limited to on-site disposal
because of the focus of EPA's attention
and authority on the remedial site. EPA
also acknowledges that some States
may have enforcement authorities or
other legal mechanisms that provide a
similar level of control and oversight as
under RCRA or CERCLA. EPA solicits
comment on whether site-specific
contingent management determinations
should be available for State-supervised
cleanup actions under State authorities.
EPA also solicits comment as to how
such determinations might potentially
be made available to cleanup actions
that are not compelled under RCRA,
CERCLA, or State authorities.
Although today's proposed
Alternative 3 would apply only to
contaminated media, EPA believes that
conceptually, the same decision process
could be applied to other types of
hazardous wastes that are generated
and managed pursuant to remedial
actions. For example, sludges and other
solid wastes are often managed as part
of cleanup actions at RCRA and
CERCLA facilities. The same logic could
be applied to such wastes [i.e., that
would not be considered contaminated
media), in making determinations as to
how RCRA subtitle C should be applied.
Although such wastes could be identical
to as generated hazardous wastes, the
degree of site-specific control that is
inherent in Agency supervised remedial
actions might be sufficient to allow
contingent management determinations
for all wastes, including contaminated
media, that are managed pursuant to
RCRA or CERCLA remedial actions.
EPA specifically solicits comment on
how and whether such determinations
could be provided for remedial wastes
other than contaminated media.
Relationship to LDRs. The discussion
above addresses an approach under
which contaminated media (and
perhaps other remediation wastes)
would be excluded from RCRA subtitle
C jurisdiction at the time of on-site
disposal in compliance with an Agency-
selected remedy—assuming of course
that the remedy fully met the
protectiveness standards of Superfund
or RCRA corrective action. It does not,
however, address the question of
whether the wastes would still have to
meet the RCRA land disposal
restrictions, even though they were no
longer hazardous.
Generally, EPA has taken the position
that the Agency has the authority to
determine for each waste stream
whether the RCRA land disposal
restrictions take effect at the point a
hazardous waste is generated. If this
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21467
approach were applied to contaminated
media under Alternative 3, treatment to
land ban standards would be required
for wastes disposed of on-site in land
disposal units, even if the overseeing
regulatory agency determined that the
waste was nonhazardous (under today's
proposed exemption levels) at the time
of disposal.
EPA has articulated in the "third
third" LDR rule (see 55 FR 22520, 22651;
June 1,1990) its legal and policy reasons
for its general approach of retaining
discretion as to where to apply the
LDRs. The Agency described these
reasons in detail in the "third third" LDR
rule (see 55 FR 22520, 22651, June 1,
1990). For some waste streams, the
Agency believes the LDRs apply at the
point of generation. At the same time,
however, EPA has taken an alternative
approach in the case of particular
wastes and waste management
situations, applying the land disposal
prohibitions to those streams if they are
hazardous at the point they are disposed
of, but not applying the prohibitions at
that point if the wastes are no longer
hazardous (see 55 FR 22664). EPA has
taken this alternative approach only
where it was supported by other policy
considerations—such as integrating the
land disposal restrictions with
regulatory programs under the Clean
Water Act or the Safe Drinking Water
Act. EPA also believes that this
approach may be justified for
contaminated media excluded from
subtitle C under today's proposal, if the
. third alternative discussed above is
adopted. In such a case, applicability of
the land ban at the point of generation
would serve as a significant disincentive
to many acceptable remedies and would
constrain the range of protective
remedies available to the regulatory
decisionmaker. On the other hand,
applying land ban at the point of
disposal would allow a more effective
balancing of possible remedies.
This point can be illustrated by the
specific example discussed above,
where two areas (A and B) of soil are
assumed to be contaminated with
hazardous waste at similar
concentrations. In such a case, the
decisionmaker would ideally want to
look at a range of options, including
capping in place; consolidating the soils
in one of the two contaminated areas;
building a new engineered landfill and
disposing of the wastes in that landfill;
excavating, partially treating the waste,
and redisposing of it; and removing the
waste, treating it to RCRA LDR
standards, and redisposing of it. Yet, if
RCRA LDR standards were to apply to
the waste as a matter of law (or of
ARARs) at the point of "generation"
(i.e., excavation), all but the first and the
last options would probably be
eliminated from consideration,
regardless of how protective,
practicable, or desirable the other
options were. In such a case—depending
on the specifics of the situation—
capping in place might have to be
chosen as the only practicable or
technically feasible remedy (e.g.,
because of the volumes of media
involved, materials handling problems,
or local opposition to specific treatment
options, such as thermal treatment). EPA
believes this result would largely
undermine the goals of Alternative 3,
because it would significantly constrain
the Superfund and RCRA remedy
selection process, and in some cases
lead to less protective remedies. For this
reason, EPA believes that, if Alternative
3 is adopted, sufficient policy
justification may exist to apply land
disposal restrictions at the point of
disposal in specific remediation settings.
EPA solicits comments on all aspects
of this alternative for addressing
contaminated media. In particular, the
Agency solicits comment on the
appropriateness of including within this
alternative a new approach to the land
disposal restrictions—that is, applying
these restrictions to hazardous waste at
the time of disposal—and on whether
this alternative should be expanded to
include remediation wastes other than
contaminated media.
BILLING CODE 6560-50-M
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Figure 2: Depiction of Contingent Management Options for Media
100X
10X
Subtitle C
Conditionally Exempt from Subtitle C
Soliciting comment on the
extent these media should be
controlled.
Totals Analysis
Ingestion
62
BILLING CODE 6560-50-C
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IV. Waste Applicability
In order to reduce the unnecessary
regulatory burden of managing dilute
wastes, treated wastes, and certain
contaminated materials and media
(including rags and clothing, soils and
groundwater) as hazardous waste, the
Agency is establishing exemption
criteria for listed hazardous wastes and
contaminated media which, if met,
would exempt the waste/media from
Subtitle C requirements. The Agency
performed a number of analyses to
assess the potential impact of this
exemption mechanism. For these
analyses, the Agency reviewed
compositional data on approximately
800 wastes and media, including listed
waste mixtures, listed treatment
residuals, untreated listed wastes, and
contaminated soils, groundwater, and
certain treatment residuals. The
compositional data were used to
identify those wastes and media that
would be expected to achieve the
exemption. Based on these analyses, the
Agency found that the wastes and
media most likely to meet the criteria
are contaminated soils and
groundwater, dilute waste mixtures, and
treatment residuals. Although, the
Agency believes that most "as
generated" listed hazardous wastes will
not achieve the exemption levels, the
Agency is not excluding these wastes
from eligibility. Therefore, the Agency is
proposing that the following waste
categories be eligible for exemption
demonstrations:
(1) Hazardous wastes listed in 261.31
and 261.32 (with the exception of certain
wastes discussed below).
(2) Commercial chemical products
listed in 261.33 that are present on the
exemption list (i.e., Appendices [x+1]
and [x+2]).
(3) Contaminated materials and media
(i.e., groundwater, soils, rags, kiln
refractory) that contain one or more
hazardous wastes listed in (1) or (2)
above.
(4) Wastes that are hazardous
because they have been derived from or
mixed with wastes in (1) or (2) above.
Eligible wastes and media must be
analyzed for hazardous constituents
contained in Appendices [x+1] and
[x+2], respectively. The remainder of
this section discusses alternate
exemption mechanisms for certain
wastes, as well as various proposed and
optional eligibility restrictions for
wastes and media (section IV.A) and
waste management units (section IV.B).
A. Eligibility
Hazardous Wastes Listed Based Solely
on Characteristics
The lists of hazardous wastes include
a number of wastes that are listed solely
because they exhibit a characteristic. 40
CFR 261.3(a)(2)(iii)) states that such
wastes remain hazardous until a
mixture of these wastes with solid
wastes no longer exhibits any
characteristic of hazardous wastes
identified in subpart C of 40 CFR part
261.4 Thus, it is unnecessary to include
these wastes, which are listed in Table
1, in the exemption program because of
the existing self-implementing
exemption process:
TABLE 1 .—WASTES LISTED DUE TO CHAR-
ACTERISTICS FOR WHICH DE MINIMIS
Exemptions Are Not Necessary
F003—The following spent non-halogenated sol-
vents: xylene, acetone, ethyl acetate, ethyl ben-
zene, ethyl ether, methyl isobutyl ketone, n-butyl
alcohol, cyclohexanone, and methanol (I)
K044—Wastewater treatment sludges from the man-
ufacture of explosives (R)
K045—Spent carbon from the treatment of
wastewaters containing explosives (R)
K047—Pink/red water from TNT operations (R)
P009—Ammonium picrate (R)
P081—Nitroglycerine (R)
P112—Tetranitromethane (R)
U001 —Acetaldehyde (I)
U002—Acetone (I)
U008—Acrylic acid (I)
U031—n-Butyl alcohol (I)
U055—Cumene (I)
U056—Cyclohexane (I)
U057—Cyclohexanone (I)
U092—Dimethyl amine (I)
U096—a,a-Dimethylbenzylhydroperoxide (R)
U110—Dipropylamine (I)
U112—Ethyl acetate (I)
U113—Ethyl acrylate (I)
U117—Ethyl ether (I)...,
U124—Furan (I)
U125—2-Furancarlboxaldehyde (I)
U154—Methanol (I)
U161—Methyl isobutyl ketone (I)
U186—1,3-Pentadiene (I)
U189—Phosphorous sulfide (R)
U213—Tetrahydrofuran (I)
U239—Xylene (I)
Note that a number of the commercial
chemical products listed in Table 1 are
also constituents on the exemption list
(see Appendices [x+1] and [x+2]). The
Agency plans to propose (in a separate
notice) to modify the basis for listing
these commercial chemical products, as
well as F003, to include toxicity. Once
the basis for listing these wastes is
modified, these wastes would no longer
be eligible for exemption under
261.3(a)(2)(iii) because they will no
longer be listed solely for a
characteristic, and instead would be
eligible for exemption under today's
proposal. Under the ECHO approach,
this situation could not occur because
hazardous waste identification would be
based solely upon 40 CFR 261.3(a)(2)(iii).
The Agency requests comments on
whether the wastes listed in Table 1 for
which exemption levels exist should
continue to be eligible for exemption
under 261.3(a)(2)(iii) until such time as
the basis for listing these wastes is
modified.
Lack of Toxicity Data and Associated
Health-Based Levels for Appendix VII
Constituents
The Agency is proposing that certain
listed wastes be ineligible for exemption
under today's proposal because
exemption levels cannot be derived at
this time for all of the specific
constituents for which the wastes were
originally listed in 40 CFR 261.33 or
appendix VII of 40 CFR part 261. (See
section V, VI, and VII for discussions of
selection of exemption constituents,
development of health-based levels, and
identification of methods and
quantitation limits, respectively.) The
Agency is proposing that the commercial
chemical product wastes listed in Table
2 not be eligible for exemption under
today's proposal. However, the Agency
is interested in wastes, listed in Table 2,
for which there are analytical methods,
yet there are no health-based numbers.
Specifically, the Agency requests
comment on whether these wastes
should be eligible for today's proposed
exemption if after treatment the
constituents are not detectable in the
incineration residual.
TABLE 2.—40 CFR 261.33 COMMERCIAL
CHEMICAL PRODUCTS THAT ARE NOT
ELIGIBLE FOR CBEC EXEMPTION DUE
TO LACK OF HEALTH-BASED LEVELS
AND/OR ANALYTICAL METHODS
•* Such mixing practices are generally considered
to be treatment of hazardous wastes requiring
RCRA permitting, unless otherwise exempted.
P001 Warfarin, and salts.'
P002 1-Acetyl-2-thiourea.2
POOS Allyl alcohol.1
P006 Aluminum phosphide.'
P007 5-(Aminomethyl)-3-isoxazolol.'
POOS 4-Aminopyridine.'
P014 Benzenethiol.'
P016 Dichloromethyl ether.'
P017 Bromoacetone.3
P018 Brucine.3
P023 Chloroacetaldehyde.3 '.
P026 l-(o-Chlorophenyl) thiourea.2
P027 2-Chloropropionitrile.3
P034 2-Cyclohexyl-4,6-dinitrophenol.3
P040 O,O-Diethyl O-pyrazinyl phosphorothioate.2 .
P041 Diethyl-p-nitrophenyl phosphate.3
P042 Epinephrine.3
P043 Diisopropyl fluorophosphate.3
P045 Tniofanox.'
P046 a,a-Dimethylphenethylamine.2
P047 4,6-Dinitro-o-cresol.2
P049 Dithiobiuret.3
P054 Ethyleneimine.3
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21470 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
TABLE 2.—40 CFR 261.33 COMMERCIAL
CHEMICAL PRODUCTS THAT ARE NOT
ELIGIBLE FOR CBEC EXEMPTION DUE
TO LACK OF HEALTH-BASED LEVELS
AND/OR ANALYTICAL METHODS—Con-
tinued
P056 Fluorine.3
P057 Fluoroacetamide.0
P058 Fluoroacetic acid, Na salt.3
P060 Isodrin.2
P062 Hexaethyl tetraphosphate.3
P064 Methyl isocyanate.0
P066 Methomyl.1
P067 Aziridine, 2-methyl.3
P068 Methyl hydrazine.3
P069 2-Methyllactonitrile.3
P070 Aldicarb.'
P072 a-Napthylthiourea.3
P075 Nicotine, & salts.3
P076 Nitric oxide.'
P077 p-Nitroaniline.2
P078 Nitrogen dioxide.'
P084 N-Nitrosomethylvinylamine.3
P087 Osmium tetraoxide.'
P088 Endothall.1
P093 Phenylthiourea.3
P095 Phosgene.3
P096 Phosphine.1
P102 Propargyl alcohol.3
P105 Sodium azide.3
P107 Strontium sulfide.3
P111 Tetraethyl pyrophosphate.3
P116 Thiosemicarbazide.3
P118 Trichloromethanethiol.3
U005 2-Acetylaminofiuorene.2
U006 Acetyl chloride.3
U010 MitomycinC.3
U011 Amitrole.3
U014 Auramine.3
U015 Azaserine.3
U016 Benz[c]acridine.3
U017 Benzal chloride.3
U020 Benzenesulfonyl chloride.3
U024 Dichloromethoxyethane.*
U026 Chlornaphazin.3
U030 4-Bromophenyl phenyl ether.2
U033 Carbon oxyfluoride.3
U034 Chloral.'
U035 Chlorambucil.3
U039 p-Chloro-m-cresol.2
U042 2-Chloroethyl vinyl ether.2
U046 Chioromethyl methyl ether.1
U047 beta-Chloronaphthalene.'
U049 4-Chloro-o-toiuidine, hydrochloride.2
U051 Creosote.3
U053 Crotonaldehyde.'
U058 Cyclophosphamide.3
U059 Daunomycin.3
U064 Dibenzo(a,i)pyrene.3
U071 m-Dichlorobenzene.2
U074 1,4-Dichloro-2-butene.2
U082 2,6-Dichlorophenol.2
U085 1,2:3,4-Diepoxybutane.3
U086 N,N'-Diethylhydrazine.3
U087 O.O-Diethyi S-methyl dithiophosphate.3
U090 Dihydrosalrole.2
U092 Dimethyl amine.2
U093 p-Dimethylaminoazobenzene.2
U097 Dimethylcarbamoyl chloride.3
U098 1,1-Dimethylhydrazine.1
U099 1,2-Dimethylhydrazine.'
U103 Dimethyl sulfate.3
U114 Ethylene bis(dithiocarbamic acid), salts and
esters.3
U115 Ethyiene oxide.1
U116 Ethylene thiourea.'
U126 Glycidylaldehyde.'
U133 Hydrazine.1
U134 Hydrofluoric acid.3
U138 lodomethane.2
U139 Iron dextran.3
TABLE 2.—40 CFR 261.33 COMMERCIAL
CHEMICAL PRODUCTS THAT ARE NOT
ELIGIBLE FOR CBEC EXEMPTION DUE
TO LACK OF HEALTH-BASED LEVELS
AND/OR ANALYTICAL METHODS—Con-
tinued
U141
U143
U147
U148
U149
U150
U153
U155
U156
U158
U160
U163
U164
U166
U167
U170
U173
U176
U177
U178
U181
U182
U184
U187
U191
U193
U194
U197
U200
U201
U202
U206
U218
U219
U222
U223
U236
U237
U238
U243
U244
U248
Isosafrole.2
Lasiocarpine.3
Maleic anhydride.1
Maleic hydrazide.'
Malononitrile.'
Melphalan.3
Methanethiol.3
Methapyrilene.2
Methyl chlorocarbonate.'
4,4'-Methylenebis(2-chloroaniline). *
Methyl ethyl ketone peroxide.3
Guanidine, N-methyl-N'-nitro-N-nitroso-.3
Methylthiouracil.3
1,4-Naphthalenedione.2
alpha-Naphthylamlne.2
p-Nitrophenol.2
N-Nitrosodiethanolamine.l
N-Nitroso-N-ethylurea.3
N-Nitroso-N-meihylurea.'
N-Nitroso-N-methylurethane.3
5-Nitro-o-toluidine.2
Paraldehyde.3
Pentachloroethane.2
Phenacetin.2
2-Picoline.2
1,3-Propane sultone.3
1-Propanamine.3
p-Benzoquinone.3
Reserpine.'
Resorcinol.2
Saccharin, & salts.3
Streptozotocin.3
Thioacetamide.2
Thiourea.3
o-Toluidine hydrochloride.3
Toluene diisocyanate.2
Trypan blue.3
Uracil mustard.3
Urethane.2
Hexachloropropene.2
Thiram.1
Warfarin, and salts.1
Superscript Key;
'—No Analytical Method.
2_No Health-based Number.
3—Neither an Analytical Method or a Health-
based Number.
There are 31 listed hazardous wastes
that were listed for certain appendix VII
constituents that do not appear on the
CBEC exemption list. Table 3 identifies
these 31 wastes. For a number of these
wastes (F020, F021, F023, ¥027, F028,
K036, K037, K038, K039), the appendix
VII entries without exemption levels
represent broad classes of toxicants. In
some cases, the exemption list contains
members of these classes (for example,
F023 is listed for trichlorophenoxy
esters, ethers, amines, and salts and the
exemption list contains 2,4,5-T and
Silvex, members of these classes). The
Agency is proposing that none of these
wastes be eligible for exemption under
today's proposal because not all of their
appendix VII constituents are included
in the exemption list. The Agency is
soliciting comments that would either
reaffirm this approach or suggest an
alternative approach that would allow
these wastes to remain eligible.
It is the Agency's goal for all listed
wastes to be eligible for either CBEC or
ECHO. The Agency will use Table 3 as a
general guide to set priorities in this
effort. For those constituents which have
HBLs but lack verifiable test methods,
EPA first will develop appropriate tests.
After that effort, for those constituents
which have SW-846 test methods but
lack health-based levels, the Agency
will develop health-based levels.
Finally, the Agency will develop both
test methods and health-based levels for
those remaining constituents. The
Agency asks for comments on this
approach. The Agency also requests any
comments, data, or proposed test
methods for the constituents listed in
Table 3.
Phased Approach
The Agency is also soliciting
comments on the implementation of
today's proposed exemption in .phases.
Under a phased approach, the Agency
would restrict exemption eligibility
initially only to certain categories of
wastes, providing the Agency with an
implementation schedule that (1) allows
the Regions and States to adopt the
program more gradually, and (2) would
provide sufficient flexibility to help
ensure successful implementation. The
universe of hazardous waste generators,
treatment, storage and disposal facilities
is approximately 100,000 facilities. The
universe of treatment, storage and
disposal facilities is comprised of about
5,000 facilities. The Agency is requesting
comments on two options to limit
exemption eligibility.
Under the first option, eligibility
would initially be limited to treated
wastes. The Agency believes that
treated wastes are good candidates for
the first phase of a phased approach
because (1) they are the most likely
wastes to have constituent
concentrations that meet today's
proposed exemption levels, (2) facilities
generating treated wastes are generally
very familiar with the hazardous waste
handling requirements and thus may be
able to develop complete demonstration
packages more readily, and (3) the
Agency is well acquainted with the
operating practices at these facilities
due to on-going permitting and
inspection activities. Commenters
supporting this option should address
possible definitions of "treated waste".
The second phasing option would
limit initial eligibility to facilities at
which the Agency/States currently have
oversight through the corrective action
and permitting programs. Wastes
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed RuJes 23473
generated at these types of facilities
would be good candidates for the initial
phase of a phased approach for the
same reasons listed above for treated
wastes, but may represent a smaller
universe of potential participants and
facilities where the Agency is more
familiar with actual waste or media
characterization data. This option could
- also include wastes and media at
CERCLA sites.
A gradual phase-in of the program
balances the burden to the regulated
community of having their low
concentration wastes subject to Subtitle
C control against the administrative
burden to the Agency and authorized
States of implementation and
enforcement of the new exemption
program. The budgetary commitments
and manpower demands of
implementing this exemption program
for the entire regulated community
would require direct tradeoffs from
other elements of the program. In
addition, a shortage of properly trained
technical enforcement personnel
necessary to implement this new
program immediately is an Agency
concern. Because the exemption
program proposed today would be
generally self-implementing, the Agency
recognizes that it will be necessary to
place a high priority upon compliance
monitoring and enforcement. By phasing
in this program, the Agency would be
able to develop inspection guidance
based upon the initial implementation
experience under either of the phasing
options. A phased approach would
provide additional time and experience
to develop and present training for
Regional EPA and State inspectors,
improving their abilities to make sound
technical reviews of exemption
demonstrations.
The Agency is proposing several
approaches for implementation in
Section XI of today's notice. One
approach would require that facilities
applying for exemptions must perform
testing of the wastes, notify the
appropriate agency and provide test
results on request, and maintain records
in order to qualify for the exemption. A
phased approach would give the Agency
experience in reviewing the sampling
and analysis plans and testing records.
During the initial implementation phase,
the Agency would be able to evaluate
the need for any special regulatory
requirements to deal with unique
problems associated with particular
wastes. Using this experience, the
Agency can decide whether revision of
the exemption criteria is necessary. It
will also provide the Agency the time to
assess generally any environmental and
administrative issues that arise during
implementation of the exemption
program.
TABLE 3.—INELIGIBLE LISTED HAZARDOUS WASTES WITH APPENDIX VII CONSTITUENTS LACKING CBEC EXEMPTION LEVELS
List Nos.
Appendix VII constituents without exemption levels
Appendix VII constituents with exemption levels
F020
F021
F023
F024
F025
F027, F028
K001
K009
K010
K017
K019, K020
K023
K024
K026
K027
K036. K037
K039
K038, K040
K043
K093, K099
K116
K123, K124.
K125,
K126
K131
tetrachlorophenoxy esters, ethers, amines, salts, acids
(M).
pentachlorophenoxy acids, esters, ethers, amines, salts
(M).
tri- and tetrachlorophenoxy esters, ethers, amines, salts
(M).
pentachloroethane (H), hexachlorocyclohexane (H), m-
dichlorobenzene (H).
pentachloroethane (H) m-dichlorobenzene (H).
tri-, tetra-, and pentachlorophenoxy acids, esters, ethers,
amines, salts (M).
p-chloro-m-cresol (H) Acenaphthylene (H)
paraldehyde (B), formaldehyde (Q)
paraldehyde (B), chloroacetaldehyde (B), formaldehyde
(B).
bis(chloromethyl) ether (B), dichloropropanols (M-B)
vinylidene chloride (B)
maleic anhydride (Q)
1,4-naphthoquinone (H)
paraldehyde (B), 2-picoline (H)
toluene diisocyanate (H)
phosphorodithioic acid and acid esters (M)
phosphorodithiofc acid and acid esters (M)
phosphorodithioic acid, acid esters (M), formaldehyde (Q).
2,6-dichlorophenol (H)
maleic anhydride (Q)
phosgene (B)
ethylene thiourea (B)
tetrachlorodibenzo-p-dioxins and -furans, pentachlorodibenzo-p-dioxins and -furans, trich-
lorophenols, tetrachlorophenols.
pentachlorophenol, pentachlorodibenzo-p-dioxins and -furans, hexachlorodibenzo-p-diox-
ins and -furans.
tetrachlorodibenzo-p-dioxins and -furans, pentachlorodibenzo-p-dioxins and -furans, trich-
lorophenols, tetrachlorophenols, trichlorophenoxy acids.
allyl chloride, chloromethane, 2-chloro-1,3-butadiene, dichloromethane, trichloromethane,
carbon tetrachloride, 1,1-dichloroethane, 1,2-dichloroethane, trans-1,2-dichloroethene,
1,1-dichloroethene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, trichloroethylene,
1,1,1,2-tetrachloroethane, 1,1.2,2-tetrachloroethane. tetrachloroethylene, hexachloro-
ethane, dichloropropane, dichloropropene, hexachloro-1,3-butadiene, hexachlorocyclo-
butadiene, benzene, chlorobenzene, dichlorobenzenes, 1,2,4-trichlorobenzene, tetrach-
lorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, naphthalene.
allyl chloride, chloromethane, 2-chloro-1,3-butadiene, dichloromethane, trichloromethane,
carbon tetrachloride, 1,1-dichloroethane, 1,2-dichloroethane, trans-1,2-dichloroethene,
1,1-dichloroethene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, trichloroethylene,
1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane, tetrachloroethylene, hexachloro-
ethane, dichloropropane, dichloropropene, hexachloro-1,3-butadiene, hexachlorocyclo-
butadiene, benzene, chlorobenzene, dichlorobenzenes, 1,2,4-trichlorobenzene, tetrach-
lorobenzene, pentachlorobenzene, hexachlorobenzene, toluene, naphthalene.
tetra-, penta-, and hexachlorodibenzo-p-dioxins and -furans, tri-, tetra- and pentachloro-
phenols, trichlorophenoxy acids.
pentachlorophenol, phenol, 2-chlorophenol, 2,4-dimethylphenol, 2,4-dinitrophenol, trichlor-
ophenols, tetrachlorophenols, creosote, chrysene, naphthalene, fluoranthene,
benzo(b)fluoranthene, benzo(a)pyrene, indeno(1,2,3-cd)pyrene, benz(a)anthracene,
dibenz(a)anthracene.
formic acid, chloroform, methylene chloride, methyl chloride.
formic acid, chloroform, methylene chloride, methyl chloride.
epichlorohydrin, 1,2,3-trichloropropane, bis(2-chloroethyl) ether.
ethylene dichloride, 1,1,1-tri-chloroethane, 1,1,2-trichloroethane, tetrachloroethanes
(1,1,2,2-tetrachloroethane and 1,1,1,2-tetrachloroethane), trichloroethylene, tetrachlor-
oethylene, carbon tetrachloride, chloroform, vinyl chloride.
phthalic anhydride.
phthalic anhydride.
pyridine.
2,4-toluene diamine.
toluene.
phorate.
2,4-dichlorophenol, 2,4,6-trichlorophenol.
phthalic anhydride.
carbon tetrachloride, tetrachloroethylene, chloroform.
dimethyl sulfate (B) methyl bromide.
(Q) Lacks SW-846 method.
(H) Lacks health-based levels.
(B) Lacks both SW-846 method and health-based levels.
(M) Indicates class or mixture.
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21472 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
Table 4 presents the wastes listed in
§ 261.33 which the Agency is proposing
to be eligible for exemption because
they are currently represented in larger
analytical classes on the exemption list.
For example, P010 wastes (arsenic acid)
are represented by the element arsenic
on the exemption list.
TABLE 4.—40 CFR 261.33 Commercial
Chemical Products That Are Eligible for
CBEC Exemption Because They Are
Represented by Other Constituents on
the Exemption List
P010 Arsenic acid (as As)
P011 Arsenic oxide (as As)
P012 Arsenic trioxide (as As)
levels for lead, tetraethyl lead, zinc, and
zinc phosphide, the Agency is proposing
that P110, U249, and P122 wastes be
ineligible for exemption under today's
proposal. Several other compounds on
Table 4 have health-based levels that
are approximately one order of
magnitude, or less, lower than the
health-based levels for the
corresponding parent metals: P029—
Copper cyanide; U204—Selenious acid;
and P114—Thallium selenite (see the
docket for this notice for further
information). The Agency is proposing
to allow exemption of these wastes due
to the relatively small differences
between the health-based levels of
°n this
TABLE 5.—APPENDIX VII CONSTITUENTS
WITH QUANTITATION LIMITS (QLS) THAT
EXCEED THEIR HEALTH-BASED LEVELS
(HBLs) BY MORE THAN ONE ORDER OF
MAGNITUDE
Group I: QL > 100 x HBL
Acrylamide
2,4=Dinitrotoluene
2=Nitropropane ....
2,4=Toluenediamine
Group II: 10 x HBL < QL <
100 x HBL
Benzotrichloride
Bis(2-chloroethyl) ether
Appendix VII basis
K014
K025, K111
F005
K027*, K112,
K113, K114,
K115
K015
K017*
P029 Copper cyanide (as CN) proposal. Hexachloro-1,3-butadiene.... K016, K018, K030,
P033 cyanogen c^onW(w"cNiZ"Z™!"™l!!ZZ! Limitations of SW-846 Methods for Pentachlorophenol F021 *, F027',
P036 Dichlorophenylarsine (as As) Appendix VII Constituents F028*, K001
P038 Diethylarsine (as As) Phenylene diamine.. K103, K104, K083
P063 Hydrogen cyanide (as CN) The Agency also requests comment on o-Toluidine K112, K113, K114
P073 Nfeke"^tonTls whether certain listed wastes should be P-Toluic"ne K112.K113.K114
P074 Nickel cyanide (a^Ni! CNJZZZZZZZZ ineligible for exemption under today's . These wastes are pr0posed to be ineligible for
P092 Phenylmercury acetate (as Hg) proposal because of limitations exemption due to the lack of CBEC levels for some
P098 Potassium cyanide (as CN) associated with the analytical and lx+2Jlor
... ,_ . . _ , UJLU.CI& ui iiiaKJUAiuiac luwci uidii Liicii thdco nnriQtitupnt*!
health-based levels exist for a number respective quantitation limits (Qls) (see these constltuents'
of these compounds. In most cases, Group j Jn Table 5) The Agency is less Dioxin Wastes
concerned with the Group II The Agency also requests comments
i two constituents because analysts can Qn whet},er the »diOxin listings" (that is,
cases, however, the health-based level frequently lower detection limits by one F020_23 and F026_28] should be eligible
was significantly lower than the parent order of magnitude by carefully fine- for exemption under today's proposal or
metal, i.e., for Hazardous Waste tumn8 the analytical equipment. whether instead they should only be
Numbers P110, tetraethyl lead and exempted (when appropriate) through
U249/P122, zinc phosphide. Due to the the delisting process. As discussed
lack of SW-846 analytical methods for earlier, four of these wastes are
these types of compounds and the currently proposed to be ineligible for
significant differences in health-based exemption because not all of their
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
21473
appendix VII constituents are included
in the exemption list. Six of the seven
dioxin listings are listed as acutely toxic
and are currently subject to more
stringent management controls under 40
CFR 264 and 265 than other types of
listed hazardous wastes. In addition, as
can be seen from Table 3, there are a
number of appendix VII constituents for
these wastes that are identified as broad
chemical classes (e.g.
pentachlorophenoxy acids, amines,
esters, ethers, salts) and, as such, are
not readily amenable to analysis or the
development of health-based levels.
Reviewing exemption demonstrations
for these wastes through the delisting
process may provide added controls
which are appropriate for these wastes.
In addition, as described in section
II.F.2, the Agency is requesting
comments on whether there is a need for
a redesignation mechanism for dioxin
wastes (to reclassify wastes with low
dioxin levels from acutely toxic to
hazardous) through either the exemption
process proposed today or the listing
mechanisms.
Oil Content
The Agency is soliciting comments on
whether additional restrictions for
eligibility, such as criteria based on a
percent oil content, are needed. Oily
matrices present analytical difficulties
which generally prevent analysts, using
prescribed methods, from achieving
necessary quantitation levels. In
addition, the efficiency of the Agency's
leaching procedures can be reduced for
oily wastes. By specifying a maximum
allowable percent oil content as an
exemption eligibility criteria, facilities
could use this level as a simple
screening test to predict whether it is
analytically feasible to attempt an
exemption demonstration. The Agency
envisions that a maximum allowable
percent oil content would be on the
order of 1.0 percent total oil and grease.
(In the delisting program, this is the level
at which the Oily Waste Extraction
procedure is required because 1% oil
and grease was estimated to be the
amount which could coat a solid waste
and temporarily inhibit leaching
measurements in the EP test.) The
Agency requests comments on whether
this criteria should be included in the
exemption criteria proposed today and
on the appropriateness of the 1.0 percent
level, as well as on similar wastes that
should not be eligible for exemption
under today's proposal and that can be
screened using similar criteria. The
Agency requests comment on the
volume of wastes which may be
excluded if oily wastes above 1% are
deemed ineligible for these exemptions.
In addition, the Agency asks for
comment on new leachate tests or
modifications to the existing TCLP to
simulate leaching from oily wastes.
Leachate From a Subtitle D Landfill
Containing Newly Listed Wastes
Several parties have raised to EPA the
case of leachate from a subtitle D
landfill which receives solid wastes that
subsequently become listed hazardous
wastes. Under the current regulations,
the leachate would become listed
hazardous waste due to the derived-
from rule. The options presented in
today's notice may address this
situation by setting concentration-based
exemption levels for toxic constituents
that may be in the leachate. However, in
their comments to the Agency,
Browning-Ferris Industries (BFI)
expressed concern regarding the
uncertainty of industrial wastes which
the Agency may list in the future and the
retroactivity of the derived-from rule on
leachate generated from previously
unlisted wastes and on gas condensate
(see BFI comments, March 18,1992). BFI
believed that retroactivity "penalizes"
facilities which manage leachate from
previously unlisted wastes and may be a
disincentive for environmentally
responsible activities such as thorough
recordkeeeping, active leachate
management, and installation of a gas
recovery system.
EPA asks for additional information
regarding what actual operational
problems arise in the management of
this leachate. The Agency would like
information as to whether the generic
concentrations proposed in this
regulation would exempt low risk
leachate and gas condensate is such
situations. Also, the Agency is aware
that at some landfills, leachate from
sumps which are part of the leachate
collection system may be collected by
trucks and transported to on-site waste
water treatment systems. EPA asks for
comment on the appropriateness of
extending the RCRA waste water
treatment in tanks exemption to cover
this situation, even though the sumps
are not "hard-piped" to the on-site
waste water treatment system.
Accidental Spills
There are a number of situations
resulting from the mixture rule which
causes frustration to the regulated
community. One is spills of listed
hazardous waste. When an accidental
spill occurs of listed hazardous
materials, there is a danger that
everything the material contacts
automatically becomes a hazardous
waste, too. For example, a spill of a
listed material into a wastewater
treatment system can cause all sludges
in that system to become subject to
hazardous waste management
requirements. The unintentional spill
causes waste code carry-through
problems. EPA requests comment on
whether these types of spills are
adequately addressed under the de
minimi's spill exemption at 40 CFR
261.3(a)(2)(iv)(D) or if other solutions are
necessary and what these solutions are.
EPA recognizes that these are mostly
accidental spills and requests comments
from the public on what approaches
could be used for dealing with such
events. Are the options described in
today's Notice suitable for dealing with
spills? Another concern that has been
raised is whether or not the testing
requirements of this proposal are
suitable for these situations. The Agency
seeks comments on reasons why they
may or may not be suitable.
Very Small Volume Wastes
Similarly, frustration in the regulated
community is caused by the mixture rule
as it pertaining to very small volume
wastes such as boiler blowdown.
Blowdown volumes may be very small
in relation to the volume of process
wastewaters (i.e., boiler blowdown of
100 gallons mixed with one million
gallons of process wastewater) yet
because the two wastestreams are
mixed, the mixture becomes a
hazardous waste. Where a very small
wastestream carrying a hazardous
waste code mixes with a very large
wastestream without such a code, it is
unlikely that the resulting wastestream
or its sludges will be hazardous because
of the listed wastes; however, the
mixture might be above CBEC levels
because of constituents in the unlisted
wastewaters. Further, EPA notes that
periodic testing requirements may not
be well-suited to the situation of an
incidental spill causing a temporary
spike in values. The Agency solicits
comment on whether or not today's
Notice contains possible solutions to
this situation or whether some special
solution to it is available.
Industrial Wipes
The Agency requests comment on
industrial wipes which have been
contaminated with a listed solvent or
listed solvent mixture. Under the current
regulatory framework, these
contaminated wipes may be regulated
as the listed hazardous wastes. Under
several of the options proposed today,
these generators would still need to test
the wipes or use knowledge to
determine if these contaminated wipes
were exempted. Data, which appears in
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the record for today's proposal (see
comments by Sidley and Austin, P.C. on
behalf of Kimberly-Clark Corporation,
April 2,1992), indicate that levels of
toxic organic constituents in wipes
contaminated with some of the solvents
regulated by the F001-F005 listings
appear to be extremely low. The Agency
requests comment on whether these
wipes should continue to be regulated
by the mixture rule as listed hazardous
wastes.
Specifically, EPA requests comment
on an alternative approach for
addressing wipes contaminated with a
solvent regulated in the F001-F005
listings, which is a specific rule that
states if these materials are not visibly
contaminated, then the F001—F005
listings would apply as characteristics
rather than as listings. Very simple
criteria which are easily implemented at
the point of use, such as spent wipes
which do not drip solvent even when
wrung out, could be the basis for
determining "visibly contaminated".
Under this approach a generator may
use knowledge, such as the sort
suggested in the Kimberly-Clark
comments, to determine whether wipes
that are not "visibly contaminated", at
the point of use, would contain
leachable quantities of the solvents that
are regulated under by the F001-F005
listing at levels greater than exemption
criteria. EPA believes that this approach
might be a practical solution to an issue
that has been problematic for years. The
simple field test to limit this
modification of the listings, and the
operation of the listings as a narrowly
focused characteristic, would act as a
safeguard which protects the
environment while recognizing that
wipes are widely used and recognizing
evidence that concentrations of
hazardous constituents in the wipes can
be quite low.
B. Waste Management Units
The Agency is proposing that CBEC or
ECHO wastes are exempt from the time
of a proper notification and that
notifications are not retroactive (see
Section XI of this preamble). Units that
have been managing hazardous wastes,
including CBEC or ECHO wastes, will
not automatically become exempt.
Instead, such a unit will be expected to
go through closure procedures to show
that no environmental damage was done
by past management of wastes. In many
cases, hazardous waste management
units may have been used to manage
hazardous wastes other than the
exempted wastes and EPA is concerned
that a self-implementing rule is not the
right procedure to evaluate historical
waste management practices.
The Agency has evaluated a number
of delisting petitions where the waste
met the delisting criteria, but the facility
was subject to corrective action due to
contamination and/or existing ground-
water contamination exceeding the
health-based levels used in delisting
evaluations. In these cases, the
contamination was greater than would
be expected based on an evaluation of
the waste alone, indicating that perhaps
the more hazardous constituents had
preferentially migrated into underlying
aquifers, or that the petitioned waste
had been treated in the unit to reduce
hazardous constituent concentrations, or
that historical waste management
practices had impaired the quality of the
underlying aquifer.
The Agency believes that these units
should continue to be subject to
applicable subtitle C requirements
including closure standards (see further
discussion under section XIIIE). The
Agency believes that the evaluation of
the impact of a unit on the environment,
particularly the impact of land disposal
units on groundwater and the
determination of whether the unit ever
managed non-CBEC hazardous wastes,
is more complicated than can be
accounted for in this type of self-
implementing program. The Agency is
particularly concerned that units
containing wastes that meet today's
exemption criteria and have ground-
water contamination should not be
exempted from subtitle C control. The
Agency requests comment on this
approach and alternative approaches Jo
regulating units which have managed
exempt wastes. . -;-
C. Existing Regulatory Exemptions From
the Mixture and Derived-From Rules1
EPA notes that there are currently
numerous exemptions from the
hazardous waste identification system,
particularly the mixture and derived-
from rules, for certain types of wastes or
wastes with certain constituent
concentrations. See e.g. 40 CFR
261.3(a)(2)(iv) (A) through (E). In light of
today's proposal, EPA asks for
comments on whether these exemptions
continue to be warranted. EPA requests
comment on whether these exemptions
should be retained and the rationale for
retaining them.
V. Selection of Constituents of Concern
The Agency is proposing exemption
levels for 200 hazardous constituents. To
develop this list of constituents, EPA
first compiled a master list that included
all hazardous constituents identified in
40 CFR part 261, appendices VII and
VIII, and/or part 264, appendix IX. EPA
then developed exemption
concentrations for all of the compounds
on the master list for which SW-846
analytical methods and health-based
levels are available. The resulting list is
being proposed as the "exemption
constituent list" (see appendices [x+1]
and [x+2] of the proposed rule).
The background on the selection of
compounds for the exemption list is
presented, below and further discussed
in supporting documentation for this
proposal included in the public docket.
• This extensive exemption list was
developed because the Agency believes
that it is necessary to require facilities
to analyze their wastes for a broad
range of constituents in a self-
implemented exemption demonstration.
First, it is not feasible in a self-
implemented program to predict
consistently which specific hazardous
constituents will be present in a given
waste because process-specific
characteristics, feedstock contaminants,
waste mixing practices, and degradation
will cause the constituent profiles to
vary. Secondly, by establishing a set list
of exemption constituents, the Agency
will ensure that all exempted wastes (
have been evaluated on a consistent
basis. Third, this approach is in keeping
with section 3001(f) of HSWA which
directs the Agency to examine other
factors (including other constituents) in
addition to those factors for which a
waste was originally listed as hazardous
when evaluating delisting petitions.
Finally, a set list of constituents will
minimize the potential for disputes over
which constituents of concern need to
be identified in particular wastes. As
will be discussed further in section
XII.B, the Agency is soliciting comments
on alternatives to reduce the list of
constituents for which testing is required
after the initial demonstration [i.e., in
subsequent recertification
demonstrations).
A. Universe of Hazardous Constituents
The master list of potential exemption
constituents was compiled from the
primary lists of constituents used by
EPA to regulate hazardous and solid
waste activities under RCRA. These lists
included: (1) The list of hazardous
constituents found in 40 CFR part 261,
appendix VIII (hereafter referred to as
appendix VIII), (2) the list of hazardous
constituents found in 40 CFR part 261,
appendix VII (hereafter referred to as
appendix VII), and (3) the list of
constituents for which ground-water
monitoring data are required at
hazardous waste land disposal units
found in 40 CFR part 264, appendix IX
(hereafter referred to as appendix IX).
The Agency believes that these sources
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encompass most of the known
hazardous constituents of concern. The
Agency, however, requests comments on
whether additional constituents should
be added to this list. (The master list
and the Agency's determination of
which constituents should be used in the
exemption criteria are available for
review in the public docket to this rule.)
B. Development of the Exemption
Constituent List
The Agency carefully evaluated the
master list to determine which
constituents should be included in the
exemption constituent list. This Section
describes the steps that were taken in
the development of the exemption
constituent list.
Identification and Deletion of Classes
and Mixtures
As a first step, chemical classes and
mixtures were deleted from the master
list because it is not generally possible
to develop analytical quantitation limits
or health-based levels for these groups
of constituents. Instead, the Agency
verified that specific compounds from
each of these classes and mixtures were
present on the master list. Examples of
these groups include chloroethers,
chlorofluorocarbons, and phenolic
compounds. The full list of 33 chemical
classes and mixtures that were deleted
from the master list and the constituents
on the exemption list which were used
as representatives of these groups are
available in the docket.
Deletion of Analytically Redundant
Constituents
The Agency also eliminated
constituents from the master list that are
identified analytically as metallic or
inorganic species. For example, several
inorganic salts of chromium are listed in
Appendices VII, VIII, and IX. Generators
of wastes containing these salts
analyze/determine the elemental
chromium content rather than the
metallic species for the purposes of
compliance with the Toxicity
Characteristic. This approach will
continue to be used in this proposal. The
metallic compounds deleted from the
master list are identified in the
background document.
Availability of Health-Based Levels
As will be discussed further in Section
VII, the Agency evaluated the existing
toxicity information for the candidate
master list constituents to determine
whether sufficient data exist to establish
a health-based level. Those constituents
for which sufficient data did not exist
were not included on the exemption list.
The Agency then prioritized (based on
prevalence in wastes and media) for
further study those constituents for
which health-based levels could not be
derived. The prevalence analysis is
available in the background document
for today's notice. At such time as
health-based levels can be derived, the
Agency may propose to add these
constituents to the exemption list (as
well as to Appendix VIII where
appropriate):
Acenaphthylene+
Anthracene +
Bis[2-chloroethoxy)-
methane* +
Brucine
2-Chloronaphthalene
Grotonaldehyde
1,3-Dichloropropanol*
2,3-Dichloropropanol
2-Fluoroacetamide*
Malononitrile*
2-Methyllactonitrile+
4-Nitrophenol*
Propargyl alcohol
*Sodium fluoracetate
Thiophenol
1,2,3-Trichlorobenzene +
Trichloromethanethiol*
m-Xylene+
p-Xylene +
+Indicates that constituent is not currently listed
on Appendix VII.
'These compounds were tested by manufacturers.
The results were submitted to EPA and are currently
being evaluated (TSCA Section IV Test Rule for
OSW Chemicals, June 15,1988, 53 FR 22301).
The Agency also solicits toxicity data
from the public to support the levels
proposed today, as well as additional
data for constituents that are not
currently on the exemption list. Data on
environmental and health effects of a
constituent should, when possible,
follow the toxicity testing guidelines of
40 CFR 797 and 798. (See 50 FR 39252,
September 27,1985, Toxic Substances
Control Act Test Guidelines.)
Availability of Analytical Methods
The Agency then reviewed the
availability of analytical methods for the
quantitation of candidate constituents in
solids and aqueous media. The Agency
has deleted all constituents from the
exemption list which do not yet have
SW-846 analytical methods. As methods
are developed, the Agency may propose
to add these compounds to the
exemption list. The Agency requests
comments on this approach or others
(such as mass balance demonstrations)
to address compounds lacking
analytical methods.
Consideration of Chemically Unstable
Constituents
The Agency considered removing
chemically unstable constituents from
the master list on the basis that, due to
chemical degradation or transformation,
such constituents actually may not be
found in wastes and the environment.
Several problems, however, were
created by this approach. Chemical
instability, such as hydrolysis,
dissociation, reactivity, etc., is highly
variable under various environmental
conditions. In addition, the degradation
or transformation products of certain
hazardous constituents may be more or
less toxic than the original compounds.
Due to this variability and the
difficulties associated with predicting
the degree of degradation or the rates of
competing transformation mechanisms
which may occur in the environment, the
Agency is proposing an approach which
assumes that any degradation or
transformation that may occur will have
already occurred by the time that the
waste or medium is characterized. Thus,
the exemption criteria includes a
number of constituents which are
known to be unstable under certain
conditions (acrolein, benzotrichloride,
epichlorohydrin, methyl methacrylate,
phthalic anhydride, tribromomethane),
as well as many known toxic
degradation and transformation
products. The Agency believes that this
is a reasonable approach which, while it
may underestimate hazard for those few
constituents that can transform into
more toxic products, is conservative for
most constituents. The Agency
specifically requests comment on this
approach.
The Agency does not believe that this
will be overly burdensome to generators
who choose to make an exemption
demonstration because the analytical
methods listed in appendices [x+1] and
[x+2] for the analysis of these
constituents are already necessary to
analyze for other exemption
constituents.
Modifications to 40 CFR 261, Appendix
VIII
As a result of the development of the
exemption list, the Agency has
identified a number of constituents
which should be added to appendix VIII
of part 261. This appendix is the list of
hazardous constituents which serve as
the basis for hazardous waste listing
determinations. Section XII provides
additional details regarding the
constituents proposed for addition to
this appendix.
C. Evaluation of Constituents Omitted
From Exemption List
While the Agency is proposing a
subset of the master list of hazardous
constituents as the exemption list, this
does not mean that any omitted
constituents are not hazardous. Omitted
constituents may not be toxic but may
be hazardous due to ignitability,
reactivity, or corrosivity, and
accordingly will be regulated when
present in a waste at levels which
trigger the respective hazardous waste
characteristics. Other omitted
constituents may be toxic, but currently
available data does not allow for the
establishment of health-based levels.
Similarly, other constituents may be
hazardous but current analytical state-
of-the-art techniques do not allow for
their detection in potentially exempted
waste or media. As new health effects
data and analytical techniques are
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developed, the Agency may propose to
add these constituents to the exemption
list.
The Agency is most concerned with
the appendix VII constituents that are
not included on the exemption list. Some
of these constituents were omitted for
lack of health-based data or appropriate
analytical methods. (See section IV.A)
These constituents are among the
Agency's first priorities for the
development of health-based numbers
and are listed below:
Appendix VII Constituents With No SW-846
Analytical Methods
Bis(2-chloromethyl]ether
Formaldehyde (in soils)
Maleic anhydride
Appendix VII Constituents With No HBNs
Acenaphthylene
p-Chloro-m-cresol
1,3-Dichlorobenzene
2,6-Dichlorophenol
Hexachlorocyclohexane
1,4-Naphthoquinone
Pentachloroethane
2-Picoline
Toluene diisooyanate
Vinylidene Chloride
Appendix VII Constituents With No HBN or
SW-846 Analytical Methods
Chloroacetaldehyde
Paraldehyde
Phosgene
VI. Health-Based Levels
For each constituent on the master
list, the Agency evaluated the existing
toxicity information to determine
whether there were sufficient data to
establish a health-based level. For these
toxicants, the data were evaluated
either by the Agency's CRAVE
(Carcinogen Risk Assessment
Verification Endeavor) Workgroup,
Carcinogen Assessment Group (GAG),
Reference Dose (RfD) Workgroup, or
Environmental Criteria Assessment
Office (ECAO-Cincinnati). This
approach is consistent with the
approach used in the Agency's other
risk-based RCRA programs such as the
Toxicity Characteristic, delisting
petition evaluations, closure, and
corrective action, as well as the
CERCLA program. The background
documents for this proposal are
available in the public docket and
provide details on the basis for the
health-based levels for each constituent.
A. Health Effects
The Agency evaluated two main types
of health effects when establishing the
exemption levels: systemic toxicity and
carcinogenicity. The Agency's approach
to assessing the risks associated with
these two pathways differ because
different mechanisms of action are
thought to be involved in the two cases.
In the case of carcinogens, the Agency
assumes that a small number of
molecular events can evoke changes in a
single cell that can lead to uncontrolled
cellular proliferation. This mechanism
for carcinogenesis is referred to as "non-
threshold", because there is essentially
no level of exposure for such a chemical
that does not pose a small, but finite,
possibility of generating a carcinogenic
response. In the case of systemic
toxicity, compensating and adaptive
(including organic homeostatic) cellular
mechanisms exist that must be
overcome before the toxic endpoint is
reached. For example, there could be a
large number of cells performing the
same or similar function whose
population must be significantly
depleted before the effect is seen. The
"threshold hypothesis" is based on the
theory that a range of exposures from
zero to some finite value can be
tolerated by the organism with
essentially no chance of expression of
the toxic effect.
For both carcinogens and non-
carcinogens, the Agency is proposing to
use any available Maximum
Contaminant Levels (MCLs) proposed or
promulgated under the Safe Drinking
Water Act (SDWA) of 1974, as amended
in 1986, as the health-based levels for
exposure to liquids or leachates. In
general, MCLs for non-carcinogens are
derived from the Reference Doses
(RfDs), while MCLs for most
carcinogens are set as close to zero as
technically feasible; this normally
corresponds to risk levels that range
from 10-4 to 10-6. (Note that, although
the derivation of MCLs considers factors
in addition to health effects, it also
considers other routes of exposure. The
Agency's policy has been to use MCLs,
when available, in other similar
concentration-based programs, including
delisting, clean closure, and corrective
action.) For those constituents which do
not yet have MCLs or proposed MCLs,
the Agency is proposing to use oral
reference doses (RfDs) for non-
carcinogens and oral Risk Specific
Doses (RSDs) for carcinogens as
described further below. However, if
new MCLs are proposed or finalized
under the SDWA prior to the
promulgation of today's rule, the Agency
proposes to substitute the new MCLs for
the RfDs, RSDs, and proposed MCLs
presented in today's notice. The Agency
requests comments on this proposed
approach to incorporating proposed and
finalized MCLs in the final exemption
rule.
1. Non-Carcinogens
The Agency proposes to use oral RfDs
as the basis for: (1) The leachate
exemption levels for those non-
carcinogenic constituents that do not
have proposed or promulgated MCLs,
and (2) the contaminated soil exemption
levels for all non-carcinogens (MCLs do
not apply to soils). An RfD is an
estimate (with uncertainty spanning
perhaps an order of magnitude) of a
daily exposure to a substance for the
human population (including sensitive
subgroups) which appears to be without
an appreciable risk of deleterious effects
during a lifetime. For brief periods and
for small excursions above the RfD,
adverse effects are unlikely to occur in
most of the population. However, as the
frequency of exposures exceeding the
RfD increases, and as the magnitude
and duration of exposure above the RfD
increases, the probability that adverse
effects may be observed also increases.
The method for estimating the RfD for
non-carcinogenic end-points was
described in the proposed rule for the
Toxicity Characteristic (see 51 FR 21648,
June 13,1986). In summary, the approach
used to derive an RfD is to identify the
highest test dose of a constituent
associated with no effects or effects that
are not considered adverse in an
appropriate animal bioassay test. These
experimental no-observed-adverse-
effect-levels (NOAELs) or no-observed-
effect-levels (NOELs) are considered to
be an estimate of the animal
population's physiological threshold for
adverse effects. The RfD is derived by
dividing the NOAEL or other toxicity
benchmark by suitable scaling or
uncertainty and modifying factors. In the
event that an appropriate NOAEL or
NOEL is not available, the lowest-
observed-adverse-effect level (LOAEL)
may be used with additional scaling
factors.
It is important to note that information
on exposure levels in the environment
(e.g., background levels) are not
considered in the development of an
RfD. Rather, the oral RfD reflects the
total theoretical permissible daily
human exposure from all ingestion
sources, including water and food. RfDs
have been calculated for many, but not
all, of the non-carcinogenic constituents
for which the Agency is establishing
exemption levels.
The Agency prefers to use only RfDs
that have been evaluated and verified
by the RfD Workgroup as the basis for
setting regulatory levels. However, for
some compounds, the Agency has not
yet completed its verification process;
thus, RfDs under'development are being
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used for the purpose of this proposal for
those compounds. If the final verified
RfDs differ from the RfDs under
development proposed in today's notice,
the Agency will adopt the new [i.e.
verified) values for the final rule after
noticing the data in the Federal Register.
2. Carcinogens
The Agency proposes to use the oral
Risk Specific Doses (RSDs) as the bases
for: (1) Leachate exemption levels for
carcinogenic constituents for which
MCLs have not been promulgated or
proposed, and (2) soil exemption levels
for carcinogenic constituents (MCLs do
not apply to soils/solids). The method
for estimating the RSD for carcinogenic
end-points was described in the
proposed rule for the Toxicity
Characteristic (see 51 FR 21648, June 13,
1986).
In summary, the RSD is an upper-
bound estimate of the average daily
dose of a carcinogenic constituent which
corresponds to a specified excess cancer
risk for lifetime exposure. The upper
limit of the dose can be calculated from
the slope of a "dose-response" curve.
The dose-response curve is determined
by a model that extrapolates from
human epidemiological and/or animal
bioassay data to a dose range where
there are no experimental data. The
upper limit of the dose calculated from
the slope gives rise to a given risk level.
The RSD corresponds to this limit when
a level of risk is specified.
EPA's Carcinogen Assessment Group
(GAG) and CRAVE Workgroup have
estimated the carcinogenic potency (i.e.,
the slope of the "dose-response" curve)
for humans exposed to low dose levels
of carcinogens in the environment.
These slope factors indicate the upper-
bound confidence limit estimate of
excess cancer risk for individuals
experiencing a given exposure over a 70-
year lifetime. In practice, a given dose
multiplied by the slope factor gives an
upper estimate of the lifetime risk to an
individual of developing cancer. By
specifying a level of lifetime risk (no
matter how small), one can also
estimate the corresponding dose using
the slope factor.
To arrive at an RSD for a carcinogen,
a risk level must be specified. EPA
proposes to specify the risk level of
concern on a weight-of-evidence basis,
as described below. EPA promulgated
Guidelines for Carcinogen Risk
Assessment on September 24,1986 (51
FR 33992), which defined a scheme to
characterize substances based on
experimental data and the kinds of
responses induced by a suspect
carcinogen. These guidelines specify the
following five classifications:
Group A—Human carcinogen (sufficient
evidence from epidemiologic studies)
Group B—Probable human carcinogen
Group Bi—Limited evidence of
carcinogenicity in humans
Group Ba—A combination of sufficient
evidence in animals and inadequate or no
evidence in humans
Group C—Possible human carcinogen
(limited evidence of carcinogenicity in the
absence of human data)
Group D—Not classifiable as to human
carcinogenicity (inadequate human and
animal evidence of carcinogenicity or no
data available)
Group E—Evidence of non-carcinogenicity for
humans (no evidence of carcinogenicity in
at least two adequate animal tests in
different species or in both adequate
epidemiologic and animal studies).
The CRAVE Workgroup regards
agents classified in Group A or B as
suitable for quantitative risk
assessment. The suitability of Group C
agents for quantitative risk assessment
requires a case-by-case review because
some Group C agents do not have a data
base of sufficient quality and quantity to
perform a quantitative carcinogenicity
risk assessment. The weight-of-evidence
basis was used to eliminate Group D
and E constituents from further
consideration as carcinogens.
Under each of the regulatory options
presented in today's proposal, the
Agency is using the same risk level for
Group A, B, and C carcinogens. This
approach is consistent with the way
carcinogens are treated in the Toxicity
Characteristic rule and the delisting
program. For those options where the
Agency is planning to use a low
multiplier of the health-based number
[i.e., 1 or 10), a risk level of 10~6was
selected on the basis for the exemption
criteria. Under these options, the
exemption criteria levels may be
protective from any likely exposures.
The use of the 10"6 risk level is
consistent with other RCRA programs
where the goal is to be fully protective
[i.e., clean closure).
For options where a multiplier of 100
is used, the Agency's intent is to make
the exemption criteria consistent with
the Toxicity Characteristic regulatory
levels. (It is important to note that, even
though the approach may be consistent
with the TC, some of the specific
exemption criteria will be different from
the TC regulatory levels because the
Agency has revised several health-
based numbers since the TC was
promulgated.) Therefore, the Agency
proposes to use a risk level of 10"5 to
establish exemption criteria under those
options. While the Agency recognizes
that there may be some potential risk if
wastes exempted under these options
are mismanaged, the CBEC contingent
management option may minimize the
likelihood of complete mismanagement
due to minimum design requirements.
B. Exemption Scenarios
In developing the different proposed
regulatory options, the Agency has
derived exemption criteria based on two
scenarios which could potentially lead
to high exposures. The first exposure
scenario assumed by the Agency is one
of groundwater contamination, where
waste is placed in unlined landfill and
the leachate from the waste then
contaminates the groundwater and
reaches nearby drinking water wells. To
assess the exposure potential from the
leachate scenario, the Agency applies
the Toxicity Characteristic Leaching
Procedure (TCLP) to the waste and
measures the concentration of
hazardous constituents in the test
leachate.
However, there are certain types of
wastes [i.e., contaminated soils) which
may not always be disposed of in
landfills. Under many circumstances,
these soils could either be left in place
or treated and then put back where they
were removed. Therefore, the Agency
developed an additional set of
exemption criteria for soils based on an
exposure scenario whereby there is
direct contact with the soil in a potential
future residential setting. To assess the
exposure potential from this scenario,
the Agency measures the total
concentration of hazardous constituents
directly in the soil.
C. Exposure Assumptions
The Agency has evaluated three sets
of exposure assumptions for the
contaminated groundwater scenario and
one set of exposure assumptions for the
in-place waste scenario.
1. Contaminated Groundwater Scenario
In deriving criteria for hazardous
constituents in waste leachates, the
Agency needs to consider (1) the
expected chemical fate of each
individual hazardous constituent in the
landfill and the subsurface environment;
(2) the amount of dilution and
attenuation that reduces the
concentration of the constituents in the
leachate or the groundwater as they
migrate to a drinking water well; (3) if
the groundwater is contaminated, the
amount that is consumed; and (4) the
health effect of that consumption.
To simulate the potential leaching of a
waste in a landfill, the Agency uses the
Toxicity Characteristic Leaching
Procedure (TCLP) test described in
detail in the Toxicity Characteristic rule.
As an alternative for wastes which will
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21478 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
never be disposed with municipal
wastes, the Agency is soliciting
comment on the Synthetic Precipitation
Leaching Procedure, which is discussed
in greater detail in section IX.
Once the toxicants leave the landfill
in the leachate, they will flow through
unsaturated zone of the soil to the
saturated zone. To simulate this process
as well as the contaminant movement in
the saturated zone, the Agency used the
EPACML groundwater fate and
transport model which was developed
and employed in the Toxicity
Characteristic regulation. This model
has the capability to model some
subsurface chemical processes like
hydrolysis, biodegradation, and metal
speciation.
In the TC rulemaking, however, the
Agency found that it did not have
enough data to incorporate these factors
into the rulemaking, although hydrolysis
rates were evaluated and compounds
which hydrolyzed rapidly were not
included in the rule. At that time, the
Agency pledged to reconsider these
chemical processes once more data
became available.
In hydrolysis, certain classes of
organic constituents transform into
other constituents in the presence of
water. In developing the TC rule, the
Agency found that the DAF of 100 was
not appropriate for some constituents
because they hydrolyzed rapidly and the
Agency had little information on the
products formed during the hydrolysis
process. Through its own research and
from published data, the Agency has
identified hydrolysis rates for some of
the constituents listed in Appendix
[x+1] of today's rule. These rates are
found in the docket to today's rule.
Should the Agency choose to develop
constituent specific DAFs, the Agency
proposes that it would use these
reported values in combination with
appropriate data on hydrolysis products
in the EPACML model to determine
these DAFs. The Agency requests
comment on the accuracy of this data
and its appropriateness for regulatory
purposes.
For those Appendix VIII constituents
for which the Agency does not have
hydrolysis data, the Agency would
welcome any data known to
commenters. Under the Toxic Substance
Control Act, the Agency has published a
protocol for determining hydrolysis
rates (see 40 CFR 796.3500; 53 FR 23081).
Commenters are urged to provide
hydrolysis data consistent with the
procedures outlined in this protocol. If
the Agency finds that this data meets
the standards of this protocol, EPA
would propose, after notice and
opportunity for comment, to use this
data in combination with appropriate
data on hydrolysis products for
developing constituent-specific DAFs.
As indicated above,'the Agency is
concerned about transformation
products of hydrolysis. After a
hazardous constituent is hydrolyzed, the
resulting transformation chemical may
be just as hazardous as the original
contaminant. Before applying a
hydrolysis rate to determine the
appropriate DAF for a constituent, the
Agency requires data on the hydrolysis
products, including their toxicity
hydrolysis rates. Therefore, the Agency
is requesting such information along
with recommendations on how to utilize
the information in developing DAFs.
EPA has developed an approach to
modeling hydrolysis reactions and
products, which is described in the
docket for today's rulemaking.
In biodegradation, microbes digest
certain organic chemicals as a source of
nutrients. Biodegradation of organic
wastes in the soil is the principal
physical mechanism for septic tanks and
other common waste disposal methods.
Recent research has demonstrated that
many hazardous organic chemicals can
naturally biodegrade in the soil under
certain conditions. The Agency has in
today's docket some research articles
which summarize observed
biodegradation rates in field and
laboratory work.
The EPACML model includes an input
parameter for a chemical-specific first-
order biodegradation rate. Therefore,
the Agency believes that biodegradation
should be included in an assessment of
potential exposure to groundwater
contamination if appropriate
information on biodegradation products
(i.e., their toxicity and fate and transport
proprieties) is available.
However, the Agency has previously
been concerned that biodegradation
rates vary from site to site and that
laboratory results sometimes have not
been verified by actual observed
biodegradation rates in the field.
Subsurface conditions are often
anaerobic, and laboratory test are
generally done under aerobic conditions.
In fact, the absence of verified results
prevented the Agency from including
assumptions of biodegradation in the
final TC rule. In an effort to obtain
accurate, verifiable biodegradation rates
under a variety of conditions, the
Agency published a protocol under
TSCA (53 FR 22320; 40 CFR 795.54) to
obtain anaerobic biodegradation rates
suitable for regulatory purposes. It is the
Agency intent, after public notice and
opportunity for comment, to evaluate
and use any data submitted by
petitioners which EPA finds to conform
to this protocol, along with appropriate
data on biodegradation products, as part
of the EPACML simulation to determine
constituent specific DAFs.
The Agency recognizes that the
maximum length of time required to
carry out this protocol—64 weeks—is
longer than the promulgation date for
the final rule, April 28,1993. However,
EPA will continue to accept
biodegradation data as it becomes
available and promptly place such data
in the public record. As scientific
understanding of biodegradation and
other soil chemical reactions grows, the
Agency will reevaluate its risk
assessment (including the DAFs) as
appropriate.
Another important chemical reaction
in soil is the adsorption of constituents
by soil particles. Both metals and
organic constituents can adsorb and de-
adsorb on to the negative ions which
dominate the surfaces of most soil
particles. If the constituents stay bonded
to the soil and do not de-absorb, they
can not migrate (or migrate very slowly)
to the groundwater and to a potential
point of exposure. As discussed below,
the critical issue in utilizing adsorption
factors is defining the total extent of
potential contaminant release.
Organic adsorption is primarily
influenced by six factors: molecular size,
hydrophobicity, molecular charge,
organic molecular fragments that
undergo hydrogen bonding, the three
dimensional arrangement of the organic
fragments, and molecular fragments of
the chemical which undergo
coordination bonding. These six factors
are discussed in today's docket. The
principal measure of organic adsorption
is a relationship between the first-order
adsorption factor and the octanol/water
partition coefficient. EPA has
determined these partition coefficients
for many of the appendix VIII
constituents. These coefficients are
discussed in today's docket. The
EPACML model has an input parameter
for this coefficient and the Agency will
evaluate and use these values, if
appropriate, to predict constituent-
specific DAFs.
Inorganic constituents can undergo a
complex series of speciation reactions
(including complexation, precipitation,
and adsorption) between metallic ions
in the leachate and the soil particles. At
the time of the TC rule, the Agency
determined that it did not have the
analytic data and methods to estimate
cation exchange. In response to
comments, the Agency announced that it
was in the process of creating a model,
MINTEQA2, to model more accurately
geochernical speciation. The Agency has
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21479
recently completed a version of
MINTEQA2, which is discussed in
today's docket for comment. As the
Agency develops constituent-specific
DAFs, the Agency will use this model to
develop adsorption rates for all
appropriate appendix VIII constituents.
The Agency requests comments on
appropriate input model parameters.
The Agency requests comments on
other chemical reactions which
commenters believe may be important
for cling potential contaminant fate in
the subsurface environment.
For contaminant transport, past
regulatory applications of the EPACML
model have developed dilution/
attenuation factors only under steady-
state conditions. In the analyses for the
TC rule, as described in the preamble
and background documents (55 FR
11798, March 29,1990) the Agency found
that the assumption of steady state
conditions was not appropriate in
developing DAFs for some of the
proposed constituents. In this proposal,
the Agency is now considering DAFs for
over 200 constituents and is
investigating explicitly contaminant
flow assuming transient flow. The
EPACML model can determine DAFs
assuming non steady-state flow and the
Agency proposes to use this model for
this purpose once the issues concerning
the extent of contaminant release have
been resolved.
In order to assume non steady-state
flow, the length of the contaminant pulse
must be determined. In a landfill,
contaminants will leach from the waste
as the precipitation percolates through
the layers of waste. In hazardous waste
which is solid, relatively mobile
contaminants near the surface of the
waste will leach first. Contaminants
deep in the interior of waste or tightly
bonded chemically to the solid will take
much longer to leach out, if ever. Thus,
the expected contaminant concentration
of the leachate over time will resemble a
"pulse"—a build-up of concentration in
short-run followed by a rapid decay to a
lower, almost steady-state
concentration. Therefore, to model a non
steady-state simulation, the Agency
needs to make appropriate estimates of
the source of contamination. In a
preliminary background analysis for the
TC rule, the Agency assumed that the
full volume of the landfill was filled with
solid waste and the contaminant of
concern at a concentration of 1000 ppm.
The Agency used this approach as a
screening check of its results and is
concerned that this scenario may not be
representative of actual disposal
conditions. The Agency calls for
comments on the appropriate simulation
parameters which will provide adequate
protection of human health and the
environment.
Related to this issue, the Agency also
calls for comment on whether the length
of time necessary for a contaminant to
reach a receptor well should be of
regulatory concern. For example, if the
Agency determines that under non-
steady-state conditions a certain
constituent will likely only migrate to
the receptor well 100 or 1000 years in the
future, how should the Agency factor
that result in its calculation of an
exemption multiple for that constituent?
The Agency requests comment on this
issue. Specifically, what, if any, limits
should be placed on time periods of
regulatory concern for groundwater
exposure.
The EPACML model also incorporated
specific dispersitivity constants derived
from the literature. In the TC rule, the
Agency received many comments on
this issue. Since there may be better
scientific understanding and additional
field observations of this phenomena
may have emerged in the time after the
development of that rule, the Agency
again requests comments on EPACML's
dispersivity assumptions. Specifically,
the Agency requests comment on its
assumption of no horizontal dispersivity
in the unsaturated zone. Although the
Agency believes that incorporating
horizontal dispersivity will have little
effect on overall DAFs, the Agency asks
for additional information on this issue.
Also, for each simulation, the
EPACML chooses randomly from a
distribution of unsaturated zone depths
as it performs a nationwide simulation
for the calculation of DAFs. For these
simulations, EPA used a regression
relation to determine dispersivity values
as a function of the unsaturated zone
depth. However, to avoid excessively
high values of dispersivity for deep
unsaturated zones, a maximum
dispersitivity of 1.0 m was used for
depths greater than 44.5 m. The Agency
requests any data or comment related to
this issue.
Additional EPACML model limitations
in modeling contaminant transport in
the unsaturated and saturated zones
include the fact that the model does not
simulate the movement of nonaqueous
materials and the assumption that the
subsurface media are homogeneous and
isotropic and without significant
fracturing. The Agency recognizes that
these assumptions may underestimate
and overestimate risk for various actual
conditions. In response to comments to
the TC rule, the Agency found that these
assumptions were necessary for model
development and were appropriate for
regulatory use. The Agency has not
changed its position on this issue and
proposes to use the existing modeling
assumptions in the EPACML model.
However, the Agency once again asks
for comment on these issues and asks
that commenters provide specific
suggestions, recognizing the need for
computational efficiency, on how the
model may be improved to incorporate
anisotropy, heterogenous conditions,
and fractured flow.
A further concern with the EPACML
model is that it simulates the migration
of contaminants from landfills whereas
many wastes are managed in surface
impoundments, which can have higher
leaching rates due to hydraulic pressure.
The Agency has developed a model to
simulate leaching from surface
impoundments and has included it in the
docket for today's rule. The Agency
solicits comment on the use of this
model in setting exemption criteria.
Using the EPACML model and other
information, including data from EPA's
1986 Solid Waste Landfill Survey, the
Agency potential exposure and risk to
populations drinking water from wells
near unlined landfills receiving
exempted waste. This analysis is
included in the docket for today's rule.
In assessing risks, the Agency first used
the EPACML model to estimate the
potential number of people whose
drinking water wells would contain
contamination at levels above the health
based numbers. This estimate was done
for two cases: (1) assuming the
exemption criteria were set at 100 times
the health based numbers and (2)
assuming the exemption criteria were
set at 10 times the health based
numbers. Once the Agency had
estimated the potential number of
people exposed, it then evaluated the
potential risks associated with those
exposures.
If the exemption criteria are set at 100
times the health based numbers, the
Agency estimates that 10 to 15 percent
of the population using private wells
within one mile downgradient from
Subtitle D landfills receiving exempted
wastes could be exposed to
contamination above the health based
number if the wastes were all
contaminated to the extent allowable
(i.e., if all exempted wastes leached at
100 times the health-based level).
Approximately 1 to 2 percent of the
population described above could be
exposed to contamination at more than
10 times the health based numbers.
If unlined Subtitle D landfills with the
same distribution of proximity to
drinking water wells received these
exempted wastes today, approximately
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21480 Federal Register / Vol. 57, No. 98 / Wednesday. May 20. 1992 / Proposed Rules
10,000-15,000 people would be exposed
to levels above health based numbers,
and 1,000-2,000 people would be
exposed to levels more than 10 times the
health based numbers. Since not all
landfills would receive exempted
wastes, proportionally fewer people
would actually be potentially exposed.
More importantly, little of the exempted
wastes would leach at levels of 100
times the health-based numbers, so
exposures would be even lower.
However, to conduct this assessment,
the Agency had to make some
assumptions which it recognizes could
overstate the estimate of the exposed
population. For example, EPA assumed
that all landfills in the 1986 Survey were
unlined. However, in its Regulatory
Impact Analysis for the 1991 final
Subtitle D rule, the Agency found that 18
states (containing over half of all
landfills in the 1986 Survey) required
some form of engineered containment
system—e.g., synthetic liners, leachate
collection systems. Thus, this
assessment would overestimate the
amount of leachate that could migrate
out of the distribution of landfills. In
addition, since 1986 the Agency has
promulgated subtitle D criteria which
would make the exposure scenario and
distribution in the assessment unlikely
once these requirements are fully
implemented. In addition, this
assessment assumes that the population
distribution around industrial and
demolition Subtitle D landfills is
comparable to the distribution around
municipal Subtitle D facilities. It is
possible that fewer people reside near
industrial or demolition facilities as
municipal landfills, since they are often
located in or near residential areas.
To evaluate potential risks to the
exposed population, the Agency
considered different assumptions
concerning period of residency near a
landfill and amount of water consumed.
In developing the health based numbers
(MCLs, RSDs, and RiDs), the Agency
uses the conservative consumption
factors of 2 liters/day of water from the
same source for a lifetime of 70 years.
More average exposure assumptions are
a consumption rate of 1.4 liters/day and
a residency period of nine years.
The effect of applying more average
exposure assumptions differs depending
on whether or not the constituent of
concern is a carcinogenic. For
carcinogens, the risk to the individual is
reduced in proportion to the decreases
in consumption rate and residency time,
or by about one order of magnitude.
Thus if average exposure factors are
used, and the exemption criteria are set
at 100 times the RSD based on a risk of
10 s, then the estimated individual risks
for the 10-20 percent of the population
exposed at levels above the health
based numbers would be 10~6 or greater,
rather than 10~5 or greater.
However, over a 70 year period there
would be more people residing at the
contaminated site (assuming the
residence is continually occupied) so
that more people would be exposed,
although at lower individual risks.
Therefore, the overall population risk
(i.e., number of expected cancer cases in
the population) would decrease only by
30%, the amount of the reduction in the
consumption rate.
For noncarcinogens, the risk may or
may not be reduced depending on
whether the adverse effect will occur
over an exposure period of less than a
lifetime and the extent to which the 30%
decrease in the water consumption rate
would in some cases reduce exposure to
levels below the RiD. For many of these
toxicants, exposure to levels above the
RiD for a period of nine years would be
of significant concern, particularly if the
effects are ones such as reproductive
toxicity or developmental toxicity.
Finally, it is important to keep in mind
that the MCLs are not based solely on
risk factors; other factors such as readily
achievable analytical detection limits
and economic feasibility of treatment
are also considered. Thus for a number
of constituents with MCLs, exposure at
the MCL exceeds exposure levels which
would be calculated based strictly on
RfDs and RSDs.
If the exemption criteria are set at 10
times the health based numbers, the
Agency estimates that 1 to 2 percent of
the population using private wells
within one mile downgradient from
landfills receiving exempted wastes
could be exposed to contamination
above the health based numbers. For all
Subtitle D landfills, this population is
estimated to be 1,000-2,000, although
again not all of these landfills would be
receiving exempted wastes.
The Agency also evaluated the
scenario where the exemption criteria
were set equal to the health based
numbers. This scenario assures that
nobody would be exposed to drinking
water concentrations above these levels
of concern, since no dilution/attenuation
is assumed. To evaluate whether this
assumptions was completely unrealistic,
the Agency collected data from a
number of contaminated sites which
indicate that, at least in a few worst-
case situations, the groundwater
concentrations of contaminants
hundreds of feet from the source had
decreased very little from the
concentrations at the source. One
interpretation of these data (which are
presented in the docket for today's
rulemaking) is that very low DAFs may
occur. The Agency requests comment on
these observations and whether the
likely conclusion from these results is
that very little dilution and attenuation
has occurred.
2. Scenarios for Wastes Not Placed in
Controlled Units
In developing the additional
exemption criteria for soils and wastes
not subject to landfill controls, on which
EPA is seeking comment, the Agency
evaluated a scenario in which there
would at some time be residents at the
site who would be exposed directly to
the waste contaminants. The primary
exposure would be through incidental
ingestion (particularly by children).
Children are particularly at risk from
soil ingestion because of their higher soil
ingestion rates and much lower body
weights. For this analysis, a soil
ingestion rate of 0.2 grams/day and a
body weight of 16 Kg were used for
children. The Agency also assumed that
100 percent of the ingested contaminant
was absorbed. Adult exposure through
residential soil ingestion was assumed
to be low relative to childhood
exposure, although the Agency solicits
comments on whether and how adult
residential exposure should be included.
In assessing the risks from this
scenario, the Agency used different
approaches for assessing risks from
carcinogens and systemic toxicants. For
carcinogens, the childhood exposure
was averaged out over the 70 years
lifetime to determine the risk of
developing cancer over a lifetime.
However, for non-carcinogens the
childhood exposure was not averaged
out over a lifetime in order to ensure
that the child would not be exposed to
levels well above the RfD threshold
levels for a five year childhood exposure
period.
Additional details on all of the
specific parameters and equations used
in these evaluations are provided by the
background document in the docket for
today's rule.
In today's notice, the Agency is
proposing and asking for comment on
exemption levels for hazardous
constituents in soils and surface wastes
on the basis of direct ingestion by
children.
The Agency recognizes that there are
additional exposure routes which are
potentially of concern and solicits
comments on whether and how other
exposures could be evaluated to
establish exemption criteria. The other
potential human exposure routes of
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concern include dermal absorption,
inhalation of particulates and volatile
compounds, runoff to surface waters,
adult soil ingestion, and uptake of
contaminates by food crops and grazing
animals used for food and daily
products. In addition, the Agency
solicits comments on whether additivity
or contaminatant contributions from
other sources should be considered.
These issues are also discussed in
section IX, "Additional Exemption
Criteria Under Consideration."
One reason for concern over other
exposure routes is that, despite the
conservative nature of the direct
exposure assumptions, there are a
number of constituents that do not
appear to pose a significant threat via
ingestion. As illustrated in the
background document supporting the
derivation of the exemption levels, these
exposure pathways can predict
"acceptable" soil levels that are quite
high. To ensure that the exemption
levels would be protective of other
exposure routes, the Agency
has proposed, and seeks comment on,
capping the surface waste exemption
levels at 1,000 ppm. This cap is an
alternative to levels which would
otherwise be very high. The soil cap has
been proposed for the following
constituents:
Acenaphthene
Acetone
Acetophenone
Acrolein
Barium
Benzyl alcohol
Butanol
Butyl benzyl phthalate
Carbon disulfide
Chlorobenzene
Chlorobenzilate
2-Chloro-1.3-butadiene
Cresols
Cumene
Cyanide
1,2-Dichlorobenzene
Dichlorodifluoromethane
1,1-Dichloroethane
trans-l,2-Dichloroethene
Di-n-butyl phthalate
Diethyl phthalate
Dimethyl phthalate
2,4-Dimethyl phenol
Di-n-octyl phthalate
Diphenylamine
2-Ethoxyethanol
Ethyl acetate
Ethylbenzene
Therefore, although the Agency
believes that not very many soils with
high concentrations of any constituent
would pass both the surface waste and
leachate exemption levels, EPA is
proposing to cap the soil levels to ensure
that these wastes are not excluded
inappropriately where hazards from the
constituent may result from factors not
reflected in the exposure scenarios. As
previously discussed, there may be
Ethyl ether
Ethyl methacrylate
Fluoranthene
Fluorene
Formic acid
Isobutyl alcohol
Methanol
Methyl ethyl ketone
Methyl isobutyl ketone
Methyl methacrylate
Naphthalene
Nickel
Phenol
Phthalic anhydride
Pronamide
Pyrene
Styrene
2,3,4,6-Tefrachlorophenol
Toluene
2,6-Toluenediamine
1,1,1-Trichloroethane
Trichlorofluoromethane
2,4,5-Trichlorophenol
l,l,2-Trichloro-l,2,2-
triflourethane
Xylene
Zinc
additional potential exposure pathways
of concern for humans. In addition, there
may be sensitive environmental
endpoints that would be adversely
impacted by exposure to these
constituents at 1,000 ppm or higher. This
issue is discussed in greater detail in
Section IX, "Additional Exemption
Criteria Under Consideration."
The Agency is also proposing that the
Regional Administrator and/or
authorized State authority retain an
override authority to deny exemptions
to facilities where such potential threats
may exist. The Agency requests
comments on this approach and,
specifically, data demonstrating whether
soils containing these types of
constituents are likely to pass both the
soil and leachate criteria.
It is important to note that 1000 ppm
cap may be necessary for this rule
because the rule is a generic, self-
implementing set of standards, with no
inherent mechanism for dealing with
different potential exposure routes. This
situation is in contrast to situations
where site-specific and chemical-
specific cleanups are being done under
RCRA Corrective Action and CERCLA
authority. In these cases, other exposure
routes are considered where '
appropriate, and there is no need to
apply a generic cap in establishing
action levels or cleanup standards.
Therefore, EPA proposes that the
regulatory authority may modify the
"cap" on a site-specific basis.
High temperature metals recovery
(HTMR) residues are used as road base
materials or as anti-skid materials. The
Agency excluded from subtitle C HTMR
residues provided that these slag
residues meet designated concentration
levels, are disposed in subtitle D units,
and exhibit no characteristics of
hazardous wastes (see 56 FR 41164);
however, the Agency did not make a
final decision as to whether residues
used as road base or anti-skid materials
should be excluded. The Agency
decided that its regulatory tools for
evaluating road base materials (i.e.,
methods to evaluate exposure) were too
uncertain to make a final decision.
Comments submitted to the Agency
maintain that the use of the EPACML
model, which estimates potential risk to
groundwater, is overly conservative for
materials that are applied to the land as
road base (i.e., they are not co-disposed
with municipal solid wastes in an
unlined landfill, and are generally
covered with concrete or asphalt that
should reduce infiltration) and that
application to the land as road base is
actually more environmentally
protective and beneficial manner than
disposal in a subtitle D landfill (see
comments submitted by Beveridge and
Diamond, P.C. on behalf of the
American Iron and Steel Institute, April
6,1992). The Agency requests comment
on the appropriateness of the EPACML
model in evaluating risks from HTMR
materials used as road base, the
appropriateness of the Synthetic
Precipitant Leaching Procedure (method
1312), and suggestions on whether (and
how) to evaluate pathways other than
ground water contamination.
VII. Analysis and Limits of Detection
To qualify for an exemption as
proposed today, a facility bears the full
burden of demonstrating that: (1) All
analytical data used for the exemption
demonstration are of known precision
and accuracy, and (2) all analytical data
are generated using analysis techniques
that are sufficiently sensitive to prove
that the concentrations of the
constituents of concern are not present
at the selected regulatory levels. These
proposed requirements mandate the use
of standardized analytical methods (or
their equivalents), comprehensive
quality control procedures, and, for
those constituents of concern whose
health-based exemption levels are
significantly lower than readily
achievable analytical quantitation
limits, the achievement of specified
quantitation limits.
A. Standardized Analytical Methods
I. SW-846 Methods and Quality
Assurance
EPA is identifying specific analytical
methods that are applicable for each of
the exemption constituents, taken from
"Test Methods for Evaluating Solid
Wastes: Physical/Chemical Methods",
U.S. EPA, Office of Solid Waste and
Emergency Response, Publication SW-
846 (third edition), November 1986 (SW-
846) and subsequent updates. This
compendium of analytical and test
methods contains the Agency's
standardized RCRA analytical methods.
The recommended methods are listed in
Appendices [x+1] and [x+2].
SW-846 methods are written to allow
the analyst latitude within the analysis
scheme to address diverse matrices. The
Agency recognizes that achievement of
the prescribed quantitation limits may
require some modifications to the
identified analytical method, such as
additional sample cleanup steps or use
of alternate gas chromatographic
column or detector systems, for the
analyses of certain waste matrices. EPA
proposes that such modifications be
within the framework of the applicable
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21482 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
SW-846 method, as specified in Chapter
Two of the manual and that they be
documented.
The proposed SW-846 analytical
methods contain general performance
data (i.e., precision, accuracy, and
sensitivity) to determine how they can
be expected to perform in a variety of
matrices. Chapter 1 of SW-846 contains
QA/QC recommendations which apply
to all sampling and analysis procedures.
The Agency believes that analyses
performed in support of exemption
demonstrations should have an
appropriate level of the quality control
like those methods recommended in
SW-846 unless alternative equivalent
methods are used [see discussion on
Alternative Methods). While the Agency
is not proposing that the quality control
procedures in Chapter One be
specifically required, it does solicit
comment on such an approach.
2. Alternative Methods
The Agency recognizes that analytical
methods have been developed which are
similar in scope to many of the SW-846
analysis methods [e.g., EPA's Methods
for Organic Analysis of Municipal and
Industrial Wastewater). Therefore, EPA
is proposing that facilities may use other
methods as long as the facility
demonstrates that the methodology used
was sensitive enough to have detected
the analytes of concern at the levels
specified in the regulation.
B. Need for Quantitation Limits
The Agency is proposing quantitation
limits that represent the lowest levels
that can be reliably measured within
acceptable limits of precision and
accuracy during routine laboratory
operating conditions using the specified
methods. These levels are referred to as
"exemption quantitation criteria" or
EQCs and are presented in Appendices
[x+1] and [x+2]. The Agency believes
that it is necessary to specify EQCs
because a number of the constituents on
the exemption list have health-based
exemption levels which are not
analytically quantitatable in all
matrices. By establishing EQCs as
benchmarks or maximum allowable
quantitation limits (that is, facilities
must achieve actual quantitation limits
that are no higher than the specified
EQCs), the Agency is ensuring that all
exemption demonstrations will achieve
equivalent degrees of quantitation and
that wastes with high levels of
contamination that tend to confound
analytical protocols are not exempted.
A comparison of the risk-based
exemption levels with the
concentrations measurable using
currently available methods reveals a
number of cases where quantitative
measurement of analyte concentration
at the risk-based level cannot be
achieved reliably, using standardized
analytical methods, particularly for the
option based on a DAF = 1. EPA is
proposing that for all constituents whose
exemption quantitation limits exceed
their health-based exemption levels,
facilities must achieve the specified
quantitation limits.
For example, the health-based
exemption level (DAF = 1) for aldrin in
leachate and wastewaters is 0.002 ug/1.
The specified EQC for aldrin in leachate
and wastewaters is 0.04 ug/1. Exemption
demonstrations must show that aldrin
cannot be quantitated in the wastewater
or leachate above 0.002 ug/1, with a
quantitation limit at least as low as 0.04
ug/1. The Agency will assume that the
exemption level for aldrin has been met
if the method has been demonstrated to
achieve the EQC of 0.04 ug/1 and no
aldrin is found in the material. However,
if aldrin is quantitated at a level above
0.002 ug/1, the exemption criterion has
not been met, even if the quantitated
level is below 0.04 ug/1.
The Agency recognizes that by relying
on EQCs for constituents with health-
based exemption levels that are
significantly lower than analytically
quantitatable levels, wastes and media
that contain toxic constituents at
concentrations above their exemption
levels could be exempted. The Agency
believes it is appropriate to propose
exemptions notwithstanding this issue
for a number of reasons. For example,
when evaluating wastes to determine
whether they should be listed as
hazardous, the Agency considers
whether the levels of constituents of
concern are hazardous, rather than
whether constituents which cannot be
quantitated may be present at levels
above their health-based levels.
The Agency requests comments on
this approach to this issue. While the
Agency believes that this is a
reasonable approach, it recognizes that
the issue of non-quantitatable health-
based exemption levels for some
constituents may be of concern. Table 6
lists the exemption list constituents
whose EQCs exceed their health-based
exemption levels (based on a DAF of 1)
by more than one order of magnitude
(analysts should generally be able to
achieve EQCs which are within one
order of magnitude of the exemption
level by fine-tuning the method). As
noted in this table, not all of these
constituents are expected to be
prevalent in wastes (based on the
prevalence analysis discussed in Section
VI.C).
TABLE 6.—CONSTITUENTS WITH EXEMP-
TION QUANTITATION CRITERIA WHICH
EXCEED THEIR HEALTH-BASED EXEMP-
TION LEVELS (BASED ON A MULTIPLIER
OF 1) BY MORE THAN ONE ORDER OF
MAGNITUDE
Acrylamide;
Acrylonitrile.
Aldrin.
Aramite.
Benzidine.
Benzotriohloride.
Bis(2-Chloroethyl)ether.
Bis(2-chloroisopropyl)ether*. •
Bromodichloromethape.
Chlorodibromomethane.
Diallate*.
Dibenz (a,h) antracerie.
3,3'-Dichlorobenzidine.
1,3-Dichloropropene.
Diethylstilbestrol*.
3,3'-Dimethoxybenzidine.
7,12-Dimethylbenz(a)anthracene.
3,3'-Dimethylbenzidine*.
2,4-Dinitrotoluene.
2,6-Dinitrotoluene.
1,4-Dioxane.
2378 PeCDDioxins.
Epichlorohydrin.
1,2-Diphenylhydrazine.
Epichlorohydrin.
Ethyl methanesulfonate*.
Famphur*.
23478 PeCDFuran.
Hexachloro-1,3-butadiene.
Kepone*.
3-Methylcholanthrene*.
2-Naphthylamine*.
2-Nitropropane.
N-Nitroso-di-n-butylamine*.
N-Nitrosodiethylarnine*.
N-Nitrosodimethylamine*.
N-Nitrosodi-n-propylamine.
N-Nitrosomethylethylamine*.
N-Nitrosopiperidine*.
N-Nitrosopyrrolidine*. .
Pentachloronitrobenzene*.
Pentachlorophenol.
Phenylene diamine.
Safrole*.
o-Toluidine*.
2,4-Toluenediamine.
p-Toluidine".
Tris(2,3-dibromopropyl) phosphate*
* Not known to be prevalent in wastes.
The Agency requests comments on the
other options presented below for
quantitation of constituents whose
EQCs exceed the health-based
exemption levels:5
the Appendix VII constituents for which
their waste was listed.
• Facilities would be required to
achieve quantitation limits as low as the
health-based exemption levels for all of
exemption constituents. This approach
could be very costly and difficult to
achieve and impose an unnecessary
regulatory barrier for generator of
wastes which contain only a few
constituents.
5 As a point of clarification, note that facilities
are responsible for all constituents and that these
options only focus on the subset of exemption list
constituents whose QLs exceed their health-based
exemption levels.
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules 21483
The Agency is also soliciting
comments on whether facilities should
be allowed to demonstrate through mass
balances that a constituent could not be
present at levels above its health-based
levels. In addition, the Agency requests
comments on whether an exemption
demonstration should be considered
adequate if all proper method and QC
procedures are followed and the
constituents are not detected, even
though the EQC level has not been met.
This situation could arise even in
relatively clean matrices if the
constituents bind strongly to the matrix
or if the constituents degrade rapidly
during the analysis. However, the
Agency would not want the exemption
to be allowed if the EQC could not be
achieved because of interference from
other contaminants in the matrix. The
Agency requests comment on the use of
mass balances in situations where such
low concentrations may render the
analysis meaningless.
C. Development of Exemption
Quantitation Criteria (EQC)
The Agency's preferred way to
determine reliable quantitation levels is
through interlaboratory studies such as
method performance evaluations.
However, if data are unavailable from
interlaboratory studies, quantitation
limits are estimated based on the
method detection limits and an
estimated multiplier to account for
laboratory variability and matrix
effects.
To develop the EQCs proposed in
today's notice, EPA compiled a master
list of the quantitation limits published
for the identified constituents in the
third edition of SW-846, including the
first update and the soon to be proposed
second update (both of which are widely
distributed throughout the regulated
community). The Agency believes that
the resultant list of EQCs associated
with the methods specified in
Appendices [x+1] and [x+2] presents
achievable quantitation limits for the
proposed exemption constituents.
The Agency believes that these EQCs
achieve the most effective assessment of
any adverse impact on human health
and the environment that can be
incorporated into a generic-type
standard such as today's proposed rule.
These quantitation limits are
appropriate because the effect of an
exemption would be to remove wastes
and media from Subtitle C control. The
Agency requests comments on the
proposed quantitation limits as well as
any data supporting those comments.
Supporting documents are available in
the docket for examination. The
proposed methods and EQCs for each
constituent are presented in Appendices
[x+1] and [x+2] of the proposed rule.
VIII. Synthetic Precipitation Leaching
Procedure
To determine whether a waste
qualifies for an exemption, the Agency
is proposing that the TCLP test must be
applied to the waste to evaluate its
leaching potential. However, the Agency
recognizes that the TCLP, which was
developed to simulate the leaching
potential of wastes codisposed with
municipal solid wastes in a municipal
landfill, may not always be appropriate
for evaluating actual risks from other
scenarios such as surface wastes or
media or single waste monofills.
Therefore, the Agency is soliciting
comment on the use of the synthetic
precipitation leaching procedure
(Method 1312) to measure the mobility
of contaminants from wastes and media
under the described management
scenarios. Method 1312 is expected to
be proposed for inclusion in the second
update to the Third Edition of SW-846 in
1992. This method simulates the leaching
process created by acidified
precipitation. The Agency has included
this method in its guidance for the
evaluation of clean closures. The
Agency believes that this leaching
procedure may be an appropriate
measure of contaminant mobility for
certain wastes and media and, therefore
is considering the use of this test in
exemption demonstrations for certain
wastes.
In Method 1312, which is fully
described in the docket supporting this
proposal, the waste is mixed with a
mildly acidic aqueous leaching medium
containing inorganic acid rather than the
buffered acetic acid solution used in the
TCLP. Beyond that, the procedure is
essentially identical to the TCLP.
The Agency has completed precision
and ruggedness studies on Method 1312.
The studies indicate that Method 1312
produces a reasonably precise
measurement of the mobilization of
organic compounds and certain metals
from soil. The method is also fairly
rugged, showing little variation with any
of the critical parameters that were
tested (e.g., extraction fluid pH,
extraction time, liquid/solid ratio)
(EMSL, 1989). Based on this study, the
Agency believes that Method 1312 may
be appropriate for evaluating leaching of
certain wastes.
Specific waste types where Method
1312 may be appropriate include soils,
waste going on-site or regulated off-site
monofills, wastes going to any industrial
landfills which do not receive municipal
wastes or other wastes which may
generate organic acids. The Agency
solicits comments on the technical
merits and the implementation issues
which could affect these disposal
scenarios.
IX. Additional Exemption Criteria Under
Consideration
The Agency believes that the options
presented for exemption criteria
described earlier in today's notice [e.g.,
the exemption levels and testing
requirements) are generally
conservative and will serve as
reasonable criteria for self-implementing
hazard determinations. However, the
Agency recognizes that the exemption
levels are based solely on human health
effects levels and primarily on risks of
groundwater contamination. This
Section outlines approaches to defining
other exemption criteria which the
Agency may consider as potential
requirements for exemption
demonstrations. If these criteria are not
adopted as part of any rule finalizing
this notice, EPA requests comment on
the need for an omnibus authority that
the Regional Administrator or
authorized State official may use as an
additional regulatory authority to
require the application of these criteria
or submission of additional information
on a case-by-case basis if extraordinary
site-specific considerations warrant
evaluation of other factors. The Agency
envisions such an authority to be rarely
necessary.
The Agency seeks comment on the
incorporation of a bioassay
demonstration as a potential exemption
requirement. If adopted, facilities would
be required to demonstrate that their
waste or contaminated media, as a
whole, is not expected to have a
detrimental impact on the environment
through application of a bioassay
procedure. Many types of bioassays
exist, including those that measure
toxicant effects on the growth and
reproduction, acute lethality,
mutagenicity, carcinogenicity, and
teratogenicity to small mammals, fish,
and invertebrates. The Agency believes
that it may be appropriate to include a
bioassay requirement because the
exemption levels are geared toward
human health effects. However, EPA
acknowledges that bioassays may be
very expensive to conduct, the results
may be biased towards the test species
used, and toxic manifestations may be
difficult to extrapolate to mammals. EPA
is not sure what assumptions would be
appropriate when using laboratory
results to predict field effects regarding
fate and transport to receptor
environments.
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While the lowest exemption level
(option 3, DAF of 1) are lower than or
approximately equal to 60 percent of the
Ambient Water Quality Criteria (see
following discussion], the Agency
believes that this approach would
address additional concerns about
whole waste (or leachate] effects on
environmental receptors. The Agency
compared the lowest exemption levels
to the Ambient Water Quality Criteria
(AWQC) (Gold Book, EPA 440/5-86-
001). These criteria include promulgated
criteria (AWQC), as well as "lowest
observed effects levels" (LOELs) (which
have not yet been promulgated). The
water quality criteria are based on
environmental water quality criteria
[i.e., acute and chronic fish (fresh and
marine) toxicity), and human health
water quality criteria [i.e., human
ingestion of fish, or fish and surface
water). The exposure scenario
underlying these numbers is based on
surface water pathways. (See Note to
File regarding Health-based Levels and
AWQC in the Docket for Today's Rule.)
Although EPA is well aware of the
differences between CBEC and ECHO
number, and AWQC, the Agency notes
that linking leaching landfills to surface
water contamination involves an
extensive modeling and assessment
effort which has not been performed on
a notional basis. The Agency does not
know the extent to which this is surface
waster contamination routes of serious
concern. EPA solicits comment on
whether or not surface water
contamination from landfill leachate is
so site-specific and unusual that control
of it is could best be addressed under
the Regional omnibus authority
proposed today, or whether CBEC/
ECHO values need to be adjusted to
reflect the level of control provided by
AWQC.
The Agency has also considered
numerical means of predicting possible
additive effects from multiple
constituents, but decided not to add
risks from constituents for this proposal.
The Agency does not have sufficient and
adequate scientific information to
establish a numeric method. The Agency
is unsure of the relationship, if any,
between constituents that reach the
receptor at different points in time.
Further, each receptor—bird, fish,
human—has different physiological
system for responding to exposure to
toxicants. Primarily, the Agency was
concerned that the difficulties of
implementing such an approach
outweigh any potential incremental
benefits beyond the existing
conservativeness of the exemption
levels and the possible use of a 1,000
ppm exemption level cap. This approach
is consistent with that used to evaluate
delisting petitions which also does not
incorporate additive effects. (Waste-
specific additive effects are considered
during RCRA corrective action and
clean closure and in Superfund cleanups
and may be considered in the evaluation
of exemptions on a case-by-case basis.)
Comments are requested on the
proposal not to consider additive effects
from multiple constituents in today's
proposed exemption process.
The Agency also requests comment
and supportive data on whether other
exposure pathways should be
considered for specific constituents and
the exposure scenario(s) that would be
appropriate in modeling those additional
exposure pathways. One pathway of
particular concern is volatilization to the
atmosphere. The Agency's conservative
analysis has demonstrated that air
emissions from TSDFs may pose
substantial risk in the absence of
controls. The Agency is controlling these
risks in two rulemakings (final rule 55
FR 25454, June 21,1990, and proposed
rule 56 FR 33490, July 22,1991). Together,
these rules would reduce the risk from
air emissions from the vast majority of
these facilities to well within the risk
range of other RCRA standards. The
emission reductions achieved by these
rules could also significantly reduce the
formation of tropospheric ozone, which
has adverse effects on human health
and the environment.
Today's rule could affect the TSDF air
emissions regulations in the following
way. The TSDF rules were designed to
prevent volatilization of hazardous
organics as they move through storage
and treatment, keeping the organics in
the waste until it ultimately undergoes
BOAT treatment, which is assumed to
remove any significant risk from
exposure via the air medium. If, under
today's HWIR proposal, waste leaves
the system without BOAT treatment,
that waste may pose a potential risk
through exposure to air emissions. If
significant risk exists, it may be
necessary to develop air-based
exemption criteria to supplement those
suggested in today's proposal. In the
Agency's July 21,1991, proposal such
criteria could entail additional waste
testing. The Agency specifically requests
comment on this issue, and on ways to
address it. Comments on these topics
should address the appropriateness of
incorporating such pathways into the
national exemption criteria versus
allowing the Regional Administrators or
authorized State officials to determine
the need for consideration of additional
pathways (such as dermal exposure) on
a case by case basis.
The options proposed today do not
account for the effects of hazardous
emissions into the air medium. In
section 3004(n) of Hazardous and Solid
Waste Amendments of 1984 (HSWA),
Congress directed the Agency to
promulgate regulations controlling air
emissions from hazardous waste
treatment, storage, and disposal (TSDF)
facilities as necessary to protect human
health and the environment. In
developing these regulations, (Phase I
final rule 55 FR 25454 (June 21,1990),
and Phase II proposed rule 56 FR 33490
(July 22,1991)), the Agency estimated
nationwide organic emissions to be
approximately 1.8 megagrams per year
(mg/yr)(2,000,000 tons per year). These
emissions may contain toxic chemical
compounds as well as ozone precursors.
Since the effectiveness of these controls
depends upon the fact that hazardous
wastes are accounted for within the
RCRA Subtitle G system, any exemption
of wastes from this system has the
potential of limiting the effectiveness of
these controls on reducing the risk from
hazardous air emissions. The Agency
specifically requests comment on this
issue, and on ways to address it.
Finally, the Agency recognizes that a
few facilities may face difficulties
meeting the exemption criteria because
of very high background levels of one or
more of the constituents on the
exemption list in their soil or
groundwater. Data from EPA Region
VIII indicates high background levels of
arsenic, beryllium, and chromium that
appear to exceed some of the exemption
levels when dilution or attenuation is
not considered (this information is
available in the public docket for this
rule). The Agency is requesting
comments on whether the exemption
rule should include provisions for
making statistical comparisons to
background levels. One possible
statistical technique for background
data that conform to normality
assumptions includes combining the
Student-t difference of means test
presented in the Permit Guidance
Manual on Unsaturated Zone
Monitoring for Hazardous Waste Land
Treatment Units, (EPA, 1986) with the
normal tolerance interval approach
found in Statistical Analysis of Ground
Water at RCRA Facilities—Interim Final
Guidance, (EPA, April 1989). The
Student-t test compares averaged
waste/media concentrations to
background concentrations, and is used
to determine if the waste/media as a
whole is within a specified criteria.
However, even if the waste/media
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21485
passes the Student-t test, individual
sample concentrations may still exceed
the tolerance interval limit. The normal
tolerance interval approach is used to
compare sample concentrations to an
upper tolerance value based on the
background mean, standard deviation,
and sample size.
If such an approach is incorporated
into the final rule, it would include
criteria for defining and collecting
adequate background samples. More
specifically, the facility would be
required to identify background
locations, sample size, soil depth, etc.
for at least four samples in a "difference
of means" demonstration, and six to
eight samples for a "tolerance of means"
demonstration. The facility would also
need to demonstrate the normalcy of the
sample distribution. The Agency would
require that this information be included
as part of the facility's sampling and
analysis plan and subject to review by
the appropriate Regional Administrator
or authorized state official prior to plan
implementation. Alternatively, the rule
could defer any background level
demonstrations to an omnibus authority
designated to the Regional
Administrator. Comment is requested on
the need for this authority.
The Agency solicits comments on
other appropriate and generic ways (1)
to identify background levels in soils,
and (2) to incorporate the existing 40
CFR part 264, subpart F standards for
establishing background levels for
groundwater. Other suggestions that
address the Agency's intent to
promulgate a simplified exemption with
little reliance on site-specific
considerations but also allow for
consideration of elevated background
levels will be considered.
X. Dilution
The 1984 RCRA Amendments
(HSWA) established a national policy
for minimizing the generation of
hazardous wastes. Section 1003 of
RCRA, as amended in 1984, established
a national waste minimization policy
stating that "wherever feasible, the
generation of hazardous waste is to be
reduced or eliminated as expeditiously
as possible". The policy also cited the
need to reduce the volume and toxicity
of hazardous wastes which is
nevertheless generated. Similarly,
section 3005(h) prescribed that effective
September 1,1985, all RCRA permitttees
who generate waste disposed of,
treated, or stored on-site must certify
(on an annual basis) that the facility has
waste minimization programs in place.
In addition, section 3002(b) mandates
that hazardous waste generators include
a certification with their hazardous
waste manifests that the generator has a
waste minimization program in place
and that the proposed method of off-site
management minimizes threats to
human health and the environment. In
concert with these HSWA mandates, it
is the Agency's policy to encourage
source reduction and waste treatment as
preferable to disposal and dilution.
EPA has also recognized that
successful implementation of the land
disposal restrictions requires that, in
general, dilution be prohibited as a
partial or complete substitute for
adequate treatment of prohibited toxic
wastes (40 CFR 268.3). The legislative
history indicates that dilution "is not an
acceptable method of treatment to
reduce the concentrations of hazardous
constituents" (S. Rep. No. 284, 98th
Congress, 1st Session 17 (1983)).
The Agency also generally opposes
the dilution of hazardous wastes for
several technical reasons. Most
importantly, dilution is an
environmentally inappropriate means to
reduce toxicant concentrations when
other alternatives are possible, because
it does not reduce toxicant loadings to
the environment. The same mass of
toxicant is released to the environment
when a diluted waste is disposed as
would be if that same waste, prior to
dilution, were to be disposed.
For these reasons, dilution is
prohibited as a means to achieve the
exemption levels under today's
proposal. Because under some options
proposed today, the rule could impact
the LDR levels, allowing dilution as a
means of achieving exemptions would
be inconsistent with the ban on dilution
included in the land disposal restrictions
rules (40 CFR 268.3). In addition, dilution
would be inconsistent with the
Congressional mandate to treat rather
than dilute toxic wastes and the purpose
of this rule (e.g., to encourage treatment
of listed wastes). Thus, today's proposed
rule specifically prohibits dilution as a
means of attaining the exemption levels
in accordance with the dilution
requirements of the LDR program (see 40
CFR 268). Such prohibition is likewise
authorized by section 3004(a)(3), which
allows EPA to prescribe treatment
methods, techniques and practices as
may be necessary to protect human
health and the environment.
The Agency considers dilution to be
the addition of any other material, either
liquid or non-liquid, to increase the
volume of a given waste to reduce waste
constituent concentrations. For example,
the unnecessary addition of non-process
waters (e.g., cooling waters) to a
wastewater treatment system to achieve
exemption levels is a form of
inappropriate dilution. Similarly, the
addition of clean soil to contaminated
soil to achieve exemption levels is
another type of prohibited dilution (see
55 FR 22666; June 1,1990).
The Agency recognizes that many
treatment methods require the addition
of reagents. These reagents produce
physical and/or chemical changes, and
do not merely dilute the hazardous
constituents into a larger volume of
waste so as to lower the constituent
concentration. In prohibiting dilution as
a substitute for adequate treatment, the
Agency does not intend to prevent
facilities from adding materials that are
necessary to facilitate proper treatment
to meet the proposed exemption levels.
A facility claiming an exemption must
be prepared to provide justification that
these additives are necessary for
treatment. Moreover, the facility must
be able to show not only that the
material is added for purposes other
than dilution, but also that the amount
added is no more than what is
necessary to effect the physical/
chemical changes. The facility must
have this justification available on site
and ready at all times for inspection by
the Agency or State officials. For
example, consider a facility which is
conducting lime stabilization on existing
hazardous lagoon sludge using 40
percent lime and has demonstrated that
the resultant stabilized material meets
the exemption concentrations. This
facility must have evidence to
demonstrate that the 40 percent lime
mixing ratio is required and that a
significantly smaller mixing ratio (such
as 10-20 percent lime) would not work
as effectively.
XI. Implementation
A. Overview
As discussed above, there are two
different structural approaches in
today's rule: (1) The ECHO approach,
which would unify entry and exit levels
for subtitle C and (2) the CBEC
approach, which alternatively would
establish a generic exit from subtitle C.
In addition, the Agency is proposing a
"contingent management" approach,
which could be combined with either
ECHO or CBEC to provide an additional
exit for subtitle C hazardous wastes that
are managed under conditions which the
Agency determines to be protective.
These approaches raise different
implementation issues.
1. ECHO
The ECHO approach would expand
the current hazardous waste
characteristics and set uniform entry
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and exit concentration levels for subtitle
C jurisdiction. The ECHO approach thus
would be implemented through the
current subtitle C regulations.
As is currently required, generators
would be responsible for determining
whether their wastes are
characteristically hazardous. This could
be done either by testing the wastes
according to the methods set forth in
subpart C of 40 CFR part 261, or by
applying knowledge of the hazard
characteristic of the waste in light of the
materials or the processes used. See 40
CFR 262.111. Wastes exhibiting a
hazardous characteristic would be
subject to all applicable subtitle C
regulations. Generators of wastes which
become newly regulated as hazardous
wastes under the ECHO criteria would
be required to submit notifications of
hazardous waste management activity
using EPA form 8700-12.
As a result of the ECHO approach,
some wastes currently under subtitle C
jurisdiction would no longer be
regulated under that program. It will be
important for the Agency to have
information regarding what
wastestreams are exiting the system to
oversee the transition to the new
jurisdictional criteria. The Agency will
also need this information to
appropriately adjust its compliance
monitoring program to account for
changes in the status of generators that
previously had notified of hazardous
waste management activity. Therefore,
if the ECHO approach is chosen, the
Agency would require generators of
what had been listed wastes that are
exiting the subtitle C system as a result
of ECHO to test their wastes for all
Appendix VIII constituents and to
submit to the Regional Administrator a
one-time notification and certification
that their wastes do not exhibit
hazardous waste characteristic.
Generators of listed waste as of the
effective date of ECHO will continue to
be subject to subtitle C regulations until
the Agency receives the notification that
the waste does not exhibit a
characteristic. (Wastestreams newly
regulated as a result of ECHO and new
wastestreams generated after the
effective date of ECHO would not be
subject to the mandatory one-time
testing and notification requirement, but
would have to notify under EPA form
8700-12.) This notification could require
various types of information. A more
detailed discussion of ECHO of the
implementation, including the testing
requirement and proposed notification
and certification, is set forth below.
2. CBEC
The CBEC option would establish a
baseline set of constituent-specific
exemption levels for waste and
contaminated media. Wastes and media
with hazardous constituent
concentrations below the baseline
exemption levels would be conditionally
exempt from subtitle C.6 As an
exemption program for wastes which
the Agency has determined are
hazardous, but not at levels of
regulatory concern, certain requirements
would be imposed in order to ensure the
eligibility of the wastes for the
exemption. These requirements would
differ from the requirements which
currently exist to determine entry into
the subtitle C system (and which would
continue to apply should the existing
characteristics be expanded under
ECHO). These requirements would be
considered necessary to ensure that
only those hazardous wastes which
truly met the exemption criteria exited
the subtitle C system.
The Agency is proposing that CBEC
exemptions be self-implementing. No
Agency review of sampling plans or
data, or prior Agency approval, would
be required before wastes or media
could be managed as nonhazardous. The
Agency is proposing sampling, testing,
notification and recordkeeping
requirements as conditions that must be
met by a generator to qualify for the
generic exemption.
The Agency is proposing that, to claim
a CBEC exemption, wastes and media
must be sampled and tested annually for
the first two years.7 Thereafter, a waste
or media need only be tested every three
years. In the first year, the waste or
media must be tested for all 200 of the
exemption list constituents. In
subsequent years, a waste or media
need only be tested for those
constituents which were detected during
the previous year of testing. Additional
testing would also be required whenever
process changes occur that could affect
waste or media composition. All 200 of
the exemption list constituents would
need to be tested for after such a process
change, unless the generator can
demonstrate and document a reasonable
basis for testing for a more limited
number of constituents. Generators may
not use their knowledge of the waste or
media to determine whether the waste
6 Exempted wastes would continue to be solid
wastes, and as such would require proper
management under subtitle D. Further, this generic
cut-off would set a level at which media was no
longer contaminated with a listed hazardous waste.
7 Note that this requirement would not apply to
generators claiming exemptions for waste or media
that are generated or managed on a one-time basis.
or media is exempt under a CBEC
exemption. (Knowledge of the waste
could be used as a basis for more
limited testing in the event of a process
change.) The determination must be
based on sampling and analysis that
conforms with the data requirements
discussed below.
Testing would be done in accordance
with a sampling and analysis plan that
includes the basic elements of sampling
and analysis plans described in Chapter
One of SW-846. This would include a
detailed description of the planned
sampling protocols and equipment,
statistical methods to ensure that the
samples are representative, quality
assurance plans, any expected
modifications of the SW-846 analytical
methods listed iri Appendices [x+1] or
[x+2] and, as applicable, proposed
analytical equipment, etc.
A generator claiming a CBEC
exemption would submit to the Regional
Admininstrator (or authorized State) an
initial notification of that claim and a
certification stating that the information
contained in the notification is complete
and accurate. The exemption for CBEC
waste or media would become
conditionally effective as of the date
that the Regional Administrator
receives, via certified mail with return
receipt, the facility's notification and
certification.
Generators would retain the following
documentation on-site for at least three
years after the date of notification: a
copy of the notification and certification;
the sampling and analysis plan, a
sampling record that supports all
sampling events and demonstrates that
the samples are representative of the
temporal and spatial variability of the
waste; and analytical laboratory results
for all samples.
Generators claiming a CBEC
exemption would be required to re-test
and re-submit their waste or media
notifications and certifications annually
for the first two years, and every three
years thereafter. Should a change in
process occur that could affect waste or
media composition, generators also
would be required to re-test and submit
a new notification and certification
reflecting the process change.
Generators would have to meet all of
the applicable conditions to qualify for
the CBEC exemption. The Agency is
proposing that any misrepresentation,
erroneous demonstration, or incomplete
adherence to the conditions would make
the waste or media ineligible for the
exemption and the waste or media
would thus be subject to all subtitle C
management requirements. Even if the
exempted waste or media is the only
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21487
hazardous waste generated by the
facility, the facility will retain its EPA
identification number and is subject to
all applicable hazardous waste
regulations if the exempted waste or
media reverts to a hazardous waste
through reconstitution, treatment,
process upsets or changes, or any other
reason.
3. Contingent Management Exemptions
The contingent management
exemption would apply to wastes and
contaminated media with hazardous
constituent concentrations greater than
the ECHO or CBEC constituent
concentration levels, but less than or
equal to a second higher set of
constituent-specific exemption levels.
These wastes and media would be
conditionally exempt from subtitle C
requirements so long as they are
managed in accordance with the
management practices being proposed
today. Wastes and media meeting these
"contingent management" levels and
that are not managed in accordance
with the specified management
practices would be hazardous wastes
subject to full subtitle C jurisdiction.
The Agency is proposing that the
contingent management exemption be
self-implementing. No Agency review of
sampling plans or data, or prior Agency
approval, would be required before
wastes or media could be managed
under contingent management
conditions.
The Agency proposes that the
contingent management exemption
would be conditioned upon three.
requirements: (1) sampling and testing
according to the same standards as
those that would apply for the CBEC
exemption; (2) submittal (and re-
submittal) of the same notification and
certification as would be required for
the CBEC exemption; 8 and (3) disposal
of the waste in accordance with the
management standards established by
this rule.
Because a contingent management
exemption is conditioned on the proper
management of the waste or media—i.e.,
disposal in accordance with specific
management standards—the Agency is
proposing that the exemption would not
become effective until the waste or
media is actually disposed of in
accordance with the management
standards [e.g., when wastes or media
enter a qualifying disposal unit). The
waste or media, therefore, must be
managed as a subtitle C hazardous
waste from the point of generation until
disposal. It would be subject to all of the
applicable RCRA requirements. This
includes 40 CFR parts 262 and 263,
which contain, among other provisions,
the manifest, waste accumulation and
export provisions. Furthermore, the
receiving facility would have to manage
the candidate exemption waste or media
as a hazardous waste if it cannot
dispose of the waste or media without
prior storage.9
This implementation structure is
intended to help ensure safe
management of the waste or media prior
to satisfaction of the condition justifying
the exemption. For example, if a
candidate waste was spilled during
transport it would be a hazardous waste
because disposal did not occur in a
qualifying unit. The Agency, therefore,
believes that it would be important to
impose the same controls on transport of
the candidate second tier exemption
waste as would be imposed on transport
of the same waste if it was destined for
a subtitle C facility. The Agency also
believes that continuing to mange the
candidate exemption waste as
hazardous prior to disposal provides a
simple implementation structure. For
example, rather than setting up two
alternative waste tracking systems,
generators would be able to utilize a
single form. Use of the manifest also
helps to minimize conflicts that may
arise if waste moves through states
which have not adopted the contingent
management exemption.
The generator would have the burden
of demonstrating that all of the
conditions for the contingent
management exemption described
above have been met. In an enforcement
action, a waste or media for which an
exemption is claimed would be
considered a subtitle C hazardous waste
unless the generator was able to
produce evidence that all of the
conditions of the exemption have been
met. Failure of a disposal facility to
manage candidate exemption wastes in
accordance with the management
standards would also nullify the
exemption. In such instances, the waste
would remain a hazardous waste and
the facility would become a subtitle C
treatment, storage, and disposal facility.
8 Contingent management exemption claimants
would also be required to resubmit the notification
and certification whenever there is a change in the
identity of the disposal facility receiving the waste
or media.
9 The Agency is proposing to amend 40 CFR 264.1
to allow facilities disposing of contingent
management wastes (and solid wastes) to store
contingent management wastes for up to 10 days
without becoming a subtitle C treatment, storage,
and disposal facility. The Agency requests comment
on whether 10 days is a sufficient or appropriate
length of time, and if not, what time period may be
appropriate.
B. Implementation of the ECHO
Approach
The ECHO approach would expand
the current hazardous waste
characteristic approach to subtitle C
jurisdiction. Wastes determined to be
hazardous under the ECHO approach
would be subject to all applicable
subtitle C regulations to the same extent
that characteristic hazardous wastes are
currently subject to subtitle C
regulations.
ECHO would establish no new
requirements for characteristically
hazardous wastes than currently exist,
except for the testing and one-time
notification discussed below.
Generators bear the responsibility to
ensure that their waste determination is
accurate. As long as the generator
manages the waste as nonhazardous,
the generator must be able to
demonstrate that the waste does not
exhibit a characteristic. As with other
characteristics, generators may rely on
test results, knowledge of the waste, or
some combination of the two methods.
Under ECHO, generators would not be
required to test their wastes (except for
generators of listed wastes subject to
the onetime notice) or retest periodically
or in the event of a process change. The
current regulatory requirements and the
operational practices of transporters
and TSDFs assume that legal liability
encourages generators to test their
wastes whenever there is reasonable
uncertainty that the waste exhibits a
hazardous waste characteristic.
Although the Agency recommends that
generators of characteristic waste re-
test after any process change which may
affect the hazardous composition of a
waste, the Agency recognizes that the
hazardous waste characteristics apply
to a wide range of waste streams. With
such a wide variety of streams regulated
under the characteristic, the Agency
believes that there may be some waste
streams for which process knowledge
may be sufficient to determine if a waste
exhibits a characteristic.
As now, under ECHO the Agency
would encourage generators to conduct
and document their sampling and
analysis of their waste, if conducted, in
light of the possible legal liability.
However, the Agency does not now
require generators to document the
sampling and analysis that informed
their waste management decisions and
would not do so under ECHO. As now,
under ECHO generators would have the
flexibility to determine the appropriate
level of sampling, analysis, and
documentation for their waste
determinations.
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As discussed above, under the ECHO
approach some wastes currently
regulated under subtitle C would exit
that system. The Agency is proposing
that generators of wastestreams that
had been considered listed wastes but
which would no longer be hazardous
waste under ECHO be required to
analyze their wastes for all Appendix
VIII constituents and submit to the
Regional Administrator one-time
notifications of the change in the
regulatory status of their wastes and
certifications that their wastes do not
exhibit a hazardous waste
characteristic. Facilities for which only
some waste streams would exit subtitle
C and which would still continue to
manage some hazardous waste would
still be required to submit this
notification and certification. The
Agency is proposing that testing for the
one-time notification be conducted
according to the methods set forth in
subpart C of 40 CFR part 261.
Under this proposal, generators of
listed wastes as of the effective date of
ECHO would remain subject to subtitle
C jurisdiction until the Agency received
the notification. Thus, for those
generators, ECHO would operate as a
conditional exclusion. Generators of
wastes that become newly regulated as
a result of ECHO and generators of new
wastestreams after the effective date of
ECHO would not be subject to the one-
time testing and notification
requirement, but would be subject to the
waste determination requirement of 40
CFR 262.11 and would be required to
notify the Agency if they were managing
a hazardous waste, using EPA form
8700-12. ECHO would not operate as a
conditional exclusion for those
generators.
The Agency is proposing that the
notification include the following
information: (1) The name, address, and
RCRA ID number of the facility; (2) the
EPA hazardous waste code applicable
to the waste; (3) the characteristics and
constituents for which the waste was
evaluated under the ECHO criteria; and
(4) the constituent concentrations in the
waste which form the basis for the claim
that the waste is not characteristically
hazardous.
The notification would be
accompanied by a certification by a
responsible corporate officer that the
information contained in the notification
is complete and accurate. The Agency
requests comment on whether the
notification and certification should also
be required of generators of wastes
currently considered to exhibit the
toxicity characteristic, if under ECHO
the constituent concentration levels
change such that the waste would no
longer be considered to exhibit the
toxicity characteristic.
It should be noted that units managing
wastes that would no longer be
hazardous under the ECHO criteria
would continue to be regulated
hazardous waste management units
subject to the requirements of parts 264
and 265, including the closure
requirements. A unit receiving only
waste that is shown not to be a
hazardous waste under the ECHO
criteria would no longer be receiving
hazardous waste upon the effective date
of the ECHO criteria and thus normally
would become subject to subtitle C
closure requirements. How closure
requirements would apply to these units
is discussed in sectionXIII.E.
ECHO also may bring new wastes
into the subtitle C system. Generators of
wastes which become newly regulated
as hazardous wastes under the ECHO
criteria would be required to submit
section 3010 notifications of hazardous
waste management activity using EPA
form 8700-12 and obtain EPA
identification numbers. Newly regulated
facilities, i.e., facilities at which the only
hazardous wastes that are treated,
stored, or disposed are wastes newly
regulated under ECHO) will have to
qualify for interim status by the effective
date of the rule in order to continue
managing wastes that become newly
hazardous prior to obtaining a permit.
To obtain interim status, eligible
facilities will have to submit section
3010 notifications by the effective date
of the regulation and part A applications
by no later than six months after
publication of the final ECHO rule. To
retain interim status, a newly regulated
facility will have to submit a RCRA
permit application within one year after
the effective date of the rule and certify
that the facility is in compliance with all
applicable groundwater monitoring and
financial responsibility requirements
(see RCRA Section 3005(e)[3) and 40
CFR 270.73(d)). Permitted and interim
status facilities which manage a solid
waste that is newly defined as
hazardous waste as a result of ECHO
will have to submit Class 1 permit
modification requests or part A permit
application revisions to EPA. Facilities
will to have to manage these wastes in
accordance with 40 CFR part 265 or 40
CFR part 264 until permit modification
or issuance, depending on whether the
waste is managed in a newly regulated
or previously regulated unit.
C. Implementation of the CBEC
Approach
1. Sampling Requirements for CBEC
Exemptions
In today's notice, as an alternative to
ECHO, the Agency has proposed
concentration-based exemption levels at
which a solid waste or media would not
be considered hazardous. To ensure that
facilities accurately characterize
constituent concentrations in their
wastes, the Agency is proposing a series
of sampling and analytical requirements
to be imposed upon persons seeking
CBEC exemptions that would be
codified in Appendix (x+3) to 40 CFR
Part 261. These requirements are viewed
as the minimum necessary to make a
CBEC exemption determination.
Following these requirements, however,
does not imply that the determination
will be adequate. It is ultimately the
responsibility of the generator to ensure
that the sampling and analysis is
accurate and representative of its
wastes.
Changes in waste composition or
leaching characteristics. At any time
where there is a process or other change
which may affect waste composition or
leaching characteristics, the facility
would be required to re-characterize the
waste and determine that the waste
continues to meet the applicable
exemption levels before disposing of the
waste as non-hazardous. Results would
be retained documenting the process, or
other changes, the testing undertaken,
and the resulting changes in waste
composition. Should the results indicate
that the waste does not meet the
applicable exemption levels, that waste,
and any subsequently generated wastes,
would be required to be managed as a
hazardous waste until the generator
notifies the Regional Administrator that
the operating and/or waste management
process produces waste meeting the
exemption criteria. Although the Agency
believes it is important that any process
change that could affect the ability of
the waste to qualify for a CBEC
exemption be evaluated, it is also very
difficult to define or quantify what
process changes would affect waste
composition or leaching characteristics.
Not all process changes would
necessarily affect waste composition.
The Agency has not yet developed
regulatory language which better defines
the process changes which would nullify
a CBEC exemption and require retesting,
renotification and recertification. The
Agency requests comment on how best
to describe such a process change in the
regulations. The Agency notes that,
because testing is not required to
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determine entry into subtitle C, and thus
there are no re-testing requirements, the
Agency would not have to define
"process change" if the ECHO approach
is chosen.
The facility will also be held liable for
any changes in the waste after
generation which may cause the waste
to revert to a hazardous waste. For
example, if an exempted waste were
managed in such a manner that it
becomes more concentrated over time
(e.g., reconstitution) due to evaporation
or other factors, the facility is
responsible for determining that the
waste continues to meet the exemption
criteria.
Data evaluation. The Agency is
proposing that, for CBEC exemptions,
facilities would be required to evaluate
their wastes, contaminated media or
materials based on the maximum
detected concentrations of the
exemption constituents. This
conservative approach is consistent
with the delisting program's general
approach to evaluating wastes
petitioned for exclusion. While the
Agency believes that this approach is
the most appropriate approach for a
self-implementing exemption program,
the Agency is also taking comment on
whether to evaluate analytical results in
terms of average concentrations or some
other data evaluation mechanism (e.g.,
at some confidence interval). For
example, in determining whether a
waste exhibits a hazardous waste
characteristic, chapter 9 of SW-846
requires the use of the upper limit of the
80% confidence interval for the mean. In
addition, the Agency solicits comments
on implementable techniques for the
identification of analytical outliers.
Sampling and analysis plan. The
Agency is proposing that all facilities
seeking a CBEC exemption prepare a
sampling and analysis plan. In general,
the sampling and analysis plan must
demonstrate that the samples to be
taken and analyzed will be
representative of any spatial and
temporal variations in the exemption-
candidate waste or media. The facility
would be required to repeat the
sampling and analysis demonstration
according to the frequency set forth in
the regulations. More frequent sampling
will be necessary should there be any
significant changes in the production or
waste treatment process or when the
minimum sampling requirements are
insufficient to be representative of the
waste. The sampling and testing burden
for facilities that routinely change their
production processes, e.g., by changing
chemical feedstocks, will be greater
than for a facility with a stable and
consistent process. The specific
requirements being proposed for
sampling and analysis plans would be
codified in Appendix (x+3) to 40 CPA
part 261.
The sampling and analysis plan would
have to demonstrate that sampling will
be representative of routine changes in
production processes and/or treatment
processes both during a specific
sampling event and across all operating
conditions. The sampling and analysis
plan would also have to address any
process upsets or other factors which
may affect waste or media composition
or leaching characteristics. The Agency
believes that an adequate determination
will generally need to include more than
the minimum sampling requirements to
provide a fully representative
demonstration of the composition and
leaching characteristics of the candidate
waste or contaminated media.
Each time the facility samples the
subject waste or media, the facility or its
agent would be required to document
that the sampling and analysis plan has
been followed. Problems encountered
during the sampling event, and
corrective measures taken to ensure the
integrity of the process, must be
documented and retained for at least
three years. See discussion of
recordkeeping at section XI.E.
2. Testing Requirements for CBEC
Exemptions
Facilities would be required to use the
analytical procedures described in SW-
846, 3rd edition when analyzing their
wastes or contaminated materials for
exemption determinations. To use
equivalent procedures to SW-846, a
claimant must petition the Agency in
accordance with 40 CFR 260.21. Due to
the wide variation in the occurrence and
concentration of hazardous constituents
in wastes and contaminated materials,
each generator would be required to test
each waste or material for which they
seek a CBEC exemption for all of the
exemption list constituents. In addition,
the facility would not be able to make
the determination that a listed
hazardous waste or contaminated
material meets the exemption levels
based on his knowledge of the waste or
material.
The Agency is requesting comment on
the appropriateness of requiring
analysis for all 200 constituents for the
first year the exemption is claimed, and
requiring analysis in subsequent
demonstrations for only those
constituents previously detected. The
Agency is proposing this approach
because it believes that there is a
heightened need to ensure that wastes
leaving the hazardous waste
management system do not contain any
hazardous constituents above the
applicable exemption levels. The
Agency believes that this approach
balances the need for a comprehensive
and objective basis for waste ,
management decisions with the need to
make the exemptions practically
available to generators of waste that
meet the appropriate exemption levels.
There could be other ways to balance
the above concerns. One option would
be to require analysis for all 200
constituents every year the exemption is
claimed. This approach is very
comprehensive and favors the need to
ensure continued applicability of the
waste management decision, but may
impose a practical barrier to generators
who might otherwise be eligible for the
exemption. Comment is requested on
whether the information that would be
gathered through annual testing for all
200 constituents is necessary to ensure
continued applicability of the
exemption. Comment is also requested
on what the burden of requiring annual
testing for all 200 constituents might be
for generators.
Another option is for EPA to define, in
regulations, for major waste streams, a
set of constituents that it believes would
fairly characterize those waste streams.
EPA believes such an approach may be
desirable in the long term to reduce
costs, especially in industries with large
numbers of generators. EPA asks for
comment on the feasibility, or need, for
this approach in the long term. The
Agency notes that this could require it to
expend significant resources. The
Agency requests comment on whether
such knowledge will arise as these
programs are implemented and
transporters impose their own
requirements.
Yet another option would be to allow
the generator to use process knowledge
to determine which exemption
constituents are likely to be present in
their waste and test for those
constituents. This option would
minimize the potential barrier that
testing might pose for generators seeking
an exemption, but could be less
comprehensive. Comment is requested
on whether process knowledge provides
a sufficiently objective and
comprehensive basis for determining
which constituents to test for. This
approach is comparable to the system
under the ECHO approach. This system
relies on the substantial threat of civil
liability, including CERCLA liability, to
encourage generators to ensure that
their wastes either are not
characteristically hazardous under
ECHO or ineligible for CBEC. The
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Agency requests comments on other
options as well.
The Agency is proposing the Toxicity
Characteristic Leaching Procedure
(Method 1311) as the method to model
concentrations of hazardous
constituents found in waste and soil
extracts. TCLP extract concentrations
will be compared to the levels specified
in appendix [x+2]. These exemption
determinations must be based solely on
the results of testing. The Agency is
asking for comment on whether both
total compositional and leachate
analysis for all of the exemption
constituents be conducted on all soil
samples. As discussed in Section VIII,
the Agency is also taking comment on
the Synthetic Precipitation Leaching
Procedure (Method 1312) as an
appropriate protocol for modeling
concentrations of hazardous
constituents in soil extracts for
exemption determinations. The facility
would have to demonstrate that
concentrations of hazardous
constituents found in the subject
contaminated soil and in its Method
1312 leachate are below the levels
specified in appendix [x+1].
As part of the record, generators must
retain analytical results on site for at
least three years. See discussion of
recordkeeping at section XI G. These
results, as well as any other required
document, would have to be submitted
to the Regional Administrator upon
request. At a minimum, analytical
reports must include the following: (1)
The name and address of the laboratory
performing the waste analyses; (2) the
names and qualifications of persons
performing analysis; (3) date of analysis;
(4) description of sample preparation
techniques used for extraction of the
samples; (5) a description of the tests
performed, testing results, and quality
assurance/quality control (QA/QC)
documentation; and (6) the names and
model numbers of the instruments used
in performing the tests. The specific
QA/QC requirements associated with
the specific methods listed in
Appendices [x+1] and [x+2] must also
be followed.
The Agency requests comments on
whether the Agency should require that
all CBEC exemption analyses be
conducted by independent laboratories
as an added assurance of the validity of
test results. The Agency also requests
comment on whether it should require
facilities to analyze spiked samples
prepared by EPA laboratories on a
periodic basis as a means of measuring
the qualifications of the facility's
laboratory, and what the costs of such a
requirement might be for the Agency
and the regulated community. The
Agency also seeks comment on other
analytical options aimed at ensuring the
accuracy and validity of exemption
determinations.
3. Notification Requirements
To qualify for a CBEC exemption, a
generator would need to submit to the
Regional Administrator a formal
notification of its claim that wastes or
media are nonhazardous as a result of
the concentration-based exemption
criteria. The notification would be
required to include an accompanying
certification by a responsible corporate
officer that the information contained in
the notification is complete and
accurate.
Generators continuing to generate or
otherwise manage waste or media for
which they continue to claim a CBEC
exemption would be required to re-
submit the notification and certification
(and retest the 'waste or media) annually
for the first two years an exemption is
claimed. Thereafter, re-submittal of the
notification and certification (and
retesting of the waste or media) would
be required onqe every three years and
when changes occur to the process that
could affect waste or media
composition.10 The Agency is proposing
this schedule of testing as a means to
ensure continued applicability of the
exemption through periodic "checks" on
the data. The Agency is taking comment
on whether this schedule is sufficient or
unnecessary to accomplish this goal,
and on what other schedules of testing
could provide assurance of continued
applicability of the exemption. The
Agency is asking for comment on
whether re-testing and re-submittal of
the notification and certification should
be required more or less frequently than
the schedule proposed today. The
Agency is also requesting comment on
whether re-testing and re-submittal of
the notification is necessary at all.
The absence of either a re-submittal
or appropriate re-testing would breach
the procedural conditions upon which
the exemption is based; without a re-
submittal and appropriate re-testing the
waste or media would be considered a
hazardous waste and subject to subtitle
C requirements. If a generator finds that
the exempted waste or media no longer
meets the exemption criteria, the
generator immediately must comply
with all applicable requirements for
generators of listed wastes, or for
owner/operators of treatment, storage,
10 The renotifioation and recertification
requirements would not apply to facilities
submitting notifications for wastes or media that are
generated or managed on a one-time basis.
or disposal facilities, under 40 CFR 262-
270 (including renotification of
hazardous waste management activity
using EPA form 8700-12).
The Agency is taking comment on
whether generators should be required
to submit their sampling and analysis
plans and analysis data to the Agency
prior to the effective date of their
exemptions. Pre-submission of the
sampling and analysis plan and the
analysis data could be coupled either
with a program that would require prior
Agency approval before implementation
of an exemption claim or with a more
self-implementing approach. Under a
more self-implementing approach, the
sampling and analysis plan would be
required to be sent to the Regional
Administrator, but a generator could
proceed to test according to the
sampling and analysis plan unless it
was otherwise notified by the Regional
Administrator after a set time (for
example, 60 days after Agency receipt of
the plan). After testing, the facility
would submit the data to the Regional
Administrator. The exemption would
become conditionally effective a set
time (e.g., 60 days) after Agency receipt
of the data, unless the facility was
otherwise notified by the Regional
Administrator. The Agency is taking
comment on whether this approach
would discourage generators from
taking advantage of the exemption, for
example due to the time periods
associated in obtaining the exemption.
The Agency also requests comment on
whether the time periods associated
with this approach would result in a
substantial amount of low risk waste
being disposed of in subtitle C facilities
that would otherwise be eligible for an
exemption.
Comments are also requested on
whether generators that have
successfully determined that their
wastes are nonhazardous under the
concentration-based exemption criteria
should be required to notify off-site
facilities that they are delivering
exempted wastes to those facilities.
Similar notices are required by the land
disposal restrictions program for the
delivery of certain hazardous wastes to
landfills (e.g., 40 CFR 268.7(a)(2)).
4. When CBEC Exemptions Become
Effective
The Agency is proposing that CBEC
exemptions become conditionally
effective for wastes and media upon
receipt of the notification and
certification by the Regional
Administrator (or the authorized State
official). The Agency is also proposing
that facilities submit their notifications
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21491
and certifications by certified mail with
return receipt to serve as evidence that
the Agency has received the package.
The Agency is proposing that any
misrepresentation, erroneous
demonstration, or incomplete adherence
to the above conditions would make the
waste ineligible for the exemption and
the waste would thus be subject to all
Subtitle C management requirements. If
the generator fails to support a CBEC
exemption claim with accurate
analytical data, complete sampling
plans, and signed certifications, and/or
any other procedural requirement, the
Agency will consider the demonstration
invalid and the waste or media to be a
listed hazardous waste.
The Agency is taking comment on
whether the Regional Administrator
should have the authority to require
additional analysis, such as quantitation
to non-Appendix VII constituent
exemption levels, or to evaluate factors
not considered in the exemption criteria,
such as aquatic impacts, additive
effects, or food chain considerations.
The Agency recognizes that broad
exemption criteria such as the CBEC
exemption criteria proposed today may
not, in isolated cases, address all critical
risks. Thus the Agency requests
comment on granting omnibus authority
to the Regional Administrator (or
authorized State official) to consider
other factors that may cause a CBEC
exemption waste to remain hazardous,
when necessary to protect human health
and the environment. The Agency
requests comment on what the potential
costs of implementing this authority may
be for both the regulated community and
the Agency.
The Agency is also requesting
comment on how, procedurally, the
Regional Administrator (or authorized
State official) would exercise this
omnibus authority. Under today's
proposal, CBEC exemption claims would
become effective upon notification and
certification of the claim, but data would
not be submitted to the Regional
Administrator for review unless
requested. One way the Regional
Administrator could be able to exercise
the omnibus authority would be to
establish a new variance procedure
similar to that at 40 CFR 260.40 and 41,
which set forth criteria and procedures
for Regional Administrators to impose
additional requirements on persons
accumulating or storing certain
recyclable materials that would
otherwise be exempt from regulation. It
should be noted that these procedures
place the burden on the Regional
Administrator to demonstrate the
necessity of exercising the variance. The
provisions at 40 CFR 260.40 and 41 set
forth, among other requirements,
procedures for providing facilities with
notice of the basis for the decision and
allow the facility 30 days to respond.
The procedures also provide an
opportunity for a hearing, and for appeal
of the decision to the Administrator. In
addition to the kind of procedural
requirements required at 40 CFR 260.41,
the Agency could require that Regional
Administrators must either consult with
or obtain prior approval from the
Administrator before sending a notice to
an exemption claimant. This provision,
however, could conflict with the ability
to appeal a decision to the
Administrator. A final decision to
impose additional requirements through
the omnibus authority would apply
prospectively only. The Agency requests
comment on this and any other
procedural mechanism for the exercise
of omnibus authority by the Regional
Administrator (or authorized State
official).
D. Implementation of the Contingent
Management Exemption
1. Sampling Requirements for
Contingent Management Exemptions
The Agency is proposing that the
sampling requirements for the
contingent management exemption be
exactly the same as those proposed for
the CBEC exemption. This is proposed
for the contingent management
exemption, regardless of whether it is
combined with the ECHO approach or
the CBEC approach. The Agency
requests comment on whether the
sampling requirements for the CBEC
exemption would still be appropriate if
combined with the ECHO approach.
2. Testing Requirements for Contingent
Management Exemptions
The Agency is proposing that the
testing requirements for the contingent
management exemption be exactly the
same as those proposed for the CBEC
exemption. This is proposed for the
contingent management exemption,
regardless of whether it is combined
with the ECHO approach or the CBEC
approach. The Agency requests
comment on whether the testing
requirements for the CBEC exemption
would still be appropriate if combined
with the ECHO approach.
3. Notification Requirements for
Contingent Management Exemptions
To qualify for a contingent
management exemption, under either
the ECHO or the CBEC approach, a
generator would need to submit to the
Regional Administrator a formal
notification of its claim that wastes or
media are npnhazardous as a result of
the specific type of management it will
receive. The notification must include an
accompanying certification that the
information contained in the notification
is complete and accurate. The Agency is
proposing that Agency receipt of the
notification and certification be one of
three conditions that must be met before
wastes media can be managed as non-
hazardous under the contingent
management exemption. The Agency is
also proposing that facilities submit
their notifications and certifications by
certified mail with return receipt to
serve as evidence that the Agency has
received the package.
Generators continuing to generate or
otherwise manage waste or media for
which they continue to claim a
contingent management exemption
would be required to re-submit the
notification and certification (and retest
the waste or media) with the same
frequency and under the same
conditions as is being proposed for
CBEC exemptions. In addition,
generators would have to submit new
notifications and certifications when the
identity of the disposal facility changes.
If a generator finds that the exempted
waste or media no longer meets the
constituent concentration levels
applicable for the contingent
management exemption, or that the
management standards at the receiving
facility can no longer be met, the
generator must comply with all
applicable requirements for generators
of listed wastes (including disposal of
waste at a subtitle C facility) and
owner/operators of treatment, storage,
and disposal facilities under 40 CFR
262-270 (including renotification of
hazardous waste management activity
using EPA form 8700-12).
As with CBEC exemptions, the
Agency is taking comment on whether
generators claiming contingent
management exemptions should be
required to submit their sampling and
analysis plans and analysis data to the
Agency prior to the effective date of the
exemption. The Agency is also asking
for comment on whether re-testing and
re-submittal of the notification and
certification should be required more or
less frequently than the schedule
proposed today. The Agency is also
requesting comment on whether re-
testing and re-submittal of the
notification is necessary at all.
4. When Contingent Management
Exemptions Become Effective
The Agency is proposing that the
conditional exemption for "contingent
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management" wastes and media would
not become effective until all three
conditions of the exemption have been
met: (1) notification and certification
(similar to what would be required for
first tier exemptions); (2) sampling and
testing (as required for first tier
exemptions): and (3) the waste or media
is managed in accordance with the
management standards established by
this rule.
Prior to actual disposal, the waste
would be managed as a hazardous
waste according to all applicable RCRA
provisions, including 40 CFR parts 262
(for generators) and 263 (for
transporters). These requirements
include compliance with the waste
manifest provisions of 40 CFR part 262,
subpart B, and the pre-transport
provisions of 40 CFR part 262, subpart C,
which contains, among other provisions,
the provisions governing hazardous
waste accumulation.
The Agency is proposing this
approach to simplify implementation
and to ensure safe management of the
waste prior to satisfaction of the
conditions for exemption. It is consistent
with an approach under which a waste
only ceases to be a hazardous waste if
its ultimate disposal conforms to the
requirements of this rule. It also
decreases the potential implementation
concerns that may arise if some states
adopt this rule as part of their
authorized programs and others do not.
For example, this approach would
reconcile transportation concerns that
could arise if waste conditionally
exempt in one state is transported
through a state that has not adopted the
contingent management exemption as
part of its authorized program.
The Agency is taking comment on
alternative approaches for when the
exemption could become conditionally
effective for contingent management
exemption wastes. One alternative
could be to have the conditional
exemption become effective, for wastes
or media being disposed of off-site, upon
placement of the waste in a
transportation vehicle that is designated
to transport the waste to a facility
eligible to handle contingent
management exemption wastes. The
Agency is taking comment on what pre-
transport and transport requirements
would be necessary to ensure that the
waste or media is managed safely prior
to disposal in the qualifying unit.
Under the above approach, contingent
management exemption wastes or
media being disposed of on-site would
still not become exempt until placed in a
disposal unit meeting the requirements
established under this rule. Under the
waste accumulation provisions of 40
CFR 262.34, a generator may store
hazardous waste on-site in tanks or
containers for 90 days without becoming
a Subtitle C storage facility.
Comment is requested on whether,
under the "placement in the vehicle"
alternative or any other alternative that
does not rely on the manifest system,
the generator should have a
responsibility to inform an off-site
receiving facility of the nature of the
waste, and whether the generator should
also be required to maintain
documentation demonstrating that the
receiving facility had been informed of
the nature of the waste.
Under an alternative that would not
rely on the current manifest system,
comment is requested on whether a
generator should have to demonstrate
that the contingent management
exemption waste was actually received
by the off-site destination facility and
how that receipt could be demonstrated.
EPA also seeks comment on
mechanisms to inform EPA (or the
authorized State) if a "contingent
management" exemption waste does not
actually arrive at its designated
receiving facility. One approach might
be to impose requirements similar to the
40 CFR 262.42 exception reporting
provisions. The Agency seeks comment
on this approach and other options for
accomplishing the same goal.
Another alternative for satisfying the
management requirement in the absence
of a manifest could be to allow, in lieu of
a tracking document, a demonstration
kept in the facility's records of a
contractual agreement with the
receiving facility which specifies type of
waste or media, volume, and frequency
of deliveries. This document could also
satisfy a requirement that a generator
inform a receiving facility of the nature
of the waste or media.
The Agency specifically requests
comment on whether transportation
companies transporting contingent
management wastes from generators to
disposal facilities would require
generators to provide documentation
and certification independently of
federal regulation.
The Agency is taking comment on
these and any other alternatives for
when a contingent management
exemption becomes effective. As with
CBEC exemptions, the Agency is also
taking comment on whether the
Regional Administrator should have the
authority to require additional analysis
or to evaluate factors not considered in
the exemption criteria, and what
procedures he should use to do so.
5. Duty of a Generator Claiming a
Contingent Management Exemption to
Manage Waste in Accordance With the
Management Standards of the
Exemption
Today's proposal requires that, in
order to claim a contingent management
exemption, a generator must manage the
waste or media for which the exemption
is claimed in accordance with the
standards established by this rule. To
satisfy this condition, the generator must
ensure that the waste or media is
actually disposed of at the facility
designated in the notification as the
receiving facility and in units satisfying
the management standards under this
rule. The burden of satisfying all
conditions for the exemption falls on the
generator as the person in the best
position to determine eligibility of a
waste or media for an exemption and to
ensure informed waste management
decisions. The generator is also in a
position to enter into contractual
arrangements with receiving facilities to
allocate responsibility for satisfaction of
the conditions among themselves. It
should be noted,' however, that facilities
disposing of contingent management
exemption wastes could become subtitle
C treatment, storage and disposal
facilities should they dispose of the
wastes in units that do not comply with
the management standards established
for the exemption.
A contingent management exemption
waste or media will be considered a
hazardous waste until all of the
conditions required for the exemption
have been met. The generator will have
the burden to demonstrate satisfaction
of all of the conditions, including
demonstrating that the waste or media
actually was disposed of in a unit or
units qualifying for management of
contingent management exemption
wastes.
Comment is requested on whether the
condition that generators must manage
second tier exemption waste or media in
the manner set forth in the proposed rule
is sufficient to put a generator on notice
of his obligations and potential
liabilities, and if not, what requirements
or conditions would be necessary to
accomplish that.
One alternative for how the rule could
provide greater notice on how
generators can comply with the
contingent management exemption
criteria would be to set out in the rule
certain documentation that, while not
necessarily required of generators,
presumptively would be sufficient
evidence of satisfaction of the
management condition. Of course, EPA
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could rebut this presumption regarding
actual disposal through evidence that
the generator's documentation is
deficient or inaccurate. Generators
might be able to develop rebuttable
evidence of off-site disposal by having a
returned manifest and documentation
that the generator inquired as to the
capability of a facility to dispose of
second-tier candidate waste in
accordance with the management
standards and by having written
documentation from the receiving
facility with sufficient specificity to
establish confirmation of its capacity to
manage the waste in accordance with
the exemption standards. For rebuttable
evidence of actual on-site disposal, such
documentation could consist of
certifications by independent, qualified,
registered professional engineers that
units at the facility meet the
management standard and operating
logs indicating the identity of the waste,
the date of generation, the volume
generated, the manner of storage after
generation, and date and volume
disposed of in the qualifying
management unit.
The Agency is taking comment on
whether establishing certain evidentiary
standards would provide useful
guidance to generators on how to satisfy
the management condition and provide
helpful incentive for generators to
maintain proper documentation of their
exemption claims. Comment is also on
whether the documentation discussed
above, or other documentation, would
be necessary or sufficient to accomplish
the purpose of demonstrating
compliance with the management
condition.
Comment is also requested on
whether any additional conditions or
requirements, substantive or procedural,
should be imposed on generators
claiming a contingent management
exemption to ensure that the contingent
management exemption waste or media
is actually managed in accordance with
the management standards. Comment is
further requested on whether, as
opposed to the proposed approach, the
regulation should provide that
generators claiming a contingent
management exemption are liable only
if they have falsely certified or made an
inaccurate waste determination or
inappropriate selection of offc-site
facilities for disposal.
E. Recordkeeping Requirements for
ECHO, CBEC Exemptions and
Contingent Management Exemptions
Under the ECHO proposal, generators
submitting notifications and
certifications that certain wastestreams
are no longer hazardous wastes under
subtitle C would be required to maintain
copies of the notification and
certification in their facility files for
three years after Agency receipt of the
notification and certification.
Generators claiming a CBEC or
contingent management exemption
would be required to maintain on-site,
for at least three years after Agency
receipt of the notification and
certification, all documentation required
under this rule including, but not limited
to, the sampling and analysis plan and
test data and the accompanying
notification and certification.
The Agency requests comment on
alternative record retention periods such
as 5 years, which corresponds to the
applicable statute of limitations period
at 28 U.S.C. 2462. Owners and operators
would be required to retain such •
documentation in their operating records
until closure of the facility. The
documentation must be available for
review by the Agency or an authorized
State at the time of site inspection. The
three-year generator record retention
period will be automatically extended
during the course of any unresolved
enforcement action regarding the
regulated activity or as requested by the
Regional Administrator.
F. Compliance Monitoring and
Enforcement for ECHO, CBEC
Exemptions, and Contingent
Management Exemptions
If the ECHO approach is chosen, the
Agency may choose to implement a
stepped-up compliance monitoring
program and enforcement program to
oversee the transition to the new
jurisdictional criteria. While ECHO
would continue to provide generators
with the flexibility currently embodied
in the RCRA regulations for hazardous
waste determinations, the Agency is
concerned that expanding the hazardous
waste characteristics could impose a
significant new burden on enforcement
resources. The Agency will be including
the impact that ECHO may have on
enforcement resources in its evaluation
of this option.
The Agency may also choose to step
up compliance monitoring and
enforcement of the CBEC and contingent
management exemptions, due to their
self-implementing nature. The
compliance monitoring and enforcement
program outlined in this notice focuses
on the CBEC and contingent
management exemptions because these
would be new requirements in the
subtitle C system. The program is
designed to ensure that the exemptions
are being applied in an appropriate
manner and that only those wastes and
media that are truly nonhazardous are
relieved from subtitle C management
requirements. Compliance monitoring
and enforcement of the ECHO program
would be carried out under existing
authorities and conditions with which
the regulated community should already
be familiar.
Generators must comply with all of
the previously described conditions of
the exemptions to qualify for the
exemptions. A generator must manage
the waste or media as required under
subtitle C during periods when any of
those conditions are not met. Generators
that fail to comply with the applicable
conditions for a CBEC or contingent
management exemption risk
enforcement action for violations of
subtitle C requirements, including
administrative, civil and criminal
penalties.
1. Compliance Monitoring
The Agency is proposing that
compliance monitoring of the ECHO
approach, the CBEC exemption, and the
contingent management exemption
occur through EPA or State oversight,
primarily through review of notifications
and inspections.
The primary means of oversight likely
will be inspections. RCRA section 3007
requires that the Agency and States
conduct inspections of TSDFs on a
biennial basis. In addition, as a matter
of policy, the Agency has increased the
number of inspections directed at
generators subject to land disposal
restrictions requirements. Inspectors
will review the notifications for
completeness and use those
notifications to assist in targeting
facilities for inspection.
In addition, EPA and States may do
confirmatory sampling and analysis to
determine whether a waste or media
meets the exemption levels. Inspections
of off-site laboratories may also be
performed.
2. Enforcement
The CBEC and contingent
management exemption criteria
proposed today would create two
possible exits from the subtitle C system
only so long as the conditions
established for one or the other exit are
met. Failure to comply with any of the
conditions for the exemptions would
mean that the wastes would not be
exempt from subtitle C, and the
generator could be subject to immediate
enforcement action for violation of
subtitle C requirements.
The Agency has the authority under
this regulation or RCRA section 3007 to
require submission of information on the
management of exempted wastes or
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21494 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
media in a situation where the Agency
suspects the generator has not
satisfactorily determined whether a
waste or contaminated materials meet
the appropriate exemption levels.
Alternatively, the Agency may require
improved analysis using an
administrative or civil action under
section 3008(a). The Agency has the
authority, under section 3007 of RCRA,
to require submission of information and
to conduct inspections of facilities
which EPA has reason to believe may be
managing a hazardous waste. Under this
authority, the Agency would be able to
inspect a non-subtitle C facility
receiving contingent management
exemption waste to determine whether
or not the management standards were
being met. Failure to manage the
contingent management exemption
waste in accordance with the required
management standards would vitiate
the exemption and the conditionally
exempt waste would be subject to full
subtitle C regulation. The receiving
facility, therefore, would become a
subtitle C treatment, storage, and/or
disposal facility requiring a permit.
In an enforcement action, compliance
with the terms and conditions of one of
the exemptions may be raised as an
affirmative defense, but the burden will
be on the defendant to establish
eligibility for the exemption and
compliance with the conditions
necessary to maintain the exemption.
See 50 FR 642 (Jan. 4,1985) for a
discussion of EPA's authority to place
such burdens on defendants.
Generators may not use either the
CBEC or the contingent management
exemptions as a means of avoiding
enforcement actions. For example, a
generator who is the subject of an
Agency enforcement action cannot
claim that the waste or media in
question is exempted from subtitle C
under a CBEC exemption unless a valid
exemption notification for that waste or
media has been previously submitted to
the Agency and the required
documentation to support the claim
exists at the facility and satisfies the
requirements of the regulations. Neither
the CBEC nor the contingent
management exemption can be used in a
retroactive fashion to avoid enforcement
actions. Similarly, these exemptions
cannot be used as a legal defense prior
to the effective date of promulgation of
this rule.
G. Exports of Wastes Eligible for CBEC
or Contingent Management Exemptions
Under today's proposal, contingent
management exemption wastes would
remain hazardous until actually
disposed of in accordance with the
management conditions. The waste
would thus remain subject to all
applicable requirements of 40 CFR parts
262 and 263, including export
requirements. Comment is requested on
whether, if the point at which contingent
management exemption wastes are no
longer hazardous is changed to some
point before actual management in
accordance with the conditions,
contingent management exemption
wastes should still remain subject to the
export requirements of 40 CFR part 262.
Comment is requested on whether these
export requirements are necessary to
ensure that the contingent management
exemption waste will be properly
managed in the receiving country.
Under today's proposal, wastes
qualifying for a CBEC exemption would
not be subject to the export
requirements of 40 CFR part 262.
Comment is requested on whether
exports requirements should be imposed
on CBEC exemption wastes in order to
ensure EPA's ability to comply with any
current or future international
obligations with regard to the export of
hazardous and solid waste (for example,
the Basel Convention on the Control of
Transboundary Movements of
Hazardous Wastes and Their Disposal).
H. Public Participation in CBEC or
Contingent Management Exemptions
To provide the public with access to
information, the Agency is proposing
that the first time a generator provides
the Agency with notification of an
exemption claim either for CBEC or
contingent management wastes, he will
be required to publish a notice of the
exemption claim in a major local
newspaper of general circulation. The
notice should include the name and
address of the facility, the description of
the waste (as contained in the
notification), the location at which
further information on the exemption
claim may be reviewed, and the period
of time the information will be available
at that location for review. The
generator will be required to provide for
public review copies of the notification
submitted to the Agency, the sampling
and analysis plan, and the testing data.
The information can be made available
to the public at a location or near the
facility, and must remain available for
sixty days after the date notification
appeared in the local newspaper. The
Agency requests comment on this
proposed approach.
The Agency is also requesting
comment on additional approaches to
public participation. The current RCRA
regulations do not require generators of
hazardous waste to notify their
community, rather these generators are
required to register with the Agency and
to receive a RCRA identification
number. Therefore, some parties have
suggested that the Agency should not
require any public participation.
Conversely, other parties have
suggested public participation
requirements including a formal
rulemaking in the Federal Register
similar to the requirements of the
delisting program. Although the Agency
is proposing a mid-point between these
two approaches, comment is requested
on alternatives.
The Agency is taking comment on
whether public notice should be
required for resubmittals of the
notification. The Agency is also taking
comment on whether public access to
the date should be required for the
duration of the claim, and not just for a
sixty day period or other limited time
period. In addition, the Agency asks for
comments on whether the public should
have the right during the public review
period (or during some specified time) to
request a hearing on the claim, and what
the implications of such a right be (such
as delay or uncertainty in the exercise of
an exemption, or substantial cost).
XII. Other Changes to 40 CFR Part 261
As a result of toxicity studies and
subsequent health-based level
development efforts associated with
today's proposal, the Agency is
proposing to add a number of
constituents to appendix VIII of part 261.
As noted below, many of these
constituents are currently listed in 40
CFR 261.33 as commercial chemical
products that typically exhibit a
characteristic. The Agency has
determined that these constituents are
toxic and/or carcinogenic and has
developed health-based levels for each
of them based on available information.
Therefore, the Agency believes that
these compounds should be added to the
list of hazardous constituents:
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Acenaphthene
Acetaldehyde
(U001)
Acetone (U002)
Acrylic acid (U008)
Benzo(k)fluoranthene
Benzyl alcohol
n-Bulyl alcohol
(U031)
Cumene (U055)
Dibromo-
chloromethane
Cyclohexanone
(U057)
Di-n-butyl phthalate
(U069)
Dimethylamine
(U092)
1,4-Dioxane (U108)
Ethyl acetate (U112)
Ethyl benzene
Ethyl ether (U117)
Furan (U124)
Isophorone
Methanol (U154)
Methyl isobutyl
ketone (U161J
Phenanthrene
Styrene
Vanadium (P119-
vanadic acid,
ammonium salt
and P120-
vanadium
pentoxide)
Xylene (U239)
Zinc
The Agency requests comments on these
proposed modifications to part 261 of
the CFR.
Certain of the constituents listed
above, when used as solvents, are
currently regulated by the F003 solvent
listing. F003 is currently listed solely for
ignitability. The Agency is considering
the need to publish a separate
rulemaking to modify the listing basis
for F003 (as well as the U-listed
commercial chemical products listed
above) to also include toxicity. The
Agency requests comment of the need
for this change.
XIII. Relationship to Other RCRA
Regulatory Programs
Today's proposed exemption levels,
when promulgated, will define where
RCRA subtitle C jurisdiction ceases and,
under ECHO, where it begins. As
discussed below, these levels also may
affect a number of RCRA regulatory
programs such as delisting (40 CFR
260.22), land disposal restrictions (40
CFR part 268), closure (40 CFR part 264
subpart G), and corrective action (40
CFR part 264 subparts F, and S, when
promulgated). The lower tier exemption
levels, discussed under the contingent
management approach, may represent a
base-line level of concern for listed
wastes, providing a unified basis for
RCRA programs, such as closure and
corrective action, which also regulate
and remediate dilute wastes and
contaminated media.
The CBEC approach proposed today
would be promulgated only in the
context of a listing exemption process
and represent the conservative levels
necessary for broad (i.e., waste-specific)
exemptions. However, permit writers
reviewing and writing closure and
corrective action plans may consider
waste- or site-specific factors [e.g., site
hydrogeology, immobility) and specific
statutory mandates to set clean-up
levels for specific constituents that
differ from the exemption levels. Higher
levels also may pose minimal risk to
human health and the environment.
A. Characteristics of a Hazardous
Waste
The CBEC approach will establish
exemption concentrations for 200
hazardous constituents in eligible listed
waste or media or material containing
those listed wastes. If the concentration
of each of these hazardous constituents
is below a baseline exemption level, the
waste would not be considered the
listed hazardous waste. However, the
generator must still determine whether
the waste exhibits any characteristics of
a hazardous waste as specified in 40
CFR 261.21 through 261.24.
The ECHO approach will modify the
existing toxicity characteristics (TC) by
broadening the number of constituents
included in the characteristic.
Ultimately, constituent specific DAFs
will be developed all TC constituents.
Eventually, this approach would largely
replace the current approach to
hazardous wastes identification based
on a combination of waste listings and
the mixture and derived-from rules.
B. Requirements for Treatment, Storage,
and Disposal Facilities and Interim
Status Facilities
In order to implement the changes
proposed today, changes may be needed
in TSD waste analysis plans. Such
changes will most likely include the
addition of the appropriate analysis
methods and changes that may be
required in the frequency of testing.
Permitted facilities, in unauthorired
States, who elect to employ the
exemption procedures and who
subsequently prepare changes to their
waste analysis plans should, following
promulgation of this rule, submit a Class
I permit modification to EPA.
C. Hazardous Waste Listings
The Agency evaluated the likelihood
that untreated hazardous wastes would
be able to meet the exemption criteria in
an "pure" state [e.g., untreated and
unmixed) and determined that it is
extremely unlikely that the constituent
concentrations in untreated hazardous
wastes would be below the BDAT
standards or today's proposed
exemption levels. Specifically, the
Agency's hazardous waste
charactization data indicate that the
concentrations of toxicants of concern
in untreated listed wastes are typically
present at levels many times higher than
the BDAT and health-based levels.
Thus, if the final rule is based on levels
of 100 times health-based numbers or
less and if eligibility is limited to certain
wastes known to be highly toxic through
other pathways, but highly immobile in
an aqueous leaching medium, such as
dioxins, then this rulemaking will not
imply significant change in how the
Agency does future waste listings.
However, if the levels are significantly
higher it could have a major effect on
future listings.
D. Delisting
Delisting is a rulemaking process
where the Agency reviews and
evaluates specific requests for
regulatory relief. Specifically, a
petitioner submits a demonstration
which supports the petitioner's claim
that a specific listed hazardous waste
does not meet the criteria for which it
was listed, and that the waste is not
hazardous for any other reason. If the
Agency agrees with the petitioner that
the petitioned waste is not hazardous,
EPA publishes a proposed exclusion in
the Federal Register and solicits public
comment prior to the publication of a
final exclusion. The Agency's evaluation
considers the mobility of the specific
constituents of concern for each
petitioned waste. The basic aspects of
determining the levels requiring no
regulation under subtitle C in delisting
and today's proposed exemptions are
the same. Both programs generally use
the same health-based data for
comparison at the hypothetical
compliance (exposure) point. Facilities
must conduct similar levels of waste
characterization for both programs
particularly with respect to the number
of samples required). The purpose of
today's proposed rule is to establish a
self-implementing, generic rule where
the facility, rather than EPA, determines
whether a listed waste must continue to
be managed as a subtitle C hazardous
waste.
Today's proposed exemption and
delisting criteria differ in the multiplier
used. In delisting, the Agency typically
predicts the concentration of specific
constituents at a compliance point (such
as a drinking water well) to determine if
the waste is likely to pose a threat to
human health and the environment. This
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prediction incorporates fate and
transport modeling which accounts for
some degree of dilution and attenuation
due to toxicant migration to the
exposure point. The CBEC contingent
management proposal in today's notice
would account for dilution or
attenuation ten to one hundred times
greater than the health-based numbers;
the multiplier of ten is less than the most
conservative value used in delisting
evaluations and the multiplier of one
hundred is greater than any delistings
granted to date. However, in delisting
evaluations, in addition to predicting
hypothetical compliance-point
concentrations, the Agency also
evaluates existing ground-water
monitoring data, where applicable.
These data allow the Agency to
evaluate the actual impact of the waste
on the environment as currently
managed. (Monitoring data are
evaluated only for wastes that are
managed in on-site or dedicated off-site
land disposal units.]
Delisting and today's proposed
exemptions for certain wastes will differ
in analytical requirements. Delisting
demonstrations require that the
petitioner analyze the waste for those
hazardous constituents that are
reasonably expected to be present in the
waste, with Agency oversight to ensure
that the reduced list of analytes for
delisting is truly representative of the
petitioned waste. Today's proposed
exemption demonstrations require
analysis for all of the exemption
constituents for the initial testing
because there is no oversight provided
by the Agency to ensure that the proper
subset of constituents is examined. The
Agency is soliciting comments on means
of reducing testing requirements once
the initial demonstration is made
successfully. Thus, the delisting
demonstration provides a means to
narrow the necessary initial sampling to
fewer contaminants than is proposed for
today's exemption.
As mentioned above, the delisting
exemption process is a rule-making
activity that requires that the Agency
propose each decision, solicit and
consider public comments on each
proposal, and publish all final decisions.
Final exclusions are then listed in 40
CFR part 261, appendix IX.
Delisting petitions for wastes that
contain toxic constituents which exceed
the exemption levels will continue to be
accepted and reviewed by the Agency.
In addition, the Agency will accept
petitions for wastes which are ineligible
for today's proposed exemption because
of analytical constraints. With the
exception of a potentially reduced
petition review burden, the Agency does
not anticipate any changes in the
current review of delisting petitions as a
result of the implementation of today's
proposed exemption.
E. Closure
Under today's proposed rule, a unit
managing wastes that are shown to be
below exemption levels would continue
to be a regulated hazardous waste
management unit subject to the
requirements of parts 264 and 265,
including the closure requirements until
it completed clean closure or unless the
waste and unit were delisted. A unit
receiving only waste that is shown to be
below exemption levels would no longer
be receiving hazardous waste upon the
effective date of the certification. Such a
unit would thus normally become
subject to subtitle C closure
requirements; however, EPA believes
that "closure" requirements could allow
such units to continue to operate as
nonhazardous units.
In cases where a unit receipt of
hazardous waste due to certified
compliance with the exemption, the
closure requirements of 40 CFR
264.113(b] and 265.113[b], which require
an owner or operator to complete
closure of a hazardous waste
management unit within 180 days after
receiving the final volume of hazardous
waste, would require closure of the unit.
Thus, the owner or operator would have
to close the unit in order to continue
operation, including receipt of the
exempt waste. The Agency believes
that, in many cases, hazardous waste
management units that continue to
receive only exempt wastes would be
able to satisfy the closure requirements
of parts 264 and 265 while operating the
unit and without removing the waste
from the unit. However, in the case of
surface impoundments, clean closure of
the unit would be required. Where this
is not possible, filing of the certification
would trigger the requirement to close
with waste in place, thus require the
unit to cease operation or to follow the
delay-of-closure alternative of § 264.113
or 265.113.
In the case of tanks, 40 CFR 264.197
and 265.197 require the owner or
operator to remove or decontaminate all
waste residues, contaminated
containment system components,
contaminated soils, and structures and
equipment in order to achieve clean
closure of the tank unit. Under today's
proposal, an owner or operator might
demonstrate removal of hazardous
waste residues from the tank by
demonstrating that all waste in the tank
is below exemption levels, without
removing the waste from the tank. In
cases where the owner or operator
could not demonstrate that all wastes in
the tank were below exemption levels,
he or she would have to remove the
hazardous waste in order to achieve
closure of the unit. In some cases, the
facility owner or operator may be able
to demonstrate that a tank no longer
managed hazardous waste (because the
waste was below exemption levels), but
did not achieve clean closure because of
soil and perhaps groundwater
contamination. In this case, the facility
owner or operator would have to
remove the contamination to clean
closure levels, or close the area as a
landfill. During this period, the tank
could be used to manage nonhazardous
wastes, as long as this activity did not
interfere with cleanup or control of the
contaminated areas.
In the case of surface impoundments,
if the owner or operator can
demonstrate that the wastes in the
impoundment are below exemption
levels, then the owner or operator may
be able to achieve clean closure of the
unit without removing the wastes from
the impoundment, providing that the
requirements of 40 CFR 264.228 or
265.228 and the general closure
requirements of part 264 or 265 Subpart
G are met. In this case, use of the unit
could continue uninterrupted. In many
cases, however, it is likely that the
owner or operator will be unable to
make that demonstration. In these cases,
the facility owners would have two
options if they wished to continue using
their units: (1) they could cease
receiving waste and close the unit by
removal in accordance with part 264 or
265, or (2) they could seek to delay
closure under the provisions of 40 CFR
264.113 (d] and (e) or 40 CFR 265 (d) and
(e). In cases where clean closure of the
unit cannot be achieved, and the owner
or operator cannot satisfy the
requirements of 40 CFR 264.113 (d) and
(e) and 265.113 [d) and (e) to delay
closure, filing the CBEC certification
would trigger the closure requirements
and the owner or operator would have
to close the unit as a landfill and stop
operation of the unit.
F. Subtitle C Corrective Action
Today's proposed rule, when
promulgated, may have an impact on the
implementation! of RCRA subtitle C
Corrective Actions for regulated units
under 40 CFR part 264 subpart F and for
solid waste management units under
§ 3004(u). As proposed, CBEC tier 1
levels are the lowest levels of regulatory
concern and thus will become
presumptive cleanup levels for
corrective action and clean closure. The
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Agency has used identical health-based
levels to develop the exemption levels
and the "action levels" proposed on July
27,1990 (see 55 FR 30798) as part of the
RCRA corrective action program. Actual
clean-up levels, however, may differ
from both the action levels and
exemption levels due to the
consideration of waste- and site-specific
factors, and other data gathered during
the investigatory and evaluative phases
of the corrective action process (e. g.,
the RCRA Facility Investigation and the
Corrective Measures Study).
G. Land Disposal Restriction Program
An important factor in determining
the impact of today's proposal is the
relationship between the CBEC and
ECHO levels proposed today and the
RCRA land disposal restriction
standards.
Section 3004(m) of RCRA requires that
hazardous wastes be treated to a level
at which "short-term and long-term
threats to human health or the
environment are minimized" prior to
land disposal. In the "Third Third" land
disposal restriction rulemaking, 55 FR
22520 (June 1,1990), the Agency
explained in detail its interpretation that
the statute leaves to EPA the
determination of whether the LDR
treatment standards attach at the point
of waste generation or at the point of
disposal. Id at 22651-22563.
In the Third rule, EPA explained why
the Agency believed that the point of
generation approach would generally
better meet the goals and purposes of
the LDR program than a point of
disposal approach. Id at 22652.
However, EPA also explained that the
point of disposal approach is
appropriate in certain circumstances,
such as when applying LDRs at the point
of generation would seriously disrupt
the implementation of other
environmental regulatory programs. Id
at 22653. One of the policy rationales for
exercising its discretion under the
statute to generally require full BOAT
treatment for wastes that are hazardous
at the point of generation was the
inadequacy of existing hazardous waste
identification programs; specifically
wastes identified as hazardous for a
particular characteristic might still be
toxic, due to the presence of non-TC
constituents, even when that ,
characteristic is removed. See id. at
22652. Such waste thus would not meet
the Section 3004-(m) "minimize threat"
land disposal standard even after it is
no longer "hazardous".
The decision concerning which LDR
approach to utilize with respect to the
low hazard waste subject to today's
proposal may significantly affect the
practical impact of the options proposed
today. For example, a waste which is
hazardous when generated but treated
to CBEC or ECHO levels may still, under
a point of generation approach, require
treatment to any more stringent LDR
level prior to land disposal. Thus, many
CBEC or ECHO wastes may require LDR
treatment prior to disposal in a Subtitle
D unit.
However, to the extent that the CBEC
or ECHO proposal here provide a more
comprehensive way of determining the
hazards presented by hazardous wastes,
requiring treatment beyond the levels at
which a waste is hazardous may no
longer be necessary to "minimize
threats." For that reason, EPA is taking
comment on some aspects of adopting
the point of disposal as the point at
which LDR standards attach as one
alternative way of addressing the
interaction between the CBEC and
ECHO approaches proposed today and
the RCRA land disposal restrictions. For
example, the Agency is considering this
alternative in addressing the problems
raised by the cleanup of contaminated
media (see further discussion in Section
HI. E.) In addition, under the ECHO
approach, EPA is requesting comment
on this alternative for addressing the
issues raised by the land disposal
restrictions' relationship to
characteristic wastes. EPA requests
comment on this issue.
Section 3004(m) of RCRA provides
that treatment standards for hazardous
waste prior to land disposal cannot be
below levels at which "short-term and
long-term threats to human health and
the environment are minimized." See
also HWTC v. EPA (HWTC III), 886 F.2d
355, 362 (D.C. Cir. 1989), cert, cfe/2/edlll
S.Ct. 139 (1990). To date, the Agency has
been unable to define risk-based levels
which meet the Section 3004(m)
standard. See 55 Fed. Reg. 6640
(February 26,1990. EPA expects to
address the issue of the relationship
between the BOAT standards and the
Section 3004(m) "minimize threat"
standard in more detail in the upcoming
LDR "phase two" proposal, to be
published this summer. However, EPA
also recognizes that the levels proposed
in this rule may also be related to the
"minimize threat" standard. If the CBEC
or ECHO levels are also the "minimize
threat" standard, then wastes that are
treated to levels below the exemption
level would also have met their
obligation under the LDR program and
could accordingly be land disposed
without treatment. The Agency asks for
comment on whether the levels
proposed in this rule should be the "
minimize threat" level that bounds the
LDR treatment standards.
H. RCRA Emission Standards
Today's proposed rule, when
promulgated, may have an impact on the
effectiveness of two other RCRA rules
developed by the Agency under HSWA
authority. Section 3004(n) of HSWA
directed the Agency to promulgate
regulations controlling air emissions
from hazardous waste TSDFs "as
necessary to protect human health and
the environment." Subsequent Agency
analysis demonstrated that air
emissions from TSDFs do pose
substantial risk in the absence of
controls, and that controls were
therefore required under the HSWA
mandate. The Agency is fulfilling this
mandate in phases; a rule was
promulgated in 1990 covering certain
sources at TSDFs (55 FR 25454, June 21,
1990), and the remaining sources were
addressed in a second rule proposed in
1991 (56 FR 33490, July 22, 1991).
Together, these rules would reduce the
risk from air emissions from the vast
majority of these facilities to well within
the risk range of other RCRA standards.
After more thorough analysis, the
Agency may issue a third phase of these
regulations to address any residual risk.
The emission reductions achieved by
these rules would also significantly
reduce the formation of ozone, which
has adverse effects on human health
and the environment.
Today's rule could affect the TSDF air
emissions regulations in the following
way. The TSDF rules were designed to
prevent volatilization of hazardous
organics as they move through storage
and treatment, keeping the organics in
the waste until it ultimately undergoes
BOAT treatment, which is assumed to
remove any significant risk from
exposure via the air medium. If, under
any of the exemptions proposed today,
waste leaves the system without BOAT
treatment, that waste must be assumed
to pose a potential air risk until further
analysis shows otherwise. If significant
risk exists, it may be necessary to
develop air-based exemption criteria to
supplement those suggested in today's
proposal. Such criteria could entail
additional waste testing. The Agency
specifically requests comment on this
issue, and on ways to address it.
XIV. CERCLA Program
All listed hazardous wastes are listed
as hazardous substances under section
101(14)(C) of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended. Under
section 103(a) of CERCLA, notification
must be made to the Federal government
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of a release of any CERCLA hazardous
substance in an amount equal to or
greater than the reportable quantity
(RQ) assigned to that substance within a
24 hour period. (See 40 CFR part 302 for
a list of CERCLA hazardous substances
and their RQs.) Once a specific waste
from a particular facility has been
shown to meet the exemption criterion
in this rule, the waste is no longer a
listed hazardous waste and therefore no
longer a hazardous substance by virtue
of its hazardous waste listing, and thus
notification under CERCLA of a release
of the exempted waste may not be
necessary. In this situation, CERCLA
notification of releases of the waste
would only be required if the waste or
any of the constituents of the waste are
CERCLA hazardous substances by
virtue of section 101(14)(A), (B), (D), (E),
or (F) of CERCLA or 40 CFR 302.4(b),
and are released in amounts greater
than or equal to their RQs. The Agency
requests comment on this approach.
The Agency believes that exemption
levels also may be applicable to the
CERCLA program where it has been
documented that RCRA listed hazardous
waste has been disposed of at the site.
Section 121(d) of CERCLA, as amended
by the Superfund Amendments and
Reauthorization Act (SARA) of 1986,
requires that CERCLA actions comply
with, or justify a waver of, applicable or
relevant and appropriate requirements
(ARARs) under federal and state
environmental laws. When RCRA
requirements are identified as ARARs at
CERCLA sites because of the presence
of RCRA listed hazardous wastes at the
site, the Agency believes that the CBEC/
ECHO exemption levels will become the
preliminary remediation goals for listed
wastes, depending on site-specific
factors and other criteria specific to the
CERCLA program. In addition, all of the
options would determine the legal
applicability of federal RCRA
managements requirements to
remediation wastes generated at
Superfund sites.
At sites undergoing CERCLA remedial
activities where no listed hazardous
wastes have been identified, the Agency
will generally use a site-specific risk
assessment for all chemicals for which
there are no ARARs. In some cases,
these health-based clean-up levels will
be higher than the exemption levels,
based on a reasonably conservative
exposure scenario which does not
include leachate ingestion. In other
cases, the CERCLA health-based clean-
up levels will be lower than exemption
levels when additive effects are
considered or when specialized
analytical techniques are required in
order to lower quantitation limits. The
CERCLA health-based clean-up levels
may also be different than exemption
levels based on the consideration of
site-specific factors.
XV. 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. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under sections
3008, 7003, and 3013 of RCRA, although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendments (HSWA) of 1984, a
State with final authorization
administered its hazardous waste
program entirely 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
facility in the State 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 section 3006(g) of
RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in non-authorized States. EPA is
directed to implement HSWA
requirements and prohibitions in an
authorized State, including the issuance
of permits, until the State is granted
authorization to do so. While States
must still adopt HSWA-related
provisions as State law to retain final
authorization, HSWA applies in
authorized States in the interim.
B. Effect of State Authorizations
Today's proposal, if finalized, will
promulgate regulations that are not
effective under HSWA in authorized
States. Thus, the exemption will be
applicable only in those States that do
not have final authorization.
Authorized States are only required to
modify their programs when EPA
promulgates Federal regulations that are
more stringent or broader in scope than
the authorized State regulations. For
those changes that are less stringent or
reduce the scope of the Federal program,
States are not required to modify their
programs. This is a result of section 3009
of RCRA, which allows States to impose
more stringent regulations than the
Federal program. Today's proposal for
CBEC exemptions is considered to be
less stringent than, or a reduction in the
scope of, the existing Federal
regulations because that portion of
today's proposal would exempt certain
activities now within the purview of
RCRA subtitle C. Therefore, authorized
States are not required to modify their
programs to adopt regulations consistent
with and equivalent to the CBEC
rulemaking. However, to the extent that
the ECHO option brings new wastes
into hazardous waste regulation; those
aspects of this rulemaking would, if
finalized, need to be adopted by
authorized States.
Even though States are not required to
adopt most options in today's HWIR
proposal, EPA strongly encourages
States to do so as quickly as possible.
As already explained in this preamble,
today's proposal will reduce over-
regulation of dilute wastes and
contaminated media, will facilitate
evaluating remediation alternatives for
CERCLA clean-ups and the RCRA
Corrective Action Program, will provide
an alternative to !delisting, and will
speed research and development for
treatment alternatives to land disposal
and waste minimization, recycling, and
reuse. States are therefore urged to
consider the adoption of all aspects of
today's HWIR proposal (when
promulgated); EPA will expedite review
of authorized State program revision
applications.
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
§ 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.
XVI. Economic Assessment
A. Background
The Agency has conducted a
preliminary economic assessment (EA)
in conjunction with the development of
today's proposed rule. This analysis
quantifies cost savings potentially
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21499
associated with the four primary options
presented under both prospective of this
proposal. These are: the health based
approach, the technology approach, the
contingent management approach, and
the Expanded Characteristic Option
(ECHO).
The analysis conducted for this Notice
of Proposed Rulemaking is to be
considered preliminary. A
comprehensive final Regulatory Impact
Analysis (R1A) will be developed in
conjunction with the Final Rule. This
RIA will be consistent with procedures
described in appendix V of the
Regulatory Program of the United States
Government.
Results from the Agency's preliminary
analysis indicate that the proposed rule
would not cause major increases in
prices or costs or have other significant
adverse effects. EPA expects that the
proposed regulations, as part of the
Agency's RCRA reform initiative, could
reduce costs to the economy in excess of
$100 million per year, particularly
hazardous waste storage, treatment,
and/or disposal costs.
The complete Economic Assessment
document, Preliminary Economic
Assessment of the Hazardous Waste
Identification Rule, is available in the
docket established for this proposed
rule. The following is a summary of the
methodology used in performing the EA
and the results of the analysis.
B. Potentially Affected Wastes
The proposed rulemaking would affect
two broad categories of wastes, listed
hazardous wastes and media
contaminated with listed hazardous
waste. Listed hazardous wastes are
deemed hazardous by virtue of being
listed by the Agency. Contaminated
media commonly refers to all soil, debris
and other materials which have been
contaminated with a listed waste.
Two primary categories of listed
hazardous wastes will be affected by
this rule, wastes as generated and
residuals. Wastes as generated refer to
the composition of wastes as they are
originally released, prior to any
treatment. Residuals refer to any residue
which may remain after BDAT
treatments as identified under the LDR
program. In the category of
contaminated media, this analysis focus
only on contaminated soils.
The EA estimates the proposed rule's
cost savings separately for waste and
media because different data sources
and slightly different regulatory options
apply to wastes and media.
1. Process Waste
The population of hazardous wastes
potentially affected by today's proposal
was estimated using data from EPA's
1986 National Survey of Hazardous
Waste Generators. This Survey was
used because it was the only readily
available comprehensive data source
found to link volume estimates to
constituent concentrations, by waste
stream. The Agency recognizes the
limitations and problems potentially
associated with the use of a single data
source that is more than five years old.
The Agency plans to compare, adjust
and update these data combining
information supplied in comments and
various alternative data sources,
throughout development of the final rule
making process.
The 1986 Survey indicates that
approximately 718 million tons of RCRA
hazardous waste were generated in
1986. As much as 60 percent of this total
may be managed exclusively under the
Clean Water Act. Of the total,
approximately 344 million tons are
ineligible for potential exemption
.because they are characteristic wastes
and, if treated such that the
characteristic is removed, would be
unregulated, thus unaffected. Another
224 million tons are hazardous wastes
that are both characteristic and listed.
They may be eligible, if the
characteristic is removed. The remaining
150 million tons are listed wastes, which
are also eligible under this proposal. Six
of the 150 million tons were excluded
from analysis, however, because they
are either discharged without treatment
to publicly owned treatment works
(POTWs) or waterways, and therefore
unlikely to generate savings, or are
contaminated soil, which is addressed
separately. Of the remaining 144 million
tons of listed wastes, 120 million tons
are wastewaters and 24 million tons are
non-wastewaters.
The Agency determined which of the
eligible hazardous wastes would be
exempt under alternative regulatory
options by using three types of data
inputs. (1) Waste concentration data
were identified from the 1986 Generator
Survey for individual listed waste
streams. These streams constituted 84
percent of the listed wastewater
volumes and about 13 percent of listed
non-wastewater volumes. The results
for these waste streams were
extrapolated to estimate the impacts on
listed waste streams for which
constituent concentration data were not
available and on wastes that are
initially both listed and characteristic
wastes: (2) This analysis used the
health-based levels (e.g., MCLs, RfDs,
and RSDs), and criteria discussed in
section VI of the Preamble to determine
the volumes of waste affected under the
corresponding regulatory options. (3)
Information from the land disposal
restrictions program was used to
determine proposal standards under
options based on BDATs, to identify the
treatment methods that would be
required for wastes remaining subject to
subtitle C regulation, and to determine
the contaminant concentrations
achievable by available treatment
technologies.
2. Contaminated Media
The universe of contaminated media
potentially affected by this proposed
rule includes contaminated soil and
contaminated ground water. This
analysis focuses on contaminated soil
only. Contaminated ground water is not
analyzed for two reasons. First, data
characterizing the volume of
contaminated ground water are
incomplete and contain a great deal of
uncertainty. Second, the cost savings for
ground water are likely to be relatively
small. Contaminated ground water is
often managed under Clean Water Act
provisions by being discharged to
POTWs or under National Pollutant
Discharge Elimination System permits
and therefore may not be significantly
affected by this proposal.
Contaminated media subject to
subtitle C are normally generated by
remediation activities. For this analysis,
the Agency focuses on five sources of
contaminated media: CERCLA
(Superfund] actions, RCRA corrective
actions, RCRA closures, state Superfund
cleanups, and voluntary cleanups.
For each of these sources of
contaminated media, upper- and lower-
bound estimates are developed for (1)
the number of sites with contaminated
soil; (2) the quantity of contaminated
soil to be excavated at these sites; and
(3] the pace of excavation. A range of
estimates is used because of the
substantial uncertainty associated with
contaminated soil generation rates.
Based on this approach, it is determined
that approximately 3 to 11 million tons
of contaminated soil will be generated
per year.
Contaminated soil may be affected by
this proposal if, (1) it is contaminated
with listed wastes and (2) constituents
in the soil are below applicable
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21500 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
concentration levels, as identified in the
various options. The proportion of
excavated soil that contains only listed
wastes was estimated using data
submitted to EPA by three hazardous
waste landfills in 1990 and 1991. These
data suggest that from 28 to 61 percent
of contaminated soil subject to
regulation as hazardous waste, contains
listed waste. This estimate, however, is
highly uncertain because of the
difficulties of identifying listed waste in
soil. The portion of contaminated soil
with constituents below proposed levels
(i.e., exempt from subtitle C) was
generally estimated by using data from
Superfund Records of Decision from
1988 and 1989 on the constituent
concentration and volume of soil at
CERCLA sites.
C. Estimated Cost Savings
By exempting wastes from regulation,
the proposed rule would generate cost
savings from the point of hazardous
waste generation to disposal. Volumes
exempted and cost savings are projected
for wastes as generated, mixed and
derived-from wastes and treatment
residuals. This analysis focuses on the
most significant cost savings: treatment
and disposal cost savings for wastes,
and treatment cost savings for
contaminated media (soils). Thus, the
estimated cost savings depend on the
volume of waste and media exempted,
the treatment or disposal avoided, and
the unit savings for different treatment
and disposal methods.
Hazardous wastes may incur
treatment and/or disposal cost savings.
In general, the estimated savings are
equal to the cost of treatment and
disposal of residues under subtitle C
minus the cost of disposing of the
exempted waste in a subtitle D landfill.
Second, if a hazardous waste meets
BDAT and proposed concentration
standards (e.g., BDAT treatment
residues), the only savings will be lower
disposal costs. These savings will equal
the difference between subtitle C and D
disposal costs.
The primary costs savings for
contaminated soils will be avoided
treatment costs. Disposal savings do not
arise because contaminated media
exiting subtitle C is assumed not to be
subject to subtitle D because media are
not solid wastes.
For each regulatory approach, the
following discussion presents the
Agency's estimates of the volume of
wastes as generated, residuals, and
contaminated media exempted from
subtitle C and the associated costs
savings.
1. Health-Based Approach
This option would establish
exemption criteria by combining health-
based levels and multipliers (DAFs). It
combines constituent concentration
levels that minimize threats to human
health (based on conservative estimates
of human responses to contaminants)
with multipliers reflecting reasonable
worst-case management scenarios for
exempted wastes. Under this option, the
Agency would use health-based levels
equivalent to proposed or final MCLs
established under the Safe Drinking
Water Act, RfDs for non-carcinogens,
and RSDs for carcinogens. Additionally,
exemption criteria for contaminated
media could be based on direct
exposure using soil ingestion and
inhalation scenarios for residential
settings. For a complete discussion of
health based levels used in this section
see chapter VI of the proposed rule
preamble.
Volumes of processed waste and
contaminated media affected by this
rule each year, and the associated cost
savings, are shown in Exhibit 1. All
results are presented as ranges to reflect
the substantial uncertainty in these
estimates, including the concentration of
hazardous constituents in potentially
eligible process wastes and the volumes
of contaminated soil generated annually.
Furthermore, the wide range of
estimates also reflects the differences
among the health-based sub-options
[Le., multiplier of 1, multiplier of 10, or a
multiplier of 100 and, for contaminated
media, the direct exposure).
The health-based option would
exempt from just over 6, to nearly 84
million tons of wastes and contaminated
media from subtitle C regulation
annually. The largest portion of the
volume exempted is residuals from
BDAT treatment of process wastes (6 to
50 million tons). Total cost savings for
the health-based option range from
approximately $62 to $1,820 million per
year. The largest savings result from
exemption of contaminated media,
because of the high treatment costs.
Different regulatory options and sub-
options for process wastes [i.e., wastes
as generated and residuals) and
contaminated media may be
advantageous. Thus, in the EA, the
Agency presents separate estimates for
each sub-option for process wastes and
contaminated media. For process
wastes, the greatest savings could be
achieved with a sub-option multiplier of
100, from $296 to $364 million per year.
For contaminated media, the multiplier
of 100 sub-option produces cost savings
of $400 to nearly $1,500 million annually.
Cost savings for other sub-options and
combinations are presented in the EA.
EXHIBIT 1 .—HEALTH-BASED APPROACH
PROCESS WASTE & CONTAMINATED
MEDIA
Wastes eligible
before
treatment
Residuals from
other wastes
Contaminated
media
Totals
Affected
volumes
(million
tons/year)
< 1 to 32
6 to 50
<1 to 2
6 to 84
Cost savings
(million $/yr)
46 to 284
4 to 80
12 to 1,456
62 to 1 ,820
2.Expanded Characteristic Option
(ECHO)
The expanded characteristic option
(ECHO), is evaluated in this section.
This scenario estimates the potential
volumes exempted and corresponding
cost savings associated with expanding
the current list of characteristics to
include all currently listed constituents.
As is the case with wastes now defined
as hazardous by a characteristic, wastes
would be exempt from subtitle C once
treated to remove the characteristic.
Those wastes for which the listing is not
replaced by the expanded
characteristics would still be listed and
subject to the mixture and derived from
rules. This option may also include
landfill design specifications and
associated meteorological and
geological conditions.
The impact of this option on process
wastes was developed by using the
results of the health-based option with a
multiplier of 100. The Agency, however,
recognizes that under this option,
constituent specific multipliers may be
higher or lower than 100 for specific
constituents. This option may
significantly increase the total number
of constituents managed under subtitle
C. Ultimately, it may also significantly
decrease the volume of waste regulated
under subtitle C, depending on the levels
selected for DAF multipliers.
Based on the above assumptions, the
total volume of process waste and
residuals projected to be exempt under
this option is estimated to range from
about 68 to 84 million tons. The total
cost savings is likely to be higher than
the $296 to $364 million under the
multiplier of 100 option. This may result
from less rigorous testing requirements
(based on current TC testing
requirements).
The total volumes of contaminated
media affected by this approach range
from about one-half to nearly 2 million
tons per year, for an annual cost savings
of $397 to $1,456 million. These large
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21501
ranges reflect major uncertainties in the
amount of contaminated soil generated
annually and the actual extent to which
the toxicity characteristic is expanded
(i.e., the portion of contaminated soil
below proposed levels).
The above savings may be overstated
since some non-hazardous waste may
be brought into subtitle C when the
characteristics are expanded. Depending
on the ultimate DAFs set for specific
constituents, these savings are also
potentially understated.
EXHIBIT 2.—CHARACTERISTIC MANAGE-
MENT APPROACH PROCESS WASTE &
CONTAMINATED MEDIA
Wastes eligible
before
treatment
Residuals from
other wastes
Contaminated
media
Totals..
Affected
volumes
(million
tons/year)
18 to 32
50
0.4 to 2
68.4 to 84
Cost savings
(million $/yr)
216 to 284
80
397 to 1,456
693 to 1,820
3. Technology-Based Approach
Under this option, exemption levels
would be based on the performance of
the best available waste treatment. This
option mirrors the approach taken in the
subtitle C Land Disposal Restrictions
program, which establishes standards
based on the best demonstrated
available technology (BOAT). Although
BOAT levels are generally below health-
based levels, they may in a few cases be
higher than acceptable health-based
levels. For this reason, the technology-
based option may be combined with
health-based criteria to ensure that if
wastes continue to pose hazards at the
BDAT levels they would not be
exempted.
Volumes of wastes as generated,
residues, and contaminated media
exempted by the technology-based
alternative are presented in Exhibit 3,
along with cost savings on treatment
and disposal. The total volume of waste
exempted may range from nearly 55 to
65 million tons per year, with a total cost
savings ranging from approximately
$203 to $260 million per year.
The Agency assumes that no
contaminated media will be exempt
from subtitle C regulation under the
technology-based approach. This is
because we assume in the baseline of
this analysis that contaminated soils
(the only media studied in this EA) will
be treated to BDAT levels when they are
excavated, pursuant to the LDR
program. This analysis assumes that all
contaminated soils are excavated and
are then treated to BDAT levels and
subsequently exit subtitle C. However, a
portion of soils may not exit subtitle C
either because they are not treated or
because treatment does not reach BDAT
levels. The cost savings that could result
from exempting some of these soils has
not been quantified.
Under the technology-based approach
the greatest share of cost savings results
from exemption of waste residuals
(Exhibit 3). This is estimated at
approximately 52 million tons per year,
with a corresponding cost savings of
approximately $140 million annually.
EXHIBIT 3.—TECHNOLOGY BASED AP-
PROACH PROCESS WASTE & CONTAMI-
NATED MEDIA
Wastes eligible
before
treatment
Residuals from
other wastes
Contaminated
media
Affected
volumes
(million
tons/year)
3 to 13
52
0
55 to 65
Cost savings
(million $/yr)
63 to 1 1 9
140
0
203 to 259
4. Contingent Management Approach
The contingent management approach
employs different management
requirements depending on the waste
constituent concentration. Most
contaminated wastes and media would
be regulated under existing subtitle C
requirements. Wastes with low levels of
contamination would be regulated under
RCRA subtitle D, while media with low
levels of contamination would be
exempt from subtitle D as well as
subtitle C requirements. Wastes and
media with intermediate levels of
contamination would receive
management appropriate to those levels.
Exhibit 4 shows the volumes of
process wastes and contaminated media
exempted under the contingent
management approach and the resulting
cost savings. Uncertainty in the total
volumes of contaminated media are
reflected in upper and lower values for
these estimates. The upper and lower
estimates also reflect the concentration
of hazardous constituents in process
wastes and the sub-options for
managing soils in the intermediate range
of contamination created by the
contingent management approach.
Total volumes of process wastes and
contaminated media affected range from
about 9 to 60 million tons per year. Of
this, the greatest volume is for process
waste, accounting for approximately 59
million tons per year eligible under the
contingent range. The greatest
contributor to total cost savings is
contaminated media at a multiplier of
less than 10, .which would produce
savings ranging from $358 to $1,314
million per year.
Under the contingent management
approach, process wastes and
contaminated media affected by the rule
would either be entirely exempt from
subtitle C regulation or would be subject
to less stringent management
requirements depending on their levels
of contamination. Process wastes in the
intermediate range of contamination
could either receive full subtitle C
management (in which case there would
be no change from the status quo and no
cost saving), or be placed in a subtitle D
landfill. The cost savings achieved if all
process wastes are placed in a landfill
meeting default requirements for
municipal solid wastes may total $228 to
$233 million per year. Actual cost
savings within this contingent category,
however, are likely to be less, depending
upon specific management
requirements.
Contaminated soils in the
intermediate range of contamination
could receive one management choice
that does not apply to process wastes.
Contaminated soils could be capped in-
place to meet subtitle D requirements.
As with process wastes, there are no
cost savings for contaminated media
that continue to receive subtitle C
management. However, if all
contaminated media currently falling
within the intermediate range (HBN*10-
HBN*100) of contamination were placed
in a subtitle D landfill, cost savings
would range from $35 to $129 million per
year (see EA). If all contaminated soils
were capped in-place, the cost savings
would be slightly larger, amounting to
$38 to $139 million per year (see EA).
Thus, the full range within this category
is $35 to $139 million cost savings per
year.
Cost savings for in-place capping are
greater than cost savings for subtitle D
landfilling because the average cost per
ton of capping soil ($18) is less than the
average cost per ton of placing soil in a
subtitle D landfill ($72).
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EXHIBIT 4.—CONTINGENT MANAGEMENT APPROACH PROCESS WASTE AND CONTAMINATED MEDIA
Affected volumes
HBN*10-
HBN*100
>HBN*100
Million tons/year
Wastes eligible before treatment and residuals from other wastes
Contaminated media
Totals
9 to 24
0.4 to 2
9 to 26
58 to 59
<0.1 to 0.2
58 to 60
All other remain in subtitle C.
Remaining media.
Remaining.
Cost saving
HBN'10- HB
HBN'100 >Mb
>J*100 Total-
Million dollars/year
Wastes eligible before Treatment and residuals from other wastes
Contaminated media
Totals
67 to 132
358 to 1,314
425 to 1 446
228 to 233
35 to 139
263 to 372
0
0
0
295 to 365
393 to 1 ,453
688 to 1 818
5. Comparison of the Options
Four different regulatory options were
considered in this analysis; the health-
based approach, the characteristic
management approach, the technology
approach, and the contingent
management approach. Quantification
of potential cost savings associated with
these options was developed to coincide
with the primary options presented in
the proposed rule. Results presented in
this analysis will provide the reader
with a useful overview of the potential
range of impacts associated with each
primary option in the proposed rule.
Alternative sub-options discussed in the
propos'ed rule are not quantified in this
analysis. The Agency intends to fully
quantify all aspects of each option and
sub-option as presented in the final rule.
Total potential cost savings across all
four options, for both process waste and
contaminated media, range from about
$60 to $1,870 million per year. The
characteristic and contingent
management approach appear to
provide the highest general cost savings
to industry, ranging from nearly $700 to
$1,870 million per j'ear. The technology
based approach provides the least cost
savings to industry, at $200 to $260
million per year.
Overall, it appears that those options
that may be the most difficult to
implement, enforce, and maintain, may
provide the most cost savings. However,
potentially significant implementation
cost factors associated with the two
high savings options have not been
quantified in this analysis. Furthermore,
potential costs associated with health-
based assurances needed to implement
the contingent and characteristic
options may further reduce potential
savings.
D. Potential Health and Environmental
Impacts
It is the Agency's intent that the
criteria for exempting hazardous wastes
and contaminated media from subtitle C
regulation be set at levels that have
been determined to be protective of
human health and the environment.
Hazardous wastes exempted from
subtitle C regulation would remain
subject to solid waste management
regulations, which would provide an
adequately protective level of
management tailored to the low risks
presented by the wastes.
A more comprehensive discussion of
health and environmental impacts
potentially associated with this
proposed rule is available elsewhere in
the preamble.
E. Economic Impacts
Economic impact analysis is designed
to determine the extent to which specific
groups, such as industries, bear the
costs or receive the benefits of
environmental regulation. This
information is important in evaluating
the fairness of jthe distribution of
benefits and costs, determining whether
it is important to mitigate such effects,
and assessing the social costs of
regulation or, in the case of this
proposal, the cost savings of
deregulation. The two major types of
economic impacts of the proposed rule
are projected to be cost savings for
hazardous waste generators whose
wastes would be deregulated, and
revenue losses for the waste
management industry.
Based on the analysis of Generator
Survey data, the major industrial sectors
that generate the vast majority of listed
hazardous wastes that could be affected
by this proposal are primary metals and
fabricated metal products; chemicals,
plastics, pharmaceutical, and allied
products; and petroleum refining and
asphalt and coatings production. These
industries would be the main
beneficiaries of cost savings from
changes in hazardous waste
management practices as a result of this
proposed rule.
In addition to generators of hazardous
wastes, this proposal would benefit
those parties responsible for
management of contaminated media.
The affected parties are those who
spend funds on site remediation
activities, such as federal, state, and
local governments that conduct, finance,
or oversee remediation activities;
potentially responsible parties (PRPs)
under CERCLA and state laws who
conduct or finance remediation
activities; hazardous waste treatment,
storage, and disposal facilities (TSDFs)
that conduct corrective actions or close
hazardous waste management units; and
firms, such as hazardous waste
generators, that must remediate existing
contaminated soil or clean up future
accidental spills.
Under this proposal, future revenues
to the commercial hazardous waste
management industry could be lower
than in the absence of such a rule; less
hazardous waste and contaminated
media would be required to be treated
and disposed in subtitle C facilities.
Cost savings that accrue to generators
as a result of shifts from hazardous to
non-hazardous Waste management may
mean losses in revenues for the
commercial hazardous waste
management industry. The net economic
impact on the industry is undetermined.
However, the net impact on society is
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21503
likely to be positive as scarce economic
resources are refocused on the more
hazardous wastes.
Despite potentially large foregone
revenues for the industry, this proposal
is unlikely to significantly adversely
affect a significant number of
commercial hazardous waste
management firms for several reasons.
First, based on data for 1990, the
industry is healthy and growing. Total
revenues exceeded $2.2 billion in 1990—
more than a 50 percent increase over
1989 revenues.11 Operating margins for
the industry were 19 percent on average
and rates of return on assets and equity
were 8 percent and 13 percent
respectively, representing a recovery
from declines in 1989. Second, the
industry still faces the prospect of
continued growth in demand for
commercial hazardous waste
management as a result of other
developments, such as increasing
remediation activities (e.g., RCRA
corrective actions) and the imposition of
the land disposal restrictions. Third,
many of the firms in the commercial
hazardous waste management industry
also operate subtitle D landfills. Thus,
they would benefit from the increased
demand for subtitle D management.
F. Limitations of the Analysis
The scope and accuracy of the
methodology used to estimate the
potential volumes of process wastes and
contaminated media affected, and the
associated cost savings are constrained
in several ways. The major limitations
include analytical and data constraints,
non-quantified cost savings, non-
quantified expenditures and
unquantified effects on human health
and the environment.
The Agency's analysis relies on data
that have major limitations. For
example, the analysis of process wastes
is based on the Generator Survey, which
reflects 1986 data. The generation and
management of hazardous wastes have
changed considerably since then. For
example, at the time the survey was
conducted, a virtually universal
management proactive for wastewater
involved storing large volumes in
unlined pits, called surface
impoundments, where the waters would
be treated prior to reentering the larger
NPDES system, or where wastewaters
would be allowed to remain. In 1988,
these impoundments had to comply with
RCRA's minimum technology
requirements, which meant for the
1' "Commercial Hazardous Waste Management:
Recent Financial Performance and Outlook for the
Future," The Hazardous Waste Consultant, July/
August 1991, pp. 4.1 to 4-20.
majority of them that they closed down.
Wastewaters which had been handled
in these impoundments were then
handled largely in tanks. This change in
practice put a premium on minimizing
the amount of wastewater handled. It is
thus possible that pre-1988 volumes of
waters subject to subtitle C are
overstated for that reason.
In addition, the data used in the
analysis of contaminated media are
highly variable from year to year which
makes extrapolation from past records
difficult. For example, the volumes and
concentration levels of contaminated
soils are highly site-specific and depend
on the depth and location of the
sampling.
The analysis assumes that all states
will adopt this proposal. In fact, the
Resource, Conservation and Recovery
Act allows authorized states to set more
stringent levels. Cost savings may be
overestimated to the extent that states
adopt more stringent levels than in the
federal proposal. Cost savings, however,
may be underestimated to the extent the
proposal causes the deregulation of
wastes that are hazardous under state,
but not federal rules. Cost savings may
be further underestimated if proposed
levels make it cost-effective for
generators to initiate waste
minimization programs.
Furthermore, this analysis does not
account for changes as a result of the TC
rule. In addition any new or delisted
constituents since 1986 are not included.
Other economic impacts potentially
associated with this proposed rule, but
not addressed here, are numerous.
These may include: corresponding
management impacts associated with
alternative waste generation and
disposal practices, the potential for
transferring waste from tanks to surface
impoundments, alternative engineering
standards and corresponding long-term
capital savings. These are just a few of
the secondary economic impacts
potentially associated with this
proposal. The Agency intends to
address as many of these items as
possible in the analysis to accompany
the final rule.
Non-Quantified Cost Saving
This analysis does not attempt to
estimate all types of cost savings and
expenditures potentially associated with
the proposed Rule. The focus of the
analysis is one savings attributable to
reduced treatment and disposal costs of
process waste (and wastewaters) and
contaminated media. Additional savings
may arise which have not been
estimated.
• Avoided treatment costs for
contaminated ground water. While
contaminated media includes both soil
and ground water, this analysis focuses
exclusively on contaminated soil and
therefore underestimates the cost
savings. While the avoided costs are
believed to be significantly smaller for
ground water than soil, large quantities
of ground water contaminated with
listed hazardous wastes can be
generated by remedial actions.
• Avoided storage costs,
transportation costs, or other hazardous
management costs arising prior to
treatment.
Non-Quantified Expenditures
Potential changes in EPA and State
administrative costs associated with
this proposal are not estimated. While
additional administrative costs will be
involved in receiving, reviewing, and
inspecting eligibility determinations,
cost savings will arise because
hazardous wastes, hazardous waste
management units, and facilities will
exit subtitle C. It is unclear whether the
incremental costs would outweigh the
incremental savings.
G. Data Needs—Request For Comment
Fundamental data limitations have
been the primary difficulty in
development of the preliminary
economic assessment for this proposed
rule. The Agency recognizes these data
limitations and their impact on the
analysis. One of the purposes of this
proposal is to request data and comment
related specifically to the current rule,
as proposed. The Agency requests data
and comments associated with three
general areas of concern: industry;
scientific/testing; and region, state and
local issues.
Industry comments and data are
requested under three broad categories:
Waste/Media Generation:
—Actual quantity of listed and/or
characteristic hazardous waste
generated on an average annual basis
over the 1989 through 1992 period.
—Constituents and actual concentration
levels of constituents linked to
volumes identified above
—Constituent concentration estimates
are needed at various points of
generation and treatment:
—Out of the pipe
—After 1st treatment
—After 2nd treatment
—At point of disposal or discharge
—Actual quantity and extent of spills
resulting in generation of
contaminated media (soils,
groundwater).
Waste/Media Management:
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21504 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
—Unit costs for treatment of waste and
contaminated media to BDAT levels,
under alternative methods and
alternative quantity levels.
—Unit costs for management and
storage of waste and/or media.
—Implications potentially associated
with captive vs. offsite treatment
(alternative cost estimates,
management, etc.)
—Estimated pace of remedial activity
for media.
—Potential impacts on costs associated
with alternative engineering
requirements for storage facilities.
—Comments on general facility costs
and impacts/implications potentially
associated with shifting from tanks to
surface impoundments.
Facility/Industry Implications:
—Comments on closure implications
potentially associated with this
proposal.
—Perceived implementation costs
associated with this proposal.
—Perceived liability, financial, and
management implications potentially
associated with this proposal.
—Potential facility operational benefits
as a result of this proposal, such as
potential cost savings and alternative
management practices that may result
if wastewater could be "freed up" to
use again in the plant as make up,
cooling, and closed loop process
water.
Scientific/testing data specifically
requested in conjunction with
development of the final Regulatory
Impact Analysis (RIA)are those
identifying actual test results for
leachates.
Region, State and local comments
requested in conjunction with the EA
include comment on issues such as
perceived rate and extent of adoption by
states, and associated impacts on other
Agency actions. Comment is also
requested in the area of testing and
enforcement, specifically the cost of
mandatory quality assessment/control
testing, the sampling and analysis plans,
and the number of tests needed for a
representative sample of specific waste
streams. The current EA for the
proposed rule has been developed under
significant time and data limitations.
The Agency is aware of these
limitations and will work to address
them in the RIA for the final rule. Part of
the procedure for development of a final
RIA includes revision of the current
document based on changes for the final
rule, data revisions, and response to
comments. The Agency has identified
specific areas of concern for receipt of
data and comments in support of a final
RIA. However, comments need not be
limited to the areas identified above.
General and/or specific comments are
welcome from all interested parties. The
Agency has committed to the
development of a full Regulatory Impact
Analysis (RIA) in support of the April
1993 final rule.
XVII. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a General
Notice of Rulemaking for any proposed
or final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the Agency certifies that the rule
will not have a significant impact on a
substantial number of small entities.
The Economic Assessment conducted
in support of the proposed rule includes
a section, "Impacts on Small Entities."
The findings in this section are briefly
summarized below.
Small quantity generators (SQGs) are
usually defined as entities that generate
between 100;and 1,000 kilograms per
month of hazardous waste (1.3 to 13.23
U.S. tons per year). Conditionally
exempt small quantity generators
(CESQGs) are entities that generate less
than 100 kilograms per month of
hazardous waste. The Agency estimates
there are about 65,000 to 70,000 SQGs
generating about 250,000 to 300,000
metric tons of hazardous waste
annually. Multiple industries are
represented by SQGs.
Based on the maximum allowable
volume for SQGs of 1,000 kilograms per
month (13.23 U.S. tons/year), and
estimated pre- demonstration cost
savings of $373/ton, the maximum
tolerable demonstration costs are
estimated at $4,850 per year.
Demonstration costs are fixed costs per
waste stream, while cost savings
depend upon the size of the waste
stream and volume exempted. As a
result, a minimum volume of waste must
be generated in order for any of the
Hazardous Waste Identification options
to be profitable. The small entity
analysis in the Economic Assessment
found that, in general, facilities would
need to generate a minimum of 200 tons
of eligible hazardous waste per year in
order to have a financial incentive to
seek exemption.
Demonstration/implementation costs
have not been fully quantified for SQGs
but are expected to be generally the
same as for larger facilities, except for
an extended allowance for storage. This
factor alone is not expected to
compensate for the several fold increase
in volume needed to insure financial
incentive for SQGs. As a result, the
costs of gaining an exemption appear, in
general, to significantly outweigh
potential treatment and disposal savings
for SQGs.
Demonstration costs under the
enhanced characteristic option (ECHO)
may be lower than other options
because only one-time testing would be
required. However, a multiplier of 100
under this option is expected to bring
non-hazardous wastes into the subtitle
C system. The Agency has not fully
quantified demonstration costs under
this option, or the additional waste
volume that may be affected.
The CBEC option is expected to not
significantly impact a substantial
number of small entities because they
generate waste volumes well below the
point of financial incentive.
Furthermore, exemption levels are
considered deregulatory in nature and
thus are expected to provide only
beneficial opportunities for SQGs who
may choose to pursue exemption under
this proposal.
However, under the ECHO option it is
possible that a significant number of
small entities may be affected. Due to
the short period of time available to the
Agency to publish this proposal, the
Agency has not had time to develop a
regulatory flexibility analysis for the
ECHO option in today's notice. For the
final Regulatory Impact Analysis, the
Agency intends to develop a
comprehensive small entity analysis
corresponding to this option. Pursuant to
5 U.S.C. 608(a) (allowing waiver or delay
of initial regulatory flexibility analysis),
I therefore find that publication of an
initial regulatory flexibility analysis for
this rule would be impracticable.
XVIII. Paperwork Reduction Act
The reporting, notification, or
recordkeeping (information) provisions
in this rule will be submitted for
approval to the Office of Management
and Budget (OMB) under section 3504(b)
of the Paperwork Reduction Act of 1980,
U.S.C. 3501 et seq. Any final rule will
explain how its reporting, notification,
or recordkeeping provisions respond to
any OMB or public comments.
List of Subjects
40 CFR Part 260
Administrative practice and
procedure, Confidential business
information, Hazardous waste.
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules 21505
40 CFR Part 261
Hazardous waste, Recycling,
Reporting and Recordkeeping
requirements.
40 CFR Part 262
Exports, Hazardous materials
transportation, Hazardous waste,
Imports, Labeling, Packaging and
containers, Reporting and recordkeeping
requirements.
40 CFR Part 264
Hazardous wastes, Insurance,
Packaging and containers, Reporting
and recordkeeping requirements,
Security measures, Surety bonds.
40 CFR Part 268
Hazardous waste, Reporting and
recordkeeping requirements.
Dated: April 30,1992.
William K. Reilly,
Administrator.
XIX. References
U.S. Environmental Protection Agency,
Environmental Monitoring Systems
Laboratory; "Performance Testing of
Method 1312—QA Support for RCRA
Testing." EPA/600/489/022, June 1989.
Research Triangle Institute; "Interlaboratory
Comparison of Methods 1310,1311, and
1312 for Lead in Soil". U.S. EPA Contract
68-01-7075, November 1988.
U.S. Environmental Protection Agency, Office
of Solid Waste and Emergency Response;
OSWER Directive N6> 9285.7; "Human
Health Evaluation Manual, Part B;
Development of Risk-based Preliminary
Remediation Goals;" from Henry Longest
II, Director, Office of Emergency and
Remedial Response; and Bruce Diamond,
Director, Office of Waste Programs
Enforcement; to Regional Waste
Management Division Directors;
December 13,1991.
U.S. Environmental Protection Agency, Office
of Solid Waste and Emergency Response;
OSWER Directive No. 9850.4; "Interim
Final Guidance for Soil Ingestion Rates;"
from J. Winston Porter, OSWER
Assistant Administrator; to Regional
Administrators (I-X); January 27,1989.
U.S. Environmental Protection Agency, Office
of Research and Development, Office of
Health and Environmental Assessment;
"Exposure Factors Handbook;" EPA/
600/8-89/043, March 1990.
For the reasons set out in the
preamble, it is proposed to amend title
40 of the Code of Federal Regulations as
follows:
[Option 1
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912{a), 6921-
6927, 6930, 6934, 6935, 6937, 6938, 6939, and
6974.
2. In 260.10, add the following
definitions in alphabetical order:
§260.10 Definitions.
* * A * *
Dilution means the addition of
materials, liquid or non-liquid, to
increase the volume of a given waste or
media to reduce constituent
concentrations.
* * * * *
Media means any naturally-occurring
soil or ground water.
*****
Soil means unconsolidated earth
material composing the superficial
geologic strata (materials overlying
bedrock), consisting of clay, silt, sand,
or gravel size particles (sizes as
classified by the U.S. Soil Conservation
Service), or is a mixture of such
materials with other liquids, sludges, or
solids, and is inseparable by simple
mechanical removal processes.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and
6922.
4. In 261.3, paragraph (e) is removed.
5. In 261.4, paragraphs (a)(12) and (13)
(b)(13) and (14) are added to read as
follows:
§ 261.4 Exclusions.
(a) * * *
(12) Environmental media (e.g., soils
and ground water) contaminated or
mixed with one or more wastes listed in
subpart D or with residuals derived from
the treatment, storage, or disposal of a
waste listed in subpart D that meet the
conditions of this paragraph and the
applicable exemption levels specified in
appendix XI to part 261 [for a generic
exemption]:
(i) Media with constituent
concentrations meeting the exemption
levels for [a generic exemption] in
appendix XI will be considered non-
hazardous so long as the following
conditions are met:
(A) A sampling and analysis plan is
prepared in accordance with the
requirements specified in appendix XIII
to part 261 prior to the waste being
managed as non-hazardous;
(B) Representative samples of the
contaminated media are analyzed in
accordance with the requirements
specified in appendices XI and XIII to
part 261 prior to the waste being
managed as non-hazardous;
(C) Sampling and analysis of media is
repeated annually for the first two years
an exemption is claimed and every three
years thereafter (for as long as
remediation or generation continue) and
when process or operating changes
(including upsets) occur which could
affect the medium's composition.
(D) Notification of the exemption
claim is received by the Regional
Administrator prior to any management
of media qualifying for exemption under
this paragraph as non-hazardous.
Notification must be resubmitted
annually for the first two years an
exemption is claimed and every three
years thereafter and when process or
operating changes (including upsets)
occur which could affect the medium's
composition. The notification must
include:
(1) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
(2) EPA Hazardous Waste Number;
(3) Average and maximum monthly
and annual amount of excluded media;
[4] Name and address of the disposal
facility; and
(5) The following statement signed by
the person seeking the exclusion or his
authorized representative.
Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the requirements of 40 CFR
261.4(a)(12) have been met for all media
contaminated with listed waste excluded
from regulation according to the provisions of
this part. Based on my inquiry of those
individuals immediately responsible for
obtaining the information, I believe that the
information is true, accurate, and complete. I
am aware that there are significant penalties
for submitting false information, including the
possibility of fine and imprisonment. I have
been authorized, in writing, to make such
declarations by the person in charge of the
generator's demonstration.
(ii) Notifications of the exemption
must be submitted by certified mail to
the Regional Administrator. Copies of
notifications and all sampling and
analysis records must be kept on-site for
at least three years from the date of
sampling. The three-year generator
record retention period will be
automatically extended during the
course of any unresolved enforcement
action regarding the regulated activity or
as requested by the Regional
Administrator. Owners and operators
must retain these records until the
facility is closed.
(iii) As a condition of exclusion and
for purposes of enforcing the conditions
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set out in this paragraph, any person
qualifying for an exemption under this
paragraph must, upon request of any
duly designated representative of EPA,
furnish information relating to media
excluded under this paragraph and
permit such representatives at all
reasonable times to have access to, and
to copy, all records relating to such
media, to enter the facility at reasonable
times, and to inspect and obtain samples
of such media and samples of any
containers or labeling for such media.
(iv) On, or within, 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be entitled
"Claim of Exemption from the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
(A) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
(B) Description of the waste and EPA
Hazardous Waste Number;
(C) Average and maximum monthly
and annual amount of excluded media;
and
(D) Name and address of the disposal
facility;
(E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and
copied by interested parties, and the
length of time the information will
remain available, and
(F) The name and address of the
Regional Administrator where written
comments on the exemption claim can
be submitted.
(v) The exclusion under this provision
does not apply to:
(A) Media that are contaminated with
F020, F021, F023, F024, F027, F028, K001,
K009, K010, K017, K023, K024, K026,
K027, K036, K037, K038, K039, K040,
K043, K044, K045, K047, K099, K119 and
P110 and media that are contaminated
with 40 CFR 261.33 wastes that are not
listed in appendix XI;
(B) Contaminated media containing
any constituent in appendix 1 that is
quantitatable at a level that exceeds the
concentration-based exemption criteria
level for that constituent;
(C) Contaminated media when the
actual detection limit for a constituent
(other than the 40 CFR part 261,
appendix VII constituents for which the
contaminating listed waste was listed)
exceeds the concentration-based
exemption criteria quantitation limit
specified for that constituent in
appendix 2 and the applicable
concentration-based exemption criteria
level is below that quantitation limit;
(D) Contaminated media that are
diluted in ways not permitted under the
land disposal restrictions in 40 CFR part
258 (rather than treated to reduce
constituent loadings)'to achieve the
concentration-based exemption criteria
levels;
(E) Contaminated media that change,
or are changed, over time from the
media characterized in the exemption
determination due to reconstitution,
process upsets or changes, or other
factors affecting media composition or
leaching; and
(F) Contaminated media that exhibit
any of the characteristics of hazardous
wastes listed in subpart C.
(13) Environmental media (e.g., soils
and ground water) contaminated or
mixed with one or more wastes listed in
subpart D or with residuals derived from
the treatment, storage, or disposal of a
waste listed in subpart D that meet the
conditions of this paragraph and the
applicable exemption levels specified in
appendix XI to part 261 [for a contingent
management exemption]:
(i) Before these hazardous wastes will
be considered exempt from full
regulation under this paragraph, the
generator must comply with the
following conditions:
(A) Sampling and analysis in
accordance with the procedures and
documentation requirements set forth in
appendix XIII that demonstrates that the
constituent concentrations in the media
meet the applicable exemption levels in
appendix XII. Sampling and analysis of
media claiming an exemption under this
paragraph must be repeated annually for
the first two years the exemption
claimed and every three years
thereafter, and when changes to the
production or treatment process
(including upsets) occur that could affect
waste composition;
(B) Notification of the Regional
Administrator that an exemption is
claimed for the media under this
paragraph and certification that the
constituent concentrations in the media
meet the exemption levels set forth in
appendix XI and that the media wastes
will be disposed of in a unit meeting the
criteria set forth in paragraph
(a)(13)(i)(C) of this section. Notifications
of the exemption must be submitted by
certified mail to the Regional
Administrator and must be resubmitted
annually for the first two years of the
exemption and every three years
thereafter, when changes to the
production or treatment process
(including upsets) occur that could affect
media composition, and when there are
changes in the identity of the designated
disposal facility. The notification must
include:
(1) The name, address, and RCRA ID
number of the person seeking the
exemption and identification of the type
of exemption being claimed;
(2) Average and maximum monthly
and annual amounts of excluded media;
(3) Name and address of the disposal
facility; and
(4) The following statement signed by
the person seeking the exemption or his
authorized representative:
Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the listed hazardous waste for
which I assert an exemption from regulation
according to the provisions of this part meet
the exemption levels set forth in appendix XI
to 40 CFR part 261 and that the disposal
facility identified in this notification contains
units meeting the criteria of 40 CFR part 258,
subpart D. Based on my inquiry of those
individuals immediately responsible for
obtaining the information, I believe that the
information upon which the claim of
exemption is based is true, accurate and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment.
(C) Media meets the applicable LDR
requirements of 40 CFR part 268 and is
disposed of in a unit meeting the design
criteria of 40 CFR part 258 subpart D.
(ii) Prior to satisfaction of all
conditions for the exemption under this
paragraph, including the condition that
the media are managed in accordance
with the applicable management
standards, the wastes are hazardous
wastes subject to full subtitle C
regulation.
(iii) Notifications, and all sampling
and testing plans and records upon
which an exemption claim is based must
be kept on-site for at least three years
from the date of sampling. The three-
year record generator retention period
will be automatically extended during
the course of any unresolved
enforcement action regarding the
regulated activity or as requested by the
Regional Administrator. Owners and
operators must retain these records until
the facility is closed.
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
21507
(iv) Any person qualifying for an
exemption under this paragraph must,
upon request of any duly designated
representative of EPA, furnish
information relating to media exempted
under this paragraph and permit such
representative at all reasonable times to
have access to, and to copy, all records
relating to such media, to enter the
facility at reasonable times, and to
inspect and obtain samples of such
media and samples of any containers or
labeling for such media.
(v) Respondents in actions to enforce
this paragraph who raise a claim that a
certain material is exempt from
regulation under this section must
demonstrate, through appropriate
documentation, satisfaction of all
conditions necessary for the exemption.
(vi) On or within 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be entitled
"Claim of Exemption from the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
(A) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
(B) Description of the waste and EPA
Hazardous Waste Number;
(C) Average and maximum monthly
and annual amount of excluded media;
and
(D) Name and address of the disposal
facility;
(E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and
copied by interested parties, and the
length of time the information will
remain available, and
(F) The name and address of the
Regional Administrator where written
comments on the exemption claim can
be submitted.
(vii) The exclusion under this
provision does not apply to:
(A) Media that are contaminated with
F020, F021, F023, F024, F027, F028, K001,
K009, K010, K017, K023, K024, K026,
K027, K036, K037, K038, K039, K040,
K043, K044, K045, K047, K099, K119 and
PllO and media that are contaminated
with 40 CFR 261.33 wastes that are not
listed in appendix XII;
(B) Contaminated media containing
any constituent in appendix XII that is
quantitatable at a level that exceeds the
concentration-based exemption criteria
level for that constituent;
(C] Contaminated media when the
actual detection limit for a constituent
(other than the 40 CFR part 261,
appendix VII constituents for which the
contaminating listed waste was listed)
exceeds the concentration-based
exemption criteria quantitation limit
specified for that constituent in
appendix XII and the applicable
concentration-based exemption criteria
level is below that quantitation limit;
(D] Contaminated media that are
diluted in ways not permitted under the
land disposal restrictions in 40 CFR part
258 (rather than treated to reduce
constituent loadings) to achieve the
concentration-based exemption criteria
levels;
(E) Contaminated media that change
or are changed over time from the media
characterized in the exemption
determination due to reconstitution,
process upsets or changes, or other
factors affecting media composition or
leaching; and
(F) Contaminated media that exhibit
any of the characteristics of hazardous
wastes listed in subpart C.
(b) * * *
(13) Waste listed in subpart D;
residuals from treatment, storage, and
disposal of waste listed in subpart D;
mixtures of solid wastes and wastes
listed in subpart D; and materials that
contain wastes listed in subpart D that
meet the conditions of this paragraph
and the applicable exemption levels
specified in appendix XII to part 261:
(i) Wastes with constituent
concentrations meeting the exemption
levels for [a generic exemption] in
appendix XI will be considered non-
hazardous so long as the following
conditions are met:
(A) A sampling and analysis plan is
prepared in accordance with the
requirements specified in appendix XIII
to part 261 prior to the waste being
managed as non-hazardous;
(B) Representative samples of the
wastes are analyzed in accordance with
the requirements specified in
appendices XI and XIII to part 261 prior
to the waste being managed as non-
hazardous;
(C) Sampling and analysis of waste is
repeated annually for the first two years
an exemption is claimed and every three
years thereafter (for as long as
remediation or generation continue) and
when process or operating changes
(including upsets) occur which could
affect the medium's composition.
(D) Notification of the exemption
claim and certification that all
conditions of the exemption have been
met is received by the Regional
Administrator prior to any management
of waste qualifying for exemption under
this paragraph as non-hazardous.
Notification must be resubmitted
annually for the first two years an
exemption is claimed and every three
years thereafter and when process or
operating changes (including upsets)
occur which could affect the medium's
composition. The notification must
include:
(1) The name, address, and RCRA ID
number of the person seeking the
exclusion and identification of the type
of exemption being claimed;
(2} EPA Hazardous Waste Number;
(3) Average and maximum monthly
and annual amount of excluded media;
(4) Name and address of the disposal
facility; and
(5) The following statement signed by
the person seeking the exclusion or his
authorized representative.
Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the requirements of 40 CFR
261.4{b)(13) have been met for all waste
excluded from regulation according to the
provisions of this part. Based on my inquiry
of those individuals immediately responsible
for obtaining the information, I believe that
the information is true, accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment. I have been authorized, in
writing, to make such declarations by the
person in charge of the generator's
demonstration.
(ii) Notifications of the exemption
must be submitted by certified mail to
the Regional Administrator.
Notifications and all sampling and .
analysis records must be kept on-site for
at least three years from the date of
sampling. The three-year generator
record retention period will be
automatically extended during the
course of any unresolved enforcement
action regarding the regulated activity or
as requested by the Regional
Administrator. Owners and operators
must retain these records until the
facility is closed.
{Hi} As a condition of exclusion and
for purposes of enforcing the conditions
set out in this paragraph, any person
qualifying for an exemption under this
paragraph must, upon request of any
duly designated representative of EPA,
furnish information relating to waste
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 /Proposed Rules
excluded under this paragraph and
permit such representatives at all
reasonable times to have access to, and
to copy, all records relating to such
waste, to enter the facility at reasonable
times, and to inspect and obtain samples
of such media and samples of any
containers or labeling for such waste.
(iv) Respondents in actions to enforce
this paragraph who raise a claim that a
certain waste is exempt from regulation
under this section must demonstrate,
through appropriate documentation,
satisfaction of all conditions necessary
for the exemption.
(v) On or within 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be entitled
"Claim of Exemption from the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
(A) The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
(B) Description of the waste and EPA
Hazardous Waste Number;
(C) Average and maximum monthly
and annual amount of excluded media;
and
(D) Name and address of the disposal
facility;
(E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and copies
by interested parties, and the length of
time the information will remain
available, and
(F) The name and address of the
Regional Administrator where written
comments on the exemption claim can
be submitted.
(vi) The exclusion under this provision
does not apply to:
(A) EPA Hazardous Waste Nos. F020,
F021, F023, F024, F027, F028, K001, K009,
K010, K017, K023, K024, K026, K027,
K036, K037, K038, K039, K040, K043,
K044. K045 K047, K099, K116 and PllO
and 40 CFR 261.33 wastes that are not
listed in appendix XI;
(B) Wastes containing any constituent
in appendix XI that is quantitatable at a
level that exceeds the exemption level
under this paragraph for that
constituent;
(CJ Wastes when the actual detection
limit for a constituent (other than 40
CFR part 261, appendix VII constituents
for which the waste was listed) exceeds
the quantitation limit specified for that
constituent in appendix XII the
applicable exemption level set forth in
appendix XII;is below that quantitation
limit;
(D) Wastes that are diluted (rather
than treated to reduce constituent
loadings) to achieve the exemption
levels set forth in appendix XII;
(E) Wastes that change or are changed
over time from the waste characterized
in the exemption determination due to
reconstitution, process upsets or
changes, or other factors affecting waste
composition or leaching;
(F) The unit in which the exempt
waste was managed prior to exemption,
unless excluded under the provisions of
40 CFR 260.20 and 260.22; and
(G) Wastes that exhibit any of the
characteristics of hazardous wastes
listed in subpart C.
(14) Residuals from treatment, storage,
and disposal of waste listed in subpart
D that meet the applicable treatment
standards under 40 CFR part 268 and the
conditions of this paragraph and the
applicable exemption levels specified in
appendix XII to part 261 for contingent
management exemptions:
(i) Before these hazardous wastes will
be considered exempt from full
regulation under this paragraph, the
generator must comply with the
following conditions:
(A) Sampling and analysis in
accordance with the procedures and
documentation requirements set forth in
appendix XII that demonstrates that the
constituent concentrations in the waste
meet the applicable exemption levels in
appendix XII. Sampling and analysis of
wastes claiming an exemption under
this paragraph must be repeated
annually for the first two years the
exemption claimed and every three
years thereafter, and when changes to
the production or treatment process
(including upsets) occur that could affect
waste composition;
(B) Notification of the Regional
Administrator that an exemption is
claimed for these wastes under this
paragraph and certification that the
constituent concentrations in the waste
meet the exemption levels set forth in
appendix XII that the waste will be
disposed of in a unit meeting the design
criteria of 40 CFR part 258, subpart D.
Notifications;of the exemption must be
submitted by certified mail to the
Regional Administrator and must be
resubmitted annually for the first two
years of the exemption and every three
years thereafter, when changes to the
production or treatment process
(including upsets) occur that could affect
waste composition, and when there are
changes in the identity of the designated
disposal facility. The notification must
include:
(1) The name, address, and RCA ID
number of the person seeking the
exemption and identification of the type
of exemption being claimed;
(2) EPA Hazardous Waste Number
and description of the process
generating the waste;
(3) Average and maximum monthly
and annual amounts of excluded waste;
(4) Name and address of the disposal
facility; and
(5) The following statement signed by
the person seeking the exemption or his
authorized representative:
Under penalty of criminal and civil
prosecution for making or submission of false
statements, representations, or omissions, I
certify that the listed hazardous waste for
which I assert an exemption from regulation
according to the provisions of this part meet
the exemption levels set forth in appendix XII
to 40 CFR part 261 and that the disposal
facility identified in this notification contains
units meeting the design criteria of 40 CFR
part 258, subpart D. Based on my inquiry of
those individuals immediately responsible for
obtaining the information, I believe that the
information upon which the claim of
exemption is based is true, accurate and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment.
(C) The wastes meet the applicable
LDR requirements of 40 CFR part 268
and are disposed of in a unit meeting the
design criteria of 40 CFR part 258,
subpart D.
(ii) Prior to satisfaction of all
conditions for the exemption under this
paragraph, including the condition that
the wastes are managed in accordance
with the applicable management
standards, the wastes are hazardous
wastes subject to full subtitle C
regulation.
(iii) Notifications, and all sampling
and testing plans and records upon
which an exemption claim is based must
be kept on-site for at least three years
from the date of sampling. The three-
year generator record retention period
will be automatically extended during
the course of any unresolved
enforcement action regarding the
regulated activity or as requested by the
Regional Administrator. Owners and
operators must retain these records until
the facility is closed.
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules 21509
(iv) Any person qualifying for an
exemption under this paragraph must,
upon request of any duly designated
representative of EPA, furnish
information relating to wastes exempted
under this paragraph and permit such
representative at all reasonable times to
have access to, and to copy, all records
relating to such wastes, to enter the
facility at reasonable times, and to
inspect and obtain samples of such
wastes and samples of any containers or
labeling for such wastes.
(v) Respondents in actions to enforce
this paragraph who raise a claim that a
certain material is exempt from
regulation under this section must
demonstrate, through appropriate
documentation, satisfaction of all
conditions necessary for the exemption.
(vi) On or within 5 working days of
submitting a first notification of
exemption under this paragraph, the
person claiming the exemption must
submit a notice with the following
information for publication in a major
local newspaper of general circulation.
The claimant must provide the Regional
Administrator with certification of
submitting the notice for publication.
The claimant must also make the
notification and all supporting data and
documentation available for public
review and copying, at a location at or
near the facility, for sixty days following
publication of the newspaper notice.
The notice, which shall be entitled
"Claim of Exemption from the Definition
of Hazardous Waste under 40 CFR
261.4," must include:
(A] The name, address, RCRA ID
number of the person seeking the
exclusion, and identification of the
exemption being sought;
(B) Description of the waste and EPA
Hazardous Waste Number;
(C) Average and maximum monthly
and annual amount of excluded media;
and
(D) Name and address of the disposal
facility;
(E) Name and address of the location
where the notification provided to the
Regional Administrator and all
supporting data and documentation for
the exemption can be viewed and
copied by interested parties, and the
length of time the information will
remain available, and
(F) The name and address of the
Regional Administrator where written
comments on the exemption claim can
be submitted.
(vii) The exclusion under this
paragraph does not apply to:
(A) EPA Hazardous Waste Nos. F020,
F021, F023, F024, F027, F028, K001, K009,
K010, K017, K023, K024, K026, K027,
K036, K037, K038, K039, K040, K043,
K044, K045, K047, K099, K119 and P110
and 40 CFR 261.33 wastes that are not
listed in appendix XII;
(B) Wastes containing any constituent
in appendix XII that is quantitatable at a
level that exceeds the exemption level
under this paragraph for that
constituent;
(C) Wastes when the actual detection
limit for a constituent (other than 40
CFR part 261, appendix VII constituents
for which the waste was listed) exceeds
the 'quantitation limit specified for that
constituent in appendix XII and the
applicable exemption level set forth in
appendix XII is below that quantitation
limit;
(D) Wastes that are diluted (rather
than treated to reduce constituent
loadings) to achieve the exemption
levels set forth in appendix XII;
(E) Wastes that change or are changed
over time from the waste characterized
in the exemption determination due to
reconstitution, process upsets or
changes, or other factors affecting waste
composition or leaching;
(F) The unit in which the exempt
waste was managed prior to exemption,
unless excluded under the provisions of
40 CFR 260.20 and 260.22; and
(G) Wastes that exhibit any of the
characteristics of hazardous wastes
listed in subpart C.
Appendix VIII—Amended
6. In appendix VIII of part 261, add the following hazardous constituents in alphabetical order:
Appendix VIII—Hazardous Constituents
Common name
Acenaphthene
Acetaldehyde
Acetone
Acrylic acid
Benzyl alcohol
n-Butyl alcohol
Chlorodibromo-methane; Dibromo-chloromethane
Cumene
Cyclohexanone
Di-n-butyl phthalate •
Dimethylamine ' »
1,4-Dioxane
Ethyl acetate
Ethyl benzene ••—
Ethyl ether »
Furan -
Chemical abstracts name
2-Propanone , -
* * *
* * * .
. .
* * *
1,2-Benzenedicarboxylic acid, dibutyl ester
* * *
Same
* * *
. .
* * *
* * *
Chemical
abstracts No.
83 32-9
75-07-0
67-64-1
79-10-7
201-08-9
100-51-6
71-36-3
124 48 1
98-82-8
108-94-1
84-74-2
124-40-3
123-91-1
141-78-6
100 41-4
60-29-7
110-00-9
Hazardous
waste No.
U001
U002
U008
U031
U055
U057
U069
U092
U108
U112
U117
U124
-------
21510
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 /Proposed Rules
Common name
Chemical abstracts name
Chemical
abstracts No.
Hazardous
waste No.
Isophorone
Methanol
•
Methyl isobutyl ketone..
*
Phenanthrene
*
Styrene
Vanadium
Xylene
Zinc
2-Cyclohexen-1-one, 3,5,5-trimethyl , 78-59-1
1 67-56-1
* * * , *
1 108-10-1
* * * «
Same ,...., , , 85-01-8
* * * •
Benzene, ethenyl 100-42-5
- * * * *
Same , Total
* * * *
Benzene, dimethyl , 1330-20-7
Same , Total
U154
U161
U239
7. At the end of part 261, appendices XI, XII and XIII are added to read as follows:
APPENDIX XI—CBEC FOR MEDIA
Common name '
Chemical
abstract
No.2
Tier 1
Exemption
levels for
soils " (mg/
kg)
EQC for
soils * (mg/
kg)
Possible
SW-846
method for
soils 6
Exemption
levels for
leachate 6
(mg/L)
Tier 2
EQC for
leachate
(mg/L)
Possible
SW-846
method for
leachate
Exemption
levels for
leachate 7
(mg/L)
Acenaphthene 83-32-9
Acetone (2-propanone) 67-64-1
Acetonitrile (methyl cyanide) 75-05-8
Acetophenone 98-86-2
Acrolein 107-02-8
Aerylamide 79-06-1
Acrylonitrile 107-13-1
Aldrin 309-00-2
Aniline (benzeneamine) 62-53-3
Antimony (and compounds N.O.S.) 7440-36-0
Aramite • 140-57-8
Arsenic (and compounds N.O.S.) 7440-38-2
Barium (and compounds N.O.S.) 7440-39-3
Bonztalanthracene ., 6-55-3
Benzene 71 -43-2
Benzidine 92-87-5
Benzo(b)fluoranthene 205-99-2
Benzo(a)pyrene 50-32-8
Benzotrichloride 98-07-7
Benzyl alcohol 100-51-6
Benzyl chloride 100-44-7
Beryllium (and compounds N.O.S.) 7440-41-7
Bis(2-chloroethyl) ether 111-44-4
Bis(2-chloroisopropyl) ether 39638-32-9
Bis(2-ethylhexyl) phthalate 117-81-7
Bromodichloromethane 75-27-4
Bromomethane 74-83-9
Butanol 71 -36-3
Butyl benzyl phthalate 85-68-7
2-soc-Butyl-4,6-dinitrophenol (Dinoseb) 88-85-7
Cadmium (and compounds N.O.S.) 7440-43-9
Carbon disullide 75-15-0
Carbon tetrachloride 56-23-5
Chlordana 57-74-9
p-Chloroaniline 106-47-8
Chlorobenzene 108-90-7
Chlorobenzilate 510-15-6
2-Chloro-1,3-butadiene (chloroprene) 126-99-8
Chlorodibromomethane 124-48-1
Chloroform 67-66-3
Chloromethane (Methyl Chloride) 74-87-3
2-Chlorophenol 95-57-8
3-Chloropropene (allyl chloride) 107-05-1
Chromium (and compounds N.O.S.) 7440-47-3
Chrysene 218-01 -9
Cresols 1319-77-3
Cumene 98-82-8
1000
1000
500
1000
1000
.2
.2
.07
200
30
40
20
1000
.05
40
.005
.1
.2
.09
1000
.7
0.3
.1
20
. 80
i 9
100
1000
1000
80
40
1000
9
0.9
300
1000
1000
1000
10
200
90
400
50
400
10
1000
1000
0.7
.1
.1
.7
.005
.1
.005
.003
.7
20
1
.7
1
.009
.005
2
.01
.02
.004
1
.1
.2
.7
.7
.7
.005
.005
.1
.7
.01
3
.1
.005
.009
1
.005
.7
.005
.005
.005
.005
.7
.005
5
.1
.7
.005
8270
8240
8240
8270
8240
8260
8240
8080
8270
6010
8270
7060
6010
8310
8260
8270
8310
8310
8121
8270
8121
6010
8270
8270
8270
8260
8260
8240
8270
8150
6010
8240
8260
8080
8270
8260
8270
8260
8260
8260
8260
8270
8240
6010
8310
8270
8240
20
40
2
40
,7
8E-5
6E-4
2E-5
0.06
0.1
0.01
0.5
20
0.001
0.05
2E-6
0.002
0.002
3E-5
100
0.002
0.01
3E-4
0.005
.04
.003
.5
40
1
.07
.05
40
.05
.02
1
1
7
7
.004
.06
.03
2
.02
1
.002
20
10
0.01
: M
.1
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: .005
. .1
, .005
4E-5
'- .01
.03
.02
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; .005
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2E-4
2E-4
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' .003
1 .003
; -01
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i -005
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8270
8240
12 8240
8270
12 8240
8260
12 8240
8080
8270
7041
8270
7060
6010
8310
8260
8270
8310
8310
8121 /8
8270
8121
6010
8110
8270
8270
8260
8260
8240
8270
8150
7131
8240
8260
8080
8270
8260
8270
8260
8260
8260
8260
8270
8240
7191
8310
8270
8240
200
400
20
400
70
0.008
.06
.002
6
1
1
5
200
.01
.5
2E-4
.02
.02
.003
1000
.2
.1
.03
.5
.4
.3
5
400
10
.7
.5
400
.5
.2
10
10
70
70
.4
6
3
20
2
10
.02
200
100
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20. 1992 / Proposed Rules 21S11
APPENDIX XI—CBEC FOR MEDIA—Continued
Common name '
Chemical
abstract
No.2
Tier 1
Exemption
levels for
soils3 (mg/
kg)
EQC for
soils 4 (mg/
kg)
Possible
SW-846
method for
soils 5
Exemption
levels for
leachate °
(mg/L)
Tier 2
EQC for
leachate
(mg/L)
Possible
SW-846
method for
leachate
Exemption
levels for
leachate'
(mg/L)
Cyanide (amenable) 57-12-5
2,4-Dichlorophenoxyacetic acid (2,4-D) 94-75-7
ODD 72-54-8
DDE 72-55-9
DDT 50-29-3
Diallate 2303-16-4
Dibenz(a,h)anthracene 53-70-3
1,2-Dibromo-3-chloropropane 96-12-8
Dibromomethane (methylene bromide) 74-95-3
1,2-Dichlorobenzene 95-50-1
1,4-Dichlorobenzene 106-46-7
3,3'-Dichlorobenzidine 91-94-1
Dichlorodifluoromethane 75-71-8
1,1-Dichloroethane 75-34-3
1,2-Dichloroethane 107-06-2
1.1-Dichloroethylene 75-35-4
cis-1,2-Dichloroethylene 156-60-5
trans-1,2-Dichloroethylene 156-60-5
Dichloromethane (Methylene Chloride) 75-09-2
2,4-Dichlorophenol 120-83-2
1,2-Dichloropropane 78-87-5
1,3-Dichloropropene 542-75-6
Dieldrin 60-57-1
Diethyl phthalate 84-66-2
Diethylstibestrol 56-53-1
Dimethoate 60-51-5
3,3'-Dimethoxybenzidine 119-90-4
7,12-Dimethylbenz(a)anthracene 57-97-6
3,3'-Dimethylbenzidine 119-93-7
2,4-Dimethylphenol 105-67-9
Dimethyl phtalate 131-11-3
1,3-Dinitrobenzene 25154-54-5
2,4-Dinitrophenol 51-28-5
2,4-Dinitrotoluene 121-14-2
2,6-Dinilrotoluene 606-20-2
Di-n-butyl phthalate 84-74-2
Di-n-octyl phthalate 117-84-0
1,4-Dioxane 123-91-1
2378 TCDDioxin 1746-01 -6
2378 PeCDDioxins
2378 HxCDDioxins
2378 HpCDDioxins
OCDD 3268-87-9
Diphenylamine 122-39-4
1,2-Diphenylhydrazine 122-66-7
Disulfoton 298-04-4
Endosulfan 115-29-7
Endrin 72-20-8
Epichlorohydrin 106-89-8
2-Ethoxyethanol 110-80-5
Ethyl acetate 141-78-6
Ethylbenzene 100-41-4
Ethyl ether 60-29-7
Ethyl methacrylate 97-63-2
Ethyl methanesulfonate 62-50-0
Ethylene dibromide 106-93-4
Famphur 52-85-7
Fluoranthene 206-44-0
Huorene 86-73-7
Formic acid 64-18-6
Furan 110-00-9
2378 TCDFuran 51207-31-9
12378 PeCDFuran
23478 PeCDFuran , 57117-31-4
2378 HxCDFurans
2378 HpCDFurans
OCDF
Heptachlor 76-44-8
Heptachlor epoxide 1024-57-3
Hexachlorobenzene 118-74-1
Hexachloro-1,3-butadiene 87-68-3
alpha-HCH 319-84-6
beta-HCH 319-85-7
Hexachlorocyclopentadiene 77-47-4
1000
800
5
3
3
20
.02
.8
800
1000
50
2
1000
1000
10
2
800
1000
100
200
20
6
.07
1000
2E-4
20
80
0.05
.1
1000
1000
8
200
2
.2
1000
1000
100
7E-6
1E-5
7E-5
7E-4
7E-3
1000
1
3
4
20
100
1000
100
1000
1000
1000
0.004
0.01
3
1000
1000
1000
80
7E-5
1E-4
1E-5
7E-5
7E-4
7E-3
0.2
0.1
0.7
10
0.2
0.6
600
.04
1
.007
.003
.008
.7
.02
.005
.005
.01
.005
1
.005
7E-4
.005
.005
.005
.005
.005
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.005
.005
.001
.7
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.1
7
.7
.7
.7
.7
.3
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.7
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1E-6
2.5E -6
2.5E -6
5E-6
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.009
.004
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.1
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1
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1
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.1
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1E-6
1E-6
1E-6
2.5E -6
2.5E -6
5E-6
.002
.06
.004
.005
.002
.004
.2
9010
8150
8080
8080
8080
8270
8310
8260
8260
8260
8260
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8260
8021
8260
8260
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8260
8240
8270
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8270
8270
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8290
8290
8290
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8080
8080
8121
8260
8080
8080
8121
2
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.001
.001
.001
.006
.003
.002
4
6
.75
8E-4
70
40
.05
.07
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1
.05
1
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2E-5
300
7E-8
.07
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1E-5
4E-5
7
400
.04
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5E-4
5E-4
40
7
.03
5E-7
4E-9
2E-8
2E-7
2E-6
9
4E-4
.01
.02
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100
300
7
70
30
1E-6
5E-4
0.01
10
10
70
0.4
2E-8
4E-8
4E-9
2E-8
2E-7
2E-6
0.004
0.002
0.01
0.004
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0.5
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4E-5
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1E-8
2.5E -8
2.5E -8
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2.5E -8
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9010
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8260
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700
400
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7
10
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.002
3000
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.7
3
.001
.004
70
4000
.4
7
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.05
400
70
3
5E-6
4E-7
2E-6
2E-5
2E-4
90
.04
.1
.2
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1000
3000
70
700
300
1E-4
.005
.1
100
100
7000
4
2E-6
4E-6
4E-7
2E-6
2E-5
2E-4
.04
.02
.1
.4
.006
.02
5
-------
21512
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
APPENDIX XI—CBEC FOR MEDIA—Continued
Common name '
Hexachioroethane
Hexachlorophene
lndeno(1,2,3>cd)pyrene
Kepone
Lead (and compounds N.O.S.)
Lfndane (gamma-HCH)
Melhoxychlor
3'Methylcholanthrene
Methyl ethyl ketone
Methyl isobutyl ketone
Methyl methacrylate
Methyl parathion
Naphthalene
2-Naphthylamine
Nitrobenzene
N'Nitroso-di-n-butylamine
N'Nitaroso-diethyiamine
N-Nitrosodiphenylamine
N-Nitrosodi-n-propylamine
N-Nitrosopiperidins
N'Nitrosopyrrolidine
Parathion ,
Nentachlorobenzene...
Pentachloronitrobenzene (PCNB)
Pentachlorophenol
Phenol
Phenyienediamine /10
Phorate
Phtatic anhydride
Polychloriinated biphenyis
Pronamlde ,
Pyridiine
Safrole
Strychnine and salts
Styrene
124 5-Telrachlorobenzene
1 1t1 2-Tetrachloroethane :
Tetrachloroethylene
Tetraethyi dithiopyrophosphate
Toieune
2,4-Toleuenediamine
2,6-Toleuenediamine
o-To!uidine
•j 2 4-Trichlorobenzene
1 1 2-TrichIoroethane
Trichloroethylene ,
2 4 6-Trichiorophenol
2 4 5-TP (Silvex)
1 2 3-Trichloropropane
svm-Trinitrobenzene
Chemical
abstract
No.2
67-72-1
70-30-4
193-39-5
78-83-1
78-59-1
143-50-0
7439-92-1
58-89-9
7439-97-6
126-98-7
67-56-1
72-43-5
56-49-5
78-93-3
108-10-1
80-62-6
298-00-0
91-20-3
91-59-8
7440-02-0
98-95-3
79-46-9
924-16-3
55-18-5
62-75-9
86-30-6
621-64-7
10595-95-6
100-75-4
930-55-2
152-16-9
56-38-2
608-93-5
82-68-8
87-86-5
108-95-2
298-02-2
85-44-9
1336-36-3
23950-58-5
129-00-0
110-86-1
94-59-7
7782-49-2
7440-22-4
57-24-9
100-42-5
95-94-3
630-20-6
79-34-5
127-18-4
935-95-5
3689-24-5
7440-28-0
108-88-3
95-80-7
823-40-5
95-53-4
106-49-0
8001-35-2
75-25-2
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
93-76-5
93-72-1
96-18-4
354-58-5
99-35-4
levels for
soils 3 (mg/
kg)
80
20
10
1000
300
.02
500 /9
.9
20
8
1000
400
.04
1000
1000
1000
20
1000
1
1000
40
.1
.2
.007
.02
200
.2
.05
.03
.5
200
500
60
4
9
1000
20
20
1000
10 /9
1000
1000
80
6
400
400
20
1000
20
40
6
800
1000
40
6
1000
i -4
1000
: 5
1 6
1
100
800
1000
20
100
1000
1000
100
800
600
500
1000
4
EQC for
soils 4 (mg/
kg)
.001
3
.03
.1
.7
1
30
.02
.1
.03
.1
.1
.7
.1
.1
.05
.7
.005
.7
10
.7
.1
.7
1
..7
.7
.7
.7
1
3
10
.7
.03
1
3
.7
.7
.02
7
.04
.7
.7
.005
.7
50
5
3
1E-4
.006
.005
5E-5
.005
.7
.7
30
.005
1
.7
.7
.3
.2
.005
.7
.005
.005
.005
.005
.7
.7
2
2
.005
.005
.7
SW-846
method for
soils 5
8121
8270
8310
8240
8270
8270
6010
8121
7470
8240
8240
8080
8270
8240
8240
8240
8270
8260
8270
6010
8270
8260
8270
8270
8270
8270
8270
8270
8270
8270
8270
8270
8121
8270
8270
8270
8270
8141
8270
8080
8270
8270
8240
8270
6010
6010
8270
8021
8121
8260
8021
8260
8270
8270
6010
8260
8270
8270
8270
8270
8080
8260
8270
8260
8260
8260
8260
8270
8270
8150
8150
8260
8260
8270
Tier 1
levels for
leachate 6
(mg/L)
0.03
0.1
0.004
100
.09
7E-6
.15
.002
.02
.04
200
.4
1E-5
20
20
30
.09
10
4E-4
1
.2
4E-5
6E-5
2E-6
7E-6
.07
5E-5
2E-5
9E-6
2E-4
.7
2
.3
.001
.01
200
.007
.07
700
.005
30
10
.4
.002
.5
2
.1
1
.1
.01
.002
.05
10
.2
.02
10
1E-4
70
.001
.002
.03
.04
.09
2
.05
.05
100
40
.03
4
.5
2
1E4
.02
1
EQC for
leachate
(mg/L)
2E-5
0.05
4E-4
0.1
.01
.02
.01
2E-4
;002
.03
.1
.002
.01
• .1
'. .1
,005
.01
'.005
.01
1 .2
: .01
1 .1
i .01
.02
.01
.01
.01
.01
:o2
.04
.2
.01
4E-4
.02
.05
' .01
.01
4E-4
.1
73-4
i .01
: .01
.005
: .01
, .02
.002
' .04
1E-4
1E-4
.005
5E-5
L005
r.o1
.01
1 .01
I.005
I -02
'.02
.01
.01
.002
,.005
.01
.005
.005
LOOS
'.005
.01
; .01
.002
;.002
.005
.005
; .01
Tier 2
Possible
SW-846
method for
leachate
8121
8270
8310
12 8240
8270
8270
7421
8121
7470
12 8240
8240
8080
8270
12 8240
12 8240
8240
8270
8260
8270
6010
8270
8260
8270
8270
8270
8270
8270
8270
8270
8270
8270
8270
8121
8270
8270
8270
8270
8141
8270 /1 1
8080
8270
8270
8240
8270
7740
7761
8270
8021
8121
8260
8021
8260
8270
8270
7841
8260
8270
8270
8270
8270
8080
8260
8260
8260
8260
8260
8260
8270
8270
8150
8150
8260
8260
8270
Exemption
levels for
leachate *
(mg/L)
3
1
.04
1000
9
7E-4
1.5
.02
.2
.4
2000
4
.001
200
200
300
.9
100
.04
10
2
.004
.006
2E-4
7E-4
7
.005
.002
9E-4
2E-2
7
20
3
.1
.1
2000
.7
.7
7000
.05
300
100
4
.2
5
20
1
10
1
1
.2
.5
100
2
.2
100
.01
700
.1
.2
.3
4
.9
20
.5
.5
1000
400
3
40
5
20
1E5
.2
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
21513
APPENDIX XI—CBEC FOR MEDIA—Continued
Common name '
Chemical
abstract
No.2
Tier 1
Exemption
levels for
soils 3 (mg/
kg)
EQC for
soils 4 (mg/
kg)
Possible
SW-846
method for
soils 5
Exemption
levels for
leachate 6
(mg/L)
Tier 2
EQC for
leachate
(mg/L)
Possible
SW-846
method for
leachate
Exemption
levels for
leachate7
(mg/L)
Tris(2,3-dibromopropyl)phosphate.
Vanadium
Vinyl chloride (Chloroethene)
Xylenes
Zinc (and compounds N.O.S.)
126-72-7
7440-62-2
75-01-4
1330-20-7
7440-66-6
.1
600
.6
1000
1000
10
5
2E-4
.005
1
8270
6010
8021
8260
6010
3E-5
2
.02
100
70
.2
.08
2E-4
.005
.02
8270
6010
8021
8260
6010
.004
20
.2
1000
700
1 Common names are those widely used in government regulations, scientific publications, and commerce; synonyms exist for many chemicals.
2 Chemical Abstracts Service registry number. Where "and compounds N.O.S." is entered, all species of the metal are included.
3 Soils must be analyzed for all constituents on the CBEC list. If any of the constituent concentrations exceed the CBEC, the contaminated soil fails the Tier 1
CBEC demonstration. The exemption concentrations are based on health-based numbers.
4 Exemption Quantitation Criteria (EQC). When a specified exemption level is below its specified EQC, the exemption demonstration must achieve an actual
detection limit which is at least as low as the specified EQC. In these cases, if the demonstration shows that the constituent cannot be quantified above the CBEC,
and the actual detection limit is equal to or below the EQC, the Agency will assume that the constituent is not present at levels of regulatory concern. If the actual
detection limit exceeds the EQC for the specified constituent, the demonstration is considered invalid.
5 Possible analytical methods refer to procedure numbers used in EPA Report SW-846 "Test Methods for Evaluating Solid Waste", Third Edition, November
1986, as revised, December 1987, for the methods used. Methods listed are believed to be capable of routinely determining concentrations of the respective
analytes at the EQC or below. Other methods are permissible if a laboratory can demonstrate it is capable of achieving the EQCs for given analytes, while still
adhering to the quality control guidance given in Chapter One of SW-846. Operators must report the concentrations actually determined by the method chosen,
even if they are below the EQC.
6 Groundwater and SW-846 Method 1311 leachate must be analyzed for all constituents on the exemption list. If any of the constituent concentrations exceed
the CBEC concentrations, the waste fails the Tier 1 CBEC demonstration. The exemption concentrations are based on health-based numbers, a risk level of 10~6,
and Maximum Contaminant Levels and include a dilution attenuation factor (DAF) of 10.
7 Groundwater and SW-846 Method 1311 leachate must be analyzed for all constituents on the exemption list. If any of the constituent concentrations exceed
the CBEC concentrations, the wast fails the Tier 2 CBEC demonstration. The exemption concentrations are based on health-based numbers, a risk level of 10~5,
and Maximum Contaminant Levels and include a dilution attenuation factor (DAF) of 100.
8 Benzotrichloride is hydrolytically unstable. Analyze for benzoic acid.
9 CBEC for soil is based on EPA policy decison.
10 CBEC concentrations are based on toxicity data for o-phenylenediamine. Method 8270 does not specify retention times for the three isomers, thus the lowest
available toxicity data for the isomers is used as a worst-case scenario.
1' Phthalic anhydride is hydrolytically unstable. Analyze for phthalic acid.
12 Indicates constitutent should be analyzed via direct injection.
APPENDIX XII—CBEC FOR WASTE
Common name'
Chemical
Abstract
No.2
Tier 1
Exemption
levels for
leachate3 (mg/
EQC for
leachate4
(mg/L)
Possible
SW-846
method for
leachate5
Tier 2
Exemption
Levels for
leachate6
(mg/L)
Acenaphthene 83-32-9
Acetone (2-propanone) 67-41-1
Acetonitrile (methyl cyanide) 75-05-8
Acetophenone 98-86-2
Acrolein 107-02-8
Acrylamide 79-06-1
Acrylonitrile 107-13-1
Aldrin 309-002-2
Aniline (benzeneamine) 62-53-3
Antimony (and compounds N.O.S.) 7440-36-0
Aramite 140-57-8
Arsenic (and compound N.O.S) 7440-38-2
Barium (and compounds N.O.S.) 7440-39-3
Benz[a]anthracene 6-55-3
Benzene 71-43-2
Benzidine 92-87-5
Benzo(b)fluoranthene 205-99-2
Benzo(a)pyrene 50-32-8
Benzotrichloride 98-07-7
Benzyl alcohol 100-51-6
Benzyl chloride 100-44-7
Beryllium (and compounds N.O.S.) 7440-41 -7
Bis(2-chloroethyl) ether 111-44-4
Bis(2-chloroisopropyl) ether 39638-32-9
Bis(2-ethylhexyl) phthalate 117-81-7
Bromodichloramethane 75-27-4
Bromomethane 74-83-9
Butanol 71-36-3
Butyl benzyl phthalate 85-68-7
2-sec-Butyl 4, 6-dinitrophenol (Dinoseb) 88-85-7
Cadmium (and compounds N.O.S.) 7440-43-9
Carbon disulfide 75-15-0
Carbon tetrachloride 56-23-5
Chlordane 57-74-9
p-Chloroaniline 106-47-8
20
40
2
40
7
8E-5
6E-4
2E-5
0.06
.1
.01
.5
20
.001
.05
2E-6
.002
.002
3E-5
100
.002
.01
3E-4
.005
.04
.003
0.5
40
1
.07
.05
40
.05
.02
1
0.01
.1
.1
.01
.005
.1
.005
4E-5
.01
.03
.02
.01
.02
1E-4
.005
.03
2E-4
2E-4
6E-5
.02
.002
.003
.003
.01
.01
.005
.005
.1
.01
7E-5
.001
.1
.005
1E-4
.02
8270
8240
10 8240
8270
'° 8240
10 8260
10 8240
8080
8270
7041
8270
7060
6010
8310
8260
8270
8310
8310
8121 /7
8270
8121
6010
8110
8270
8270
8260
8260
8240
8270
8150
7131
10 8240
8260
8080
8270
200
400
20
400
70
0.008
.06
.002
6
1
1
5
200
.01
.5
2E-4
.02
.02
.003
1000
.2
.1
.03
.5
.4
.3
5
400
10
.7
0.5
400
.5
.2
10
-------
21S14 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
APPENDIX XII—CBEC FOR WASTE—Continued
Common name1
Chemical
Abstract
No.2
Tier 1
Exemption
levels for
leachate3 (mq/
L)
EQC for
leachate4
(mg/L)
Possible
SW-846
method for
leachate5
Tier 2
Exemption
Levels for
leachate6
(mg/L)
Chlorobenzena 108-90-7
Chlorobenzilate 510-15-6
2-Chloro-1,3-butadiens(chloroprene) 126-99-8
Chlorodibromomethane 124-48-1
Chlorotorm 67-66-3
Chloromathane (Methyl Chloride) 74-87-3
2-Chlorophenol 95-57-8
3-Chloropropene (allyl chloride) 107-05-1
Chromium (and compounds N.O.S.) 7440-47-3
Chrysene 218-01-9
Cresols 1319-77-3
Cumsnd 98-82-8
Cyanide (amenable) 57-12-5
2,4-Dichlorophenoxyacetic acid (2,4-D) 94-75-7
ODD 72-54-8
DDE 72-55-9
DDT 50-29-3
Diallete 2303-16-4
Dibenz(a,h)anthracen0 53-70-3
1,2-Dibromo-3-chloropropane 96-12-8
Dibromomathane (methylene bromide) 74-95-3
1,2-Dichlorobenzene 95-50-1
1,4-Dichlorobenzene • 106-46-7
3.3' -Dichlorobenzidine 91-94-1
Dichlorodifluoromethane 75-71-8
1,1-Dichloroethana 75-34-3
1,2-Dichloroethane 107-06-2
1,1-Dichloroethylene 75-35-4
cls-1,2-Dichloroethylene 156-60-5
trans-1,2-Dichloroethylene i 156-60-5
Dichloromethane (Methylene Chloride) ! 75-09-2
2.4-Dlchlorophenol 120-83-2
1,2-Dichloropropane i 78-87-5
1,3-Dichloropropene > 542-75-6
Dieldrin ': • 60-57-1
Diethyl phthalate '. 84-66-2
Diethylstilbestrol •• 56-53-1
Dimethoate 60-51-5
3,3'-Dimethoxybenzidine 119-90-4
7,12-Dimethylbenz(a)anthracene 57-97-6
3.3'-Dimethylbenzidine 119-937
2,4-Dimethylphenol 105-67-9
Dimethyl phthalate 131-11-3
1,3-Dinitrobenzene 25154-54-5
2,4-Dinitrophenol 51-28-5
2.4-Dinitrotoluane 121-14-2
2,6-Dinintrotoluene 606-20-2
Di-n-butyl phthalate : 84-74-2
Di-n-octyl phthalate 117-84-0
1,4-Dioxane 123-91-1
2378 TCDDiOxin 1746-01 -6
2378 PeCDDioxins
2378 HxCDDioxins
2378 HpCDDioxins
OCDD 3268-87-9
Diphenylamine 122-39-4
1,2-Diphenylhydrazine 122-66-7
Disulfoton 298-04-4
Endosulfan 115-29-7
Endrin 72-20-8
Eplchlorohydrin • 106-89-8
2-Ethoxyethanol , 110-80-5
Ethyl acetate 141-78-6
Ethylbenzene • 100-41-4
Ethyl ether 60-29-7
Ethyl methacrylate 97-63-2
Ethyl methanesulfonate •• 62-50-0
Ethylene dibromide 106-93-4
Famphur • 52-85-7
Fluoranthene 206-44.0
Fluorena > 86-73-7
Formic acid 64-18-6
puran 110-00-9
2378Tcb>uran 51207-31-9
12378 PeCDFuran
1
7
7
.004
.06
.03
2
.02
1
.002
20
10
2
0.7
.001
.001
.001
.006
.003
.002
4
6
.75
8E-4
70
40
.05
.07
.7
1
.05
1
.05
.002
2E-5
300
7E-8
.07
.03
1E-5
4E-5
7
400
.04
.7
5E-4
5E-4
40
7
.03
5E-7
4E-9
2E-8
2E-7
2E-6
9
4E-4
.01
.02
.02
.04
100
300
7
70
30
1E-6
5E-4
.01
10
10
70
.4
2E-8
4E-8
'.005
.01
.005
,005
.005
.005
.01
.005
.01
.002
.01
.005
.04
i.002
1E-4
4E-5
1E-4
.01
3E-4
3E-5
.005
' .01
;.pos
.02
.005
7E-4
.005
!.005
.005
'.005
:.005
1 .01
.005
.005
2E-5
! .01
.02
.003
' .1
.01
.01
.01
.01
.004
.05
.01
.01
1 .01
.01
.1
IE-8
1E-8
2.5E -8
2.5E -8
5E-8
1 .01
.01
7E-4
IE-4
6E-5
.1
: 1
.1
.005
! .1
.005
.02
3E-4
.02
.01
' .002
.2
• .1
1E-8
1E-8
8260
8270
8260
8260
8260
8260
8270
8240
7191
8310
8270
8240
9010
8150
8080
8080
8080
8270
8310
8011
8260
8260
8260
8270
8260
8021
8260
8260
8260
8260
8240
8270
8260
8240
8080
8270
8270
8141
8270
8270
8270
8270
8270
8330
8270
8270
8270
8270
8270
10 8260
8290
8290
8290
8290
8290
8270
8270
8141
8080
8080
10 8010
10 8260
8240
8260
8240
8240
8270
8011
8270
8270
8310
">8015
8240
8290
8290 i
10
70
70
.4
6
3
20
2
10
.02
200
100
20
7
.1
.1
.1
.6
.03
.02
40
60
7.5
.08
700
400
.5
.7
7
10
.5
10
.5'
.2
.002
3000
7E-6
.7
3
.001
.004
70
4000
.4
7
.05
.05
400
70
3
5E-6
4E-7
2E-6
2E-5
2E-4
90
.04
.1
.2
.2
4
1000
3000
70
700
300
1E-4
.005
.1
100
100
7000
4
2E-6
4E-6
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules 21515
APPENDIX XII—CBEC FOR WASTE—Continued
Common name1
Chemical
Abstract
No.2
Tier 1
Exemption
levels for
leachate3 (mg/
U)
EQC for
leachate4
(mg/L)
Possible
SW-846
method for
leachate5
Tier 2
Exemption
Levels for
leachate8
(mg/L)
23478 PeCDFuran 57117-31-4
2378 HxCDFurans
2378 HpCDFurans
OCDF
Heptachlor 76-44-8
Heptachlor epoxide 1024-57-3
Hexachlorobenzene 118-74-1
Hexachloro-1,3-butadiene 87-68-3
alpoha-HCH 319-84-6
beta-HCH 319-85-7
Hexachlorocyclopentadiene 77-47-4
Hexachloroethane 67-72-1
Hexachlorophene 70-30-4
lndeno(1,2,3-cd)pyrene 193-39-5
Isobutyol alcohol 78-83-1
Isophorone 78-59-1
Kepone 143-50-0
Lead (and compounds N.O.S.) .' 7439-92-1
Lindane (gamma-HCH) 58-89-9
Mercury (and compounds N.O.S.) 7439-97-6
Methacrylonitrile 126-98-7
Methanol 67-56-1
Methoxychlor 72-43-5
3-Methylcholanthrene 56-49-5
Methyl ethyl ketone 78-93-3
Methyl isobutyl ketone 108-10-1
Methyl methacrylate 80-62-6
Methyl parathion 298-00-0
Naphthalene 91-20-3
2-Naphthylamine 91-59-8
Nickel (and compounds N.O.S.) 7440-02-0
Nitrobenzene 98-95-3
2-Nitropropane 79-46-9
N-Nitroso-di-n-butylamine 924-16-3
N-Nitroso-diethylamine 55-18-5
N-Nitrosodimethylamine 62-75-9
N-Nitrosodiphenylamine 86-30-6
N-Nitrosodi-n-propylamine 621-64-7
N-Nitrosomethylethylamine 10595-95-6
N-Nitrosopiperidine 100-75-4
N-Nitrosopyrrolidine 930-55-2
Octamethyl pyrophosphoramide 152-16-9
Parathion 56-38-2
Pentachlorobenzene 608-93-5
Pentachloronitrobenzene (PCNB) 82-68-8
Pentachlorophenol 87-86-5
Phenol i 108-95-2
Phenylenediamine /8
Phorate 298-02-2
Phthalic anhydride 85-44-9
Polychlorinated biphenyls 1336-36-3
Pronamide 23950-58-5
Pyrene 129-00-0
Pyridine 110-86-1
Safrole 94-59-7
Selenium (and compounds N.O.S.) 7782-49-2
Silver (and compounds N.O.S.) 7440-22-4
Strychnine and salts 57-24-9
Styrene 100-42-5
1,2,4,5-Tetrachlorobenzene 95-94-3
1,1,1,2-Tetrachloroethane 630-20-6
1,1,2,2-Tetrachloroethane 79-34-5
Tetrachloroethylene 127-18-4
2,3,4,6-Tetrachlorophenol :.. 935-95-5
Tetraethyl dithiopyrophosophate 3689-24-5
Thallium (and compounds N.O.S.) 7440-28-0
Toluene 108-88-3
2,4-Toluenediamine 95-80-7
2,6-Toluenediamine 823-40-5
o-Toluidine 95-53-4
p-Toluidine 106-49-0
Toxaphene 8001-35-2
Tribomomethane (Bromoform) 75-25-2
1,2,4-Trichlorobenzene 120-82-1
1,1,1 -Trichloroethane 71 -55-6
4E-9
2E -8
2E-7
2E-6
.004
.002
.01
.004
6E-5
2E-4
.5
.03
.1
.004
100
.09
7E-6
.15
.002
.02
.04
200
.4
1E-5
20
20
30
.09
10
4E-4
1
.2
4E-5
6E-5
2E-6
7E-6
.07
5E-5
2E-5
9E-6
2E-4
.7
2
.3
.001
.01
200
.007
.07
700
.005
30
10
.4
.002
.5
2
.1
1
.1
.01
.002
.05
10
.2
.02
10
1E-4
70
.001
.002
.03
.04
.09
2
1E-8
2.5E -8
2.5E -8
5E-8
3E-5
8E-4
6E-5
.005
3E-5
6E-5
.002
2E-5
.05
4E -4
.1
.01
.02
.01
2E-4
.002
.03
.1
.002
.01
.1
.1
.005
.01
.005 I
.01
.2
.01
.1
.01
.02
.01
.01
.01
.01
.02
.04
.2
.01
4E-4
.02
.05
.01
.01
4E-4
.1
7E-4
.01
.01
.005
.01
.02
.002
.04
1E-4
1E-4
.005
5E-5
.005
.01
.01
.01
.005
.02
.02
.01
.01
.002
.005
.01
.005
8290
8290
8290
8290
8080
8080
8121
8260
8080
8080
8121
8121
8270
8310
10 8240
8270
8270
7421
8121
7470
10 8240
8240
8080
8270
10 8240
10 8240
8240
8270
8260
8270
6010
8270
8260
8270
8270
8270
8270
8270
8270
8270
8270
8270
8270
8121
8270
8270
8270
8270
8141
8270 /9
8080
8270
8270
8240
8270
7740
7761
8270
8021
8121
8260
8021
8260
8270
8270
7841
8260
8270
8270
8270
8270
8080
8260
8260
. 8260
4E-7
2E-6
2E-5
2E-4
.04
.02
.1
.4
.02
.02
5
3
1
.04
1000
9
7E-4
1.5
.02
.2
.4
2000
4
.001
" 200
200
300
.9
100
0.04
10
2
.004
.006
2E-4
7E-4
7
.005
.002
9E-4
2E-2
7
20
3
.1
.1
2000
.7
.7
7000
.05
300
100
4
.2
5
20
1
10
1
1
.2
.5
100
2
.2
100
.01
700
.1
.2
.3
4
.9
20
-------
21516
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
APPENDIX XII—CBEC FOR WASTE—Continued
Common name1
245-TP (Silvex) • • -
Xylenes •
Chemical
Abstract
No.2
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
93-76-5
93-72-1
96-18-4
354-58-5
99-35-4
126-72-7
7440-62-2
75-01-4
1330-20-7
7440-66-6
Tier 1
Exemption
levels for
leachate3 (mg/
L)
.05
.05
100
40
.03
4
.5
2
1E4
.02
3E-5
2
.02
100
70
EQC for
leachate4
(mg/L)
.005
.005
.005
:01
: .01
. .002
.002
.005
.005
.01
.2
.08
'2E-4
.005
.02
Possible
SW-846
method for
leachate5
8260
8260
8260
8270
8270
8150
8150
8260
8260
8270
8270
6010
8021
8260
6010
Tier 2
Exemption
Levels for
leachate6
(mg/L)
.5
.5
1000
400
3
40
5
20
1E5
.2
.004
20
.2
1000
700
1 Common names are those widely used in government regulations, scientific publications, and commerce; synonyms exist for many chemicals.
1 Chemical Abstracts Service registry number. Where "and compounds N.O.S." is entered, all species of the metal are included.
3 Wastewater and SW-846 Method 1311 Leachate must be analyzed for all constituents on the exemption list. If any of the constituent concentrations exceed
and Maximum Contaminant Levels and include a dilution attenuation factor (DAF) of 10.
4 Exemption Quantification Criteria (EQC). when a specified exemption level is below its specified EQC, the exemption demonstration must achieve an actual
detection limit which is at least as low as the specified EQC. In thes cases, if the demonstration shows that the constituent cannot be quantified above the CBEC,
and the actual detection limit is equal to or below the EQC, the Agency will assume that the constituent is not present at levels of regulatory concern. If the actual
detection limit exceeds the EQC for the specified constituent, the demonstration is considered invalid.
5 Possible analytical methods refer to procedure numbers used in EPA Report SW-846 "Test Methods for Evaluating Solid Waste', Third Edition, November
1986 as revised December 1987, for the methods used. Methods listed are believed to be capable of routinely determining concentrations of the respective
analvtes at the EQC or below. Other methods are permissible if a laboratory can demonstrate it is capable of achieving the, EQCs for given analytes, while still
adhering to the quality control guidance given in Chapter One of SW-846. Operators must report the concentrations actually determined by the method chosen,
eVer»'wastwater and SW-846 Method 1311 Leachate must be analyzed for all constituents on the exemption list. If any of the constituent concentrations exceed
the CBEC concentrations, the waste fails the Tier 2 CBEC demonstration. The exemption concentrations are based on health-based numbers, a risk level of 10 5,
and Maximum Contaminant Levels and include a dilution attenuation factor (DAF) of 100.
' Benzotrichloride is hydrolytically unstable. Analyze for benzole acid. ,,_._• .u .u
"CBEC concentrations are based on toxicity data for o-phenylendediamine. Method 8270 does not specify retention times for the three isomers, thus the
lowest available toxicity data for the isomers is used as a worst-case scenario.
• Phthalic anhydride is hydrolytically unstable. Analyze for phthlic acid.
10 Indicates constituent should be analyzed via direct injection.
Appendix XIII Sampling Requirements
1. Environmental media
(i) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2] conforms to the
description of such plans in chapter one of
SW-846, (3) describes how sample
representativeness will be determined, (4.)
discusses any modifications to the analytical
protocols listed in appendix XI and (5)
describes the facility's quality assurance
program.
(ii) Representative samples of the
contaminated media must be analyzed
according to the analytical methods specified
in appendix XI to this part and the facility's
sampling and analysis plan prior to
management of the media as non-hazardous
to determine whether the media meets the
concentration-based exemption criteria levels
specified in appendix XI. Total constituent
analyses of these samples "must be conducted
for each of the constituents in appendix XI. In
addition, for media containing greater than
0.5% solids as measured in step 7.1.1
(Preliminary determination of percent solids)
of method 1312 (the Synthetic Precipitation
Leaching Procedure), the samples must be
extracted using method 1312, and the
resultant extract analyzed for each of the
constituents in appendix XI. The
demonstration must include enough
representative composite samples taken over
a period of time and area sufficient to
represent the temporal and spatial variability
or uniformity of the media:
(A) Contaminated Soils/Sediments:
Samples must be collected in such a manner
as to define the boundaries of contamination.
When the area of contamination is less than
40,000 square feet, divide the unit into at least
four sections of equal area. Collect five
random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section. When the
area of contamination is greater than 40,000
square feet, divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section.
(B) Contaminated Ground Water from
Pump and Treat Operations: Collect a
minimum of four time-composite samples
(each composite should consist of four to five
grab samples) collected over a period of at
least one month.
(C) Contaminated In-place Ground Water:
Collect four rounds of samples from all
ground-water monitoring wells in an EPA- or
state-approved ground-water monitoring
system that is designed to characterize the
lateral and vertical extent and nature of the
ground-water contamination over a period of
one year.
(D) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support QA/
QC analyses. ]
(Hi) A sampling record must be maintained
which includes:
(A) Name, address and RCRA ID number of
facility;
(B) Names and qualifications of persons
sampling the media;
(C) Date of sampling;
(D) Description of the unit or sampling area
an explanation of why the samples are
representative of the temporal and spatial
variability of the media;
(E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
(F) Discussion of process and treatment
operating parameters at the time of sampling.
(iv) A testing record must be maintained
which includes:
(A) Name and address of laboratory
analyzing the taedia;
(B) Names and qualifications of analysts;
(C) Date of analysis;
(D) Description of sample preparation
techniques used for extraction of samples;
(E) Description of analytical methods and
QA/QC procedures; (F) Type and model
number of instruments used in analytical
procedures; and
(G) Analytical testing and QA/QC results.
(v) Sampling and analysis of media must be
repeated annually for the first two years the
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
21517
exemption is claimed and every three years
thereafter, and when process or operating
changes (including upsets) occur which could
affect the medium's composition.
2. Waste
(i) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2) conforms to the
description of such plans in chapter one of
SW-846, (3) describes how sample
representativeness will be determined, (4)
discusses any modifications to the analytical
protocols listed in appendix 11, and (5)
describes the facility's quality assurance
program.
(ii) Representative samples of the waste
must be analyzed according to the analytical
methods specified in appendix 12 to this part
and the facility's sampling and analysis plan
prior to management of the waste as non-
hazardous waste to determine whether the
waste meets the concentration-based
exemption criteria levels specified in
appendix 12. The samples must be extracted
using the Toxicity Characteristic Leaching
Procedure, method 1311, and the resultant
extract analyzed for each of the constituents
in appendix 12. The demonstration must
include enough representative composite
samples taken over a period of time and area
sufficient to represent the temporal and
spatial variability or uniformity of the waste:
(A) Pipes and Other Process Discharges:
Collect a minimum of four time-composite
samples (each composite should consist of
four to five grab samples) collected over a
period of at least one month.
(B) Drums: Collect a minimum of four single
core samples from drums filled over at least a
one-month period.
(C) Land Disposal Units (less than 40,000
square feet): Divide the unit into at least four
sections of equal area. Collect five random or
fixed transect full-core subsamples from each
section. Composite subsamples from each
section.
(D) Land Disposal Units (greater than
40,000 square feet): Divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section.
(E) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support
required QA/QC analyses.
(F) Sampling and analysis of wastes must
be repeated annually for the first two years
and every three years thereafter, and when
process, operating or treatment changes
(including upsets) occur which could affect
the waste's composition.
(iii) A sampling record must be maintained
which includes:
(A) Name, address, and RCRA ID number
of facility;
(B) Names and qualifications of persons
sampling the waste;
(C) Date of sampling;
(D) Description of the unit or sampling area
and an explanation of why the samples are
representative of the temporal and spatial
variability of the waste;
(E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
(F) Discussion of process and treatment
operating parameters at the time of sampling.
(iv) A testing record must be maintained
which includes:
(A) Name and address of laboratory
analyzing the waste;
(B) Names and qualifications of analysts;
(C) Date of analysis;
(D) Description of sample preparation
techniques used for extraction of samples;
(E) Description of analytical methods and
QA/QC procedures;
(F) Type and model number of instruments
used in analytical procedures; and
(G) Analytical testing and QA/QC results.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
8. The authority citation for part 262
continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922, 6923,
6924, 6925, and 6937.
9. In § 262.20, paragraph (b) is revised
to read as follows:
§ 262.20 General requirements.
*****
(b) A generator must designate on the
manifest one facility which is permitted
to handle the waste described on the
manifest. In the case of wastes claiming
an exemption under 40 CFR 261.4(b)(14)
or media claiming an exemption under
40 CFR 261.4(a)(13), a generator must
designate the facility identified in its
exemption notification.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
10. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924 and
6925.
11. Section 264.1 is amended by
adding paragraph (g)(ll) to read as
follows:
§ 264.1 Purpose, scope and applicability.
(g) * * * *
(11) The owner or operator of a
facility that accepts wastes claiming an
exemption under 261.4(b)(14), so long as:
(A) The owner or operator only
accepts for disposal manifested wastes
claiming an exemption under
261.4(b}(14) exclusively or in addition to
solid wastes;
(B) The owner or operator stores
manifested waste claiming an
exemption under 261.4(b)(14) in
accordance with the requirements of 40
CFR 262.34(a)(l) no longer than 10 days
prior to disposal; and
(C) The owner or operator disposes of
the waste claiming an exemption under
261.4(b)(14) in a unit or units meeting the
criteria of part 258, subpart D.
PART 268—LAND DISPOSAL
RESTRICTIONS
12. The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and
6924.
13. Section 268.1 is amended by
adding a new paragraph (c)(4) to read as
follows:
§ 268.1 Purpose, scope and applicability.
*****
(c] * * *
(4) Where the waste is exempted from
subtitle C regulation under § 261.4
(a)(ll) or fb)(13).
[Option 2]
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-
6927, 6930, 6934, 6935, 6937, 6938, 6939, and
6974.
2. In 260.10, add the following
definitions in alphabetical order:
§ 260.10 Definitions.
*****
Dilution means the addition of
materials, liquid or non-liquid, to
increase the volume of a given waste or
media to reduce constituent
concentrations.
*****
Media means any naturally-occurring
soil or ground water.
*****
Soil means unconsolidated earth
material composing the superficial
geologic strata (materials overlying
bedrock), consisting of clay, silt, sand,
or gravel size particles (sizes as
classified by the U.S. Soil Conservation
Service), or is a mixture of such
materials with other liquids, sludges, or
solids, and is inseparable by simple
mechanical removal processes.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and
6922.
-------
21518
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
2. In § 261.3, paragraph (e) is removed,
and paragraphs (a)(2)(iv)(F) and
(c)(2)(ii)(C) are added to read as follows:
§ 261.13 Definition of hazardous waste.
(a) * * *
(2) * * *
(iv) * * *
(F) Waste that contains hazardous
constituents all of which have regulatory
levels established under table 1 of 40
CFR 261.24. Generators which have
wastes regulated as listed hazardous
wastes which may become designated
as non-listed wastes pursuant to this
subparagraph must test their wastes for
all constituents listed in table 261.24 and
provide EPA with a one-time
notification prior to handling the waste
as nonhazardous. The waste remains
hazardous waste unless and until
completion of testing and notification.
* * * * *
(o) * * *
(2] * * *
(ii) * * *
(C) Waste 'that contains hazardous
constituents all of which have regulatory
levels established under table 1 of 40
CFR 261.24. Generators which have
wastes regulated as listed hazardous
wastes which may become designated
as non-listed wastes pursuant to this
subparagraph must test their wastes for
all constituents listed in table 261.24 and
provide EPA with a one-time
notification prior to handling the waste
as nonhazardous. The waste remains
hazardous waste unless and until
completion df testing and notification.
*****
3. In § 261.24, table 1 is revised to read
as follows:
§ 261.24 Toxicity characteristic.
TABLE 1.—MAXIMUM CONCENTRATION OF CONTAMINANTS FOR THE TOXICITY CHARACTERISTICS
EPAHW
No.1
Contaminant
Chemical
abstract No.2
Regulatory
levels (mg/L)
0044
0045
0046
D047
0048
0049
0050
0051
D052
0053
0054
0004
D005
0055
0018
0056
D057
0058
0059
0060
0061
0062
D063
0064
D065
0066
0067
D068
0069
0070
0006
0071
0019
0020
0072
0021
0073
0074
D075
0022
0076
0077
0078
0007
D079
0026
O023
D024
D025
0080
D081
O016
0082
D083
0084
0085
D086
0087
Acenapthene :..... 83-32-9
Acetone (2-propanone) ;..... 67-64-1
Acetonitrile (methyl cyanide) , 75-05-8
Acelophenone 98-86-2
Acrolein .-. t.... 107-02-8
Acrylamide ,.... 79-06-1
Acrylonitrile ;..... 107-13-1
Aldrin , ,..,.. 309-00-2
Aniline (benzeneamine) J 62-53-3
Antimony (and compounds N.O.S.) ; 7440-36-0
Aramite 140-57-8
Arsenic (and compounds N.O.S.) u... 7440-38-2
Barium (and compounds N.O.S.) ..... 7440-39-3
BenzCa] anthracene ..... 6-55-3
Benzene ' 71-43-2
Benzidine l.... 92-87-5
Benzo(b)fluoranthene ., 205-99-2
Benzo(a)pryren ,.'.... 50-32-8
Benzotrichloride3 98-07-7
Benzyl alcohol i 100-51-6
Benzyl chloride , ..... 100-44-7
Beryllium (and compounds N.O.S.) , 7440-41-7
Bis(2-chloroethyl) ether L... 111-44-4
Bis(2-chloroisopropyl) ether 39638-32-9
Bis(2-ethylhexyl) phthalate ;.... 117-81-7
Bromodichloromethane 75-27-4
Bromomethane ........... 74-83-9
Butanol 71-36-3
Butyl benzyl phthalate 85-68-7
2-sec-Butyi-4,6-dinitrophenol (Dinoseb) ;.... 88-85-7
Cadmium (and compounds N.O.S.) '„... 7440-43-9
Carbon disulfide 75-15-0
Carbon tetrachloride , ;.... 56-23-5
Chlordane ,..,,. 57-74-9
p-Chloroaniline i 106-47-8
Chlorobenzene [ ,.... 108-90-7
Chlorobenzilate ;. 510-15-6
2-Chloro-1,3-butadiene (chloroprene) L , 126-99-8
Chlorodibromomethane ^ ...... 124-48-1
Chloroform .'. '. ,.... 67-66-3
Chloromethane (Methyl Chloride) ,. 74-87-3
2-Chlorophenol L ;.... 95-57-8
3-Chloropropene (allyl chloride) i 107-05-1
Chromium (and compounds N.O.S.) I ,.... 7440-47-3
Chrysene I ,..,. 218-01-9
Cresol ,.... 1319-77-3
o-Cresol : 95-48-7
m-Cresol , ,.... 108-39-4
p-Cresol '. ..... 106-44-5
Cumene '. 98-82-8
Cyanide (amenable) , 57-12-5
2,4-Dichlorophenoxyacetic acid (2,4,-D) 94-75-7
ODD 72-54-8
DDE 72-55-9
DDT 50-29-3
Diallate ; 2303-16-4
Dibenz(a.h)anthracene 53-70-3
1,2-Qibromo-3-ch!oropropane ,..,. 96-12-8
200
400
20
400
70
'.10
.06
.002
6
1 ,
1
5
200
.01
.5
7.03
.02
.02
.003
1000
.29
.1
.03
.5
.4
.3
5
400
10
.7
.5
400
.5
.2
10
10
70
70
.4
6
3
20
2
10
.02
6 200
6 200
6 200
6 200
100
20
7
.1
.1
.1
.6
.03
.02
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules 21519
TABLE 1 .—MAXIMUM CONCENTRATION OF CONTAMINANTS FOR THE TOXICITY CHARACTERISTICS—Continued
EPAHW
No.1
Contaminant
Chemical
abstract No.2
Regulatory
levels (mg/L)
DOSS
D089
0027
D090
D091
D092
D028
D029
D093
D094
D095
D096
D097
D098
D099
D100
D101
D102
D103
D104
D105
D106
D107
D108
D109
D030
D110
D111
D112
D113
D114
D115
D116
D117
D118
D119
D120
D121
D122
D012
D123
D124
D125
D126
D127
D128
D129
D130
D131
D132
D133
D134
D135
D136
D137
D138
D139
D140
D141
D031
D142
D032
D033
D143
D144
D145
D034
D146
D147
D148
D149
D150
D008
D013
D009
D151
D152
D014
D153
Dibromomethane (methylene bromide) 74-95-3
1,2-Dichlorobenzene 95-50-1
1,4-Dichlorobenzene 106-46-7
3,3'-Dichlorobenzid!ne 91-94-1
Dichlorodifluoromethane 75-71-8
1,1-Dichloroethane 75-34-3
1,2-Dichloroethane 107-06-2
1,1-Dichloroethylene 75-35-4
cis-1,2-Dichloroethylene 156-60-5
trans-1,2-Dichloroethylene 156-60-5
Dichloromethane (Methylene Chloride) 75-09-2
2,4-Dichlorophenol 120-83-2
1,2-Dichloropropane 78-87-5
1,3-Dichloropropene 542-75-6
Dieldrin 60-57-1
Diethyl phthalate 84-66-2
Diethylstilbestrol 56-53-1
Dimethoate 60-51-5
3,3'-Dimethoxybenzidine 119-90-4
7,12-Dimethylbenz(a)anthracene 57-97-6
3,3'-Dimethylbenzidine 119-93-7
2,4-Dimethylphenol 105-67-9
Dimethyl phthalate 131-11-3
1,3-Dinitrobenzene 25154-54-5
2,4-Dinitrophenol 51-28-5
2,4-Dinitrotoluene 121-14-2
2,6-Dinitrotoluene 606-20-2
Di-n-butyl phthalate 84-74-2
Di-n-octyl phthalate 117-84-0
1,4-Dioxane 123-91-1
2378 TCDDioxin 1746-01-6
2378 PeCDDioxins
2378 HxCDDioxins
2378 HpCDDioxins
QCDD 3268-87-9
Diphenylamine 122-39-4
1,2-Diphenylhydrazine 122-66-7
Disulfoton 298-04-4
Endosulfan 115-29-7
Endrin 72-20-8
Epichlorohydrin 106-89-8
2-Ethoxyethanol 110-80-5
Ethyl acetate 141-78-6
Ethylbenzene 100-41-4
Ethyl ether 60-29-7
Ethyl methacrylate 97-63-2
Ethyl methanesulfonate 62-50-0
Ethylene dibromide 106-93-4
Famphur 52-85-7
Fluoranthene '. 206-44-0
Fluorene 86-73-7
Formic acid 64-18-6
Furan 110-00-9
2378TCDFuran 51207-31-9
12378 PeCDFuran
23478 PeCDFuran 57117-31-4
2378 HxCDFurans
2378 HpCDFurans
OCDF
Heptachlor 76-44-8
Heptachlor epoxide 1024-57-3
Hexachlorobenzene • 118-74-1
Hexachloro-1,3-butadiene 87-68-3
alpha-HCH • 319-84-6
beta-HCH 319-85-7
Hexachlorocyclopentadiene 77-47-4
Hexachloroethane 67-72-1
Hexachlorophene • 70-30-4
lndeno(1,2,3-cd)pyrene 193-39-5
Isobutyl alcohol .' 78-83-1
Isophorone •_• 78-59-1
Kepone 143-50-0
Lead (and compounds N.O.S.) 7439-92-1
Lindane (gamma-HCH) 58-89-9
Mercury (and compounds N.O.S.) 7439-97-6
Methacrylonitrile 126-98-7
Methanol 67-56-1
Methoxychlor • 72-43-5
3-Methylcholanthrene 56-49-5
40
60
7.5
.08
700
400
.5
.7
7
10
.5
10
.5
.2
.002
3000
'.02
.7
3
7.01
'.01
70
4000
.4
7
.05
.05
400
70
3
5E-6
4E-7
2E-6
2E-5
2E-4
90
.04
.1
.2
.2
4
1000
3000
70
700
300
'.02
.005
.1
100
100
7000
4
2E-6
4E-6
4E-7
2E-6
2E-5
2E-4
0.04
.02
.1
.4
.006
.02
5
3
1
.04
1000
9
'.02
1.5
.02
.2
.4
2000
4
7.01
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21520 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules
TABLE 1.—MAXIMUM CONCENTRATION OF CONTAMINANTS FOR THE TOXICITY CHARACTERISTICS—Continued
EPAHW
No.'
Contaminant
Chemical
abstract No.2
Regulatory
levels (mg/L)
0035
0154
D155
0156
0157
0158
0159
0036
0160
0161
D162
0163
0164
0165
0166
0167
0168
0169
0170
0171
D172
0037
0173
0174
0175
0176
0177
0178
0179
0038
0180
0010
0011
0181
0182
0183
0184
D185
0039
0186
0187
0188
0189
0190
0191
0192
O193
D015
0194
D195
0196
0197
0040
0198
0041
0042
0199
0017
0200
0201
0202
0203
0204
0043
0205
0206
Methyl ethyl ketone 78-93-3
Methyl isobutyl ketone 108-10-1
Methyl methacrylate 80-62-6
Methyl parathion 298-00-0
Naphthalene 91-20-3
2-Naphthylamine '...... 91-59-8
Nickel (and compounds N.O.S.) 7440-02-0
Nitrobenzene 98-95-3
2-Nitropropane , 79-46-9
N/Nitroso-di-n-butylamine '..... 924-16-3
N-Nitroso-diethylamine 55-18-5
N-Nitrosodimethylamine 62-75-9
N-Nitrosodiphenylamine [.... 86-30-6
N-Nitrosodi-n-propylamine 621-64-7
N/Nitrosomethylethylamine 10595-95-6
N-Nitrosopiperidine 100-75-4
N-Ni1rosopyrrolidine 930-55-2
Octamethyl pyrophosphoramide 152-16-9
Paralhion ;..... 56-38-2
Pentachlorobenzene , 608-93-5
Pentachloronitrobenzene (PCNB) 82-68-8
Pentachlorophenol 87-86-5
Phenol 108-95-2
Phenylenediamine •*
Phorate 298-02-2
Phthalic anhydride 5 85-44-9
Polychlorinated biphenyls 1336-36-3
Pronamide 23950-58-5
Pyrene ', 129-00-0
Pyridine 110-86-1
Safrole ..... 94-59-7
Selenium (and compounds N.O.S.) 7782-49-2
Silver (and compounds N.O.S.) 7440-22-4
Strychnine and salts 57-24-9
Styrene 100-42-5
1,2,4,5-Tetrachlorobenzene 95-94-3
1,1,1,2-Tetrachloroethane :.... 630-20-6
1,1,2,2-Tetrachloroethane •. 79-34-5
Tetrachloroethylene , 127-18-4
2,3,4,6-Tetrachlorophenol '. ;.... 935-95-5
Tetraethyl dithiopyrophosphate '. 3689-24-5
Thallium (and compounds N.O.S.) '. 7440-28-0
Toluene ! 108-88-3
2,4-Toluenediamine 95-80-7
2,6-Toluenediamine 823-40-5
o-Toluidine .' : ;.... 95-53-4
p-Toluidine 106-49-0
Toxaphene 8001-35-2
Tribromomethane (Bromoform) 75-25-2
1,2,4-Trichlorobenzene 120-82-1
1,1,1-Trichloroethane '. 71-55-6
1,1,2-Trichloroethane ', 79-00-5
Trichloroethylene 79-01-6
Trichlorofluoromethane 75-69-4
2.4,5-Trichlorophenol 95-95-4
2,4,6-Trichlorophenol i 88-06-2
2,4,5-Trichlorophenoxyacetic acid 93-76-5
2,4,5-TP (Silvex) ',.... 93-72-1
1,2,3-Trichloropropane i 96-18-4
1,1,2-Trichloro-1,2,2,-trifluoroethane '. (.... 354-58-5
sym-Trinitrobenzene 99-35-4
Tris(2,3-dibromopropyl)phosphate J.... 126-72-7
Vanadium , , 7440-62-2
Vinyl chloride (Chloroethene) ; 75-01-4
Xylenes 1330-20-7
Zinc (and compounds N.O.S.) ,.... 7440-66-6
200
200
300
.9
100
.04
10
2
7.10
7.01
'.02
'.01
7
'.01
'.01
'.02
'.04
7
20
3
.1
.1
2000
.7
.7
7000
.05
300
100
4
.2
5
20
1
10
1
1
.2
.5
100
2
.2
100
'.02
700
.1
.2
.3
4
.9
20
.5
.5
1000
400
3
40
5
20
1E5
.2
'.20
20
.2
1000
700
1 Hazardous Waste Number
1 Chemical Abstracts Service registry number. Where "and compounds N.O.S." is entered, all species of the metal are included.
3 Benzotrichloride is hydrolytically unstable. Analyze for benzole acid.
* CBEC concentrations are based on toxicity data for o-phenylenediamine. Method 8270 does not specify retention times for the three isomers, thus the lowest
available toxicity data for the isomers is used as a worst-case scenario.
5 Phthalic anhydride is hydrolytically unstable. Analyze for phthalic acid.
* If O-, m-, and p-Cresol concentrations cannot be differentiated, the total cresol (D026) concentration is used. The regulatory level of total cresol is 200 mg/l.
7 Quanlitation limit is greater than the calculated regulatory level. The quantitation limit therefore becomes the regulatory level.
[Appendix VIII Amended]
4.-6. In appendix VIII of part 261, add
the following hazardous constituents in
alphabetical order:
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Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Proposed Rules 21521
APPENDIX VIII—HAZARDOUS CONSTITUENTS
Common name
Chemical abstracts name
Chemical
abstracts
No.
Hazardous
waste No.
Acenaphthene Acenaphthylene, 1,2-dihydro 83-32-9
Acetaldehyde 75-07-0 U001
Acetone 2-Propanone 67-64-1 U002
*******
Acrylic acid 79-10-7 U008
*******
Benzo(k) fluoranthene Same. - 201-08-9
Benzyl alcohol Benzenemethanol 100-51-6
*******
n-Butyl alcohol ;. •• •. « 71-36-3 U031
Chlorodibromo-methane; Dibromo-chloromethane Methane, dibromochloro- 124-48-1
* . « • * * * «
Cumene 98-82-8 U055
*******
Cyclohexanone •• 108-94-1 U057
.*•«*«*
Di-n-butyl phthalate 1,2-Benzenedicarboxylic acid, dibutyl ester 84-74-2 U069
Dimethylamine • 124-40-3 . U092
*******
1,4-Dioxane Same ". 123-91-1 U108
*******
Ethyl acetate 141-78-6 U112
. . * * * * *
Ethylbenzene Benzene, ethyl- 100-41-4
*******
Ethyl ether .. .. .. ~ ~ ;• 60-29-7 U117
Furan 110-00-9 U124
* * * * * * *
Isophorone... 2-Cyclohexen-1-one, 3,5,5-trimethyl 78-59-1
* * * * * * *
Methanol : 67-56-1 U154
*******
Methyl isobutyl ketone ~ ;. ;- ;• 108-10-1 U161
Phenanthrene -. Same ~ » 85-01-8
Stvrene Benzene, ethenyl 100-42-5
*******
Vanadium Same Total
*******
Xylene Benzene, dimethyl 1330-20-7 U239
* * * . * * * *
Zinc Same _ Total
7. At the end of part 261, appendix XI
is added to read as follows:
Appendix XI—Sampling Requirements
1. Environmental Media
(i) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2) conforms to the
description of such plans in Chapter One of
SW-846, (3] describes how sample
representativeness will be determined, and
(4) describes the facility's quality assurance
program.
(ii) Representative samples of the
contaminated media must be analyzed
according to the analytical methods specified
in appendix XI to this part and the facility's
sampling and analysis plan prior to
management of the media as non-hazardous
to determine whether the media meets the
concentration-based exemption criteria levels
specified in Appendix XI. Total constituent
analyses of these samples must be conducted
for each of the constituents in appendix XI. In
addition, for media containing greater than
0.5% solids as measured in step 7.1.1
(Preliminary determination of percent solids]
of method 1312 (the Synthetic Precipitation
Leaching Procedure), the samples must be
extracted using method 1312, and the
resultant extract analyzed for each of the
constituents in appendix XI. The
demonstration must include enough
representative composite samples taken over
a period of time and area sufficient to
represent the temporal and spatial variability
or uniformity of the media:
(A) Contaminated Soils/Sediments:
Samples must be collected in such a manner
as to define the boundaries of contamination.
When the area of contamination is less than
40,000 square feet, divide the unit into at least
four sections of equal area. Collect five
random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section. When the
area of contamination is greater than 40,000
square feet, divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-
core subsamples from each section.
Composite subsamples from each section.
(B) Contaminated Ground Water From
Pump and Treatment Operations: Collect a
minimum of four time-composite samples
(each composite should consist of four to five
grab samples] collected over a period of at
least one month.
(C] Contaminated In-Place Ground Water:
Collect four rounds of samples from all
ground water monitoring wells in an EPA- or
state-approved ground water monitoring
system that is designed to characterize the
lateral and vertical extent and nature of the
ground water contamination over a period of
one year.
(D) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support
required QA/QC analyses.
(iii] A sampling record must be maintained
which includes:
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21522 Federal Register / Vol. 57. No. 98 / Wednesday. May 20. 1992 / Proposed Rules
(A) Name, address and RCRA ID number of
facility;
(B) Names and qualifications of persons
sampling the media;
(C) Date of sampling;
(D) Description of the unit or sampling area
and an explanation of why the samples are
representative of the temporal and spatial
variability of the media;
(E) Description of sampling techniques,
containerization and preservation of samples,
and chain of custody; and
(F) Discussion of process and treatment
operating parameters at the time of sampling.
(iv) A testing record must be maintained
which includes:
(A) Name and address of laboratory
analyzing the media;
(B) Names and qualifications of analysts;
(C) Date of analysis;
(D) Description of sample preparation
techniques used for extraction of samples;
(E) Description of analytical methods
and QA/QC procedures;
(F) Type and model number of instruments
used in analytical procedures; and
(G) Analytical testing and QA/QC results.
(v) Sampling and analysis of media must be
repeated annually for the first two years the
exemption is claimed and every three years
thereafter, and when process or operating
changes (including upsets] occur which could
affect the medium's composition.
2. Waste
(!) A sampling and analysis plan must be
prepared that (1) describes the proposed
exemption demonstration, (2) conforms to the
description of such plans in chapter one of
SW-846, (3) describes how sample
representativeness will be determined, (4]
discusses any modifications to the analytical
protocols listed in appendix XI, and (5)
describes the facility's quality assurance
program.
(ii) Representative samples of the waste
must be analyzed according to the analytical
methods specified in appendix XII to this part
and the facility's sampling and analysis plan
prior to management of the waste as non-
hazardous waste to determine whether the
waste meets the concentration-based
exemption criteria levels specified in
appendix XII. The samples must be extracted
using the Toxicity Characteristic Leaching
Procedure, method 1311, and the resultant
extract analyzed for each of the constituents
in appendix XII. The demonstration must
include enough representative composite
samples taken over a period of time and area
sufficient to represent the temporal and
spatial variability or uniformity of the waste:
(A) Pipes and Other Process Discharges:
Collect a minimum of four time-composite
samples (each composite should consist of
four to five grab samples) collected over a
period of at least one month.
(B) Drums: Collect a minimum of four
single-core samples from drums filled over at
least a one-month period.
(C) Land Disposal Units (less than 40,000
square feet): Divide the unit into at least four
sections of equal area. Collect five random or
fixed transect full-core subsamples from each
section. Composite subsamples from each
section.
* (D) Land Disposal Units (greater than
40,000 square feet): Divide the unit into equal
sections of not more than 10,000 square feet.
Collect five random or fixed transect full-core
subsamples from each section. Composite
subsamples from each section.
(E) Additional samples should be collected
as needed to ensure that the sample set is
representative of any temporal or spatial
compositional variations, and to support
required QA/QC analyses.
(F) Sampling and analysis of wastes must
be reported annually for the first two years
and every three years thereafter, and when
process, operating or treatment changes
(including upsets) occur which could affect
the waste's composition.
(iii) A sampling record must be maintained
which includes:
(A) Name,,address, and RCRA ID number
of facility;
(B) Names and qualifications of persons
sampling the waste;
(C) Date of sampling;
(D) Description of the unit or sampling area
and an explanation of why the samples are
representative of the temporal and spatial
variability of the waste;
(E) Description of sampling techniques,
containerization and preservation of samples,
and chain of'custody; and
(F) Discussion of process and treatment
operating parameters at the time of sampling.
(iv) A testing record must be maintained
which includes:
(A) Name and address of laboratory
analyzing the waste;
(B) Names and qualifications of analysts;
(C) Date of analysis;
(D) Description of sample preparation
techniques used for extraction of samples;
(E) Description of analytical methods and
QA/QC procedures;
(F) Type and model number of instruments
used in analytical procedures; and
(G) Analytical testing and QA/QC results.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE i
8. The authority citation for part 262
continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922, 6923,
6924, 6925, and 6937.
9. In 262.20, paragraph (b) is revised to
read as follows:
§ 262.20 General requirements.
* * * * *
(b) A generator must designate on the
manifest one facility which is permitted
to handle the waste described on the
manifest. In the case of wastes claiming
an exemption under 40 CFR 261.4(b)(14)
or media claiming an exemption under
40 CFR 261.4(a)(13), a generator must
designate the facility identified in its
exemption notification.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
10. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924 and
6925. :
11. Section1264.1 is amended by
adding paragraph (g)(ll) to read as
follows:
§ 264.1 Purpose, scope and applicability.
(g) * * *
(11) the owner or operator of a facility
that accepts wastes claiming an
exemption under § 261.4(b)(14), so long
as:
(A) the owner or operator only
accepts for disposal mainfested wastes
claiming an exemption under
§ 261.4(b)(14) exclusively or in addition
to solid wastes;
(B) the owner or operator stores
manifested waste claiming an
exemption under §261.4(b)(14) in
accordance with the requirements of 40
CFR 262.34(a)(l) no longer than 10 days
prior to disposal; and
(C) the owner or operator disposes of
the waste claiming an exemption under
§261.4(b)(14) in a unit or units meeting
the criteria of part 258, subpart D.
PART 268—LAND DISPOSAL
RESTRICTIONS
12. The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6924.
13. Section 268.1 is amended by
adding paragraph (c)(4] to read as
follows:
§ 268.1 Purpose, scope and applicability.
*****
(c) * * * .
(4] Where the waste is exempted from
subtitle C regulation under
§ 261.3(a}(2)(iv)(F) or § 261.3{c)(2)(ii)(C).
* * * - * *
[FR Doc. 92-10973 Filed 5-14-92; 8:45 am]
BILLING CODE 65GO-50-M
-------
-------
&EPA
United States
Environmental Protection Agency
(OS-305)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
EPA/530-7-92-007
May 1992
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