20766 Federal Register / VoL 57, No. 95 / Friday, May 15, 1992 / Rules and Regulations
8
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 268
[FRL-4133-S]
Hazardous Waste Management
System: Land Disposal Restrictions
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice to Approve Hazardous
Debris Case-By-Case Capacity
Variance. —
SUMMARY: In response to the January 9,
1992, Proposed Rule on Land Disposal
Restrictions (LDR) for Newly Listed
Wastes and Hazardous Debris (see, 57
FR 958). EPA received numerous
comments regarding the availability of
treatment capacity for hazardous debris,
including comments from owners and
operators of treatment, storage, and
disposal facilities {TSDs), state
regulatory agencies, Federal agencies,
and industry trade associations. Most of
the commenters indicated that owners
and operators of TSDs will have an
extremely difficult if not impossible,
task in obtaining treatment capacity that
meets the proposed standards for
hazardous debris, or that could meet the
existing treatment standards, by May 8,
1992, when the national capacity
variance for most debris expires. EPA
agrees with' these comments, which
confirm its own independent study.
Under 40 CFR 268.5, EPA is therefore
taking regulatory action to approve
today a generic, one-year extension of
the LDR effective date applicable to all
persons managing hazardous debris.
(This document explains more fully
which hazardous debris is covered by
the extension.) No further applications
will be required from persons granted
the extension by this action. However.
EPA is requiring such persons to do
certain recordkeeping, and to meet
certain other requirements to qualify for
the extension.
EFFECTIVE DATE: This document
becomes effective on May 8,1992.
ADDRESSES: The official record for this
notice is identified as Docket Number F-
92-CD2P-FFFFF, and is located in the
EPA RCRA Docket, room 2427, U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460. The
docket is open from 9 a.m. to 4 p.m.,
Monday through Friday, except on
Federal holidays. The public must make
an appointment to review docket
materials by calling (202) 260-9327. The
public may copy a maximum of 100
pages from any regulatory document at
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Federal Register / Vol. 57, No. 95 / Friday, May 15. 1992 / Rules and Regulations
20767
no cost. Additional copies cost $0.20 per
page.
FOR FURTHER INFORMATION CONTACT:
For general information contact the
RCRA Hotline at (800) 424-9346 toll-free
or (703) 920-9810 locally. For
information on specific aspects of this
notice, contact William Kline, Office of
Solid Waste, Capacity Programs Branch
(OS-321W), U.S. Environmental
Protection Agency, 401 M Street SW.,
Washington, DC 20460, (703) 308-8440.
SUPPLEMENTARY INFORMATION:
Outline
I. Background
A. History
B. Revised Treatment Standards for
Hazardous Debris
II. Justification for this Extension
A. Demonstration under 40 CFR 268.5
B. Consultation With the States
"C. Conclusion
III. Requirements for this Extension
I. Background
A. History
Congress enacted the Hazardous and
Solid Waste Amendments (HSWA) of
1984, which amended the Resource
Conservation and Recovery Act
(RCRA). Among other things, HSWA
required EPA to develop regulations that
would impose, on a phased schedule,
restrictions on the land disposal of
hazardous wastes. In particular,
sections 3004 (d), (e), and (g) prohibit the
land disposal of all wastes identified or
listed as hazardous as of November 1984
unless the wastes are treated (or meet
treatment standards) before disposal in
a manner that "substantially
diminish(es) the toxicity of the waste or
substantially reduce(s) the likelihood of
migration of hazardous constituents
from the waste so that short-term and
long-term threats to human health and
the environment are minimized." The
alternative to satisfying these treatment
standards is disposal in a unit from
which there will be no migration of
hazardous constituents for as long as
the waste remains hazardous.
In developing such a broad program.
Congress recognized that adequate
alternative treatment recovery, or
protective disposal capacity (i.e., no-
migration disposal units) may not be
available by the applicable effective
dates. Therefore, section 3004(h)(2)
authorizes EPA to grant a national
capacity variance (based on the earliest
date that such capacity will be available
but not to exceed two years) from the
effective date which would otherwise
apply to specific hazardous wastes. In
addition, under section 3004(h)(3), EPA
can grant an additional capacity
extension of the deadline on a case-by-
case basis for up to one year beyond the
applicable deadline.
On June 1,1990, EPA published a final
rule (55 FR 22520} establishing
prohibitions and treatment standards for
wastes in the final third of scheduled
prohibitions. Among other things, the
rule established prohibitions and
treatment standards for debris
contaminated with all hazardous wastes
(except for the solvents and dioxins
prohibited under section 3004(e)J.
Because of a lack of treatment capacity,
however, EPA granted a two-year
national capacity variance for most
hazardous debris (40 CFR 268.35(e)). As .
such, these wastes are prohibited from
land disposal on May 8,1992, unless the
treatment standards are met. The
existing treatment standards for debris
are the same as for the waste with
which the debris is contaminated.
B. Revised Treatment Standards for
Hazardous Debris ~~
On January 9,1992, EPA published
proposed treatment standards for
hazardous debris. These standards
would replace the existing standards
published in the June 1,1990 final rule
(see 55 FR 22520, June 1,1990). The final
rule has been delayed,- due in part to a
delay in publishing the proposed rule
necessitated by the review process, but
is expected to be issued shortly, by June
30,1992. The Agency intends that the
final treatment standards to be
promulgated will be similar to those
proposed; thus, any differences will
likely be irrelevant to this extension.
The Agency received over 130
comments on the January 9,1992
proposed rule, many expressing that
there would be inadequate capacity for
hazardous debris as of May 8,1992. The
complexity of the proposed rule, the
large volumes of hazardous debris that
require treatment and numerous
technical uncertainties with the
proposed treatment standards were
among the reasons provided by
commenters that obtaining immediate
capacity is beyond their control and
capabilities. Additionally, commenters
felt that several years may be required
to obtain necessary capacity due to the
time needed for design and construction
of treatment units and delay necessary
to modify or to obtain permits.
EPA has been and continues to be
cognizant of the existing capacity
shortfall for hazardous debris and
agrees that adequate treatment capacity
for hazardous debris cannot be provided
by the prohibition effective date. As
such, it appears that the affected
hazardous debris generators need an
extension of that date.
Although one commenter specifically
suggested that a 90-day case-by-case
extension is appropriate, based on all
the comments received, and considering
the large volumes of hazardous debris
that will require treatment, and the
logistic delays necessary to comply with
the new standards, EPA believes that 90
days will be insufficient for all owners
and operators to obtain or utilize
treatment capacity.
For the purpose of this extension, the
terms debris and hazardous debris are
defined as follows:
For this notice, EPA is continuing to
use the current definition of debris set
out in the preamble to the June 1,1990
final rule. See 55 FR 22850. This
definition includes both organic debris
and inorganic solid debris. Id. and
§ 268.2(g). EPA wishes to clarify.
however, that the extension adopted
today includes more types of debris than
granted a national capacity extension in
the June 1 rule. In that rule, only
inorganic solid debris and other debris
contaminated with a waste whose
treatment standard was based on
incineration, mercury retorting, or
vitrification received a variance. In this
action, all debris (defined as explained
above) which is hazardous, with several
exceptions, is receiving an extension.
These exceptions include debris
contaminated with listed solvent or
dioxin waste covered by the section
3004(e) prohibition and debris
contaminated with non-liquid
"California List Wastes" pursuant to
section 3004(d). The time for granting
national and case-by-case capacity
extensions for these wastes has expired;
so that further extension is not possible.
55 FR 22650/2. For all other types of
debris which are hazardous, as
explained below, the logistic difficulties
in obtaining treatment appear to be the
same, so EPA is granting the extension
for all such debris.
Finally, EPA notes that the final rule
to be issued on June, 30,1992 is likely to
amend the definition of debris in
response to comment on the January,
1992 proposal. EPA will explain in that
rule how any such change affects the
case-by-case extension promulgated
today.
Hazardous Debris means debris that
contains a hazardous waste listed in
subpart D of part 261 that is subject to
the land disposal restrictions of this
part, or that exhibits a characteristic of
hazardous waste identified in Subpart C
of Part 261 that is subject to the land
disposal restrictions of this part.
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II. Justification for this Extension
A. Demonstration Under 40 CFR 268.5
In this notice. EPA is taking Final
regulatory action to grant a national
case-by-case extension of the effective
date for treatment standards for
hazardous debris.
40 CFR 268.5 specifies seven
demonstrations that must be made for a
case-by-case extension of the
prohibition effective date to be
approved. From the comments and
Information submitted, EPA has made
an evaluation of these seven required
demonstrations as follows:
Demonstration 40 CFR 268.5(a)(l) •
The applicant must demonstrate that
he has made a good-faith effort to locate
and contract with treatment, recovery,
or disposal facilities nationwide to
manage his waste in accordance with
the effective date of the applicable
restriction established under subpart C
of this part.
A large number of commenters
indicated that they are unable at this
time to locate and contract with
treatment, recovery, or disposal
facilities. One commenter, the principal
association of hazardous waste
treatment and management firms,
believes that although EPA's proposed.
treatment standards appeared to be
environmentally protective, it would be
impossible to implement as of the rule s
effective date. This commenter stated
that most of the treatment technologies
that have been proposed as BDAT are
not widely available currently. After -
reviewing EPA's data on generation and
treatment capacity, and making its own
assessment of capacity from member
firms, this commenter found a
substantial shortfall in the availability
of technologies and pointed out that
substantial capital investments would
be required to bring the BDAT
technologies on line.
EPA believes these comments
accurately portray the existing
availability of capacity for treatment of
hazardous debris. Nor is there sufficient
capacity to meet existing standards.
While there may be isolated capacity to
treat limited volumes of such waste in
some locations, EPA agrees that there is.
in general, very little treatment capacity
available, so that generators are unable
at this time to locate and contract with
treatment, recovery, or disposal
facilities.
Demonstration 40 CFR 268.5(a)(2)
The applicant has entered into a
binding contractual commitment to .
construct or otherwise provide
alternative treatment, recovery (e.g..
recycling), or disposal capacity that
meets the treatment standards specified
in subpart D or, where treatment
standards specified in subpart D or,
where treatment standards have not
been specified, such capacity is
protective of human health and the
environment.
As pointed out by the commenters, the
availability of treatment technologies to
meet the proposed treatment standards
is very limited and will require
substantial capital investment to bring
such technology on-line.Jn fact. until the
Agency promulgates thermal treatment
standards for hazardous-debris, it will
be difficult for most regulated entities to
construct or enter into such contractual
commitments. Thus the ability to utilize
the technology and ultimately enter a
binding contractual commitment to
construct or otherwise provide the
necessary treatment capacity will be
difficult by the LDR effective date. One
difficulty in meeting this criterion is
largely caused by the revision of the
treatment standards so close to the
effective date.
EPA believes, however, that there is
no ultimate difficulty in constructing or
otherwise developing the needed
treatment technology because the types
of treatment technologies involved all
exist and are commonly available given
time. Here, where there is little question
that the needed treatment can ultimately
be provided, the Agency believes that
granting the extension is in keeping with
the statutory mandate.
EPA is requiring that any generator ot
hazardous debris who is participating in
this extension must make a good faith
effort to enter into such a contract at the
earliest date practicable to provide the
treatment capacity for his hazardous
debris. See discussion below.
Demonstration 40 CFR 268.5(a}(3)
Due to circumstances beyond the
applicant's control, such alternative
capacity cannot reasonably be made
available by the applicable effective
date. This demonstration may include a
showing that the technical and practical
difficulties associated with providing the
alternative capacity will result in the
capacity not being available by the
applicable effective date.
The commenters provided numerous
examples regarding technical and
practical difficulties associated with
providing the alternative capacity. EPA
believes many of these to be valid
concerns and agrees that additional time
is needed to resolve these concerns.
Further, EPA recognized in both the
Advance Notice of Proposed
Rulemaking (ANPRM) (see 57 FR 24444.
May 30,1991) and the proposed rule (57
FR 982} that many significant technical
issues remained unresolved. EPA
believes that these circumstances are
beyond the control of the generators
who need to treat or dispose of their
hazardous debris. In addition, the
precise details of the final treatment
standards are not available until EPA
promulgates a final rule, a circumstance
also out of the applicants' control.
Demonstration 40 CFR 268.5(a)(4)
The capacity being constructed or
otherwise provided by the applicant will
be sufficient to manage the entire
quantity of waste that is the subject of
the application.
The commenters have indicated that
they have difficulties in determining at
this time the capacity needed for
hazardous debris. One commenter
stated that the volume of debris
generated has been seriously
underestimated and that the proposed
rule will result in large volumes being
regulated under RCRA subtitle C for the
first time.
EPA believes that the commenters
have shown that these uncertainties
make it difficult for many owners and
operators from determining their
capacity requirements at this time. More
important, the key timing concern
relates to immediate logistical problems
documented hi the comments relating to
time needed for permit modifications.
plus (in some cases) time needed to
construct specialized debris treatment
units like containment buildings. As
noted previously in the discussion of
needed contractual commitments, EPA
believes that adequate treatment
capacity can be provided once these
logistical obstacles are overcome.
Demonstration 40 CFR 268.5(a)(5)
He provides a detail schedule for
obtaining required operating and
-construction permits or an outline of
how and when alternative capacity will
be available.
It will be difficult for owners and
operators to provide a detailed schedule
for obtaining operating and construction
permits if they are unable to determine
their capacity needs, the appropriate
technology to treat their hazardous
debris and the means by which they will
obtain access to such technology. In
keeping with the 40 CFR 268.5[a)(5)
demonstration, EPA is requiring that this
demonstration be made by placing this
schedule into their facility operating
record as required by the conditions of
this variance.
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Federal Register / Vol. 57, No. 95 / Friday, May 15. 1992 / Rules and Regulations 20769
Demonstration 40 CFR 268.5(a)(6)
The applicant must demonstrate that
he has arranged for adequate capacity
to manage his waste during an
extension and has documented in the
application the location of all sites at
which the waste will be managed.
Due to the generic nature of this
extension, EPA has little facility-specific
information that demonstrates that
generators or owners and operators
have arranged for adequate capacity to
manage their hazardous debris during
this one-year extension or the locations
at which these wastes will be managed.
However, on a nationwide basis, EPA
believes that treatment capacity will be
available, given time. As discussed
below, consistent with 40 CFR
263.5(a){5), EPA is requiring owners and
operators to include documentation in
the facility record describing the means
by which their hazardous debris will be
managed between May 8,1992 and May
8,1993.
Demonstration 40 CFR 268^(a)(7)
Any Waste managed in a surface
impoundment or landfill during the
extension period will meet the
requirements of paragraph (h)(2) of 40
CFR 268.5,
It is a requirement of this extension
(and an absolute legal requirement) that
any generator or owner or operator who
intends to manage his hazardous debris
in a surface impoundment (which is
highly unlikely) or landfill during the
one-year extension must ensure that the
unit meets the requirements of 40 CFR
268.5(h)(2) (see RCRA section
3004(h){4)). As discussed below, any
owner or operator who participates in
this one-year extension and intends to
use this type of unit(s) must so indicate
in the facility record and include
certification that such unit(s) meets the
requirements of 40 CFR 268.5(h)(2), Le.,
meeting the minimum technology
requirements set out in that regulation.
B. Consultation With the States
In addition to the above seven
demonstrations, EPA is required under
40 CFR 268.5(e) to consult with
appropriate State agencies in all
affected States. In this case, because of
the extremely limited time available,
EPA has considered comments already
received from two State agencies; these
support the need for an extension of the
LDR effective date for hazardous debris.
C. Conclusion
Based on its evaluation of the
demonstrations required under 40 CFR
268.5, and for the reasons stated above,
EPA is approving, a one year extension
to the Land Disposal Restrictions for
hazardous debris, which are subject to
the national capacity Variance for
debris. This extension.is effective from
May 8,19921(| May 8,1993. Any such
waste disposed after JJJay 8,1993 will be
subject to theiDRs unless the generator
obtains a site-specific extension beyond
that date. EPA is taking this exceptional
regulatory action because of the unique
circumstances which have resulted in
the lack of treatment, recovery, and
disposal capacity for hazardous debris,
including the promulgation of revised
standards, and EPA's conclusion that
treatment capacity meeting those
standards is presently extremely
limited, or is limited due to logistic
problems such as obtaining permit
modifications, but can be provided by
the end of the extension period.
III. Requirements for this Extension
To receive the benefit of this
extension, a generator, or facility owner
or operator must include the following
information in the facility's operating
record by July 8,1992, or at the time the
hazardous debris is generated or
treated, whichever is later:
(1) The name, mailing address,
location, and EPA identification number
(if assigned) of facility. The term.
"facility" includes any site, whether
permanent (such as a manufacturing
plant), or temporary (such as a
demolition project) where hazardous
debris will be generated as of May 8,
1992;
(2) A description of the hazardous
debris waste stream, including the
RCRA waste code(s); and
(3) Waste generation rates (cnjn./yr.),
and estimated inventories (cujn.) on
May 8,1992, and as of May 8,1993,
In addition, by July 8,1992, or at the
time the hazardous debris is generated
or treated, whichever is later, each
owner and operator must maintain in
the facility record (or, for generators, in
the files maintained pursuant to
§ 268.7(a)(5)) a written plan that
describes how the facility will obtain
adequate treatment capacity. At a
minimum, this plan must include a
schedule of how the owner or operator
plans to design, construct, and obtain
the necessary permits to provide on-site
treatment, recovery, or disposal
capacity or a description of the binding
contractual commitment for off-site
capacity. Also required in the plan is: (1)
The method of storage for hazardous
debris, storage capacity, and RCRA
permit status (i.e., interim status,
permitted, or 90-day generator) of the
storage unit during the extension period,
(2) If management of hazardous debris
during the extension includes the use of
a surface impoundment or landfill, the
owner or operator must certify that such
unit meets the requirements of 40 CFR
268.5(h)(2). and (3) Certification as
required under 40 CFR 268.5(b).
This plan must be furnished upon
request, and made available at all
reasonable times for inspection by any
officer, employee, or representative of
EPA, or the appropriate State agency
who is duly designated by EPA or the
State agency.
Under 40 CFR 26&5(e), the
Administrator may renew this extension
for up to one year beyond the effective
.date. Any owner or operator who
believes that he may need a renewal of
this one year extension must submit an
application not later than November 8,
1992. The application must address the
seven demonstrations in accordance
with 40 CFR 268.5, and must justify the
requested renewal period. In reviewing
an application for renewal of the
extension, EPA will closely evaluate the
degree to which the applicant has
progressed in providing the necessary
treatment, recovery, or disposal
capacity. For example, an applicant
must show that he has made a good-
faith effort to obtain treatment capacity
and has entered into a binding
contractual commitment as required by
40 CFR 268.5(a)(2). As a further measure
of progress, EPA also expects that, by
that time, an applicant will be able to
provide a detailed and final engineering.
construction, and permitting schedule in
accordance with 40 CFR 268J3(aJ(5). If a
renewal of today's one-year extension is
approved by EPA. an owner or operator
could be allowed until May 1994 to
construct or otherwise provide the
necessary treatment, recovery, or
disposal capacity for his hazardous.
debris.
List of Subjects in 40 CFR Part 268
Administrative practice and
procedure. Designated facility.
Environmental protection. Hazardous
materials, Hazardous materials
transportation. Hazardous waste.
Intergovernmental relations. Labeling,
Packaging and containers. Penalties.
Recycling, Reporting and recordkeeping
requirements. Waste treatment and
disposal.
Dated: May 8,1992.
Don R. Clay.
Assistant Administrator, Office of Solid '
Waste and Emergency Response.
For the reasons set out in the
preamble, title 40, chapter I, of the Code
of Federal Regulations is amended as
follows:
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20770 Federal Register / Vol.
PART 268—LAND DISPOSAL
RESTRICTIONS
1. The authority "citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905.6912[a), 6921, and
6924.
2. In § 268.35 paragraph (e) is revised
to read as follows:
§26845 Waste specific prohibitions—
Third Third wastes.
(e) Effective May 8,1993. debris that is
contaminated with wastes listed in 40
CFR 268.10. 268.11, and 268.12, and
debris that is contaminated with any
characteristic waste for which treatment
standards are established in subpart D
of this part are prohibited from land
disposal.
•*•*.*
[PR Doc. 92-11384 Filed 5-14-92:8:45 am]
BILLING CODE 6580-6041
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