530 -E~ a~
Thursday
December 24, 1992
Part II
En viron mental
Prbtectiori Agency /
40 GFR Parts 261, et: aj.
Wood Preserving; Identification and
Listing of Hazardous Waste; et al., Final
Rule- '- '••-''•" • •' . •• ' •••>• • ' - ' • •: •.- • ' • : :
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61492 Federal Registiir'/''V6l*57>lNo. 248 / Thursday, December 24, 1992 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261,264,265, and 302
[FRL-M55-S]
RIN2050-AD35
Wood Preserving; Identification and
Ustlng of Hazardous Wasite; Standards
and Interim Status Standards for
Owners and.Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: The U.S. Environmental
Protection Agency (EPA) is amending
the regulations for Hazardous waste
management under the Resource
Conservation and Recovery Act (RCRA)
by modifying the technical standards for
drip pads used to collect preservative
drippage from treated wood and
modifying the listings of three categories
of hazardous waste from the wood
preserving industry. These listings
include wastewaters, process residuals,
preservative drippage, and spent
formulations from wood preserving
processes generated at plants that use or
have used pentachlorophanol (F032), ,
that currently use creosote (F034), or
that currently use inorganic
preservatives containing iirsenic or
chromium (F035). This action modifies
portions of the regulations that were
previously finalized by EPA on
December 6,1990 (50 FR 50450).
Portions of that final rule were
administratively stayed o:n June 13,
1891 (56 FR 27332), and ngain oh
February 6,1992 (published in the
Federal Register on February 18,. 1992-
(57 FR 5859]). Today's amendments
constitute final action on the June 1991
Administrative Stay arid result in
termination of that stay. The February 6,
1992 stay is also terminated as a result
of today's action. This notice also
modifies the Comprehensiive
Environmental Response,
Compensation, and Liability Act
(CERCLA) list of hazardous substances
to reflect the modifications to the F032,
F034, and F035 hazardous waste
listings.
DATES: This final rule will become
effective on December 24,1992 except
for the amendments to the following
provisions which are effective on June
24,1993: §§ 264.570(c)(l).
264.573(a)(4)(i), and (b)(3.),
265.440(c){l), 265.443(a)(4)(i) and (b)(3)
and the revision of hazardous waste
number F032 in § 261.31. See section
VII of Supplementary Information for
further details. ' " ,
ADDRESSES: The official record of this
rule-making is identified by Docket
Number F92-WP2F-FFFFF and is
located at the following address: EPA
RCRA Docket Clerk. Room 2427 (OS-
332), U,S. Environmental Protection
Agency, 401M Street, SW., Washington,
DC 20460.
The docket is open from 9 a.m. to 4
p.nw 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 100 pages from the
docket at no charge; additional copies
are $0.15 per page. Copies of materials
relevant to the CERCLA portions of this
rulemaking also are located in'rbom
2427 at the above address.
FOR'FURTHER INFORMATION CONTACT: The
RCRA/Superfund Hotline, at (800) 424-
9346 (toll-free) or (703) 920-9810, in the
Washington, DC metropolitan area. The
TDD Hotline number is (800) 553-7672 .
(toll-free) or (703) 486-3323, locally. For
technical information on the
modifications to the hazardous waste
listings and drip pad standards, contact
Mr. David J. Carver at (202) 260-6775,
Office of Solid Waste (OS-333). U.S.
•Environmental Protection Agency, 401
M Street, SW, Washington, DC, 20460.
For technical information on the
CERCLA aspects of this rule, contact:
Ms. Gsrain H. Perry, Response
Standards and Criteria Branch,
Emergency Response Division (OS-210),
U.S. Environmental Protection Agency,
401M Street, SW., Washington/DC
20460, (202) 260-5650.
SUPPLEMENTARY INFORMATION: The
contents of the preamble are listed in
the following outline:
I. Legal Authority
H. Background
• A. General . ;• -
B. Administrative Stays •
III. Summary of the Regulation ".-,••',
A. Overview of the Proposed Rule
B. Overview of the Final Rule ?. ' .
IV. Summary of Public Comments and
' Responses
A. Provisional Elimination "of .the E032
Waste Code .
B. February 6,1992 Deadline :"
C. Mixture Rule and Contained-In Policy
D. Narrowing of Wastewater Listings .'
E. Storage Yard Drippage ; .
F. Revisions to Drip Pad Cleaning ;
Requirements ••'"'.. : . "-•
G. Policy to Allow.Installation of Either a
Surface Coating, Sealer, or Cover or a
Liner and Leak Detection System
H. Drip Pad Coating, Sealer and Cover ''.
Permeability
I. Other Issues
V. State Authority
A. Applicability of Final Rule in
Authorized States
B. Effect on State Authorizations
VI. CERCLA Designation and Reportable
Quantities
VII. Compliance Deadlines
VIII. Regulatory Requirements
A. Executive Order 12291
B. Regulatory Flexibility Act
DC. Paperwork Reduction Act
I. Legal Authority
These regulations are being
promulgated under the authority of
sections 2002(a), 3001(b) and (e)(l), and
3004 of the Solid Waste Disposal Act, as
amended, 42 U.S.C. 6912(a) and 6921(b)
and (e)(l) (commonly referred to as
RCRA), and section 102(a) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA), 42 U.S.C.
9602(a).
n. Background .
A. General
Section 3001(e)(l) of RCRA requires
EPA to determine whether to list as
hazardous wastes containing
chlorinated dioxins and chlorinated
dibenzofurans. As part of this mandate,
the Agency initiated a listing
investigation of dioxin-containing
wastes from pentachlorophenol wood
preserving processes and
pentachlorophenate surface protection
processes. Two other similar wood
preserving processes that use creosote
and aqueous inorganic formulations
containing chromium or arsenic were
also included in this investigation.
On December 30,1988, EPA proposed
four listings pertaining to wastes from
wood preserving and surface protection
processes, as well as a set of standards
for the management of these wastes (53
FR 53282). The Agency finalized three
generic hazardous waste listings for
wastes from wood preserving processes
and promulgated standards for the
management of these wastes on drip
pads (40 CFR parts 264 and 265, subpart
W) on December 6,1990 (55 FR 50450).
The purpose of this final rule is to
amend the F032, F034, and F035 listings
and portions of the subpart W
requirements for drip pads. As
explained briefly above, the EPA
proposed these amendments in a notice
published in the Federal Register on
December 5,1991 (56 FR 163848). As
with the original final rule, the scope of
. today's amendments does not include
wastes that are included in the K001
listing (bottom sediment sludge from the
treatment of wastewaters from wood
preserving processes that use creosote
and/or pentachlorophenol).
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Federal Register / Vol. 57, No, 248 / Thursday, December 24, 1992 / Rules and. Regulations 61493
B. Administrative Stays
1. June 6,1992 Administrative Stay
On December 31,1990, the American
Wood Preservers Institute (AWPI)
formally requested a stay of the effective.
date for compliance with the final rule,
and also filed a petition for judicial
review of the .rule. EPA issued an
Administrative Stay on June 13,1991
(see 56 FR.27332). Elements of the
December 6,1990 final rule subject to,
that stay are the following:
• The F032, F034, and F035 listings
in the process area only (until February
6,1992 for existing drip pads and until
May 6,1992 for new drip pads);
. • The requirement for impermeably
sealed or coated surfaces for new drip
pads, until further administrative action
is taken;
• The applicability of the F032 waste
code to wastes generated by previous
users of pentachlorophenol, provided
that they are regulated as F034 or F035,
until further administrative action is
taken;\and
• The applicability of the F032, F034,
and F035 listings to wastewaters that do
not contact listed process wastes, until
further administrative action is taken.
This stay further required that a
facility adhere to several conditions in
order to be eligible for the stay. The
Agency did this in an effort to limit the
extension provided by the stay to those
facilities making bona fide efforts to "
comply with the original final rule. The
conditions of the stay are-as follows.
(1) By August 6,1991, a facility must
have notified the proper authorities of
its intent to either install or upgrade a
drip pad, or cease operations by August
7,1991; '.'•--;. ' . ' '
(2) By November 6,1991, a facility
must have provided evidence ofbona
fide efforts to comply with its earlier
stated intent; , ,
(3) By February 6,1992, a facility
must have completed any upgrades to
existing pads, including installation of
an impermeable coating, sealer, or
cover; and •
(4) By May 6,1992, a facility must
have completed installation of new
pads.
The staying of the F032, E034, and
F035 listings in the process area does
not require further administrative action
to effect termination of the stay. The
remaining elements of the June 1991
.stay, require specific administrative
action to effect their termination. These
elements of the December 1990 final
rule were proposed for modification in
the December 5,1991 NPRM and are
being finalized today. Accordingly,
today's final rule constitutes the final
' administrative action that terminates the
stay of these provisions. .
2. February 6,1992 Administrative Stay
Because the Agency had not
promulgated today's final rule prior to
the February 6,1992 deadline set forth
in the June 13,1991 Administrative
Stay, the Agency issued a subsequent
Administrative Stay on February 6,1992
(57 FR 5859). This action stayed the
impermeability requirements for
existing drip pad coatings, sealers, and
covers until October 30,1992. Because
. today's final rule amends the
impermeability requirement, replacing
it with a specific hydraulic conductivity
standard, the February 6,1992 stay is no
longer applicable. The Agency is
establishing today a new compliance
date for the hydraulic conductivity
standard (see section VII). Facilities
with existing drip pads must meet the
new hydraulic conductivity standard
before the compliance date established.
in today's rule, and not the October 30,
1992 deadline set in the administrative
stay. . V
III. Summary of the Regulation
A. Overview of the-Proposed Rule
In the December 5,1992 Federal
Register, EPA proposed to revise several
elements of the wood preserving
hazardous waste regulations and ,
requested comment on those issues. The
Agency proposed the following actions:
(1) Eliminate the F032 classification for
certain wastes generated-by past users of
chlorophenolic' formulations that any
wastewaters, drippage, process' v ,
residuals, or spent preservatives are
regulated as F034 wastes, F035 wjastes,
or wastes exhibiting the Toxicity .y:--• .
Characteristic (TC); (2) narrow the scope
of the wastewater listings contained in
the F032, F034, and F035 listings to
include only .those wastewaters that
come in contact with process '
contaminants; (3) require contingency
plans and cleanup of storage yard
drippage in response to incidental \
drippage in storage yards; (4) remove
the requirement that new drip pad
coatings, sealers or covers be
impermeable; (5) add a requirement that
new drip pads have leak collection
devices; (6) revise the requirement that
all existing drip pad coatings, sealers, or
covers be impermeable to reflect data on
the permeabilities of available coatings,
sealers, or covers; (7) require that drip .
pad surface materials be chemically
resistant to the preservation being used
and that these surface materials be
maintained free of cracks, gaps, ; "••
corrosion, or other deterioration that
would increase their hydraulic
conductivity above .the 1 x 10'7cms level
and lead to a potential for releases to the
environment; (8) revise the requirement
that drip pads be cleaned weekly to a
requirement, that drip pads be cleaned
in a manner and frequency such that the
entire surface of drip pads can be
inspected weekly; (9) revise the
schedule for upgrading existing drip
pads to. allow 15 year$ for the
incorporation of liners and leak
detection systems; and (10) revise the
CERCLA designation of hazardous
substances to reflect the modifications
in the listings.
The/Agency also requested comment
as to whether the standards for new drip
pads should allow the choice of either
a highly impermeable surface (e.g.,
sealers, coatings, or covers for concrete
drip pads) or a liner with a leak
detection and collection system. -
B. Overview of the Final Rule .
Today's rule finalizes modifications
proposed on December 5,1991 (56 FR
63848) to the wood preserving waste
listings and drip pad regulations
originally promulgated on December 6,
1990 (55 FR 50450). The modifications
being finalized today are summarized
below, ,
1. Provisional Elimination of the F032
Waste Code ' .
The listing description for F032
promulgated in the December 6,1990
final rule.includes wastes generated at
wood preserving plants that currently
use or previously used chlorophenolic
formulations. That final rule also
contained a provision whereby a facility .
owner/operator could "delete" the F032
waste code from the wastes if the
facility's process no longer uses
chlorophenolic formulations and the
facility meets other criteria outlined in
§ 261.35 (see 55 FR 50483). In the
December 5,1991 NPRM, EPA proposed
to eliminate the applicability of the
F032 listing to wastes generated by past
users of chlordphenolic formulations
that have ceased using such
formulations, provided that any wastes
generated exbibit the Toxicity
Characteristic or meet the listing
description of F034 or F035 (56 FR
63849).
In today's rule, the Agency is-
finalizing a portion of this provision.
Today's action eliminates the
applicability of the F032 waste code to
wastes generated by wood preserving
operations that previously used, but no
longer usei chlorophenolic
preservatives, provided that any
wastewaters, process residuals,
drippage, or spent preservatives ..
generated by those operations are
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61494 Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules and Regulations
regulated as F034 offO35 wastes. EPA
has made Ibis elimination of the FO32
waste code conditional in order to
ensure continued prelection of human
health and the environment. Given this
approach, the wastes generated by past
users of chlorophfjnolic formulations
will continue to be subject to
appropriate management standards
under Subtitle C. Thtire is no additional
environmental benefit to be gained from
regulating wastes from past users of
chiorophsnolic formulations as FO32
wastes, provided the wastes are
regulated as F034 or F035 wastes. It is
important to note, however, that
although F034 and F035 do not include
dioxin as a basis for listing, wastes
generated by past users of
Uilorophenolic formulations that -are
reclassified as FO34 or F035 may
contain dioxin due to cross-
contamination with wastes formerly
classified as F032. As discussed in the
December 1991NPRM, this will be
relevant in establishing treatment
standards under the Land Disposal
restrictions program of 40 CFR 268.
As discussed abovo, the December
1091 NPRM proposed to extend
eligibility for the provisional
elimination of the F032 waste code to
wastes that exhibit that TC as well as
wastes meeting the F034 or F03S
listings. The Agency has decided not to
finalize the TC portion of the proposed
conditional elimination for wastes from
past users of chloroplhenolic
preservatives. Therefore, TG wastes
generated by past users of
chlorophonolic formulations which do
not meet the F034 or F035 listing
descriptions are still considered F032
wastes, unless the generator satisfies the
cleaning and replacement requirements
of 40 CFR 261.35.
2. Narrowing of the Westewater Listings
EPA is promulgating amendments to
the listings of F032. F034 and F035. as
proposed, to exclude wastewaters that
have not come into contact with process
contaminants. For purposes of today's
rule (and as stated in the June 13,1991
Administrative Stay}, EPA intends
"process contaminants" to include
hazardous constituents from
formulations of preservative and any
F032, F034 of F035 wastes. Therefore,
wastewaters that never conduct these
process contaminants do not fall within
the scope of the listings, as amended
today. Rainwater, however, that is
collected on drip pads and conveyed to'
a collection system would be considered
a hazardous waste if it becomes mixed
with hazardous wastes from wood
preserving operation:!. This
contaminated rainwater would then
meet the definition of a wastewater
generated from the facility and would.
have to be treated as a listed hazardous
waste.
3. Drippage in Storage Yards and
Contingency Plans
On December 5,1991, the Agency
proposed to require owners/operators of
\vood preserving plants to develop and
implement a contingency plan for
immediate response to incidental
drippage in storage yards,;Today, EPA is
finalizing this requirement as proposed
and is providing guidance through this
preamble discussion of what EPA
intends by "immediate response." With
respect to the word "immediate," the
Agency intends, absent extenuating.
circumstances, that owners/operators
respond to storage yard drippage that.
occurs when a facility is in operation
within one consecutive working day. A
facility is considered in operation on
any day in which it is-treating wood.
For facilities which are not in operation
during a storage yard drippage event,
the Agency expects the facility to clean
up drippage within 72 hours of
occurrence. EPA recognizes that the
term "immediate" must take into
account the nature of the incident as
well as facility-specific factors. The
above clarification ofimmediate"
recognizes that facilities liave ".down"
times, and that a.facility may not have
adequate staff available during down
times, weekends, or holidays.
It is important to note that the timing
of response to drippage is based on
when the drippage actually occurs,
rather than when the drippage is
detected in the storage year. The
approach promulgated today places the
responsibility for checking storage yards
for drippage on fee facility owner/
operator. Regular checks of storage
yards, particularly following the initial
storage of newly treated wood, allow
owners/operators to response to
drippage as required by today's rule.
With respect to the -word "response,"
EPA intends to include cleanup and
removal of preservative drippage from
the storage yard which is consistent
with Federal Regulations. Because
response must be "immediate," as'
discussed above, drippage would not
remain in the storage yard long enough
to cause significant contamination of the
soil or other -environmental media.
Therefore, extensive remediation will
not be necessary for periodic cleanup of
drippage in accordance with the
contingency plan. For purposes of
today's rule, removal of visible drippage
from storage yards -will satisfy the
requirements for immediate response.
Today's rule does not require sampling
and analysis for confirmation of
contamination in storage yards. If
historical contamination exists at a
wood preserving plant, any remediation
would proceed under an enforcement
order and would be independent of any
response to incidental storage yard
drippage required by this rule.
Today's rule requires facility owners/
operators to maintain a written plan that.
describes how the facility will respond
to incidental drippage in die storage
yard. As described in the -NPRM, and as
finalized in today's rule, this plan, at a
minimum, must describe how the
owner/operator will do the following:
(i) Clean up of the drippage
(ii) Document the clean-up of the drippage
(Hi) Retain the documents regarding the clean
' up for three years; and
(iv) Manage the contaminated media in a
manner which is consistent with Federal
regulation.
The NPRM stated that the
contingency plan meet the requirements
of subpart D of 40 CFR part 264/265. By
this, the Agency did'not intend, and is
not requiring in today's rule, that the
contingency plan for responding to
incidental storage yard drippage meet
the detailed content requirements for
subpart D. The Agency believes that
those requirements exceed what is
necessary for a written plan for
responding to incidental storage yard
drippage. Today's rule still requires that
a written plan be developed and
maintained at the facility, and that the
plan be available for inspection by the
.Agency or its representatives.
With -respect to the requirement that
the cleanup of incidental drippage in
the storage yard be documented, the
Agency will consider an annual.
certification, signed and on company
letterhead, that the owner/operator has
cleaned up in accordance with today's
final rule requirements, to be adequate
documentation. Individual facilities,
however, may elect to keep more
detailed records, including records for
each cleanup incident, to defend, for
example, against potential claims of
liability.
4. New Drip Pad Coating, Sealer or
Cover Impermeability Requirement
As proposed in the December 5,1991
NPRM, EPA is revising the 40 CFR
subpart W regulations for drip pads by
removing the requirement that new drip
pads have aa impermeable surface
coating, sealer or cover. Furthermore,
the Agency has decided to remove the
requirement for new drip pads to have
liners and leak detection with leak
collection if-coatings and sealers are
chosen. As discussed in the proposal,
the Agency requested comment on the
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Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules and Regulations 61495
-relative merits of allowing industry a
choice for new drip pads of having a
surface protection system on the drip •
pad surface or a liner and leak detection
system below pad with no surface
protection. The Agency has decided to
allow regulated community to choose
between these two options.
In the NPRM, the Agency noted that
the design criteria for coatings could be
more complex than the design criteria
for a liner and leak detection system.
Specifically, EPA was concerned that
coatings would not be an effective
barrier unless operators applied coatings
and sealers to the drip pad which are
chemically resistant to the preservatives
in use and which are maintained against
corrosion and wear. Therefore, EPA is
today promulgating requirements to
ensure that new drip pads with
coatings, including extensions to
existing drip pads, are designed and
maintained to be an effective barrier to
migration of contaminates from the drip
pad.
Today's requirements for existing drip
pad surface protection will be
applicable to new drip pads. A new drip
pad without a liner and leak detection '
system will be in compliance with
subpart W requirements if the owner/
operator applies a-surface protection
system to the pad which meets the
permeability requirements for existing
drip pads and-is chemically resistant to
the preservative being used. Likewise, a
new drip pad following these technical
requirements must be inspected and
certified annually by an independent
qualified registered professional
engineer.
It is the Agency's belief that a'drip
pad with a liner and leak detection
system may require less maintenance
than a drip pad with a surface coating
only, potentially saving a facility a
substantial amount of money over the
lifetime of a new pad. However,
commenters to the proposed rule .
pointed out specific situations where .
coatings may be ;more cost effective.
New drip pads may be located in
specific environmental locations (i.e.
with a high seasonal water table) or a'
facility situation (i.e. an extension to the
existing drip pad that does not have a
liner) in which it is less expensive to
use coatings than a liner and leak
detection system. Further, if the cost of
highly impermeable coatings declines in
the future, allowing the two compliance
options in today's rule could reduce
overall compliance costs. Since the
Agency finds that either requirement for
new drip pads promulgated today
provides for adequate protection of
human health and the environment, the
Agency has decided to allow the
regulated community the flexibility to
choose either compliance option.
However, the Agency believes that
either requirement for new drip pads^^
promulgated today provide for adequate
protection of human health and the
environment.
5. Leak Collection Systems for New Drip
Pads
The. EPA is finalizing the proposal
that new drip pads which are equipped
with a liner and leak detection system
also be equipped with a leak collection
system below the pad and above, the
liner so -that any leakage through the
pad can be collected and removed. With
a leak collection system in place, water
and preservative formulations that leak
through" the pad can be removed before
they eyen\reach the liner. This
collection system will also aid the
facility in determining whether or not
(and the extent to which) pad failure has
occurred. The leak collection system
required by today's rule is to be a
collection device separate from than the
sump system used to collect drip pad
washdown water. The purpose of this
separate collection device is to
differentiate between washdown water
and leachate collection which could
occur due to drip pad permeation.
Owners and operators must document,
in the facility's operating record, the
date, time, and quantity of leakage
collection when it is removed from the
collection device. This information will
be useful to the Agency in enforcing the
requirement that new drip pads be
maintained in a structural sound
manner. This leak collection.
requirement will apply to all new drip ,
pads which'are fitted with a liner and
leak collection system constructed after'
the publication date of today's rule,
except for those pads constructed after
such time, for which the owner/operator
has entered into binding financial or
other agreements for construction prior
to the publication date of today's rule.
As stated in the NPRM, the requirement
to install a leak collection system on
new drip pads, does not affect the
responsibility of an owner/operator to -;
remove some or all of a drip pad to
clean up any release of hazardous waste
to the environment in the event such a
release occurs. This requirement,
however, should minimize the
frequency of these potentially costly
cleanup activities:
6. Existing and New Drip Pad Coating,
Sealer, and Cover Permeability
Requirements
EPA is aware that the requirement for
an absolutely impermeable surface
cannot be practicably met.' The Agency's
intent in the December 6,1990 rule was
to require a surface coating, sealer, or
cover for concrete drip pads (or similar
porous'br easily-fractured materials of
construction) that would provide
incremental protection against
permeation of preservative through the
drip pad and thus serve to ensure less . '
permeability than would be achieved by
the drip pad alone. This requirement
would be applicable to concrete or other
porous or easily fractured materials of
construction but may not be applicable
to other materials of construction such
as steel. •
, Today's rule finalizes the proposed
standard that existing drip pad coatings,
sealers, or covers have'a hydraulic
conductivity of less than or equal to 1
x 10~7 cm/second. This requirement,
which, was proposed for existing drip
pads, also applies to new drip pads for
which the owner/operator has chosen
surface protection-over liners and leak
detection, and collection, as described
elsewhere in the preamble. The Agency
recognizes that the most .common
material for drip pad construction has
been concrete. Thus, the conductivity
value of 1 x ,io~7 cm/s has been derived
from the theoretical conductivity of
unfractured, well constructed concrete.
Available data reflect that coatings,
sealers and covers that meet this
standard are currently on the market.
A common unit of measurement
within the protective coating and sealer
industry to express a coating, sealer, or
liner's hydraulic conductivity is a mass
flux number given in units of grains per
ft2. The hydraulic conductivity value of
1 x 10~7 cm/s can be expressed as a flux
with an equivalent value of 1 x 10~7'
grams/cm2/s or in English units of 5.168
grains/ft2/hr, assuming that values for
water are used in the calculation.
Additionally, to convert from grams per
hour per ft2 to units of cm/s, one has to
multiply by 1.934964 x 10-*
(ft2)(hr)(cm)/(s)(grains). This flux
number was obtained by. assuming that
a worst case scenario would exist if pure
water was used to permeate through a
pad, instead of preservative. The
Agency has no data on the infiltration ,
rates of preservatives but it is logical
that water would permeate a drip pad
somewhat more rapidly than a
preservative formulation. The Agency
believes that the adoption of a 1 x 10~7
cm/s hydraulic conductivity based on a
worst case scenario is reasonable.. ,
Indeed, because wastes mixed with .,
rainwater or other water may be present
and may permeate the pad, the Agency
stands by its calculation. Therefore, the
density term in the calculation was
. chosen for water at room temperature
and atmospheric pressure. The details of
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61496 Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules aad Regulations
this calculation along with any
assumptions can be found in the docket
for this rule.
In tha NPRM, EPA identified ASTM
Method E-96 Procedure E os an
accoptod method for measuring the"
Infiltration rate of water vapor into a
drip pad surface. EPA continues to
support this method as acceptable.
although its use is not required and ,
other appropriate methods may he used.
7. Selection of a Chemically Compatible
Surface Material for Existing and New
Drip Pads
Today's rule Also promulgates a
requirement that existing and (if
applicable) new drip pads be
constructed with coatings, sealers, or
covers that-are chemically compatible
with the preservatives being used.
Furthermore, those surface materials
must be maintained free of cracks,,gaps,
corrosion, or other deterioration that '
Would increase the hydraulic ,
conductivity of drip pad coatings,
sealers, and covers above the 1 x 10~7
cm/s level and lead to -a potential for
releases to the environment. There is no
testing requirement associated with this
provision; an owner/operator is not
required to demonstrate through testing
that a surface material is compatible
with the preservatives being used.
8. Drip Pad Cleaning Requirements
Tha Agency is revising the drip pad
cleaning requirements as proposed.
Cleaning of drip pads is required in a
manner and frequency to bo determined
on a facility-specific basis by the owner/
operator to allow weekly inspections of
the entire surface of the drip pad. The
current requirements to document the
date and time of each cleaning to which
revisions were not proposed remain
unchanged.
9. Timeframe for Existing Crip Pads To
Comply With New Drip Pail Standards
The Agency is not finalizing the
proposal to -allow 15 years from the
effective date of today's rula for owners/
operators of existing drip pads to meet
the new drip pad standards. The
requirements at 40 GFR part 265,
subpart W are amended today to reflect
those changes. In addition la removing
the 15 year upgrade requirement, the
Agency is removing the requirement
that owners/operators of-existing drip
pads document the age of their drip pad.
Because this requirement was directly
related to the 15 y«ar upgrade
requirement, there is no logical reason
to maintain it in tha absence of that
upgrade provision. As discussed
elsewhere in this preamble,, the Agency
has elected to allow fadliUus to comply
with the standards for new drip pads by
choosing between liner and leak
detection and surface protection.
Because the substantive requirements
for existing pads (particularly the
requirement of an annual, certified
written assessment of the drip pads,
compliance with regulatory standards)
are the same as those being promulgated
today for ne,w drip pads for which
surface protection has been elected over
liners, the proposed 15 year upgrade
deadline has become unnecessary and
irrelevant
For example, at the end of the
proposed 15 year period, an owner/
operator could choose to continue
meeting the surface protection
requirement, or could retrofit an
existing pad or build a new pad to
include a liner end leak detection
system. Since the surface protection
option is consistent with the standards
that owners/operators are already
required to meet for existing drip pads,
the owner/operator is able to meet the
standards for new drip pads without
adapting to different standards. Thus, at
the end of the 15 year period, an owner/
• operator in compliance with the
requirements for existing drip pads
would be in compliance with the
standards for new drip pads as well. As
stated elsewhere in this preamble,
Agency believes that a well constructed
drip pad that complies with the surface
protection requirement may provide
sufficient protection for a period greater
than 15 years. The annual certification
requirement for drip pads with surface
protection is intended to ensure that
drip pads meet these requirements.
Of course, today's rule allows the
• owner/operator to install a drip pad
with a liner or retrofit an existing pad
with a liner to meet the standards for
new drip pads. Under today's rule, there
is no requirement that the owner/
operator do so within 15 years. The
decision to choose the liner option, as
well as the decision of when to install
or retrofit a drip pad to meet those
requirements are left to the individual
facility. It is important to note, however,
that the Agency is maintaining the
requirement that owners/operators
develop a written plan for upgrading,
repairing, and modifying the drip pad if
the owner/operator chooses to meet the
standards for new drip pads by
installing a liner and leak detection
system. Any such plan must still be
submitted to the Regional Administrator
no later than 2 years before the date that
all repairs, upgrades, and modifications
will be complete.
10. CERCLA Hazardous Substance
Designation' •
All hazardous wastes listed pursuant
to RCRA 3001 are hazardous substances
as defined in section 101(14) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA), as amended. The
designations for F032, FO34, and F035
in Table 302.4 (40 CER 302.4) are
revised today to reflect the
modifications to their listing .
descriptions under RCRA (40 CFR
261.31). Reporteble quantities (RQ's) for
these revised CERCLA designations are
set at one pound, consistent with the
RQ's established in the December 6,
1990 final rule, for the initial CERCLA
listings for F032, F034, and F035.
IV. Summary of Public Comments and
Responses
The Agency received several •
comments on the NPKM, covering a
range of issues. These major issues
presented in these comments and the
Agency's responses are addressed
separately below for clarity and ease of
understanding. A complete summary of
comments received and the Agency's
responses thereto are contained in the
separate document entitled "Response
to Public Comment" which is located in
the docket associated with today's
rulemaking. The major issues from
public comments, however, axe
summarized and responded to in this
section.
A. Provisional Elimination O/FO32
Waste Code
Several comments were received on ,
the conditions for-etirakiation of the
F032 waste code, from wastes generated
at plants that previously used, but no
longer use, chlorophenolic
formulations. As proposed in December
1991, these conditions required that any
wastes generated by past users of
chlorophenolic formulations.-either
exhibit the TC or be regulated as F034
or F035 wastes to qualify for elimination
of the code. Industry commanters
generally supported the provisional
elimination of the •waste code. Two
commentars, however, requested that
EPA remove the reference to TC wastes.
The commenters stated that listed
wastes are subject to a different
regulatory regime than ere characteristic
wastes. Thus, white the Agency could
be sure that F034 and F035 wastes
generated by past users of
chlorophenolic preservatives would be
subject to the identical scheme of
regulation as F032 wastes, the same
cannot be said of TC wastes generated
by past users.
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Federal Register /Vol. 57, Na 24ft / Tbmsday, December 24, 1992 / Rules asd Regirfatrons 61497
TKe Agency agrees, with the
commenters'' rationale- and has decided
not to indtada TC wastes within' the
conditional elimination fc-r wastes from
past users of chlorophenoKc
formula&ons^TC wastes were originally
added; to the conditional elimination.
proposal to regulate wastes in States
that are authorized for the base RCRA
program! but have not adopted the F034
or F035 listings. The Agency notes that
its regulations require ail States:
authorized for the base program to pick
up the F034 and F035 listings by the
end of December 1992 (See 4ff CFR
271.21). As the coramenter stated, the
regulatory standards that apply to F032.
F034 and F035 wastes are identical;:
therefore, the Agency can be assured
that wastes generated by pas* users of
chlorophenolie formulations that are
reclassified as F034 or F035 will be
managed consistently. In addition, it is
prograromaticatJy more difficult to
establish and: implement Jandban
treatment standard's for cross>
contaminated wood preserving wastes .
under the TC than under the F034/FG35
listings. The F034/F035 listings Involve
a clearly defined industry and a
significantly smaller universe of wastes
than that which i& potentially captured
bytheTC.
One com men tar urged the Agency to
expand the provision for deletion of the
T032 code to- include wastes generated
by past users; of chlorophenolics that are
not regulated as hazardous wastes. Such
an approach would undermine the
central premise* of the F032 waste code
deletion concept. As discussed above,
EPA wants; to ensure that wasted front
which the F032 code is deleted continue
to be managed properly under the
Subtitle C: regime. In tfcis way, the
deletion provision has not established a
regulatory loophole: of any kind* but
continues to provide protection of
human health and the environment.
Finally, one comments? stated: thai
the F032 waste cade appeared to
overlap with the existing FQ27 listing, in
that spent formulation* would; be
regulated as F027. The Agency clarifies
here that the F027 listing applies; only
to discarded unused formulations-
containing; to-* tetra-, or
pentaehlorophenol. Tfaerefosa, spent
formulations, are not covered by the
E027 listing. On the other hand, the
listing descriptions for FG32, F034 and
F035 explicitly include spent
formulations from wood preserving;
processes. The same commenter
suggested that EPA clarify that theFS32,
F034 and FQ35 listings, da not include
wastes feom the wood; surface protection
industry, EPA believes that the listing
descriptions far FQ32, F034 and F035
are clear as to which wastes tBey
encompass. €te December 30s, 1988, the
Agency proposed tofislwastes from
wood surface protection processes as
FB33 {53 FR 53330*. This listing was-not
finalized along'with the rest of the wood
preserving rule on December &, 1999; a
possible F033 listing will be pursued in
the future as a. separate Agency action^
Today's rule, as with the December 6»
1990 rule, does not apply to wastes from
the wood, surface protection industry.
B. February &,1&92 Deadline
One commenter fa-wood preserving
industry trade group)- requested s six
month extension of the February 6, 1992
deadline for existing pads to eompFy
with the numerical standard for coating,
sealer and cover permeability. The
Agency has already recognized1 that
February S presented an impractical
deadKne fbr.complianeewitfe standards
for existing' drip pad* that the Agency
proposed to modify but had yet to
amend by that date. Ira orderto remedy
this situation, EPA issued are
Administrative Stay on February &, 19921
(57 FR 53m; February 18,1992>, stayfeg
the imperaneabflity requirement, for drip
pad surfaces until OctobeF 3€r, 1992.
However, as explained elsewhere m this
notice, today's final rale modifies- the
permeability standard1 for existing drip
pads* and establishes a new compliance
date for meeting, the new standard, (seer
section YHJ* The'effective data
established in; the February 1992 stay is
no longer applicable; rather, facilities,
must now meet the later compliance
deadline associated with-the
permeability standard promulgated
today,
C. Mixture Rule and Cantained-In Policy
Several commenters; were concerned
with the management of media
contaminated with wood preserving
wastes; partfcularty in- Bgfet of the eonrt
remairdi of the mixture and! derived-from
nilesCSfceJiQtf Gb>. v. BPSfe 95»F. 2d;
741, D.C OP. 1991T. Attbeoatset,
neither the mixture: rule nor the derived^
fiom. rule {which the Agency reinstated:
on March, 3,1992, 57 FR 7628); applies
to environmental media. These rules
concern the regulatory status of salid
wastes. Two? coromenters urged EPA to
develop risfc-feasedi efeminfmis levels, for
listed hazardous wastes that are
"contained in" environrnental: media. .
One comineiiteraT^iied: that EPA
should; not indudeenvironmeatal
media withiii the Mstings? themselves.
EPA emphasizes that the listings foe
F032v F034» and F335> as prom^rgated
on, Decembers, 199O, and asmod
todfep, doJFM* speeffic»% include
envirorrmentalmecK» in the listing
erfteria. Environmental mexBs can be
classified as listed hazardous-wastes,
However, through appKcatibri ofthe
"coHtaiHed-m"rpolfcy, waereby soils,
rainwater, and other media that come
into contact wrffit Jisted hazardous
wastes are themselves hazardous wastes
ff.K, they "contain" hazardous wastes)5.
For example, soil that comes- into
contact with spent creosote
formulations at a wood preserving- plant
and is subsequently excavated or
otherwise actively managed, will carry
the F034 listing.
Anot&er eommenter suggested that
environmental media should be
considered hazardous wastes only if
they exhibit a characteristic of
hazardous waste. Consideration'-.of such,
an approach Is far broader ftan the
specific issues in this rulemaking and is
outside the scope ofthe December 1991
NPRM;
Several commenters requested, that
EPA clarify that stormwater run-off is
not a hazardotts waste nrider 40 CFR
261.3(e){2)frJ. This regulatory citation
refers to the"derfved-from'*rufe^wMck
states generally that any solid1 waste
generated from the treatment, storage, or
disposal of a hazardous waste, is- itself
a hazardous waste. This provision;;
specifically exempts preciprfettion run-
off from the derived-frbnt rafe. (r.e.^ :
ipreeipitation run-off i's not considered
to be "derived from" the treatment,
storage or disposal of a hazardous, waste
and, therefore, is not itself a hazardous,
waste}.
The nature ofthe Subpart W
standards for drip pads, however,
drstmguis&esrthem from the regulations
governing other nrore conventionar
hazardous waste managgment units. The
definition of drip pad in 4O. CFR 2GO.10
States ftat a drip pad'is "desfgned to
convey preservative .kick-bacfc or
drippage from treated wood1, .
precipitation, and surface water run-on-
to an associated collection system at
wood preserving plants" {55 FR 50482).
In the Jtrly 1,1991 technical correction
notice, EPA amended the applicability
sections of Subpart W m parts 264 and
265 to reflect that drip pads;were
intended to convey precipitation and
surface water run-on as WeH as treated'
wood drippage (56 FR aai93j.
Additional language in the preamble to
the December 1991 NPRM indicates the
Agency's position on precipitation at
wood preserving plants, m- tne
discussion of wastewater listings-, EPA
states Siat ramwater (precipitation- run-
offj collected1 ira a fashion mat keeps it
segregated from preservative
formulations OE Ksted wastes wouM not
be considered a hazardous-waste (56 FR
63850>. On fte other band (and as
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61498 Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules and Regulations
discussed above), rainwater that falls on
a drip pad and contact! preservative
formulations or listed wastes and is then
collected Is itself a hazardous waste hy
virtue of the contained-in policy (i.e.,
the rainwater, which is an
environmental medium, "contains" the
hazardous waste). Because drip pads are
hazardous waste management units
designed and maintained to convey
treated wood drippage,, precipitation
and surface water run-on to an
associated collection system, the
exemption for precipitation run-off in
40 CER 261.3 (cj(2)(ij does not apply to
drip pads.
D, Narrowing of Wastewater Listings
The majority of commenters
supported the Agency's proposal to
narrow the wastewater listings to
exclude wood preserving wastewaters
that do not come into contact with
process contaminants. One commenter__
believed that EPA should not regulate
wastewaters that simply come into
contact with process contaminants. The
Agency disagrees and is not expanding
this revision beyond what was
proposed. Wastewatem that come into
contact with process contaminants at
wood preserving plants have the
potential to solubilize and mobilize
hazardous constituent!: and, therefore, *
warrant regulation as & hazardous waste
undorRCRA.
E. Storage Yard Drippage
The majority of commenters on the
issue of incidental drippage in storage
yards requested that EPA clarify what is.
meant by "immediate response" to such
drippage. EPA appreciates the
commentors' concerns and is providing
guidance on the Agency's use of the
term "immediate response" in today's
rule. This guidance can be found in
section ni.B.3. of this preamble.
One commenter objected to the
Agency requiring response to drippage
in storage yards on the grounds that
EPA has not shown any environmental
benefit to be gained from such a
requirement. The commenter went on to
say that contamination in storage yards
is limited to the first few feet of soil.
EPA believes that this last statement
about storage yard contamination
justifies the requirement for responding
to drippage in treated wood storage
yards. There are several cases of
historical contamination resulting from
incidental drippage from treated wood
stored outside on the ground. Since
facility owners/operators are required to
implement a contingency plan for
responding to visible drippage from
treated wood, the likelihood of
incidental drippage causing long term
contamination is greatly minimized, if
not eliminated. As a result, EPA
believes that the requirement to respond
to preservative drippage in storage yards
is consistent with the RCRA mandate to
protect human health and the
environment.
F. Revisions to Drip Pad Cleaning
Requirements
All commenters supported the
proposed changes to the drip pad
cleaning requirements. One commenter
stated that the 'recordkeeping
requirement associated with the pad
cleaning provisions is unnecessary and
should be dropped. The Agency
disagrees; the records maintained by
facilities showing how often drip pads
are cleaned and what cleaning
procedure is used can provide valuable
information for Agency and State
officials conducting inspections of the
site. For example,-these records could
show inspectors that aqueous
preservatives do not obscure the drip
pad and that weekly inspections can be
conducted without frequent water
washings of the pad. EPA notes that the
recordkeeping requirement was
promulgated as part of the original final
rule on December 6,1990. The
December 1991 NPRM dealt only with
the frequency of pad cleaning.
G. Policy to Allow Installation of Either
a Surface Coating, Sealer, or Cover or a
Liner and Leak Detection System
Two commenters'favored the concept
of allowing facility owners/operators the
choice of installing either a surface
coating, sealer, or cover or a liner and
leak detection system on a new drip
pad. One State agency commented that
surface coatings alone do not provide
adequate protection in cases of pad
failure. The Agency disagrees. As
discussed in the NPRM, the Agency
believes that surface coatings, sealers,
and covers provide a primary barrier
against continuous chemical attack and
limit permeation of preservatives
through the pad. Liners, on the other
hand, provide backup protection against
unpredictable chemical exposure that
could occur due to concrete micro-
cracking without the use of coatings or
sealers. EPA believes both options
adequately protect human health and
the environment. As discussed earlier,
EPA is providing a choice to facilities to
use either surface protection which
meets the permeability and chemical
resistance requirements of this rule or a
liner and leak detection system to
protect against releases into subsurface
soils, ground water, and surface waters.
However, as discussed in the NPRM,
the EPA believes that additional benefits
could accrue with both the use of a liner'
and leak detection, and leak collection
system and the use of sealers and ' ' •• . i
coatings. Section VIII of this rule ;
provides additional discussion of the
costs of each option. Although not
required, the EPA recommends the use
of coatings and sealers and a liner and
leak detection and leak collection
system. EPA notes that the use of a
surface coating, sealer, or cover can
eliminate or minimize the amount of
leakage to the liner and leak collection •
system. .
One commenter suggested a change in
the regulatory language to clarify which
drip pads are required to meet the
hydraulic conductivity standard of •
today's rule. EPA.notes that the
regulatory language promulgated today
clearly specifies which drip pads are
required to be equipped with a sealer,
.coating, or cover that meets the
hydraulic conductivity standard. The
Agency has not made the change • .
suggested by the commenter. In addition
to requiring a coating/sealer system on
existing drip pads, today's rule allows
an owner/operator to satisfy the
standards for new drip pads by choosing
to use either a coating/sealer system or
a liner and leak detection and leak .
collection system. • .-' -
One manufacturer of protective
coatings commented that owners/
operators should not be given the option
of using either a sealer or a coating since
most would not choose coatings due to
cost. The Agency appreciates the
corrtmenter's interest in this matter but
believes that sealers are also acceptable
as a primary barrier against chemical
attack of drip pads. In particular, the
commenter objected to the use of
penetrating sealers, stating that the
breakdown of the sealer will allow
absorption of CCA into the pad. The
Agency disagrees with the commenter.
Performance:data provided by
manufacturers indicate that penetrating
sealers are capable of providing
adequate protection from permeation of
preservatives through drip pads,
particularly given the pad cleaning
requirements included in today's rule.'
In order for a facility owner/operator to
inspect drip pads in accordance with
Subpart W standards, water washings of
the pad must occur at a frequency
sufficient to allow visual inspection of
the entire pad surface on a weekly basis.
H. Drip Pad Coating, Sealer, and Cover
Permeability.
The comments received on the
numerical standard for drip pad coating,
sealer, and cover permeability were
generally favorable. One commenter,
however, strongly disagreed with the
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Federal Register / Vol. 57, No, 248 / Thursday.. December 24a
requirement that drip pad surface
protection materials be chemically "
used, and C3j the revision of the
schedule for upgrading existing drip
pads to allow 15 years from publication
of today's rule for owners/operators to
meet the standard for new drip pads.
EPA fs finalizing t&e first two issues, but
EPA is not finalizing the proposal to
allow 15 years for owners/operators of
existing drip pads to meet the new drip '
pad standards. As discussed elsewhere
in this preamble, the Agency has elected
to alJow facilities to comply with the
standards for new drip pad's by choosing
between Kner and leak detection and
surface protection. ' •. -
With respect to the issue of the T5
year upgrade period, one commenter
interpreted the NPRM to require
owners/operators to demonstrate that no
releases have occurred before the
Regional, Administrator will grant an
extension of the 15 year deadline. EPA
clarifies here that the regulations in
subpart W do not require an owner/
operator to make such a showing.
Paragraph (b){2} of §§ Z64.57T andr
265.441 states that the RA will grant a
petition, for extension of the 15 year
period basebVona finding that the drip
pad meets all the requirements of
§§264.573 and 265.443, other than. .
those for liners and leak detection and
collection systems,- and that the pad will
continue to be protective of human
health and the environment.
One commenter asserted! that plants
using, more than one type of
preservative should be. able to, label their
wastes with one waste code most
appropriate for the nature of the waste,.
rather than ascribing trow or three waste
codes to the same waste. The Agency
disagrees. It is not uncommon for wastes
generated at one facility to carry
multiple RCRA waste codeSv Some
overlap does occur amaag different "
hazardous waste listing descriptions.
However, it is important to note that th»
listing of each hazardous waste under
RCRA is based on a unique set of
hazardous constituents contained in As-
waste (see part 261, appendix VH}. For
example, F032 is listed, in part, due to
the presence of dioxins in the waste,
whereas F034 is listed because it
contains naphthalene and other
hydrocarbonsrbut no dioxin. It is
important that hazardous waste
generators classify their wastes correctly
when shipping them for subsequent
management so that the owner/operator
of the treatment, storage, and disposal
facility fTSEH') has faff knowledge, of the
composition; of the waste, fit this way,
the TSDF can rriate an informed
decision concerning proper treatment or
disposal of the waste and ensure that
protection of human health and the
environment is not compromised.
V. State Authority
A. Applicability af Final Bute in
Authorized States
Under section 3*906 of RGRA, EPA
may authorize qualified' States to
administer and enforce the RCRA
program within the State. fSee 4O CFR
part 271 for the- standards and
requirements for authorization.}
Following authorization, EPA retains
enforcement authority under sections .
30O7.30W, 301:3, and 7003 of RCRA,
although authorized States have primary
enforcement;respoasirrfrHy.
Before the Hazardous and Solid Waste
Amendments of 1984 (BSWA)ame»ded
RCRA, a State whh final authorization
administered its hazardous waste .
program entirely in lieu of the Fadszal
program in that State, The Federal
requirements no longer applied in tha
authorized State, and EPA couhtoot
issue permits for any facilities located in
the State withtpermitting authorization.
When,new, more stringent Federal ., j
requirements were promulgated or :
enacted, the State was obligated 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. • '
By contrast, under section 3006(g) of
RCRA, 42 u.s.e* esaefgh new
requirements and prohibitions- imposed
by the HSWA take effect in, authorized.
States' at the same time that they take . .
effect in nonauthorized States, EPA i& .
directed to implement those ,
requirements, and prohibitions in-
authorized States, including the
issuance of .permits* until the State is.
granted authorization to do so. Whife
States must still adopt HSWA-related
provisions as State law to retain final
authorization, the Federal HSV»A
requirementsapply in authorized State*
in the interim.
Pursuant to section 3001 (a), of RCRA,
a provision added by HSWA.EPA
added F032-to the list of hazardous
wastes from nonspecific sources (40
CFR 261.3l>in thaDecember6; IQaOs
rule. Thus, tie changes finalized in.
today's rule in connection with. FQ32*
including modifications to the drip pad'
standards, will take effect ia all States
(authorized and unauthorized) on the • ,
effective date. ,
The elements of today's final rule as :
they apply toFO34 and F035 wastes axe
not immediately effective in authorized
States since the requirements are not
imposed pursuant to HSWA. These
regulations will apply in authorized
States when F034 and FQSSbecome
hazardous wastes in that State, and
when the State is. authorized for the drip
pad standards, However, should FQ34 OE
F035 wastes exhibit tha Toxteity
Characteristic,, which, was promulgated ,'
under HSWA authority ana fs effective
in authorized States, such wastes '
managed on drip pads must meet the
modified Subpart W standards. Today's,
amendments include a technical
correction to footnote 2 of Table 1 in 40
CFR Z7;l.l(jfc To clarify tfiis pbinfc.Ta&fe
1 identifies toe. Federal program. :
requirements that are promulgated -.-. •
pursuant to HSWA, and that take affect
in aH States, regardless of their V
authorization status.
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61500 Federal Rfigister / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules and Regulations
B, Effect on State; Authorizations
l.HSWAProyisiqns., „„,„
Because portions off the final rule are
promulgated pursuant to HSWA, a State
submitting a program modification is
able to apply to receive either interim or
final authorization under section
30Q6(g)(2) or 3006(b),, respectively, on . • •
the basis of requirements that are
substantially equivalent or equivalent to
EPA's requirements. The procedures
and schedule for State program
modifications under section 3006[b) are
described in 40 CFR 271.21. It should be
noted that all HSWA interim
authorizations are currently scheduled
to expire on January 1,1993 (see 40 CFR
271.24(c)).
2. Non-HSWA Provisions
As described abovo, other portions of
today's notice will not be effective in
authorized States since the requirements
are not being imposed pursuant to
HSWA. In authorized States, these
requirements will not be applicable
until the States revise their programs to
adopt equivalent requirements under
State law.
3. Modification Deadlines
Section 271.21(e)C9 of EPA's state
authorization regulations (40 CFR part
271) requires that States with final
authorization must modify their
programs to reflect Federal program
changes and submit 'the modifications to
EPA for approval. The deadline by
which the States must modify their ,
programs to adopt this regulation will
oe determined by the date of
promulgation of the final rule in
accordance with secSion 271.21(e)(2).
Once EPA approves the modification,
the State requirements become Subtitle
C RCRA requirements.
States with authorized RCRA
programs already may have regulations
similar to those in today's final rule.
These State regulations have not been
assessed against the Federal regulations
being promulgated today to determine
whether they meet the tests for
authorization. Thus, a State would not
be authorized to implement these
regulations as RCRA. requirements until
State program modifications are
submitted to EPA arid approved. Of
course, States with toasting regulations
may continue to administer and enforce
their regulations as a matter of State
law.
States that submit their official
application for final authorization less
than 12 months after the effective date
of thesd standards are not required to
include standards equivalent to these
standards in their application. However,
States must modify their programs by
the deadlines set forth in 40 CFR ,
;27ji21(e). States that submit official
applications for final authorization 12
months or more after the effective date
of these standards must include
standards equivalent to these standards
in their applications. 40 CFR 271.3 sets
forth the requirements that States must
meet when submitting final
authorization applications.
It should be noted that authorized
States are required to modify their ,
programs only when EPA promulgates
Federal standards that are more
stringent or broader in scope than
existing Federal standards. Section 3009
of RCRA allows States to impose
standards more stringent than those in
the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal
program, States are not required to
modify their programs. (See 40 CFR
271.1(i).} For example, the modification
to the F032 listing is less stringent than
the Federal program because it exempts
wastes generated by past users of
chlorophenolic. formulations from the
F032 listing under certain conditions.
As a result, authorized States are not
required to modify their programs to
pick up this provision. On the other
hand, the requirement that owners/
.operators develop and implement a .
contingency plan for response to
incidental drippage in storage yards
increases the stringency of the Federal
program. Consequently, this 'provision
must be adopted by authorized States.
VI. CERCLA Designation and
Reportable Quantities
All hazardous wastes listed pursuant
to 40 CFR 261.31 through 261.33, as
well as any solid waste that exhibits one
or more of the characteristics of a RCRA
hazardous waste (as defined at 40 CFR
261.21 through 261.24), are hazardous
substances as defined at section 101(14)
of the Comprehensive Environmental
Response; Compensation, and Liability
Act of 1980 (CERCLA), as amended. The
CERCLA hazardous substances are
listed in Table 302.4 at 40 CFR 302.4
along with their reportable quantities
(RQs). CERCLA Section 103(a) requires
that persons in charge of vessels or
facilities from which a hazardous
substance has been released in a
quantity that is equal to or greater than
its RQ shall immediately notify the
National Response Center of the releases
at 1-800-424-8802 or (202) 426-2675. In
addition, Section 304 of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA) requires the owner or
operator of a facility to report the release
of a CERCLA hazardous substance or an
extremely hazardous substance of the
appropriate State Emergency Response
Commission (SERC) and to the Local
Emergency Planning Committee (LEPC)
when the amount released equals or
exceeds the RQ for the substance or one
pound where no RQhas been set. It is
important to note that the RQ is ,
measured by the volume of the
hazardous substance released into the
environment, not the volume of any
resulting contaminated media.
The release of a hazardous waste to
the environment must be reported when
the amount released equals or exceeds
the RQ for the waste, unless the
concentrations of the constituents of'the
waste are known (48 FR 23566, May 25,
1983). If the concentrations of the
constituents of the waste are known,
then the Clean Water Act mixture rule
may be applied. According to this rule,
developed in connection with the Clean
Water Act section 311 regulations and
also used in notification under CERCLA
and SARA (50 FR 13463; April 4, 1985),
the release of mixtures and solutions
containing hazardous wastes would
need to be reported to the NRG, and to
the appropriate LEPC and SERC, when
the RQ of any of its component
hazardous substances is equalled or
exceeded. This mixture rule provides
that "[discharges of mixtures and
solutions are subject to these regulations
only where a cpmponent hazardous
substance of the mixture or solution is
discharged in a quantity equal to or --
greater than its RQ (44 FR 50767;
August 29,1979). RQs of different
hazardous substances are not additive
under the Clean Water Act mixture rule,
such that spilling a mixture containing
half an RQ of one hazardous substance
and half an RQ of another hazardous
substance does not require a report. •
Under section 102(b) of CERCLA, all
hazardous waste streams newly
designated under RCRA will have a
statutorily imposed RQ of one pound
unless and until adjusted by regulation
- under CERCLA. In order to coordinate
the RCRA and CERCLA rulemakings
with respect to the amended waste
stream listings, the Agency today is
amending the descriptions of waste
streams F032, F034, and F035 at 40 CFR
302.4, the codified list of CERCLA
hazardous substances. In the December
1991NPRM, EPA proposed an RQ of
one pound for F032, F034 and F035.
Because the basis for listing these three
wastes has not changed from the
original final rule in December 1990, the
final RQs remain at one pound, as
originally promulgated.
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Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 7 Rules and Regulations 61501
VII. Compliance Deadlines
Section 3010(b) of RCRA (42 U.S.C
6930(b)) specifies that a regulation
within subtitle C will take effect on the
date six months after the date of'
promulgation. At the time'a regulation
is promulgated, the Administrator may
provide for a shorter period prior to an
effective.date, or an immediate effective
date for "a regulation with which the
Administrator finds the regulated
community does not need six months to
come into compliance."
All elements of this final rule, with
the exception of the four listed below,
become effective on December 24,1992,
since each of these modifications has
the effect of minimizing or relieving
existing regulatory requirements. (See
also section 553(d)(l} of the
Administrative Procedures Act, 5 U.S.C.
553.)
Other Effective Dates
[1]. With respect to meeting the drip
pad permeability requirements of this
final rule (264.573(a)(4)(i),
265.443(a)(4)(i)), the Agency is
establishing a new effective date of June
24,1993, by .which time owners and
operators of drip pads must comply
with the standard. The Agency is
establishing this new date to provide
facilities adequate time to comply with
this new permeability requirement. The
Agency recognizes that the upcoming -
cold weather and rainy seasons in parts
of the country may hinder the proper
curing of coatings or sealers and that
this compliance period should address
any such concerns. •
(2). With respect to the requirement
that new drip pads for which owners/
operators have chosen liners and. leak
detection also have a leak collection
system (264.573(b)(3), 265.443(b)(3)),
the Agency is establishing an effective
date of June 24,1993.
(3). With respect to the provisional
elimination of the F032 waste code
(Today's revision to the listing of
hazardous waste No. F032 in § 261.31
with respect to the potentially cross-
contaminated wastes that are otherwise
currently regulated as hazardous
wastes), the Agency is establishing an
.effective date of June 24,1993.
(4). With respect to the requirements
for contingency plans for incidental
drippage in storage yards (264.570(c)(l),
265.440(c)(l)), the Agency is
establishing an effective date of June 24,
1993.
VIII. Regulatory Requirements
A. Executive Order 12291
Under Executive Order 12291, a
Federal agency must determine whether
a regulation is "major" and thus subject
to'the requirement to prepare a.
Regulatory-Impact Analysis. Today's
final rale is not major because it will not
result in an effect on the economy of
$100 million or more, will not result in
significantly increased costs or prices
(indeed, it will likely result in decreased
costs), will not have a significant
adverse effects on competition,
employment, investment, productivity,
and innovation, and will not
significantly disrupt domestic or export
markets. Therefore, the Agency has not
prepared a Regulatory Impact Analysis
under the Executive Order for these
modifications. This .regulation was
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291.
Although the Agency is not required
to prepare a Regulatory Impact Analysis
for this rule, for the benefit of the
regulated community, the economic
impacts of modifications presented in
this rule are discussed below. Where the
Agency has insufficient data to quantify
the impact, economic effects are
qualitatively discussed.
The exclusion from the listing
descriptions for wastewaters that have
not come into contact with process
contaminants will result in a decrease in
costs to the extent that segregation of
wastewater results in a decreased
hazardous waste generation rate. For
example, collection of rainwater in a
vessel rather than on a drip pad could
result in decreased hazardous waste
generation. Because generated
hazardous waste is taxed in some
locations, there may be additional cost
savings in the form of a decrease in tax
liability. Increases in cost may be
incurred in the form of expenditures for
collection equipment that may be
required to segregate such wastewaters.
The Agency has insufficient information
to quantify such cost, savings or
additional costs attributable to the
wastewater exclusion.
The removal of the applicability of the .
F032 listing to past users of
chlorophenolic formulations who
currently generate F034 or F035 wastes
will have a negligible impact on costs.
The regulatory requirements associated
with a waste that is listed as F032 are
not substantially different from those
associated with wastes listed as F034 or ,
F035 wastes.
The requirement to clean up
incidental and infrequent drippage in
storage yards will have cost effects that
are highly site, weather, and situation
dependent. There Will also be costs
associated with documenting the
cleanup of storage yard drippage and
the collection of leachate from new drip
pads with liners. Costs associated with
this requirement are also dependent on
the efforts undertaken by individual
plants to eliminate or minimize such
drippage to incidental amounts. These
efforts would include the use of vacuum
cycles and holding treated wood on drip
pads for .an appropriate amount of time.
The removal of the requirement that
new drip pads have an impermeable
coating, sealer, or cover will decrease
costs by the amount attributable to the
application of coatings, sealers or
covers. The installation cost of low cost
sealers and coatings ranges between $2
to $5 per square foot of drip pad/the
savings to a plant with a 10,000 square
foot drip pad would range from $20,000
to $50,000.
The change in the drip pad cleaning
requirements from a weekly basis to as
needed to conduct weekly drip pad
inspections will also reduce costs. Cost
reductions will mostly benefit users.of
inorganic preservatives that are
dissolved in water. Such aqueous
solutions will tend not to obscure drip
pad surfaces and will result in a greatly
decreased frequency of cleaning.
Facilities using oil-based preservatives,
particularly creosote, will not benefit to
th^e same degree because such
formulations tend to obscure the drip
pad surface. The cost savings may result
primarily from reduced taxes on .
hazardous waste generation. The
Agency has insufficient data to quantify .
these cost effects.
The change in drip pad coating,
sealer, and cover permeability
requirements (from "impermeable" to 5
lxlO~7 centimeters per second) should
have no cost effects. The regulations
promulgated today give an actual value
for .hydraulic conductivity and,
therefore, provide the owner/operator
with useful information in making .
purchasing decisions regarding, drip pad
coatings, sealers, or covers.
B. Regulatory Flexibility Analysis
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 (RFAJ
that describes the impact of the rule on
small entities (i.e., small businesses,
small organizations, and small
governmental jurisdictions). However, if
the head of the agency certifies that the
rule will not have a significant impact
on a substantial number of small
entities, no RFA is required. • ;
The Agency examined the potential
effects on small entities for the .
December 6,1990 final rule. In that rule,
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615O2 Federal ^Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rales and Regulations
EPA concluded that the rule did not
have A significant effect on a substantial
number of small entities. Therefor*. .
EPA did not prepare a formal Regulatory
Flexibility AnalysiB(RFA) in support of
tha nils. Details on junsll business
impacts ara available jn the Regulatory
. Impact Analysis for the rule. Today's
final rule redoces Che potential effects
identified for the December 6.1990 rule,
particularly by removing the
applicability of the F032 listing to past
users of chiorophenolic formulations
who generate F034 or F035 wastes. As
a insult.* formal RFA was not prepared
in support of today's rule,
IX. Paperwork Reduction Act
The information collection
requirements in tbiis rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act. 44 U-S.C. 3501 etseq.
and have been assigned control number
2050-Q115.
Public reporting burden for this
collection of information is estimated to
average about 338 hours per response.
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
required data, end completing and
reviewing the collodion of information.
Send comments regarding the burden
estimate or any other aspect of this
collect ion of in formation, including
suggestions for reducing this burden, to
Chief, Information Policy Branch. PM-
223Y. U.S. Environmental Protection
Agency, 401 M Street. SW., Washington;
DC 20460; -and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget.
Washington, DC 20503. marked
"Attention: Jonathan Gledhill."
List of Subjects
40 CFR Part 261 .
Hazardous materials. Waste treatment
and disposal, Recycling.
40 CFR Part 264 ,
Hazardous materials. Packaging and
containers. Reporting requirements,
Security measures, Surety bonds, Waste
treatment and disposal..
4OCFR Pest 265
Air pollution control, Hazardous
materials. Packaging and containers,
Reporting requirements. Security
measures. Surety-bonds. Waste
treatment and disposal. Water supply.
40 CFR Part 271
Administrative practice and
procedures. Air pollution control,
Hazardous materials transportation.
Hazardous waste, Indian lands.
Intergovernmental relations. Penalties,
Reporting and racordkeaping
requirements. Water pollution control,
Water supply.
40CFRPait3O2
Air pollution control, Chemicals,
Hazardous materials transportation,
Hazardous substances,
Intergovernmental relations, Natural
resources. Nuclear materials, Pesticides |
and pests, Radioactive materials,
Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal, Water pollution]
control.
Dated: October 30,1992.
William K. ReiUy.
Administrator.
For the reasons set out in the
preamble, title 40 'bf the Code of FederalJ
Regulations is amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
I. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), 6921,
6922, 6934, and £938.
2. In § 261.31 the table is amended by|
revising the F032. F034, and F035
listings.
§261.31 Hazardous wastes from non-
specific sources.
Industry and
EPAhazaKtou*
wsststfo.
Hazardous waste
Hazard!
code
. • » • ••
' F032 WMHwatw* {except thoea (hat have not some 4nte contact with process contaminants), process residuals, preservative drippage, and
spon» tofmulaUons f rora wood preserving processes •generated at 'plants that currently use or have previously used chtorophenollc tor-
oiulaBone {except potentially cross-contaminated urastes that have had the F032 waste code delated ta aocontence w»9i 6261.35 of
thte chapter or potenfiafy <30S8K»ntaminated wastes
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Federal Register /Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules and Regulations 61503
except for those constructed after
December 24,1992 for which the owner
or operator has a design and has entered
into binding financial or other
agreements for construction prior to
December 24,1992.
* * * * *
(c) The requirements of this subpart
are not applicable to the management of
infrequent and incidental drippage in
storage yards provided that:
(1) The owner or operator maintains
and complies with a written
contingency plan that describes how the
owner or operator will respond
immediately to the discharge of such
infrequent and incidental drippage. At a
minimum, the contingency plan must
describe how the owner or operator will
do the following:
(i) Clean up the drippage;
(ii) Document the cleanup of the
drippage;
(iii) Retain documents regarding •
cleanup for three years; and
•. (iv) Manage the contaminated media
in a manner consistent with Federal
regulations.
5. Section 264.571 is amended by
revising the last sentence of paragraph
(a), and revising paragraph (b) to read as
follows:
§'264.57t Assessment of existing drip pad
integrity.
(a) * * * The evaluation must
document the extent to which the drip
pad meets each of the design and
operating standards of § 264.573 of this
subpart, except the standards for liners
and leak detection systems, specified in
§ 264.573(b) of this subpart.
(b) The owner or operator must
develop a written plan for upgrading,
repairing, and modifying the drip pad to
meet the requirements of § 264.573(b) of
this subpart, and submit the plan to the
Regional Administrator no later than 2
years before the date that all repairs,
upgrades, 'and modifications are
complete. This written plan must
describe all changes to be made to the
drip pad in sufficient detail to
document compliance with all the
requirements of § 264.573 of this
subpart. The plan must be reviewed and
certified by an independent qualified
registered professional engineer.
*****
6. Section 264.572 is revised to read
as follows:
§ 264.572 Design and installation of new
drip pads.
Owners and operators of new drip
pads must ensure that the pads are
designed, installed, and operated in
accordance with one of the following:
(a) all of the requirements of; v "^
§§ 264.573 (except 264,573(a)(4)),
264.574 and 264.575 of this subpart, or
(b) all of the requirements of
§§ 264.573 (except § 264.573(b)),
264.574 and 264.575 of this subpart.
. 7. Section 264.573 is amended by
revising paragraphs- (a)(4) and. (b)
introductory text and paragraph (i) and
adding paragraph (b)(3) to read as .
follows: .
§264.573 Design and operating
requirements.
(a) * * *
(4)(i) Have a hydraulic conductivity of
less than or equal to 1X10-7 centimeters
per second, e.g., existing concrete drip
pads must be sealed, coated, or covered.
with a surface material with a hydraulic
conductivity of less than or equal to
IxlO-7 centimeters per second such that
the entire surface where drippage occurs
or may run across is capable of
containing such drippage and mixtures
of drippage and precipitation, materials,
or other wastes while being routed to an
associated collection system. This
surface material must be maintained
free of cracks and gaps that could
adversely affect its hydraulic
conductivity, and the material must be
chemically compatible with the
preservatives that contact the drip pad.
The requirements of this provision
apply only to existing drip pads and
those drip pads for which the owner or
operator elects to comply with
§ 264.572(a) instead of § 264.572(b).
(ii) The owner or operator must obtain
and keep on file at the facility a written
assessment of the drip pad, reviewed
and certified by an independent,
qualified registered professional
engineer that attests to the results of the
evaluation. The assessment must be
reviewed, updated and recertified
annually. The evaluation must
document the extent to which the drip
pad meets the design and operating
standards of this section, except for
paragraph (b) of this Section.
*****
(b) If an owner/operator elects to
comply with § 264.572(b) instead of
§ 264.572(a), the drip pad must have:
******
(3) A leakage collection system
immediately above the liner that is
designed, constructed, maintained and
operated to collect leakage from the drip
pad such that it can be removed from
below the drip pad. The date, time, and
quantity of any leakage collected in this
system and removed must be
documented in the operating log.
***.** .
(i) The drip pad surface must be
cleaned thoroughly in a manner and
frequency such'that accumulated
residues of hazardous waste or other
materials are removed, with residues
being properly managed as hazardous
waste, so as to allow weekly inspections
of the entire drip pad surface without
interference or hindrance from
accumulated residues of hazardous
waste or other materials on the drip pad.
The owner or operator must document
the date and time of each cleaning and
the cleaning procedure used in the
facility's operating log. The owner/
. operator must determine if the residues
are hazardous as per 40 CFR 262.11 and,
if so, must manage them under parts
261-268, 270, and section 3010 of
RCRA.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND .
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
8. The authority citation for part 265
continues to read as follows: •
Authority: 42 U.S.C. 6905, 6912(aj 6924,
6925, and 6935. - .
9. Section 265.440 is amended-by
revising paragraph (a) and adding
paragraph (c) to read as follows:
§265.440 Applicability. • ,
(a) The requirements of this subpart
apply to owners and operators of
facilities that use hew or existing drip
pads to convey treated wood drippage,
' precipitation, and/or surface water run-
off to an associated collection system.
Existing drip pads-are those constructed
before December 6,1990 and those for
which the owner or operator has a
design and has entered into binding
financial or other agreements for
construction prior to December 6,1990.
All other drip pads, are hew'drip pads. '
The requirement at § 265.443(b)(3) to
install a leak collection system applies
only to those drip pads that are
constructed after December 24,1992
except for those constructed after
December 24,1992 for which the owner
or operator has a design and has entered
into binding financial or other
agreements for construction prior to
December 24,199^2. . ,
* . * • * ' * •*'.••'
(c) The requirements of this subpart.
are not applicable to the management of
infrequent and incidental drippage hi.
storage yards provided that:
(1) The owner or operator maintains .
and complies with a written
contingency plan that describes how the
owner or operator will respond :
immediately to the discharge of such
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S1S04 Fafend Register / Vol. 57, No. 248 / Thorsday, December 24, 1992 / Rules and Regulations
(ii) Dccunxmi iha cleanup of tha
drippaga;
(iii) fiotsin documants rogarding
cleanup lor three yean; and
{iv} Manage th» contaminated media
in * manner consistent -with Federal
regulations.
10. Section 285.441 is amended by
revising the Uri. sentence of paragraph
(a), and revising paragraph (b) to iaad as
follows:
Infrequent end incidental drippage. At a adding paragraph ft>K35 to read as
rnJTrimnn.thgcontingencyplenmutt '"' ^follows;
deKz£»&ow1he£iciHty
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Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Rules and Regulations 61505
TABLE 302.4—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES" .
[Note: All Comments/Notes Are Located at the End of This Table]
Hazardous substance
CASRN
Regulatory syno-
nyms
Statutory
Final RQ
RQ Codet
Category
F032 .
Wastewaters (except those that have not come Into contact with
process contaminants), process residuals, preservative
drippage, and spent formulations from wood preserving proc-
esses generated at plants that currently use or have pre-
viously used chlorophenolic formulations (except potentially
cross-contaminated wastes that have had the F032 waste
code deleted in accordance with §261.35 of this chapter or
potentially cross-contaminated wastes that are otherwise cur-
rently regulated as hazardous wastes (I.e., F034 or F035),
and where the generator does not resume or initiate use of'
chlorophenolic formulations). This listing does not include
KOOi bottom sediment sludge from the treatment of
wastewater from wood preserving processes that use creo-
sote and/or pentachlorophenol.
4 F032 X 1(0.454) .
F034
F035
Wastewaters (except those that have not come into contact with
process contaminants), process residuals, preservative
drippage, and spent formulations from wood preserving proc-
esses'generated at plants that use cresote formulations. This
listing does not Include K001 bottom sediment sludge from
the treatment of wastewater from wood preserving processes
that use creosote and/or pentachlorophenol.
Wastewaters (except those that have not come into contact with •
process contaminants), process residuals, preservative
drippage, and spent formulations from wood preserving proc-
esses generated at plants that use inorganic preservatives
containing arsenic or chromium. This listing does not Include
K001 bottom sediment sludge from the treatment of
wastewater from wood preserving processes that use creo-
sote and/or pentachlorophenol.
4 F034
X 1(0.454)
1* 4 F035
X , 1(0.454)
t Indicates the statutory source as defined by 1. 2.3, 4, w 5 below.
******
1* Indicates that the 1-pound BO is » CERCLA statutory RQ.
4 Indicates that the statutory source for desiflnation of this hazardous substance under CERCLA it RCRA Section 3001.
IFR Doc. 92-27703 Filed 12-23-92; 8:45amJ
BILLING CODE 656O-5O-H
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