Tuesday
January 4, 1994
Part V
Environmental
Protection Agency
40 CFR Parts 260 and 261
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste; Wastes From Wood, Surface
Protection; Final Rule
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458 . *, * Federal 'Register V, Vol. 59, No. 2 / Tuesday, January 4, 1994 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260 and 261
[FRl-4804-9]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Wastes From Wood
Surface Protection
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.' ...
SUMMARY: The U.S. Environmental
Protection Agency (EPA) is issuing a
final hazardous waste listing
determination for wastes generated from
the use of chlorophenolic formulations .
in wood surface protecti6n processes.
Upon reviewing the public comments
received oh its proposal of April 27,
1993, the Agency has decided not to list
wastes from the u^S "of chlorophenolic
formulations in wood surface protection
processes. As a result of this
determination, EPA is not mandating in
this rule any specific operating or, ,
information collection requirements for
owners/operators of wood surface
protection plants. If, however, use of
chlorophenoiic formulations resumes in
the future, the Agency would very likely
re-evaluate this decision not to list. This
rule also finalizes the proposed
amendment of SW-846 ("Test Methods
for Evaluating Solid Waste, Physical/
Chemical Methods") to include Method
4010 (Immundassay Test for the
Presence of Pentachlorophenol). In
addition, the Agency is adding the
following four chemicals to 40 CFR part
261, Appendix VIII: Sodium and
potassium salts of pentachlorophenol
and tetrachlorophenoh
EFFECTIVE DATE: January 4,1994.
ADDRESSES: The official record for this
rulemaking is identified as Docket
Number F-93-F33F-FFFFF arid is
located in the EPA RCRA,Docket, room
M2616,401 M Street, SW., Washington,
DC 20460. The public must make an
appointment to review docket materials
by calling (202) 260-9327. The docket is
open from 9 a.m. to 4 p.m.,•Monday
through Friday, excluding holidays.'The
public may copy up to lOQtpages' from
the docket at no cost. Additional copies
cost $0.15 per page. •- , . "
FOR FURTHER 'INFORMATION CONTACT: For
general information, contact the RCRA/
Superfund HoH'ine at (800) 424-9346 •
(toll-free) of (703) 920-9810 in the '
Washington, DC metropolitan' area. The
TDD hotline number is '(800) 553-7672
or (703) 486-3323. For technical
information on specific aspects of this
rulemaking, contact Mr. David J. Carver
at (202) 260-6775; Office of Solid Waste
(Mailcode 5304), U.S. EPA, 401 M
Street, SW., Washington, DC 20460. For
technical information relating to the
amendment of SW-846, contact Ms.
Gail Hansen at (202) 260-4761, Office of
Solid Waste (Mailcode 5304), at the
same address provided above. '
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
I. Legal Authority
II. Background & Summary
III. Overview of the Proposed Rule
IV. Summary of Public Comments and
Responses .
A. General Comments
, B. Comments Regarding Risk Assessment
V. Overview of the Final Rule
A. Basis for'the Determination Not to List
As Hazardous Wastes From Wood
Surface Protection Operations
B. Operating Requirements for Surface
Protection Plants
C. Addition of Chemicals to Appendix VIII
.of 40 CFR part 261
Vl. Amendment of SW-846 (Test Methods for
Evaluating Solid Waste, Physical/
Chemical Methods)
VII. Pollution Prevention and Waste
Minimization
VIII. Analysis of Potential Costs and Benefits
A. Executive Order Requirements
B. Description of Costs and Benefits of this
Rule •
IX. State Authority
•X. Regulatory Flexibility Analysis ' '
XI. Paperwork Reduction Act
I. Legal Authority
. These regulations are being
promulgated under the authority of
sections 2002(a) and 3001(b) and (e)(l)
of the Solid Waste Disposal Act, as
amended, 42 U.S.C. 6912(a), 6921(b)
and (e)(l), and 6922 (commonly referred
to as RCRA).
II. Background & Summary
A. Background
Under section 3001 (e) of RCRA, as
amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWAJ,.
EPA is required to make a- hazardous
waste listing determination for wastes
.containing chlorinated dioxinsand
dibenzofurans. As part of this mandate,
' the Agency began an investigation in
1988 of dioxin-containing wastes from
wood preserving and wood surface
.protection processes. Three categories of
wastes from wood .preserving processes
. were listed as hazardous wastes in 1990,
i(F032, F034, and F035, see 55 FR
50450). A final listing determination for
wood surface protection process wastes
were deferred due to lack of data (53 FR
53282). In 1991, the Agency began a
separate study of the surface protection
industry in an effort to obtain sufficient
information upon which to base a
hazardous waste listing determination.
The Agency, upon obtaining and
evaluating information, published a
proposed rule on April 27,1993 which
proposed a concentration-based
hazardous waste listing option and
requested comment on an alternative
option not to list these wastes as
hazardous (58 FR 25707). Details of the
options can be found in the following
section to this preamble. A detailed
summary of all Agency actions related
to wood surface protection wastes was
provided in the April 27,1993 proposal
(58 FR 25707). The reader is encouraged
to consult that document for more /
information on the wood surface •
protection rulemaking history.
In accordance with a proposed
consent decree signed by EPA and the
Environmental Defense Fund (EOF) in
EDFv. Browner (U.S. District Court for
the District of Columbia, case no. 89-
0591); the Agency has agreed to make a
final listing determination for
' ehlorophenolic wastes from wood
surface protection processes by
December 31,1993.
B. Summary of the Wood Surface
Protection Regulation
After considerable review and study
of the rulemaking docket for this action,:
including comments received on the
proposal, the Agency has determined
: .that listing as hazardous wastes from
surface protection operations is '
unnecessary and will not yield .the
benefits intended by a hazardous waste
• listing under the RCRA program. This
section summarizes elements of the
proposed rule of April 27,1993 (58 FR
25707), and details the conclusions
reached in developing this final rule.
The reader is cautioned that although
some of the highlights brought up in the
proposed rule are described below, the
, majority of information on the industry
itself as well as the detailed risk
assessment on which the initial
proposed rule was based is found in the
preamble and background documents to
the proposed rule. The information
contained in this final rule is primarily
concerned with developments
subsequent to the proposed rule. This
rule describes, in detail, the Agency's
justification for not listing wastes from
surface protection processes that use
chlorophenolic formulations. In
addition, it summarizes the Agency's
response to comments received on the -
proposal.
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Federal Register / Vol. 59, No. 2 / Tuesday, January 4, 1994 / Rules and Regulations. 459
III. Overview of the Proposed Rule
The April 27,1993 proposal •
discussed anjd requested comment on
each of the following: •
(1) Proposing a concentration-based
hazardous waste listing for certain wood
surface protection wastes;
(2) Proposing various testing, analysis,
recordkeeping requirements and
management; standards for wood surface
protection plants,
(3) Adding six hazardous constituents
to appendix yin of 40 CFR part 261,
(4j Amending of appendix VII of 40
CFR part 261 by adding F033 and the
hazardous constituents found in the
wastes, ;
. (5) Modifying the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) list of hazardous substances
to reflect the!newly proposed listing,
(6) Amending SW-846 ("Test
Methods for Evaluating Solid Waste,
Physical/Chemical Methods") to
include Method 4010 (Immunoassay
Test for the Presence of
Pentachlorbphenol), and'
(7) An alternative option not listing
chlbrophenolic wastes as hazardous.
The Agency proposed to list as
hazardous at 40 CFR 261.31 only those
wastes from wood surface protection-
processes using a formulation with a
pentachlorophenate concentration
greater than 0.1 ppm. Under this
proposed option, surface protection
operations using formulations with
pentachlorophenate concentrations
equal to or less than 0.1 ppm would not
generate F03J3 listed wastes. The Agency
proposed this concentration-based
listing because it had information which
suggested that many surface protectors
who previously used chlorophenolics
did not sufficiently clean out equipment
prior to abandoning the use of
chlorophenolics. Because of this, many
formulations' from past users of
chlorophenolics exhibit "cross-
contamination," the contamination of
current formulations by dioxins and
chlorbphenolic compounds from old
formulations;. The rule proposed the
following hazardous waste listing
description for the F033 waste code and
included the1 following specific waste
streams from process operations:
F033:Process residuals, wastewaters that
come into contact with protectant, discarded
spent formulation, and protectant drippage
from wood surface protection processes at
plants that use! surface protection chemicals
having an in-pjrocess formulation
concentration pf pentachlorophenate
. (expressed as pentachlorophenol during
analysis) exceeding 0.1 ppm. (T)
Along with this option, various
testing and recordkeeping requirements
were proposed. For an owner/operator
to demonstrate that he/she is not
generating F033 wastes, EPA proposed
formulation testing requirements for all
surface protection plants. All.owner/
operators of wood surface protection
plants would be required to test their
formulation to determine the
concentration of pentachlorophenate if
the owner/operators wanted to avoid
generating F033 wastes. If the analysis
showed a concentration at or below 0.1
ppm, the owner/operator would be
required to sign a certification to that
effect and maintain records on site
related to the testing procedure. This
testing proposed an analysis using a
method listed within the EPA's Test
Methods for Evaluating Solid Waste,
Physical/Chemical Methods (SW-846).
The Agency proposed to add Method|i
4C10 to SW-846. Method 4010 is an ~
immunoassay test for the presence of!
pentachlorophenol, which determines
whether a sample is above or below a
set limit (such as the 0.1 ppm **
concentration level proposed).
Under the proposal, it analysis^
showed that a facility's formulation-
contains pentachlorophenate at levels
exceeding 0.1 ppm, then the wastes
generated from surface protection at that
facility would be F033 wastes and the
owner/operator would be subject to
additional operating requirements
proposed as subpart T of parts 264 and
265. For details on the specific
operating requirements, the reader
should refer to the proposed notice (58
FR 25706).
A number of the constituents of
concern that are present in wastes
generated from wood surface protection
processes which use chlorophenolic
formulations do not appear on the list
of hazardous constituents at 40 CFR part
261, appendix VHI. The Agency
proposed to add six hazardous
constituents to appendix Vni: sodium
pentachlorophenate, potassium
pentachlorophenate, the sodium salt of
2,3,4,6-tetrachlorophenol, the potassium
salt of 2,3,4,6-tetrachlorophenol,
octachlorodibenzo-p-dioxin (OCDD) and
octachlorodibenzofuran (OCt)F).
Sodium and potassium
pentachlorophenate are the sodium and
potassium salts of pentachlorophenol.
These salts were proposed for addition
to appendix VIII of 40 CFR part 261
since, as a result of gastric secretions
following ingestion, the sodium and
potassium salts of pentachlorophenol
and 2,3,4,6-tetrachlorophenol are
readily converted to the corresponding
phenols by acidification. Therefore, the
sodium and potassium salts are
reasonably expected to elicit the same
health effects as the corresponding
phenols. For this.reason, the Agency
proposed to-add these four compounds.
to the list of hazardous constituents in
appendix VIII of 40 CFR part 261.
The Agency also requested comment
on'an option-npt.to list as hazardous
wastes generated from surface
protection processes. The Agency
included the so-called "no-list"! option
in the proposal because the future
generation of chlorophenolic wastes is
expected to' diminish rapidly to zero
and because the results of risk'analyses
show that the risks from the dominant
exposure pathways are relatively
modest, assuming' the widespread use of
chlorophenolic formulations does not
resume. The Agency believed at the
time of the proposal that reintroduction
of chlorophenolic formulations into the
market place in the future was not likely
to occur. EPA also noted that the
, Agency would always have the option
of reconsidering the listing
determination should chlorophenolic
surface protection formulations be
reintroduced in the future. .
IV. Summary of Public Comments and
Responses
Commemts received on the proposed
rule are placed under two separate
headings for purposes of this summary.
The first addresses the more general
comments associated with the proposal,.
including those relating to: (1) General
implementation issues of a listing for
wastes generated by the wood surface
protection industry; (2) technical
approaches discussed in the proposal
relating to data sampling methodologies;
and (3) various engineering assumptions
on which the proposed listing was
based. The second part of this section
describes the Agency's response to
comments dealing with the risk
assessment methodology used to
support the listing determination for
these wastes. . • '
A. General Comments
Several comments were submitted on
the proposed listing of F033 wastes.
Four commenters supported the listing
in general, and two commenters
supported the concentration-based
approach in particular. Three -
commenters opposed the. proposed
listing and urged EPA to rely on its
authority under FIFRA to control the
risks posed by chlorophenolic
formulations. One commenter
supported an outright ban on the use of
chlorophenolics for Wood surface
treatment.
Two commenters warned that listing
F033 wastes would hinder remediation
efforts at contaminated wood surface .
protection sites. The Agency agrees with
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460 Federal Register / Vol. 59, No 2 /Tuesday, January 4, 1994 / Rules and Regulations
the commenters' point that a hazardous
waste listing may provide a disincentive
for owner/operators of surface
protection plants to initiate voluntary
remediation efforts. The regulation of
potentially large amounts of
contaminated soil as listed hazardous
\vaste could delay the start of cleanup
due to the administrative and economic
realities of regulatory compliance.
Three commenters expressed concern
over the possibly perceived
inlerchangeability of the proposed 0.1
ppm concentration level and the
Toxicity Characteristic (TC) regulatory
level for pentachlorophenol. Although
the Agency is not finalizing the F033 .
hazardous waste listing, EPA
nevertheless wants to make clear that
the concentration level proposed in the
F033 listing description was not
intended as a regulatory level for any .
purpose other than defining a waste as
F033. The current regulatory level for
pentachlorophenol that defines a waste
as hazardous under the TC (100 mg/L)
would not have been affected by this
rulemaking in any way had the F033
listing been promulgated today. Levels
set for the TC are obtained by running
models which simulate acidic landfill
conditions. For the proposed listing, the
proposed 0.1 ppm level was calculated
using a Maximum Contaminant Level
(MCL) of 0.001 ppm and a risk analysis
using the Agency's Multi-med model.
Multi-med simulates groundwater
contamination from specific sources,
and for this proposal, it incorporated
variables which are specific to sawmill
conditions. The Agency's analysis
approximated the dilution of
pentachlorophenate from the time the
waste contacts the ground to when it
reaches a ground water well. The
Agency did not arrive at the 0.1 ppm
level by applying a dilution attenuation
factor (DAF) of 100 (as the Agency has
done in other circumstances) to the
MCL. Indeed, the Agency did not take
a position in the proposal about the use
of DAFs in calculating acceptable risk
levels for any constituents. A detailed
discussion of the Agency's modeling .'
assumptions and actual parameters used
to generate risk approximations can be
found in the docket for the'proposed
rule. ' • .
One comrhenter expressed
reservations regarding the
decontamination procedures
promulgated previously for yrood
preserving equipment (55 FR 50482-
50483, December 6,1990). The Agency
is aware that equipment cleaning will
not always prevent cross-contamination.
However, it will certainly reduce the
amount of contamination that would
occur if no equipment cleaning took
place. Although the Agency is not
finalizing the proposed F033 hazardous
waste listing, EPA encourages owner/
operators of surface protection plants to
clean or replace any surface-treating
equipment that was used previously
with chlorophenolic formulations upon
a switch to non-'chlorophenolic
chemicals and properly dispose of the
wastes'in an environmentally sound
manner. Furthermore, the Agency has
obtained information which shows that
some new substitute products are more
effective if residual chlorophenoiic
contamination is removed. Hence,
removing sludge and cleaning
equipment from previous
chlorophenolic use will not only be.
more environmentally sounds but may
also enhance the new products
. effectiveness. Methodology, on
recommended cleaning and operating
practices for surface protectors will be
published in the near future by the
Agency in a pollution prevention and
waste minimization guidance
document.
• One commenter suggested that the
proposed operating standards for
surface protection plants be codified in
part 262 as opposed to parts 264/265.
The commenter reasoned that most
surface protection plants are only
generators and do not function as
treatment, storage, and disposal ,
facilities (TSDFs). However, since the
F033 hazardous waste listing is not
being promulgated, this issue is moot
and there is no need for special
generator requirements.
Several commenters had specific
concerns about the applicability of the
proposed F033 listing. Since the Agency
is not finalizing the proposed F033
listing, these concerns are also moot.
However, where appropriate, answers
specific to each of these commejnts have
been addressed in the background
document of this final rule.
One commenter questioned the
representativeness of the Agency's data
on cross-contamination. The commenter
"stated,that because sites were not
randomly selected, there is no true
sample representation of the surface
projector population. EPA did not
choose sampling sites based on their
statistical representativeness. Rather,
the sites were selected as appropriate
from what the Agency considered to be
typical operating plants/The Agency
visited more than 15 surface protection
sites in the Nation (both large and small
plants). From the information obtained
from these plant tours and interviews,
the Agency developed a view of what \'.
considered typical from an engineering
standpoint (e.g. size of equipment,
production scale, presence of
containment systems, size of storage
yards, amount of drippage, etc). The.
sites sampled need not represent the
entire surface protection industry in
terms of the process used and the degree
of cross-contamination present to allow
the Agency to demonstrate that wastes
from current and previous use of
chlorophenolics at surface protection
sites were contaminated with the
constituents of concern. These sites
were chosen from information .obtained
by a questionnaire sent out under the
Agency's 3007 RCRA authority.
B, Comments Regarding Risk
Assessment
Five commenters responded to the
risk assessment presented in the
proposed rule. One commenter stated
that the EPA incorrectly converted units
of measurement in the record sampling
data used for the risk.assessment
causing the overestimation of •
incremental risk for the fish/shellfish
consumption and soil ingestion
pathways by a 1,000-fold. The EPA
agrees with the commenter; The dioxin
concentrations in the formulation at one
of the affected facilities (Aquasco, MD)
were reported in the wrong units,
causing a 1,000-fold error to be
incorporated into the risk estimates for
the fish and shellfish ingestion and soil
ingestion scenarios. When this error is
corrected, the TCDD-TEQ dioxin levels
used as the source.concentration (the
concentration of formulation dripping
onto the ground) for affected facilities
(cross-contamination from past use of
chlorophenolic formulations) and used
in the lifetime individual risk estimates
for the soil ingestion scenario and fish
and shellfish ingestion scenario were
reduced by a 1,000-fold. The lifetime
individual risk values using the
corrected data are presented in Table 1.
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.Federal Register / Vol. 59. No. 2 / Tuesday, January 4. 1994 / Rules aad Regulations 461
TABLE 1 i—INDIVIDUAL RISK FROM CROSS-CONTAMINATION FROM PAST USAGE OF CHLOR'OPHENOLIC FORMULATIONS
FROM FISH AND SHELLFISH INGESTION .: ...
f- •
•, Population
i • • ' . •
Constituent: ! • • • .
2.3.4,7,8-jTCDD TEQ i
Recreational fish-
ers .
.Central
tend-
ency
2E-1I2
High
end
i
3E-1 1
General popu-
' lation '
Central
tend-
ency
8E 13 .
High '
end
1E-11
The estimated risk to any one
individual using the corrected values
are 1.000-fold lower than the risk
estimated in the proposed rule from
cross-contamination due to past use. In
this case for, the typically exposed
individual in the general population.
the incremental risk of developing
cancer is a chance of 0.8 in a trillion
(8E-13); in the recreational fisher
person, the risk of developing cancer is
increased by only 2E-12. The estimated
incremental!population risk is also
reduced, aftfer correction, approximately
by a 1.000-fold, to 0.0002 cases/70 years
for the anticipated increase in the
development of cancer as a result of
exposure to ingestion of fish/shellfish
contaminated with wastes from the use
of chloroph&iolic formulations for
wood surface protection. Chart 1 in
Section V Psirt A of this final rule shows
the original values reported in the April
27, 1993 proposed notice.
The soil irjgestion scenarios also were
based on the, storage yard soil
concentrations. The soil ingestion
scenario assumed that children ages 1 to
6 could come into contact with the
contaminate}! soil at the sawmill sites
because sawinill sites could be
converted to'rural'residential land use
and the child's play area could be
located on the area previously used as
a storage yarii area. The lifetime
individual lisks, using the corrected
formulation Concentration values for
dioxin. associated with the soil
ingestion scenario for cross-
contamination from past users of
chlorophenolic formulations are
presented, in JTable 2.
TABLE 2.—INDIVIDUAL RISK FROM
CROSS-CONTAMINATION FROM PAST
USAGE OF CHLOROPHENOLIC FOR-
MULATIONS FROM DIRECT SOIL IN-
GESTION
Source
Constituent:
2,3,7,8-TCDD
TEQ'.
Storage yard.
Central
tendency
7E-10
High end
2E-9
1 Upper bound excess lifetime cancer risk.
The estimates presented in Table 2
show that the incremental risks from
direct soil ingestion by children are
below what the Agency considers a
level of concern. A child exposed to
storage yard soils cross-contaminated by
past users of chlorophenolics under
typical conditions (consumption of 0.1
gram of soil/day for 160 days/year for
six years) would be subject to an
increased cancer risk.of 7E-10 over a
lifetime, or a chance of 0.7 in.a billion.
The estimated incremental population
risk is also reduced approximately
1,000-fold (to 4E-7 cases per year over
a 70-year period) for the anticipated
increase in the development of cancer as
a result of exposure to direct ingestion
of soil contaminated with wastes from
the use of cross-contaminated
formulations for wood surface
protection.
One commenter remarked that the
EPA failed to specifically address the
incremental risks to subsistence fisher
persons from consumption of fish/
shellfish contaminated from the use of
chlorophenolic formulations for wood
surface protection. EPA agrees that the
risks to highly exposed sub-populations
should be considered. The fish ingestion
scenarios developed for the proposed
rule considered exposure to a general
population and recreational fisher at the
outflow of a drainage area containing
surface protection facilities.
EPA used the analysis for the high
end recreational fisher to approximate
the risk to the subsistence fisher. Recent
data show that the high end ingestion
rate for a subsistence fisher is greater
than for a recreational fisher by a factor
of approximately 2. Therefore, the
incremental risk for a subsistence fisher
would-not exceed a level of concern,
since the projected risk to recreational
fishers is much less than 10-A
The analysis of risks from fish
consumption assumes that all fish in the
drainage basin are contaminated. The
estimates of PCDDs and PCDFs in fish
tissue are based on sediment
concentrations of these constituents.
The sediment concentrations are
estimated based on the erosion of
contaminated soils from sawmill sites' in
a'river or stream basin and subsequent
dilution of contaminant levels by the
erosion of uncontaminated soils from
the corresponding drainage basin.
The projected risk levels increase as
the size of the drainage area decreases.
due to the relatively lower amounts of
uncontaminated soil in smaller drainage
basins. EPA performed an analysis
which shciws that, even with all
exposure.parameters set at values which
would miaximize the overall estimate of
exposure, in order to reach a risk level
of 10 -fi, the drainage area would need
to be 8,000 hectares or less, which is
smaller than the srnallest drainage area
in the country. The average drainage
area is 440,000 hectares, and the lower
jFifth percentile of the size distribution is
109,000 hectares.
With regard to the fish/shellfish
ingestion scenario, one .commenter •
maintained that the fish/shellfish
ingestion scenario should have been
performed on a site-specific basis (i.e..
EPA should have used parameters seen
at individual sites), because not all
sawmills are located on streams with
commercial fisheries. The EPA chose
the fish/shellfish ingestion scenario to
be protective of the recreational fisher
persons and the general population. The
risk analysis was structured so that the
hydrologie cataloguing unit (or
watershed) was the basic unit of
analysis to ensure that the contaminated
sediment would be associated with a
body of water large enough to support
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Federal Register / Vol. 59,. No. 2 / Tuesday, January 4, 1994 / Rules and Regulations
fish hatcheries and recreational fisher
persons. When these assumptions were
used in the fish/shellfish ingestion
scenario, using corrected values for
dioxin 'found in formulation for PCDDs
and PCDFs, the incremental risk to
individuals with high-end exposures
remains well' below 1x10 -ft.
. With regard to the Universal Soil Loss
Equation (USLE), one commenter
asserted that the equation is overly
conservative for estimating soil erosion
from surface protection sites. This
equation models the amount of soil
which is dumped into a drainage area
containing fish. For a more detailed,
description of the model, the reader is
referred to background document of the
proposed nile. The EPA believes that,
although this may be a conservative
approach, it is the best method currently
available. It has been used to support
other EPA rulemakings and guidance
documents.'The most notable example
being the Assessment of Risks from,
Exposure of Humans, Terrestrial and
Avian Wildlife, and Aquatic Life to
Dioxins and Furans, from Disposal and
Use of Sludge from Bleached Kraft and
Sulfite Pulp and Paper Mills.' Even
Using these conservative assumptions,
the incremental risks from cross-
contamination at these sites are not at a
level of concern.
One commenter suggested that the
population risks attributable to the
contaminated fish/shellfish ingestion
scenario were too high because the
entire U.S. population was considered
to be exposed. EPA disagrees and
believes it is appropriate to consider the
consumption rate of the entire
population in estimating risk to tha
general population from this exposure
pathway. Howeverj'an adjustment of 0.4
was made to the diet fraction to account
for the fact that not all fish are
contaminated. Thus, only some
percentagebf the population would be
affected by the-contaminated fish. -As
discussed in the Risk-Assessment
Background'Document for the proposed
rule, the 0.4 diet fraction was derived by
estimating the percentage of rivers and
streams (i.e., cataloguing units) that
have at least one sawmill. A, second
adjustment* was made in the calculation
of population risk to account for the
percentage of sawmills that operate
surface protection processes fabout 30%
'•Environmental Protection Agency. 1990.
/Uscssmonr of Risks from Exposure-of Humans.
Teirestrialand Avian Wildlife to'Dioxins and
Furqns, frorn Disposal and Use otSludgo from
Bkttched Kraft and Sutfits Pulp and Paper Milts.
Preparod for Ihff Offlcatof Toxic Substances.
Wojhingiori, DCby Abt Association. Inc. under
contract: no*. 68-02-428iTasle.SHJZ, and 68-D9-,.
0160,. Task, 1-15. EPA 56O/5-9e-t3i July, 1990.
of the entire number of sawmills
nationally). Population risk for the fish/
shellfish ingestion scenario has been
recalculated for the final rule using the
corrected incremental storage yard soil
TCDD-TEQ concentrations. The
corrected estimate of incremental
population risk from cross-,
contamination is three orders of
magnitude lower than the risk originally
stated in the proposed rule. The
corrected number of cancer cases
expected in 70 years is now 0.0002.
One commenter asserted that the soil
ingestion scenario was overly
conservative because all of the soil
consumption was attributed to.
contaminated storage yard soil and no
consumption of "indoor dust" was
considered. EPA considered only the
consumption of storage yard soil in
order to be protective of human health.
The range of soil ingestion rates for
average children aged 1 through 6 is
presented in the EPA's Exposure Factors
Handbook (1990) as 0.2 to 0.8 grams per
day. These estimated values were
determined from the clay content of
fecal samples taken-from children in '
this age group and thus represent
consumption of soiL However, the
•percent of this consumption that is
attributed to house dust is unknown, as
is the contaminant concentration in the
house dust. The EPA has recalculated
the soil ingestion scenario using the
corrected incremental TCDD-TEQ
concentrations obtained from the
formulation sample. The incremental
risk estimated is below IE—6; using the
conservative assumptions. The Agency's
risk level's-are particularly protective
. with the use of these conservative
assumptions, thereby further lending
support to-the Agency's decision not to
list these wastes.
One commenter stated that children
are unlikely to consume sediment at the
same rate that they consume soil. The
Agency agrees, but notes that sediment
consumption by children was not
considered as an exposure pathway in
the proposed rule. The Agency does not
feel^ that this exposure pathway is a
significant one in making a
determination whether or not to list
chlorophenolic wastes since the
exposure areas of concern are relatively
small and any land conversion which
could take place would most Kkely .
require soil testing prior to land
development.
One commenter stated- that th&
assumptions used to estimate the .
.exposed population in the soil ingestion
population risk scenario'greatly
overestimate the number of exposed
children. EPA believes that the scenario
may be conservative; but not-
implausible. The scenario assumes that
• all sawmill sites are converted to rural
residential land use, that the children's
play areas are located on the site of the
former storage yards, and that the homes
are resold to new families with young
children every 25 years. These
assumptions include a low population
density in these areas. It would take
only a limited number of sites to be •
converted to suburban housing or to
daycare or school facilities to cause a
substantial increase in the exposed
population. The incremental population
risk estimated using the corrected
incremental' value for the storage yard
soil TCDD-TEQ concentration is 4E-7
cases in 70 years, three orders of
magnitude lower than that in the
proposed-rule.
One commenter maintained that the
soil.ingestion scenario was questionable
because Superfund liabilities, state
laws, and lender requirements make
land use changes unlikely without site
cleanup activities. The EPA agrees that,
in some states, land transfers 'and
subsequent land use changes-would be
unlikely to occur without cleanup.
However, not all states are equally
diligent in requiring site investigations
at the time of property transfer; making
the types of land use changes described
in the soil* ingestion scenario plausible.
Because of this, EPA believes it' is
entirely appropriate to assess risk via
the soil ingestion pathway,
notwithstanding any risk managemen!
decisions that may be made at some
future time to address the risk.
Two comrnenters believed that some
of the values used'as input parameters
to the ground-water model (i.e.' recharge
rate, regional-conductivity, and average
depth to water) were •too-conservative
and that more appropriate input
parameters should'be used-in this
MULTIMED. model. One commenter
believed that the Agency had'used
DRASTIC (a name given to a modelling
programrused to-evalx»ate the potential
which may exist resulting from.
groundwater pollution) to perform, its
groundwater modeling. First, the EPA
did not use the DRASTIC.model in. this
rulemaking effort; it used the •
MULTIMED model developed by the
Agency to perform groundwater models.
The Agency did, however, use some soil
and hydrogeologic information.(on
hydrogeologic regions and subregions
collected by Aller et al. (1988)) which is
used when applying the DRASTIC
model. With regard to the parameters
felt by the commenter-to be too
conservative, the EPA supports the
values used in the proposed rule (58 FR
at 25706 of April 27,1993). This •'
hydrogeologic information includes
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Federal Register /Vol. 59, No. 2 / Tuesday, January 4, 1994 / Rules and fcegutetiohs 4$3
many of thje input parameters required
to mn the MULTIMED model, and
includes such parameters as depth to
water, soil [type and hydraulic
conductivity, net recharge, aquifer
hydraulic conductivity. The EPA
selected hydrogeologic subregions in the
northwest and southeast United States,
excluding subregions where sawmills
were not likely to be sited (e.g.,'
mountain slopes or flanks). Since the
parameter value ranges presented in
Aller et al. ](1988) are based on
compilations of literature values and
expert opinion, the values should be
viewed as bounding ranges, and are not
sufficiently, statistically rigorous to
estimate true means or parameter
distributions. For the average case,
"typical" parameter values were
obtained by examining the ranges of
values in Aller et al. (1988) for the
selected subregions only and selecting
values representing the central tendency
of the reported ranges. Similarly, high-
end values were selected to represent
the high end of the exposure *
distributiqij, using the higher end of the
range of parameter values deemed likely
to occur by] Aller et al. (1988). EPA
recognizes that there are limitations to
this approach, largely associated with
the non-statistical nature of the data.
The Agency believes, however, that this
data source is the best available at this
time for regional and subregional
estimates of the hydrogeologic
properties necessary to estimate
exposures through the ground-water
pathway. ; •
Two commenters felt that the
Agency's use of input parameter values
used for we]ll location and well intake
point were too conservative. EPA
derived th^ horizontal distance to wells
from the responses reported in the
RCRA's 3007 Industry Questionnaires.
Because information was not obtained
on the well.type or construction, all
wells described in the questionnaire
were assumed to be possible sources of
drinking water and were assumed to be
screened tojthe top of the aquifer, -that
is, well water was assumed to be drawn
off the top of the aquifer where organics
are assumed to exist in greater
concentrations than when water is
drawn from' the middle of the aquifer.
These assumptions are consistent with
similar conservative assumptions used
to develop other RCRA regulations, such
as the Toxicity Characteristic (55 FR
11798, March 29,1990).
Two commenters contended that
neither biodegradation or chemical .
degradation! rates were considered in the
ground-water modeling of
pentachlorpphenol contamination.
These commenters submitted studies
showing that biological and chemical
degradation of PGP can occur and that
adequate biological and chemical
degradation rates are available or can be
estimated from these studies. EPA has
reviewed these studies and agrees that
they do indicate that biological and
chemical degradation of PCP can occur.
The information submitted by the
commenters are results from laboratory
studies, reporting the results from
controlled experiments. However, EPA
does not agree that there is sufficient
information on unassisted field
degradation rates, the geochemical
factors that affect degradation, or their
spatial variability from site-to-site or
region-to-region to model degradation in
the field at generic or prototypical sites
for regulatory purposes. Moreover, the
existence of metabolites that would
confirm the occurrence of
biodegradation in the field has not been
firmly established. Therefore, EPA does
not believe the data warrant an
assumption that biodegradation does
occur at significant rates at most sites.
In addition, the toxicities of potential
degradation products have not been
characterized. Therefore, the EPA does
not believe it is appropriate to consider
these mechanisms in this rulemaking.
One commenter suggested that it
would be more appropriate to calculate
the average peak concentration of
pentachlorophenate in groundwater
used to reflect a 9-year exposure
duration by producing a breakthrough
' curve of annual concentrations at a well
using the MULTIMED model and
calculate a series of 9-year or 10-year
moving averages. The moving averages
would be sorted in descending order
and a paper plot prepared. A preferred
percentile value could then be selected
as the concentration of concern. EPA
believes the current method of
calculating 10-year time-weighted
averages by averaging two 5-year
concentrations (including the maximum
concentration and the highest adjacent
5-year value calculated from each model
run) is an appropriate approach for
estimating lifetime individual risk and
the Agency selected this approach to be,
conservative and protective of human
health. The 30-year exposure duration >
scenario uses a time-weighted 30-year
average concentration that includes the
maximum concentration. Population
risk estimates aggregated over 70 years
were based on a time-weighted 70-year
average concentration that includes the
maximum concentration.
One commenter believed that the
source concentration used by EPA for
PCP in the ground-water ingestion
scenario was too high because PCP is no
longer in use and, thus, the infiltration
to ground water would be reduced. The
commenter. suggested that source .
reduction also would occtir from
erosion of surface soil containing PCP,
before it is leached and enters the
ground water. EPA addressed the fact
that PCP is np longer in use at most
facilitieis in its baseline risk estimates in
the proposed rule, which have bieen
revised in the final rule based :on
comments received to reflect source
concentrations and pulse durations
(estimated time in which
pentachloropheriate is expected to be
present in substitute wood surface
protection product from time of
changeover) more representative of the
cross-contamination scenario. While
surface runoff and erosion may reduce
the amount of PCP available for leaching
to ground water, EPA has assumed, for
the pmpose of its analysis, that any
reductions are negligible. The EPA
adopted this conservative assumption
mainly because of lack of data necessary
to quantify such a loss and its effects on
ground-water concentrations.
Furthermore, EPA does not believe that
surface water and erosion will
significantly reduce source leachate
concentrations. As formulation drips
onto the soil it will rapidly penetrate the
soil until the soil is saturated.
Subsequent rain events may wash off
contaminated surface soil, but will not
erode deeper soil horizons where most
of the contaminant mass resides. Thus,
EPA does not-consider this assumption
to be overly conservative.
One commenter noted that the results
of the ground-water analysis were not ^
supported by actual resource damage
data. The Agency does not expect, nor
does it feel that it is needed, that ground
water PCP concentrations predicted by
MULTDvIED would agree precisely with
the resource damage data. The resource
damage incidents presented in the
background document are intended to
illustrate that ground-water
contamination from PCP does occur at
sawmill facilities, and are not intended
as validation points for exposure
modeling. Resource damage data were
obtained from monitoring and other
wells that happened to be in place at a
facility when the sampling was
conducted. There are a number of
possible reasons why sampling data
from the resource damage incidents may
not reflect well-water concentrations . ,
predicted by the model, in particular the
location of the wells with regard to
plume centerline and ground-water flow
direction, and the timing of peak plume
concentrations at the wells.
The latter point is especially
important because, depending on
patterns of past PCP use" and the well
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464
Federal. Register / Vol. 59, No. 2 / Tuesday, January 4, 1994 / Rules and Regulations
location, the peak concentration in the
plume may not have reached or may
have passed the well(s) sampled. In
these resource damage cases, sufficient
information was not available to
determine the placement .and design of
these wells with respect to the site's
hydrogeology or possible plume
locations and travel time. Thus, it is not
possible to use these data points for
validation of model results. However, it
should be noted that the model-
estimated grouod^water PGP
concentrations in the final rule are
similar to those reported from resource
damage incidents. When the revised
average source concentration was used
in the ground-water model, the
estimated concentrations for PCP in
ground water (average-= 0 .005 mg/L;
nigh-end = 288 mg/L) are in a- •
reasonable agreement with the values
reported in the resource damage
accounts (<0.001 to 45 mg/L). •
One commenter disagreed with the
use of MULTIMED in that it was riot as
"robust" or well-tested as the Monte
Carlo-based EPACML model used for
the TC rule. Another commenter •
recommends the use of the Monte Carlo
approach for all input parameters in the
modeling effort. First, it is important to
note that the MULTIMED ground-water
model is the same model as used in
EPACML except for the manner in
which input parameters are specified.
EPACML can only be run in a
probabilistic, Monte Carlo mode, while
MULTIMED allows Monte Carlo runs as
well as for individual input parameters
to be specified and fixed. The ground-
water flow and transport model
components are the same for
MULTIMED and EPACML. Second, the
Agency did not pursue a probabilistic,
Monte Carlo-based approach when
developing input parameters for this
modeling effort due to the fact that
using this sophisticated technique
requires knowledge and proper
specification of input parameter
distributions, and variable
independence or proper specification of
joint probability parameter
distributions. When these requirements
cannot be met, the Monte Carlo
approach will not provide better
estimates than a scenarios-based
approach. , .
EPA has adopted a scenario-based
regional modeling approach that uses
input parameters developed for regions
of the U.S. where sawmills are more .
prevalent In this approach, EPA uses
average and high-end values for
estimating model input parameters on a
regional basis because information does
not exist on the actual means and
distributions of these parameters, for the
regions modeled. The Agency believes
that this approach is an appropriate one
and, furthermore, that the resulting
model estimates bracket or,bound the
uncertainty associated with the model
input parameters.
Two commenters questioned the use
of cancer as the endpoint of concern for
2,3,7,8-TCDD. EPA disagrees. The
cancer endpoint for TCDD was selected
because it is the most sensitive endpoint
for which qualitative dose response data
are available. 2,3,7,8-TCDD has been
demonstrated to be a potent carcinogen
in animals and has been classified as a
B2 (potential human) carcinogen.
Recently published epidemiological
studies of occupationally exposed
individuals report significant increases
in cancer mortality. 2,3,7,8-TCDD also
has potent reproductive and teratogenic
endpoints and enough data exist to •
estimate a reference dose (RfD) based on
these-alternative short-term effects. (For
a detailed discussion of this
information, and for references to
studies supporting these conclusions,
the reader is referred to the background
document of the proposed rule.) ,
However, if health-based levels (HBLs)
are calculated using the reproductive .
effect RfD, the exposure level is an order
of magnitude higher than the level
calculated using the carcinogen slope
factor (CSF). Thus, if the cancer end-
' point is used as the basis for calculating
a permissible exposure level, it also will
be protective against short-term
exposures such as those associated with'
reproductive effects.
The issue of 2,3,7,8-TCDD toxicity is
being reassessed by EPA (outside the
framework of this rulemaking) and all
endpoints are being considered. TCDD
has been observed to express a wide
variety of effects including
teratogenesis, reproductive effects, and
suppression of the immune system
function in many species. Mechanistic
approaches to understanding and
identifying toxic effects levels are also
being considered. Until the
reassessment process has been
completed, the EPA will continue to use
the current carcinoganicity endpoint
'CSF value that has been accepted as the
basia for the MCL.
Two commenters noted limitations
associated with the use of the Toxicity
Equivalence Factors (TEF's)
methodology. They argued that the TEF
methodology should not be used to
justify the addition of appendix VIII in
the absence of valid toxicological
studies that demonstrate actual health
effects associated with exposure to these
compounds. One commenter questioned
the proposal to-add Oclachlorodibenzo-
p-dioxin (OCDD) and
Octachlorodibenzofuran (OCDF) to 40
CFR part 261, appendix VIII. The -'
commenters stated that neither
compound has been shown to produce
toxic, carcinogenic, nratagenic or
teratogenic effects on humans or other
life forms. The Agency has decided not
to add, at this time, OCDD and OCDF to
appendix VIII of 40 CFR part 281.
Although the original basis for
including these congeners on appendix
VIII remains valid (details of which can
be found in the background document
supporting this final rulemaking),•the
Agency is investigating further the
information submitted by the
commenters regarding the effects of
OCDD arid OCDF reported in the . ' .,
Couture, Eiwell, and Birnbaum study
used to support the decisions made in
the "Interim Procedures for Estimating
Risks Associated with Exposures of
Mixtures of Chlorinated Dibenzo-p-
dioxins and Dibenzofurans and the 19B9
Update". OCDD and OCDF are the most
'prevalent of the PCDD and PCDF
congeners accounting for approximately
85 percent of the total CDD and CDF
present in five of the six storage yard
soil samples. OCDD has been shown to
exhibit "dioxin-like" toxicity in male
rats when administered in small doses
in a sub-chronic toxicity study.2 These
findings have been confirmed by a
second sub-chronic study conducted in
female rats.3 OCDD and OCDF have not
exhibited toxicity in short term studies;
however, acute exposure is not the only
concern of EPA. The Agency is
currently re-evaluating its original
assessment of risks from dioxin. At this
point, the Agency wishes to conclude its
on-going reassessment before adding
OCDD and OCDF to appendix VIII of 40
CFR part 261.
One commenter questioned the
conclusion that soil contamination
presents no risk to wildlife. The EPA
recognizes that concentrations that are
protective of human health may not .
necessarily always be protective of
wildlife. However, in view of the
relatively small areas occupied by
sawmills and the low concentration of
TCDD-TEQ in storage yard soil from
cross contamination, the EPA believes
the incremental risks to wildlife will be
below a level of concern.
2 Couture, L.A., M. R. Eiwell, and L. S. Hirnba«m.
Dioxin-like effects observed in ma!e rats following
exposure to octachlorodibenzo-p-dioxin {OCDD)
during a 13-week study. Toxicology and Applied •
Pharmacology, Vol. 93. pp 31-46,1988.
•' Hermelinger, N., N. Poiger. and C. ScKlatter.
Results of a 9-month feeding study with OCDU and
OCDF in rats, Organohalogcn Compounds. Vol. 1,
1990, pp. 221-224:
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Federal Register / Vol. 59. No. 2 / Tuesday, January 4, 1994 / Rules and Regulations 465
V. Overview of the Final Rule
This finaj rule makes final the
Agency's hazardous waste listing
determination for chlorophenolic wastes
generated at wood surface protection
plants. EPA believes that listing as
hazardous chlorophenolic wastes from
surface projection operations is
unnecessary for reasons described in
Part A of this preamble.
This document also amends SW-846
(Test Methods For Evaluating Solid
Waste, Physical/Chemical Methods) by
adding Method 4010 (Immunoassay Test
for the Presence of Pentachlorophenol).
This action is discussed in Section VI of
this preamble.
This final rule also adds four
chemicals to the list of hazardous
constituents at 40 CFR part 261,
appendix VIII. These four chemicals are:
(1) Sodium I pentachlorophenate, (2)
potassium pentachlorophenate, (3)
sodium tetrachlorophenate, and (4)
potassium tetrachlorophenate. A
discussion jof this action is found in part
C of this section.
A. Basis for^ the Determination Not To
List as Hazardous Wastes From Wood
Surface Protection Operations
As discussed in the proposed rule, in
making a hazardous waste listing
determination, the Agency applies a
"weight-of-jevidence" approach. In
doing this, the Agency examines the
risks associated with all potential
human health and environmental
exposure pathways, analyzes trends in
the current [industry, researches past
damage incidents, as well as other
factors found in 40 CFR 261.11.
Upon reviewing and responding to
comments received on the proposed
rule, the Agency has decided not to list
as hazardous wastes from the use of
chlorophenolic formulations in the
wood surface protection industry for
several reasons.
First, chlorophenolic formulations are
no longer being produced in the United
.States and the Agency believes it is very
unlikely they will be produced in the
future. The .only remaining producer of
chlorophenolics in the U.S., Chapman
Chemicals, stopped production in
January of 1992 and sometime later
applied for voluntary cancellation of its
FIFRA product registration. A notice
describing this action was published in
the Federal Register on June 3,1992 (57
FR 23401), and a final cancellation
order was sent to Chapman Chemicals
with an effective date of September 14,
1992. This cancellation notice applies to
the following products produced by
Chapman Chemicals: Permatox 181,
IDS, and 101, and Mitrol G-ST. Any
manufacturer wishing to resume
production of chlorophenolics would
have to obtain a new FIFRA registration
before these chemicals could be re-
introduced and made available for use
in wood surface protection. Currently,
there remains only one known user of
chlorophenolics in the U.S. out of an
estimated 1000 previous users and the
remaining plant's existing stock is
believed to be very limited. A major
element in the decision not to list as
hazardous chlorophenolic wastes
generated from the surface protection
industry is the fact that use of
chlorophenolic formulations has ceased.
EPA believes it is highly unlikely that
a manufacturer will seek reregistration
for this product for many reasons,
including the availability of effective
substitute products and the potentially
high financial and administrative
burdens imposed by the FIFRA
registration process. Additional
justification to support non-future
- production is the fact that European
countries do not want to accept dioxin-
containing wood products which have
affected large export mills who will not
use chlorophenolic formulations in the
future in part for this reason. Use of
chlorophenolics for surface protection
has declined steadily (even without the
influence of RCRA) from over 1,000
users to one user over the past decade.
Should a new registration of this
product be sought, EPA will consider
this surface protection risk analysis for
full strength application when
determining whether a new listing
determination under RCRA should be
initiated. Currently, the Agency is aware
of nine available substitute products
' currently being used by surface
protectors in place of chlorophenolics.
The substitute products are for a large
part satisfactory to their users (as
mentioned on various site trips), and the
Agency does not feel as though a switch
back to chlorophenolics is likely.
A second reason why the Agency has
decided not to list these wastes is
because the risk to human health and
the environment from on-going
operations which previously used
chlorophenolics is shown to tail off
quickly because chlorophenolic
concentrations diminish to a near zero
concentration within a short period of
time following switchover to an
alternate product. The Agency has
determined that the use of full-strength
chlorophenolic formulations generates
wastes that result in unacceptable risk
to human health and the environment.
As before mentioned, should the use of
chlorophenolics for surface protection
applications resume, lor any reason, the
Agency will most likely re-evaluate its
current position. However, dealing with
the current situation, there remains only
one known user of chlorophenolics with
a limited supply remaining.
Although the Agency believes the use
of full-strength chlorophenolics will be
phased out in the very near future, there
was concern at the time of proposal that
there may be unacceptable risks posed
by the use of substitute products that
become cross-contaminated from
previous chlorophenolic use.
Particularly, the proposal cited possible
ground water risks of 2x10 -* for
individuals and a broad but very low
potential exposure risk due to surface
run-off contributing to dioxin levels in
fish. The Agency received several
comments addressing these potential
impacts. In response to these comments,
the Agency conducted additional
ground-water modeling using new pulse
assumptions developed from
commenter-submitted information. The
Agency developed what it believed to be
better pulse assumptions in an effort to
determine how long pentachlorophenate
will be present in on-going operations
which have switched over from its past
use. This new data was obtained from
performing mass balance iterations
using typical tank volumes found at
both large and small facilities. These
mathematical calculations showed that
cross-contamination from previous use
of chlorophenolics will be present in a
substitute products for only two to six
years from the time a plant stops using
chlorophenolics. The Agency found that
the highest estimated risk to an
individual from drinking ground water •
for nine years at peak concentrations in
the two- or six-year pulse resulting from
cross contamination, is significantly
diminished and the broad effect on
dioxin levels in fish is reduced by
several orders of magnitude. This new
analysis shows that the risks associated
with cross-contamination do not justify
' a hazardous waste listing to capture
cross-contaminated wastes. In the
proposed rule, EPA addressed the fact
that PCP is no longer in use at most
facilities in its baseline risk estimates,
which have been revised in the final
rule to reflect source concentrations and
pulse durations more representative of
the cross-contamination, incremental-
risk scenario. Chart 1 below compares
the incremental risks from cross-
contaminated wastes as calculated for
the proposed rule to the values obtained
using the new approach.
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466
Federal Register / Vol. 59, No. 2 / Tuesday, January 4, 1994 / Rules and Regulations
CHART 1.—INCREMENTAL RISKS i DUE TO CROSS CONTAMINATED WASTES
Proposed in NPRM ..
Constituent
Pentachlorophenate (assumed 30 year
pulse).
Dioxin fish and shellfish consumption
(general population and recreational
fisher).
Pentachlorophenate (2 year pulse, for
large facilities).
Pentachlorophenate (6 year pulse, for
small facilities).
Dioxin fish & shellfish consumption
(recreational fisher).
Dioxin fish & shellfish consumption
(general pop.).
Dioxin soil ingestion
Significant threat
pathway
Ground water
Soil
Soil
Ground water
Ground water
Soil
Soil
Soil '.„
Central tendency
5x10 -7
18x10 - '" (general
population).
7x10-'
6x10-7
2x10 -ft
2x10 -'2
8x10- '3 .-.
7x10-'"
High end
2x10-"....
4x1*0-7, rec ..
fisher.
2x10-'
2x10-'
6x10-- s ..'. ...;
3x10-" '.
1x10 -'i ...
2x10 -«
Population risk
.005
0.2
.0004
.007
0.02
NR
.0002
4x10-7
1 Excess lifetime cancer risk.
As shown in Chart 1, population risk
is lower than that presented in the
proposal for both fish/shellfish
consumption and the soil ingestion
pathway, due to a unit conversion error
in expressing dioxin concentration. The
dioxin concentrations in the
formulation at one of the affected
facilities (Aquasco, MD) were reported
using incorrect units, causing a 1,000-
fold error to be incorporated into the
risk estimates for the fish and shellfish
ingestion and soil ingestion scenarios.
When this error was corrected, the
TCDD-TEQ levels used as the source
concentration for affected facilities
(cross-contamination from past use of
chlorophenolic formulations) arid used
in the lifetime individual risk estimates
for the soil/fish and shellfish ingestion
scenarios also were reduced 1,000-fold.
The incremental population risk was
revised for the ground-water scenario
from an original 0.005 value to between
0.007 and 0.02 cancer cases. This range
of 0.007 to 0.02 cancer cases was
obtained because two different
modelling scenarios were run to
generate the extremes of this range. One
model run used input parameters which
would simulate decay for a small
production plant. The input information
was obtained from a mass balance
iteration which showed that it would
take a small plant approximately 6 years
to decrease cross-contamination levels
to near zero; likewise, the second model
used input parameters for large facilities
which predicted a two year decline to
near zero levels of cross-contamination.
The details of the mass balance
approach and the resulting change in
population risk can be found in the
background document for this final rule.
The Agency believes that these revised
risk levels do not warrant a hazardous
waste listing.
Based on the above two main factors
(i.e. (1) chlorophenolic production
stoppage and -subsequent
chlorophenolic use decline and (2)
revised risk due to cross contamination),
the Agency looked closely at-any
potential environmental benefits that -
may accrue from a hazardous waste •
listing: Given the market trend, the
Agency cannot identify any tangible
benefits to be gained from listing wastes
generated from the use of
chlorophenolic formulations for wood
surface protection. Environmental
damages caused by previous use of
chlorpphenolics have already occurred.
A listing of these wastes cannot mitigate
past damages nor can it force the clean-
up of these damages. Such potential
jurisdiction exists under current
programs. Authority under CERCLA and
RCRA 3007 exists even if a decision is
made not to list as is the case for this
final rule.
Damage to the environment of this
magnitude from previous use of
chlorophenolic formulations, within this
industry are not expected to occur in the
future unless use of full-strength
chlorOphenolics resumes. Furthermore,
sampling data collected at surface
protection sites indicate that dioxin
concentrations in storage yards (the
largest area of a plant) are below 1 ppb.
The heavier contamination that occurs
in the process area is confined to a small
area and likely will not migrate off-site
to environmental receptors. Therefore,
the Agency finds that the risks posed fay
this residual contamination are limited
and that a hazardous waste listing
would likely simply result in these
limited areas of contamination being left
in place and not produce an
environmental benefit. Thus the effect
on past contamination does not justify
a hazardous waste listing.
B. Operating Requirements for Surface
Protection Plants
Because the Agency is not listing
F033 wastes, the operating standards for
surface protection plants proposed in
the April 27,1993 notice are not
applicable and, thus, are not.being
finalized..Furthermore, surface
protection plants are not required to
: follow any specific, waste management
requirements regarding previous use of
chlorophenolics as a result of this rule.
C. Addition of Chemicals to Appendix
VIII of 40 CFR Part 261
Although this final rule does not list
any wastes from wood surface
protection processes as hazardous, the
Agency believes that certain
constituents contained in these wastes
warrant inclusion in appendix VIII of
part! 261. 40 CFR 261.11 provides that
. "(sjubstances will be listed on appendix
VIII only if they have been shown in
scientific studies to have toxic, •
carcinogenic, mutagenic or teratogenic
• effects on humans or other life forms."
In the April 27 notice, EPA proposed to
add six hazardous constituents of
concern found in surface protection
wastes to appendix VIII of 40 CFR part
261. Based on the information gathered
during this listing investigation, the
following four are being added to the
list: sodium pentachlorophenate,
potassium pentachlorophenate, th&
sodium salt of 2,3,4,6-tetrachlorophenol,
and the potassium salt of 2,3,4,6-
tetrachlorophenol. The Agency
presented information in the proposed
• rule and supporting background .
documents on the adverse effects of
these compounds. For those reasons,
EPA is finalizing the addition of four of
these constituents to appendix VIII of
part 261. The Agency is not at this time.
finalizing the addition of OCDD and
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4> 1994 ' Rules and Regulations
467
OCDF to Appendix Vffl. As mentioned
before, the Agency is investigating
further the information submitted by the
commenters regarding the effects of
OCDD and OCDF: reported in the
Couture, Elwell, and Birnbaum study
used to support the decisions made in
the "Interim Protiedures for Estimating
Risks Associated jwith Exposures of
Mixtures of Chlorinated Dibenzo-p-
dioxins and Dibeiizofurans and the 1989
Update". j
VI. Amendment of SW-846 (Test
Methods for Evaluating Solid Waste,
Physical/Chemical Methods)
In the notice of proposed rulemaking,
the Agency proposed to add Method
4010 (Immunoassay Test for the
Presence of Pentachlorophenate) to the
Second and Third Editions of SW-846.
The purpose behind this proposal was
to aid owners/operators of wood surface
protection plants With the proposed
formulation testing requirement.
With respect to1 requiring the use of
SW-846 method^ for testing for the
presence of pentachlorophenate in
wood surface protection "in-process"
formulation, the issue is moot since EPA
is not listing any yrood surface
protection wastes'as hazardous.
Nonetheless, EPA believes that although
no comments were received on Method
4010, Method 4010 is an appropriate
method, in general, for testing for the
presence of pentachlorophenate or
pentachlorophenbl and can, therefore,
3e used in other applications other than
"or wood surface protection formulation
:esting. The Agency is, therefore, adding
Method 4010 to the Third Edition of
SW-846 as Update DA. We are not
idding Method 4010 to the Second
idition of SW-846 since the Third
idition has replaced the Second Edition
!h August 31,1993 for use in ,
nandatory applications (58 FR 46040).
Method 4010, including its protocol and
locumentation supporting this action
:an be found in the docket for this
•ulemaking. See the "For Further
nformation" Section in front of this
preamble for the EPA contact person for
urther information or with questions on
Method 4010. '
/II. Pollution Prevention and Waste
Minimization •
The Agency is preparing a separate
>uidance manual recommending
•oluntary pollution prevention and
vaste minimization techniques for the
umber industry. Since it has studied
he surface protection industry in
naking a listing determination for
vastes generated from the use of
:hlorophenolic formulations, EPA has
;ained a broad perspective on the best
ways to reduce wastes generated by this
wood surface protection industry. The
ideas gained from the study are
presented in this manual. Some
recommended strategies for pollution
prevention in the surface protection
industry are described in this section.
. Further information can be found in the
manual.
The ultimate goal of pollution
prevention is to reduce present and
future threats to human health and the
environment. Pollution prevention (also
referred to as source reduction) is the
use of materials, processes, or practices
that reduce or eliminate the quantity
and/or toxicity of wastes at the source
of generation. Pollution prevention is
the first step in a hierarchy of options
for reducing the generation of waste,
The first recommended pollution
preveution option is to replace chemical
treatment with another type of treatment
to achieve surface protection. One •
alternate is .to dry the wood to reduce
water content (high water content leads
to sapstain). The Agency is aware that
this option may not be economically
viable for a smaller mill. If such a
system cannot be feasibly employed, it
would be preferable for a user of
chlorophenolic-containing formulations
to switch to an alternate formulation.
Other pollution prevention strategies
for use within the surface protection
industry include: (1) Providing local
and general ventilation within the
cutting process area to reduce dust that
can accumulate on wood; (2) blowing
wood with air to reduce the amount of
sawdust on wood prior to surface
protection; and (3) using drainage
collection devices like gutters on
rooftops to keep precipitation away
from process wastes. The pollution
prevention practices described here can
be critical to reduce the amount of waste
generated. Although the Agency is not..
listing these chlorophenolic wood
surface protection wastes, the pollution
prevention practices described in the
guidance manual are applicable to any
waste generating process. For wastes
that cannot be reduced at the source,
generators may consider recycling as the
next best option.
Vin. Analysis of Potential Costs and
Benefits
A. Executive Order Requirements
Executive Order 12866
Under Executive Order 12866, (58 FR
51735 (October 4,1993}) the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles .
set forth in the Executive Order. :
It has been determined that this rule
is not a "significant regulatory action"
under the terms of Executive Order
12866 and is therefore not subject to .
OMB review. Nevertheless, the Agency
prepared an abbreviated RIA. or
"Economic Assessment" (EA) in order
to examine costs and benefits likely to
occur as a result of that action.
B. Description of Costs and Benefits of
This Rule
Because the Agency has decided not
to list wastes generated from the use of
chlorophenolic formulations in surface
protection operations, no specific action
is required under this Rule. Facilities,
however, may choose to take some
remedial action as a result of publicity •
surrounding this action. A detailed
analysis of work performed is described
in the background document for this
final rule.
IX. State Authority
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program withiia the State. (See 40 CFR :
part 271 for the standards and .
requirements for authorization.) '
Following authorization, EPA retains
enforcement authority under sections:
3007, 3008, 3013, and 7003 of RCRA,
although authorized States have primary
enforcement responsibility.
Before the Hazardous and Solid Waste
Amendments of 1984 (HSWA) amended
RCRA, a State with final authorization
administered its hazardous waste
program entirely in lieu of the Federal
program in that State. The Federal
requirements no. longer applied in the
authorized State, and EPA could not
issue permits for any .plants located in
the State with permitting authorization.
When new, mere stringent Federal
requirements were promulgated or
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468
Federal Register /Vol. 59, .No. 2 / Tuesday, January 4, 1994 / Rules and Regulations
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.C. 6926(g), new
requirements and prohibitions imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in non-authorized States. EPA is
directed to implement those
requirements and prohibitions in
authorized States, including the
issuance of permits, until the State is
granted authorization to do so. While
States must still adopt HSWA-related
provisions as State law to retain final
authorization, the Federal HSWA
requirements apply in authorized States
in the interim.
Although this final rule does not list,
as hazardous, chlorophenolic wastes
from the wood surface protection
industry, it does add four constituents
to appendix VIII of 40 CFR part 261.
These additions will not be effective in
authorized States since the requirements
are not being imposed pursuant to
HSWA. These requirements will be
effective only in those States that do not
have final authorization. In authorized
States, these requirements will not be
applicable until the States revise their
programs to adopt equivalent
requirements under State law.
Section 271.21(e)(2) 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 proposed
regulation, if it is adopted as a final rule,
will be determined by the date of
promulgation of a final rule in
accordance with § 271.21 (e)(2). If the
proposal is adopted as a final rule, Table
1 at 40 CFR 271.1 will be amended
accordingly. Once EPA approves the
modification, the State requirements
become RCRA Subtitle C requirements.
States with authorized RCRA
programs already may have regulations
similar to what is being finalized in this
rule. These State regulations have not
been assessed against the Federal
regulations being proposed today to
determine whether they meet the tests
for authorization. Thus, a State would
.not be authorized to implement these
regulations as RCRA requirements until
State program modifications are
submitted.to EPA and approved,
pursuant to 40 CFR 271.21. Of course,
States with existing regulations that are
not less stringent than current Federal
regulations may continue to administer
and enforce their regulations as a matter
of State law.
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).) This proposed rule, if
finalized, is neither less stringent than
nor a reduction in the scope of the'
current Federal program and, therefore,
states would be required to modify their
programs to retain authorization to
implement and enforce these
regulations.
X. Regulatory Flexibility Analysis
This final rule amends the hazardous
waste regulations by adding four
chemicals to appendix VIII of 40 CFR
part 261 and amending SW-846 by
adding Method 4010. These are impacts
with negligible effects to small entities.
Therefore, there is no need to consider
its impacts on small entities by
preparing a Regulatory Flexibility
Analysis.
XI. Paperwork Reduction Act
This rule does not contain any
information collection requirements
subject to OMB review under the
Paperwork Reduction Act of 1980, 44
U.S.C. 3501 et seq.
List of Subjects
40 CFR Part 260
Environmental protection,
Administrative practice and procedure,.
Confidential business information,
Hazardous waste.
40 CFB Part 261
Hazardous materials, Waste treatment
and disposal, Recycling. •
Daled: December 23,1993.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is .amended
as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260
continues to read as follows:
Authority: 42 UIS.C. 6905, 6912(a), 6921-
6927, 6930, 6934, 6935, 6937, 6938, 6939,
and 6974.
2. Section 260.11 is amended by
revising the "Test Methods for
Evaluating Solid Waste, Physical/
Chemical Methods" reference in
paragraph (a) to read as follows:
§260.11 References.
(a)« • *
"Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods,"
EPA Publication SW-846 (Third Edition
(November, 1986), as amended by
Updates I, II and HA). The Third Edition
of SW-846 and Updates I, II, and IIA
{document number 955-001-00000-1)
are available from the Superintendent of
Documents, U.S. Government Printing
Office, Washington, DC 20402, (202)
783-3238.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921.
6922, and 6938.
4. Appendix VIII of part 261 is
amended by adding the following
hazardous constituents in alphabetical
order by common name to read as
follows:
Appendix VIII to Part 261—Hazardous
Constituents
Common name
Chemical abstracts name
Chemical
abstracts
': NO.
Hazardous
waste No.
Potassium pentachlorophenate
Pentachlorophenol, potassium salt 7778736 ... None
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•.Federal Register / Vol. 59. No. 2 / Tuesday, January 4, 1994 / Rules and Regulations 469
Common name
Chemical abstracts name
Sell Hazardous
No.-
waste No.
Sodium pentacWorophenate
Pentachlorophenoi, sodium salt /.....„..... 131522 ..... None
2.3,4,6-tefrachlpfophenol, potassium salt
2,3.4,6-tetrach!orophenol, sodium salt
same ,
same.
53535276 . None
25567559 . None
IFR Doc. 93-32032 Filed 12-30-93: 8:45 am!
B1LUNS CODE 6SSO-60-P
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N°' /Tuesday, January 4> 1994 f Rules.and Regulations
459
HI. Overview of the Proposed Rule
The Apjil 27,1993 proposal -
discussed and requested comment on
each of the following:
(1) Proposing a concentration-based
hazardous waste listing for certain wood
surface protection wastes;
(2) Proposing various testing, analysis,
recordkeeping requirements and
management standards for wood surface
protection plants,
(3) Adding six hazardous constituents
to appendix ym of 40 CFR part 261,
(4) Amending of appendix VII of 40
CFR part 261 by adding F033 and the
hazardous constituents found in the
wastes,
, (5) Modifying the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) list of hazardous substances
to reflect the newly proposed listing,
(6) Amending SW-846 ("Test
Methods for Evaluating Solid Waste,
Physical/Chemical Methods") to
include Method 4010 (Immunoassay
Test for the Presence of
PentachloJrophenolJ, and
(7) An alternative option not listing
chlorophenolic wastes as hazardous.
The Agency proposed to list as
hazardous at 40 CFR 261.31 only those
wastes from wood surface protection*
processes jusing a formulation with a
pentachlorophenate concentration
greater than 0.1 ppm. Under this
proposed Option, surface protection
operations using formulations with
pentachlofophenate concentrations
equal to or less than 0.1 ppm would not
generate F033 listed wastes. The Agency
proposed this concentration-based
listing because it had information which
suggested jthat many surface protectors
who previously used chlorophenolics
did not sufficiently clean out equipment
prior to abandoning the use of
chlorophejnolics. Because of this, many
formulations from past users of
chlorophenolics exhibit "cross-
contamination," the contamination of
current formulations by dioxins and
chlorophenolic compounds from old
formulations. The rule proposed the
following pazardous waste listing
description for the F033 waste code and
included the following specific waste
streams from process operations:
F033:Process residuals, wastewaters that
come into cjqntact with prote,ctant, discarded
spent formulation, and protectant drippage
from wood surface protection processes at
plants that use surface protection chemicals
having ah in-process formulation
concentration of pentachlorophenate
(expressed as pentachlorophenol during
analysis) exceeding 0.1 ppm. (T)
Along with this option, various
testing and recordkeeping requirements
were proposed. For an owner/operator
to demonstrate that he/she is not
generating F033 wastes, EPA proposed
formulation testing requirements for all
surface protection plants. All owner/
operators of wood surface protection .
plants would be required to test their
formulation to determine the
concentration of pentachlorophenate if
the owner/operators wanted to avoid
generating F033 wastes. If the analysis
showed a concentration at or below 0.1
ppm, the owner/operator would be
required to sign a certification to that
effect and maintain records on site
related to the testing procedure. This
testing proposed an analysis using a
method listed within the EPA's Test
Methods for Evaluating Solid Waste,
Physical/Chemical Methods (SW-846).
The Agency proposed>to add Method
4C10 to SW-846. Method 4010 is an
immunoassay test for the presence of
pentachlorophenol, which determines
whether a sample is above or below a
set limit (such as the 0.1 ppm
concentration level proposed).
Under the proposal, it analysis
showed that a facility's formulation
contains pentachlorophenate at levels
exceeding 0.1 ppm, then the wastes
generated from surface protection at that
facility would be F033 wastes and the
owner/operator would be subject to
additional operating requirements
proposed as subpart T of parts 264 and
265. For details on the specific
operating requirements, the reader
should refer to the proposed notice (58
FR 25706).
A number of the constituents of
concern that are present in wastes
generated from wood surface protection
processes which use chlorophenolic
formulations do not appear on the list
of hazardous constituents at 40 CFR part
261, appendix VHL The Agency
proposed to add six hazardous
constituents to appendix Vni: sodium
pentachlorophenate, potassium
pentachlorophenate, the sodium salt of
2,3,4,6-tetrachlorophenol, the potassium
salt of 2,3,4,6-tetrachlorophenol,
octachlorodibenzo-p-dioxin (OCDD) and
octachlorodibenzofuran (OCf)F).
Sodium and potassium
pentachlorophenate are the sodium and
potassium salts of pentachlorophenol.
These salts were proposed for addition
to appendix VIII of 40 CFR part 261
since, as a result of gastric secretions '
following ingestion, the sodium and
potassium salts of pentachlorophenol
and 2,3,4,6-tetrachlorophenol are
readily converted to the corresponding
phenols by acidification. Therefore, the
sodium and potassium salts are
reasonably expected to elicit the same
health effects as the corresponding
phenols. For this reason, the Agency
proposed to add these four compounds.
to the list of hazardous constituents in
appendix VIII of 40 CFR part 261.
The Agency also requested comment
on an option not.to list as hazardous
wastes generated from surface
protection processes. The Agency
included the so-called "no-list" option
in the proposal because the future
generation of chlorophenolic wastes is
expected to diminish rapidly to zero
and btscause the results of risk analyses
show that the risks from the dominant
exposure pathways are relatively
modest, assuming the widespread Use of
chlorophenolic formulations does not
resume. The Agency believed at the
time of the proposal that reintroduction
of chlorophenolic formulations into the
market place in the future was not likely
to occur. EPA also noted that the
, Agency would always have the option
of reconsidering the listing
determination should chlorophenolic
surface protection formulations be
reintroduced in the future.
IV. Summary of Public Comments and
Responses
Comments received on the proposed'
rule are placed under two separate
headings for purposes of this summary.
The first addresses the more general
comments associated with the proposal,.
including those relating to: (1) General
implementation issues of a listing for
wastes, generated by the wood surface
protection industry; (2) technical
approaches discussed in the proposal
relating to data sampling methocjplogiesj;
and (3) various engineering assumptions
on wh ich the proposed listing was
based. The second part of this section
describes the Agency's response to
comments dealing with the risk
assessment methodology used to
support the listing determination for
these wastes. . " '
A. General Comments
. Several comments were submitted on
the proposed listing of F033 wastes.
Four commenters supported the listing
in general and two commenters
supported the concentration-based
approa ch in particular. Three
commenters opposed the proposed ' - •'
listing and urged EPA to rely on its
authority under FIFRA to control the
risks posed by chlorophenolic
formulations. One commenter
supported an outright ban on the use of
chlorophenolics for wood surface
treatment.
Two commenters warned that listing '•
F033 wastes would hinder remediation
efforts at contaminated wood surface.
protection sites. The Agency agrees with
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460' Federal Register / Vol. 59, No. 2 / Tuesday; January 4, 1Q94 /-Rules and Regulations
the commenters' point that a hazardous
waste listing may provide a disincentive
for owner/operators of surface
protection plants to initiate voluntary
remediation efforts. The regulation of
potentially large amounts of
contaminated soil as listed hazardous
waste could delay the start of cleanup
due to the administrative and economic
realities of regulatory compliance.
Three commenters expressed concern
over the possibly perceived
interchangeability of the proposed 0.1
ppm concentration level and the
Toxicity Characteristic (TC) regulatory
level forpentachlprophenol. Although
the Agency is not finalizing the F033 ,
hazardous waste listing, EPA
nevertheless-wants to make clear that
the concentration level proposed in the
F033 listing description was not
intended as a regulatory level for any .,
purpose other than defining a waste as
F033. The current regulatory level for
pentachlorophenol that defines a waste
•as hazardous under the TC (100 mg/L)
would not have been affected by this
rulemaking in any way had the F033
listing been promulgated today. Levels
set for the TC are obtained by running
models which simulate acidic landfill
conditions. For the proposed listing, the
proposed 0.1 ppm level was calculated
using a Maximum Contaminant Level
(MCL) of 0.001 ppm and a risk analysis
using the Agency's Multi-med model.
Multi-med simulates groundwater
contamination from specific sources,
and for this proposal, it incorporated
variables which are specific to sawmill
conditions. The Agency's analysis
approximated the dilution of
pentachlorophenate from the time the
waste contacts the ground to when it
reaches a ground water well. The
Agency did not arrive at the 0.1 ppm
level by applying a dilution attenuation
factor (DAF) of 100 (as the Agency has
done in other circumstances) to the
MCL. Indeed, the Agency did not take
a position in the proposal about the use
of DAFs in calculating acceptable risk
levels for any constituents. A detailed
discussion of the Agency's modeling
assumptions and actual parameters used
to generate risk approximations can be
found in the docket for the proposed
rule.
One commenter expressed
reservations regarding the
decontamination procedures
promulgated previously for wood
preserving equipment (55 FR 50482-
50483, December 6,1990). The Agency
is aware that equipment cleaning will
not always prevent cross-contamination.
However, it will certainly reduce the
amount of contamination that would
occur if no equipment cleaning took
place. Although the Agency is not
finalizing the proposed F033 hazardous
waste listing, EPA encourages owner/
operators of surface protection plants to
clean or replace any surface-treating
equipment that was used previously
with chlorophenolic formulations upon
a switch to non-chlorophenolic
chemicals and properly dispose of the
wastes in an environmentally sound
manner. Furthermore, the Agency has
obtained information which shows that
some new substitute products are more
effective if residual chlorophenol ic
contamination is removed. Hence,
removing sludge and cleaning
equipment from previous
chlorophenolic use will not only be.
more environmentally sound, but may
also enhance the new products
effectiveness. Methodology.on
recommended cleaning and operating
practices for surface protectors will be
published in the near future by the
Agency in a pollution prevention and
waste minimization guidance
document.
One commenter suggested that the
proposed operating standards for
surface protection plants be codified in
part 262 as opposed to parts 264/265.
The commenter reasoned that most
surface protection plants are only
generators and do not function as
treatment, storage, and disposal
facilities (TSDFs). However, since the
F033 hazardous waste listing is not
being promulgated,«his issue is moot
and there is no need for special
generator requirements.
Several commenters had specific
concerns about the applicability of the
proposed F033 listing. Since the Agency
is not finalizing the proposed F033
listing, these concerns are also moot.
However, where appropriate, answers
specific to each of these commejnts have
been addressed in the background
document of this final rule.
' One commenter questioned the
representativeness of the Agency's data
on cross-contamination. The commenter
stated that because sites were not
randomly selected, there is no true
sample representation of the surface
protector population. EPA did not
choose sampling sites based on their
statistical representativeness. Rather,
the sites were selected as appropriate
from what the Agency considered to be
typical operating plants. The Agency
visited more than 15 surface protection
sites in the Nation (both large and small
plants). From -the information obtained
from these plant tours and interviews,
the Agency developed a view of what i*
considered typical from an engineering
standpoint (e.g. size of equipment, •
production scale, presence of .
containment systems, size of storage
yards, amount of drippage, etc). The,
sites sampled need not represent thfe
entire surface protection industry in
terms of the process used and the degree
of cross-contamination present to allow
the Agency to demonstrate that wastes
from current and previous use of
chlorophenolics at surface protection
sites were contaminated with the
constituents of concern. These sites
were chosen from information .obtained
by a questionnaire sent out under the
Agency's 3007 RCRA authority.
B. Comments Regarding Risk
Assessment
Five commenters responded to the
risk assessment presented in the
proposed rule. One commenter stated
that the EPA incorrectly converted units
of measurement in the record sampling
data used for the risk.assessment
causing the overestimation of •
incremental risk for the fish/shellfish
consumption and soil ingestion
pathways by a 1,000-fold. The EPA
agrees with the commenter. The dioxin
concentrations in the formulation at one
of the affected facilities (Aquasco, MD)
were reported in the wrong units,
causing a 1,000-fold error to be
incorporated into the risk estimates for
the fish and shellfish ingestion and soil
ingestion scenarios. When this error is
corrected, the TCDD-TEQ dioxin levejs
used as the source.concentration (the' .
concentration of formulation dripping
onto the ground) for affected facilities
(cross-contamination from past use of
chlorophenolic formulations) and used
in the lifetime individual risk estimates
for the soil ingestion scenario and fish
and shellfish ingestion scenario were
reduced by a 1,000-fold. The lifetime
individual risk values using the
corrected data are presented in Table l.
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