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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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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