Tuesday
August 22, 1995
Part II
Environmental

Protection  Agency

40 CFR Part 148 et al.
Land Disposal Restrictions—Phase IV:
Issues Associated  With Clean Water Act
Treatment Equivalency, and Treatment
Standards for Wood Preserving Wastes
and Toxicity Characteristic Metal Wastes;
Proposed Rule

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ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 148, 268, and 271
[EPA530-Z-35-011; FRL-5280-6]

RIN 2050 AE05

Land Disposal Restrictions—Phase IV:
Issues Associated With Clean Water
Act Treatment Equivalency, and
Treatment Standards for Wood
Preserving Wastes and Toxicity
Characteristic Metal Wastes

AGENCY: Environmental Protection
Agency (EPA, the Agency).
ACTION: Proposed rule.	
 SUMMARY: The Environmental Protection
 Agency (EPA) is addressing issues
 arising from the September 25,1992
 decision  of the U.S. Court of Appeals in
 Chemical Waste Management v. EPA,
 976 F. 2d (D.C.  Cir. 1992) on the
 equivalency of treatment in wastewater
 treatment systems regulated under the
 Clean Water Act (CWA) to treatment
 required by the Resource Conservation
 and Recovery Act (RCRA). Specifically,
 the Agency is considering whether to
 regulate  potential releases, to air or
 ground water, of hazardous constituents
 from surface impoundments treating
 wastes that were hazardous when
 generated, but have been diluted to
  render them nonhazardous. Such wastes
  are prohibited  from land disposal unless
  adequately pretreated.
    In addition, EPA is proposing
  treatment standards under the land
  disposal restrictions (LDR) program for
  wastes from wood preserving operations
  and  for  Toxicity Characteristic (TC)
  metal wastes. These treatment
  standards, when finalized, must be met
  in order to land dispose these hazardous
  wastes.
    These potential requirements and
  treatment standards must be proposed
  by August 11,1995 to satisfy the terms
  of a proposed consent decree and a
  settlement agreement.
     Today's proposal also includes
  simplified land disposal  requirements,
  streamlined state authorization
   procedures, a proposal not to ban
   "nonamenable" wastes from treatment
   impoundments, and discussion of a
   possible exclusion from regulations for
   certain recycled wastes from wood
   preserving operations.
   DATES: Comments on this proposed rule
   must be submitted by November 20,
   1995.
   ADDRESSES: The public must send an
   original and two copies of their
   comments to Docket Number F-95-
   PH4P-FFFFF, located in the EPA RCRA
Docket, U.S. Environmental Protection
Agency, room 2616, 401 M Street, SW.,
Washington, DC 20460. (Also see the
section under SUPPLEMENTARY
INFORMATION: regarding the paperless
office effort for submitting public
comments.) The RCRA Docket is open
from 9:00 am to 4:00 pm Monday
through Friday, except for Federal
holidays. The public must make an
appointment to review docket materials
by calling (202) 260-9327. The public
may copy a maximum of 100 pages from
any regulatory document at no cost.
Additional copies cost $0.15 per page.
The mailing address is EPA RCRA
Docket (5305), U.S. Environmental
Protection Agency, 401 M Street, SW.,
 Washington, DC 20460.
 FOR FURTHER INFORMATION CONTACT:
 For general information, contact the
 RCRA Hotline at (800) 424-9346 (toll-
 free) or (703) 412-9810. For specific
 information, contact the Waste
 Treatment Branch (5302W), Office of
 Solid Waste (OSW), U.S. Environmental
 Protection Agency, 401 M  Street, SW.,
 Washington, DC 20460; phone (703)
 308-8434. For technical information
 regarding standards for Clean Water Act
 (CWA) systems, ask for Mary
 Cunningham or Elaine Eby; for technical
 information on the treatment standards
  1111U1 llluliwij, *_/** •.**•" »- •**	
  for wood preserving wastes, ask for Jose
  Labiosa; for TC metal wastes, ask for
  Anita Cummings. For policy questions,
  ask for Sue Slotnick. For questions on
  the clean-up of the Part 268 regulations,
  ask for Douglas Heimlich. For
  information on the capacity analyses,
  ask for Pan Lee of the Capacity Programs
  Branch (OSW), phone (703) 308-8440.
  For information on the regulatory
  impact analyses, contact Linda Martin
  of the Regulatory Analysis Branch
  (OSW), phone (202) 260-0062.

  SUPPLEMENTARY INFORMATION:
   Paperless Office Effort
     EPA is asking prospective
   commenters to voluntarily submit one
   additional copy of their comments on
   labeled personal computer diskettes in
   ASCII (TEXT) format or a word
   processing format that can be converted
   to ASCII (TEXT). It is essential to
   specify on the disk label the word
   processing software and version/edition
   as well as the commenter's name. This
   will allow EPA to convert the comments
   into one of the word processing formats
   utilized by the Agency. Please use
   mailing envelopes designed to
   physically protect the submitted
   diskettes. EPA emphasizes that
   submission of comments on diskettes is
   not mandatory, nor will it result in any
   advantage or disadvantage to any
commenter. Rather, EPA is
experimenting with this procedure as an
attempt to expedite our internal review
and response to comments. This
expedited procedure is in conjunction
with the Agency "Paperless Office"
campaign. For further information on
the submission of diskettes, contact the
Waste Treatment Branch at the phone
number listed above.

Glossary of Acronyms and Terms

BOAT—Best Demonstrated Available
    Technology
CAA—Clean Air Act
CWA—Clean Water  Act
EP—Extraction Procedure
HSWA—Hazardous  and Solid Waste
    Amendments (to RCRA)
 ICR—ignitable, corrosive, and reactive
    wastes, or, Information Collection
    Request (in section Xl.D.)
 ICRT—ignitable, corrosive, reactive, and
    toxic characteristic wastes
 ICT—ignitable, corrosive, and toxic
    characteristic wastes
 LDR—Land Disposal Restrictions
 MCL—Maximum Contaminant Level
 MSW—Municipal Solid Waste
 MSWLF—Municipal Solid Waste Landfill
 NESHAP—National Emission Standards for
     Hazardous Air  Pollutants
 NPDES—National Pollutant Discharge
     Elimination System
 OCPSF—Organic Chemicals, Plastics, and
     Synthetic Fibers industry
 ppmw—parts per million by weight
 RCRA—Resource Conservation and Recovery
     Act
 TC—Toxicity Characteristic
 TCLP—Toxicity Characteristic Leaching
      Procedure
  TJHC—underlying  hazardous constituent
  UTS	Universal Treatment Standards
  VOCs—volatile organic compounds

  Table  of Contents
  I. Options to Ensure That Underlying
      Hazardous Constituents in
      Decharacterized Wastes are Substantially
      Treated Rather Than Released Via Leaks,
      Sludges, and Air Emissions from Surface
      Impoundments
    A. Summary
    B. Background
    C. Applicability of Potential Approaches to
      "Industrial D" Management Units
    D. Potentially Affected Industries
    E. Results of Sampling and Risk
      Assessment
    1. Sampling data
    2. Risks
    F. Overview of  Options
    G. Option 1
    H. Option 2
     1. Introduction
     2. Applicability
     3. Proposed Management Standards lor Air
      Emissions
     4. Proposed Management Standards for
       Leaks
     5. Proposed Management Standards for
       Sludges
     6.  Recordkeeping Requirements for Leaks
       and Sludges

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              Federal Register / Vol.  60,  No. 162 / Tuesday,  August 22, 1995 / Proposed Rules        43655
  7. Sampling and Analysis
  I. Option 3
II. Proposal Not to Ban Nonamenable Wastes
   from Land-Based Biological Treatment
   Systems
  A. Background
  B. Rationale for Proposing Not to Ban
   Nonamenable Wastes From Biological
   Treatment Systems
III. Improvements to Land Disposal
   Restrictions Program
  A. Clean up of Part 268 Regulations
  B. Simplification of Treatment Standard for
   Waste Code F039
  C. POLYM Method of Treatment for High-
   TOC Ignitable D001 Wastes
IV. Exclusion for Recycled Wood Preserving
   Process Wastewaters
V. Treatment Standards for Newly Listed and
   Identified Wastes
  A. Background
  B. Treatment Standards for Soil
   Contaminated with Newly Listed Wastes
  C. Treatment Standards for Wood
   Preserving Wastes
  1. Identification of wastes
  2. Proposed Treatment Standards
  3. Review of Available Characterization
   Data
  4. Determination of Best Demonstrated
   Available Technology (BOAT)
  5. Proposed Regulation of Dioxin and
   Furan Constituents in F032
  D. Treatment Standards for Toxic
   Characteristic Metal Wastes
  1. Rationale for Applying Universal
   Treatment Standards (UTS) to Toxic
   Characteristic Metal Wastes (D004-D011)
  2. Proposed Revision of UTS for Beryllium
  3. Treatment Standard for Previously
   Stabilized Mixed Radioactive and
   Characteristic Metal Wastes
VI. Mineral Processing Waste Issues
VII. Environmental Justice
  A. Applicability of Executive Order 12898
  B. Potential Effects
VIII. Capacity Determinations
  A. Introduction
  B. Capacity Analysis Results Summary
  1. Available Capacity
  2. Surface Impoundment Sludges, Leaks,
   and Air Emissions
  3. Newly Identified Characteristic Metal
   Wastes
  4. Wood Preserving Wastes
  5. Mixed Radioactive Wastes
  6. Phase IV Wastes Injected into Class I
   Wells
IX. State Authority
  A. Applicability of Rules in Authorized
   States
  B. Abbreviated Authorization Procedures
   for Specified Portions of the Land
   Disposal Restrictions Phase II, III, and IV
   Rules
  C. Effect on State Authorization
X. Regulatory Requirements
  A. Regulatory Impact Analysis Pursuant to
   Executive Order 12866
  1. Methodology Section
  2. Results
  B. Regulatory Flexibility Analysis
  C. Paperwork Reduction Act
XI. Unfunded Mandates Reform Act
I. Options to Ensure That Underlying
Hazardous Constituents in
Decharacterized Wastes are
Substantially Treated Rather Than
Released Via Leaks, Sludges, and Air
Emissions from Surface Impoundments

A. Summary
  EPA's recently proposed Phase III
LDR rule (60 FR 11702, March 2,1995),
addressed wastewater discharges
involving characteristic wastes that are
deactivated through dilution and treated
in surface impoundments. The Phase III
rule proposed treatment standards that
can be met at or prior to the point of
discharge, (also referred to as "end-of-
pipe"). Today's proposed rule addresses
whether such treatment in surface
impoundments results in cross-media
releases, via leakage, air emissions, or
disposal of untreated sludges, that can
be so excessive that the impoundment
effectively functions as a disposal unit.
  The  Agency is essentially examining
standards for air emissions, leaks to
ground water, sludges, and wastewater
discharges (proposed in Phase III) at  the
same time. This provides an
opportunity to comprehensively
examine all the risks, applicable
treatment technologies, benefits, costs,
and existing regulatory controls
associated with addressing
decharacterized wastes that are treated
in surface impoundments. EPA received
public comments to the Phase III rule,
but because of scheduling constraints,
was not able to fully review them before
issuing this notice. Decisions on
controlling releases will be made after
careful consideration of public
comments on both proposals. The
Agency may choose either to not
promulgate LDR requirements for these
releases, or to set management standards
when warranted by excessive cross-
media  transfer of hazardous
constituents. A third option is to require
that decharacterized wastes be treated
(not merely diluted) to meet Universal
Treatment Standards (UTS) before entry
into surface impoundments. EPA is not
in favor of the third option, as it  is likely
to disrupt treatment needed for
compliance with the Clean Water Act
(CWA) limitations and standards, and
impose high costs without targeting
risks adequately.

B. Background
  In the 1984 Hazardous and Solid
Waste  Amendments (HSWA) to the
Resource Conservation and Recovery
Act (RCRA), Congress prohibited land
disposal of hazardous waste unless the
waste meets treatment standards
established by EPA. The statute requires
that these treatment standards
substantially diminish the toxicity or
mobility of hazardous waste such that
short- and long-term threats to human
health and the environment are
minimized. RCRA section 3004(m). In
response, EPA has developed a series of
rulemakings under the Land Disposal
Restrictions (LDR) Program setting forth
standards for treatment of hazardous
waste.
  The Third Third rule (55 FR 22520,
June 1,1990) contained treatment
standards and prohibitions for
hazardous wastes that exhibited one or
more of the following characteristics:
Ignitability, corrosivity, reactivity, or
Extraction Procedure (EP) toxicity (40
CFR 261.21-261.24). The Agency also
established a "deactivation" treatment
standard for ignitable, corrosive, and
reactive (ICR) wastes. Under this
standard, ICR wastes could be diluted
until they no longer exhibited the
hazardous characteristic (i.e., the waste
was "deactivated"). Once deactivated,
these wastes could be placed in land
disposal units without further
treatment, unless the Agency
specifically required that hazardous
constituents in the waste be treated. The
Agency further established that
prohibitions on dilution did not apply
to most characteristic wastes that are
decharacterized by dilution and then
managed in disposal units subject to
regulation under the CWA or the Safe
Drinking Water Act.
  These portions of the rule were
partially vacated and remanded in
Chemical Waste Management v. EPA,
976 F. 2d  2, cert, denied 113 S.Ct. 1961
(1992). In CWMv. EPA, the court held
that wastes decharacterized by dilution
may be  placed in a nonhazardous
surface  impoundment or a
nonhazardous injection well  only if the
toxic constituents in that waste are
treated to the same extent as they would
be under the treatment standards
mandated by RCRA section 3004(m)(l).
976 F. 2d  at 23. In other words,
treatment standards must result in the
treatment of all toxic constituents (i.e.,
the underlying hazardous constituents,
or UHCs) to minimize threats to human
health and the environment. Treatment
that only removes the hazardous
characteristic does not necessarily
suffice.
  The principal holdings of CWM v.
EPA with respect to characteristic
wastes were that: (1) EPA may require
treatment under RCRA section 3004(m)
to more stringent levels than  those at
which wastes are identified as
hazardous, 976 F. 2d at 12-14; (2)
Section 3004(m) requires that treatment
standards address both short-term and
long-term potential threats posed by

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43656        Federal Register  /  Vol.  60,  No. 162  / Tuesday, August 22, 1995 / Proposed Rules
hazardous wastes, as well as removal of
the characteristic property, id. at 16, 17,
23; as a result, dilution is permissible as
an exclusive method of treatment only
for those characteristic wastes that do
not contain UHCs "in sufficient
concentrations to pose a threat to
human health or the environment" (i.e.,
the minimize threat level in section
3004(m)), id. at 16; and,  (3) situations
where characteristic hazardous wastes
are diluted, no longer exhibit a
characteristic(s), and are then managed
in centralized wastewater management
land disposal units (i.e., subtitle D
surface impoundments or injection
wells) are legal only if it can be
demonstrated that hazardous
constituents are reduced, destroyed, or
immobilized to the same extent as they
would be pursuant to  otherwise-
applicable RCRA treatment standards,
id. at 7. EPA refers to this as the
"equivalency determination" and it is at
the heart of the discussion of potential
cross-media transfers  in today's rule.
The court further held that the
deactivation treatment standard for
ignitable and corrosive wastes (which
allowed the hazardous characteristic to
be removed by any type of treatment,
 including dilution) did not fully
 comport with RCRA section 3004(m).
 This was because the deactivation
 treatment standard could be achieved by
 dilution, and section  3004(m) "requires
 that any hazardous waste be treated in
 such a way that hazardous constituents
 be removed from the waste before it
 enters the environment." 976 F. 2d at
 24. The court thus remanded the rules
 dealing with centralized wastewater
 management involving land disposal.
   EPA addressed one portion of the
 equivalence issue when it proposed the
 Phase III LDR rule (60 FR 11702, March
 2,1995). That rule proposes, among
 other things, treatment standards for the
 end-of-pipe discharges from  surface
 impoundments to surface waters or
 POTWs. For further information on the
 court decision and the  Agency's
 responses,  see the January 19,1993,
 Notice of Data Availability (58 FR 4972)
 and Supplementary Information Report;
 the LDR emergency Interim Final rule
 (58 FR 29860, May 24, 1993); the LDR
 Phase II rule (59 FR 47982, September
 19,1994); and the LDR Phase III
 proposed rule (60 FR 11702, March 2,
 1995).
   The Agency entered into a settlement
 agreement setting out a schedule for
 fulfilling the court's mandate. The
 settlement agreement reads:
   EPA agrees to sign a proposed rulemaking
 on the issue of equivalency of treatment in
 a CWA system that uses surface
 impoundments . .  . EPA agrees to describe
in detail in that notice of proposed
rulemaking (but not necessarily recommend
or endorse) the following option: regulations
limiting release from surface impoundments
used in CWA treatment systems of hazardous
constituents from ICT wastes managed in
such impoundments, where the release is
due to volatilization or leakage, and
treatment standards under section 3004(m)
for hazardous constituents from ICT wastes
in impoundment sludges. After considering
any public comments received, EPA agrees to
sign a notice of final rulemaking taking final
action on the issue and option * * *

Therefore, the Agency is required to
address these issues at this time
although there may have been higher
environmental priorities if EPA had sole
discretion to order its agenda.
  The central legal and policy issue
addressed in this proposal is if and
when releases of hazardous constituents
from surface impoundments which are
part of a treatment train for
decharacterized wastes are so extensive
as to effectively invalidate the treatment
process as a means of LDR compliance.
Put another way, the D.C. Circuit
intended to allow continued use of
treatment surface impoundments  to
treat decharacterized wastes, provided
the extent of treatment is equivalent to
 usual RCRA treatment. If there are
 releases of hazardous constituents to the
 environment before treatment
 concludes, in the form of air releases,
 leaks to ground water, or deposition in
 sludges, has permanent disposal
 occurred so as to invalidate the
 treatment process?
   EPA's view is that, at the least,
 something more than the bare release of
 a hazardous constituent is needed to
 trigger this invalidation. The court did
 not explicitly state that its equivalence
 test, or any other part of the opinion,
 necessitated control of all hazardous
 constituent releases from surface
 impoundments. For example, one of the
 court's formulations of its holding is
 that "treatment of solid wastes in a
 CWA surface impoundment must meet
 RCRA requirements prior to ultimate
 discharge into waters of the United
 States or publicly owned treatment
 works. ..." 976 F. 2d at  20. The focus
 here is on the wastewaters being treated,
 and the amount of hazardous
 constituents removed from those
 wastewaters, not other types of wastes
 (like sludges) or other types of releases.
 See also id. at 7, 20 (focus on treatment
 of waste "streams", i.e. liquids in an
 impoundment); 23 n. 8 (reduction of
 mass loadings of hazardous constituents
 of wastestream entering and exiting an
 impoundment); 24 (court indicates that
 decharacterized wastes are not held
 permanently in impoundments,  which
is true of wastewaters but not for all
wastewater treatment sludges).
  The court likewise did not see that
hazardous constituents in deposited
sludges must be treated. The court in
fact did not speak to the principle stated
by EPA in the Third Third rule that
generation of a new treatability group is
considered to be a new point of
generation and thus a new point for
determining whether a waste is
prohibited. 55 FR at 22661-662. Under
this principle, unchallenged in the
litigation, wastewater treatment sludges
not exhibiting a characteristic are not
prohibited wastes, notwithstanding that
they may derive from prohibited
wastewaters.
  Perhaps more fundamentally, the
court clearly did not intend to require
that treatment standards be met
invariably by treatment preceding
impoundment-based management
systems: "RCRA requires some
accommodation with [the] Clean Water
Act". 976 F. 2d at 20; see also id. at 23,
indicating that to some degree RCRA
need not mandate wholesale disruption
 of existing wastewater treatment
 impoundments, providing the CWA
 treatment system really achieves
 treatment equivalent to RCRA's: "In
 other words, what leaves a CWA
 treatment facility can be no more toxic
 than if the wastestreams were
 individually treated pursuant to the
 RCRA treatment standards." A
 draconian reading that any releases of
 hazardous constituents from a treatment
 impoundment effectively invalidate that
 impoundment's treatment operations
 could thwart the court's holding that
 such treatment  is to be allowed
 provided equivalent treatment occurs.
   There are suggestions in the opinion,
 however, that at some point the LDR
 standard is not  satisfied if the
 magnitude of hazardous constituent
 releases is sufficiently great. The whole
 thrust of the opinion is to assure that
 RCRA treatment requirements are not
 thwarted by cross-media transfers of
 untreated hazardous constituents,
 whether by dilution or by escape from
 treatment units. Id. at 22, 24, 29-30; see
 also id. at 17,18 vacating treatment
 standards for ignitable and reactive
 wastes because the Agency had done
 nothing to address the risk of excessive
 volatilization or reactivity during the
 treatment process. The court also
  distinguished a number of times
 between temporary placement of diluted
  wastes in impoundments for treatment
  and permanent disposal in land
  disposal units, stating that only the
  temporary placement represents a
  satisfactory accommodation between
  RCRA and the CWA. Id. at 24, 25. To the

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              Federal Register  /  Vol.  60,  No. 162 / Tuesday, August 22, 1995 / Proposed Rules	43657
extent hazardous constituents leak or
volatilize from impoundments, or from
inadequately treated sludges, it can be
argued that permanent disposal of
untreated hazardous constituents is
occurring, although, since no treatment
unit is  absolutely release-free (there are
certainly releases of hazardous
constituents from combustion units, for
example), the more fruitful inquiry is
the extent of the release.
  Putting this together, EPA initially
believes the best reading of this part of
the opinion to be to distinguish between
impoundments performing essentially
as treatment units from those that are
also operating as permanent disposal
units due to the extent of cross-media
transfers of untreated hazardous
constituents. The portion of the opinion
vacating standards for ignitable and
reactive wastes supports such a reading,
since the court required the Agency to
find "that the risk of *  *  * emissions
*  * *  is minimal, or *  *  * require
actions to minimize that risk." 976 F. 2d
at 17, thus focusing on the extent of
release from the treatment unit, not just
the fact that a release occurred. Under
this reading, the Agency could evaluate
whether the risk from the various types
of releases is great enough to warrant
control. A finding that there is
insufficient risk would mean that the
impoundment is not engaging in a type
of cross-media transfer of untreated
hazardous constituents that invalidates
its treatment function, and therefore that
decharacterized wastes can be treated in
the impoundment to effect the necessary
accommodation between RCRA and the
CWA.
   A second pervasive distinction in the
opinion is between treatment units
(including treatment surface
impoundments) and permanent disposal
units,  accommodation to allow
centralized wastewater management
being  allowed for the former but not the
latter. See, e.g., 976 F. 2d at 24, 25.
There are some potential
differentiations among types of surface
impoundments along these lines. A
common division of wastewater
treatment is into primary, secondary,
and tertiary treatment. Primary
treatment involves removal of
conventional pollutants (e.g., oil and
grease, total suspended solids) or
equalization. Secondary treatment
involves aggressive treatment steps to
remove or destroy hazardous
constituents, examples being biological
treatment for organics, or chemical
precipitation for metals. Tertiary
treatment involves polishing effluent
before final discharge. Impoundments
engaged in primary treatment most
clearly resemble hazardous constituent
disposal units because such units treat
hazardous constituents only
incidentally. Secondary and tertiary
impoundments, on the other hand, do
engage in significant treatment of
hazardous constituents. Thus, possible
Phase IV controls would logically be
directed at primary impoundments, the
type of wastewater management
impoundment most resembling
permanent disposal due to the lesser
degree of treatment occurring  in the
unit.
  It is also possible to argue that any
leak to ground water or deposition of
hazardous constituents in sludge at
levels exceeding the UTS (or some
comparable release of hazardous
constituents to air) renders treatment
across a wastewater treatment system
not equivalent. EPA does not view this
reading as compelled. There is no such
explicit language in the opinion. As
already stated, such a reading also
would likely destroy the very
accommodation between RCRA and the
CWA the court deemed necessary. Nor
would such a reading make policy sense
if releases from treatment surface
impoundments remain insignificant,
and the treatment system is in fact
achieving the same mass reductions of
hazardous constituents, through
destruction and  removal rather than
through release, as conventional RCRA
treatment (see 976 F. 2d at 23  n. 8).
  EPA's present, preferred reading of
the opinion is consequently to establish
the parameters which distinguish
permanent land disposal impoundments
from those performing the type of
treatment to be accommodated under
the court's opinion. These parameters
can be defined by limiting the extent of
hazardous constituent releases to air,
ground water and through sludges to
levels that do not pose significant risk.
In addition, primary treatment
impoundments are the most natural
target for these controls.

C. Applicability of Potential Approaches
to "Industrial D" Management Units
   Today's options to address  surface
impoundment releases specifically
apply to Subtitle D (nonhazardous)
surface impoundments that receive
decharacterized wastes. Subtitle D
surface impoundments that do not
manage decharacterized wastes are not
affected. The options in today's
 proposal  do not necessarily set a
 precedent for any future regulations
 concerning non-hazardous industrial
 wastes. The Agency, in partnership with
 the States, is investigating the
 possibility of developing voluntary
 standards for the safe management of
 non-hazardous industrial wastes.
D. Potentially Affected Industries
  Based on an analysis of available
information, the Agency estimates that
300 facilities are managing, in CWA
treatment systems, decharacterized
wastes containing hazardous
constituents above UTS. (Hereafter, the
use of the term "CWA treatment
systems" includes CWA-equivalent
systems as defined by 40 CFR 268.37,
and other nonhazardous waste surface
impoundments.) Wastewater treatment
in surface impoundments involves three
basic functions:
   • Equalization/settling (known as
primary or prebiological treatment);
   • Biological treatment (known as
secondary treatment); and
   • Postbiological settling/polishing
(known as tertiary or postbiological
treatment).
   Equalization/settling ponds settle
solids out of the wastewaters and
equalize concentrations to subsequent
treatment units. Being the first units in
the system to receive the wastewaters,
they receive the highest loadings of
contaminants.
   Biological treatment units function
primarily to break down or remove
organic compounds in the wastewater.
At this point in the treatment process,
the concentrations of organics in the
surface impoundment are greatly
reduced, and therefore, the risks from
leaks and sludges are considerably
lower in these units. Part of the
concentration reduction, however, is
due to volatilization, and air emissions
can be significant from such units.
   Postbiological treatment units will
receive contaminants at significantly
reduced concentrations. As a result,
lower concentrations of hazardous
constituents can be expected in the air
emissions, leaks, and sludges, and
therefore resultant risks are also lower.

E. Results of Sampling and Bisk
Assessment
 I. Sampling Data
   The Agency reviewed available
 information on air emissions, leaks, and
 sludges. These data were collected for
 the development of effluent guidelines
 under the CWA. They cover industries
 that typically treat wastewater in
 biological treatment systems that
 incorporate surface impoundments.
 During the last two years, the Agency
 was informed by representatives of the
 regulated industry that they would
 provide EPA with more current and
 complete data characterizing
 wastewaters in surface impoundments
 receiving decharacterized waste. At the
 time of publication of this proposal,
 EPA had not received any such data.

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43658        Federal Register  /  Vol.  60,  No. 162 / Tuesday, August 22, 1995 / Proposed Rules
  Information available to the Agency
indicates that decharacterized
wastestreams containing UHCs may leak
out of surface impoundments at levels
of concern. These data also indicate that
there may be a significant number of
wastestreams that could exceed the
regulatory threshold for total volatile
organics. In addition, the Agency
conducted a review of the chemical
concentrations of UHCs in
decharacterized wastes (based on the
effluent guidelines data) and the
concentrations of constituents of
concern in various RCRA F and K
wastewaters. Based on this analysis, the
Agency found that in many instances
that decharacterized wastestreams have
 similar hazardous constituents present
 and at similar concentrations as listed
 hazardous wastestreams. Estimated
 sludge concentrations based on
 industrial wastewater treatment system
 data indicate that surface
 impoundments handling
 decharacterized wastes are likely to
 generate sludge that contain UTS
 constituents in excess of the treatment
 standards. EPA solicits additional data,
 particularly constituent concentrations
 from actual sampling of wastewaters in
 surface impoundments receiving
 decharacterized wastes. A detailed
 discussion of the data sources, analyses,
 and specific examples of releases above
 UTS levels supporting this proposal can
 be found in the document entitled,
 "Technical Support Document-
 Options for Management Standards for
 Leaks, Sludges, and Air Emissions From
  Surface Impoundments Accepting
 Decharacterized Wastes" which is
  located in the RCRA docket.

  2. Risks
    Although the wastes affected by the
  court opinion and the equivalence
  options in this section of the preamble
  are not hazardous wastes, they are likely
  to contain some of the same hazardous
  constituents, possibly even at  the same
  levels, as are found in  listed and
  characteristic wastes. The hazardous
  constituents in listed and characteristic
  wastes must be treated to meet UTS
  before land disposal.
     EPA conducted a screening level risk
  assessment that did not take into
  account site-specific hydrogeologic
  conditions or relative proximity of
  drinking water wells to surface
  impoundments. Using the sampling data
  described above, EPA estimated
  baseline (current) risks from releases
  from leaks and air emissions, as well as
  ground water  contamination from
  sludge disposal. Samples were taken at:
  raw wastewater, equalization ponds,
  influent to pre-bio ponds, pre-bio
ponds, effluent from pre-bio ponds,
influent to biological ponds, effluent
from biological ponds, effluent from
post-bio ponds, influent to wastewater
system, and effluent from wastewater
system. (The terms "pond" and "surface
impoundment" are used
interchangeably in this preamble.) Using
Office of Water Effluent Guidelines data,
EPA calculated central tendency and
high-end baseline risks from leaks and
sludges for wastewater treatment
systems in five industries:
Pharmaceuticals; Pulp and Paper;
Pesticides; Metal Products and
Machinery; and Organic Chemicals,
Plastics, and Synthetic Fibers (OCPSF).
Using Generator Survey point-of-
generation data, EPA calculated central
tendency and high-end baseline risks
 from leaks and sludges for wastewater
 treatment systems from Inorganic
 Chemicals; and, Electronic and
 Electrical Components. The Agency
 used standard exposure assumptions of
 1.4 liters/day ingestion, and a 9-year
 exposure period for 350 days per year.
 Cancer risks are summed across
 constituents.
   Following are the highest risks EPA
 estimated. These risks are from pre-
 biological surface impoundments unless
 otherwise noted. (The samples from
 influent to a biological pond are
 assumed to be measures of constituent
 concentrations of wastewaters in pre-bio
 ponds rather than bio ponds.) For the
 central tendency analysis of risks from
 leaks, EPA found potentially significant
 health risks in the Pharmaceuticals,
 OCPSF, Inorganic Chemicals, and
 Electronic and Electrical Components
 industries. In the Pharmaceuticals
 industry, one raw wastewater sample
 out of 11  and one biological pond
 influent sample out of 7 may pose
  potentially significant cancer health risk
  exceeding the 10 ~s cancer risk
  threshold; methylene chloride and
  acrylonitrile, respectively, are the
  constituents of concern.  In the OCPSF
  industry, EPA found three raw
  wastewater samples out  of 51 indicate
  cancer risks in excess of a 10 ~5
  individual lifetime cancer risk level.
  Acrylonitrile is the most prevalent
  carcinogenic constituent in amounts
  above levels of concern. Also in the
  OCPSF industry, nine samples at the
  biological pond influent out of 34 at the
  biological pond influent indicate cancer
  risks in excess of a 10~s level, of which
  six samples indicate cancer risks in
  excess of 10 ~4. In the Inorganic
  Chemical industry,  one  point of
  generation sample out of 51 may pose
  potentially significant cancer health
  risks in excess of the 10 ~s cancer risk
threshold, and one point of generation
sample exceeds the 10 ~4 cancer risk
threshold. Methylene chloride and
beryllium are the constituents of
concern. In the Electric and Electrical
Components industry, 32 point of
generation samples contain potentially
significant cancer health risks in excess
of 10 ~5, of which 13 samples present
cancer risk between 10 ~4 to 10 ~5; 11
samples present cancer risk between
10 "3 to 10 ~4; and, 8 present cancer risk
in excess of 10 ~3. Methylene chloride
and beryllium are the constituents of
concern. The Agency continues to
evaluate additional industries based on
available data. The risk analyses for
these data will be placed in the  RCRA
docket for this proposal.
   In its analysis of leaks using high-end
 assumptions, EPA found potentially
 significant health risks (above 10 "5) at
 sampling points in the Pharmaceuticals,
 Pesticides, Pulp & Paper, OCPSF,
 Inorganic Chemicals, and Electronics
 and Electrical Components industries.
 In the Pharmaceuticals industry, 14
 samples out of 38 at the raw wastewater,
 equalization pond, biological pond
 influent, and effluent from post-
 biological ponds (a measure of  risk from
 a post-bio pond) present potentially
 significant cancer health risks in the
 range of 10~3 to 10~5; constituents of
 concern include methylene chloride,
 acrylonitrile, chloroform, 1,2-
 dichlorethane and alpha-bhc. In the
 Pesticides industry, three samples out of
 11 at the influent to a pre-bio pond
 exceed the 10~5 cancer risk threshold;
 the constituent of concern for all three
 samples is methylene chloride. In the
 Pulp & Paper industry, three samples of
  12 at the influent to the wastewater
 treatment system and one sample of 15
  at the effluent from the wastewater
  treatment system (sample from a bio or
  post-bio pond) may pose potentially
  significant sources of cancer risk
  (estimates in the  range of 10 ~4 to 10 ~5);
  constituents of concern are chloroform,
  1,2-dichloroethane, 1,1,2,2
  tetrachloroethane and bis (2-ethylhexyl)
  phthalate at the influent and methylene
  chloride and chloroform at the effluent.
  In the OCPSF industry, about  one-third
  (20 of 51) samples of the raw wastewater
  samples present  cancer risks in excess
  of 10 ~-s. One half (9 samples)  present
  cancer risks in excess of 10 ~4. About
   one-third (13 of 34) of the biological
   pond influent samples indicated cancer
   risks in excess of 10 ~s; all samples but
   one indicated cancer risks in excess of
   10 ~4. In the Inorganic Chemicals
   industry, two point of generation
   samples present potentially significant
   cancer health risk in excess of 10 ~3;

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              Federal Register  /  Vol.  60,  No. 162  /  Tuesday, August 22, 1995  /  Proposed Rules        43659
methylene chloride and beryllium are
the constituents of concern. Finally, in
the Electronics and Electrical
Components industry, 11 point of
generation samples (out of 295) present
potentially significant cancer health risk
in excess of 10 ~4; 21 samples present
cancer health risk in excess of 10 ~3;
methylene chloride and beryllium are
the constituents of concern.
  For sludges, EPA estimated the risks
from disposal in an unlined,
nonhazardous landfill after the sludges
are dredged from a surface
impoundment. Using estimated sludge
concentrations in the OCPSF industry,
EPA conducted both a central tendency
and high-end analysis. In the central
tendency analysis, one pre-bio sample
(of 87) presents cancer risk in excess of
10 ~4 and one bio sample (of 74)
presents risk in excess of 10 ~5;
acrylonitrile is the constituent causing
both exceedances. In the high-end
analysis, two pre-bio samples (of 87)
present cancer risk in excess of 10 ~5;
and one bio sample (of 74) presents
cancer risks in excess of 10 ~4;
acrylonitrile and 1,4-dichlorobenzene
are the causes.
  To assess the potential risk posed by
air emissions, EPA examined samples at
the point of generation of the
wastewater. Across all industries, one-
fifth of samples (290 to 363 of 1562
samples) exceed 100 parts per million
(ppmw) by weight of volatile organic
compounds (VOCs). Under the recent
RCRA Subpart CC final standards,  air
emission control requirements of the
rule apply to affected units if hazardous
waste placed in the unit is determined
to have an annual average volatile
organic concentration equal to or greater
than 100 ppmw based on the organic
composition of the hazardous waste at
the point of waste origination. See
§ 264.1083 (promulgated at 59 FR 62928
(December 6, 1994)). Preliminary results
show that 15 percent of samples (87 to
117 of 690 samples) from the
Pharmaceutical, Pulp and Paper,
Pesticide, and Metal Product and
Machinery industries exceed 100
ppmw. In the OCPSF industry, 48 to 59
percent of the sample facilities (75 to 92
of 157 facilities) assessed had at least
one sample of wastewater that exceeded
the 100 ppmw limit. For a detailed
discussion of risks and regulatory
impacts, see the background document
"Regulatory Impact Analysis of the
Proposed Phase IV Land Disposal
Restrictions Rule," which was placed in
the docket for today's proposed rule.

F. Overview of Options
   In general terms, the risks due to
cross-media releases have the potential
to vary from insignificant to significant.
EPA is considering three types of
options for addressing this issue. The
first option is not to issue LDR
requirements, but rather to rely on other
Agency programs to address these
releases under current rules or future
efforts (i.e., Clean Air Act (CAA)
standards, RCRA Corrective Action,
State programs, and others). The second
option is to develop controls that focus
on the subset of situations that pose
excessive risk and are not addressed by
existing requirements or those under
development. Finally, the third option
is to require that decharacterized wastes
be treated (not merely diluted) to meet
Universal Treatment Standards (UTS)
before entry into surface
impoundments. This forces
modification at facilities that do, as well
as those that do not, pose risks from
leaks, air emissions, and sludges. None
of the options would apply to units
which satisfy the Minimum Technology
Requirements or the statutory no-
migration standard.
  The Agency is neutral between the
first and second options. The second
option is necessarily  more complicated
than the other two, and so is discussed
here at greater length; it should not
thereby be inferred that this is EPA's
preferred approach. The third option
was also considered, but EPA is not
recommending it because of potential
disruption to needed wastewater
treatment, high costs to affected
industries, and lack of targeted risk
reduction.
G. Option 1
   Option 1 relies on the Phase III rule
to satisfy the equivalence standard
enunciated by the D.C. Circuit. As
noted, that rule would link LDR and
CWA end-of-pipe standards to assure
that mass removal of UHCs occurs to the
same extent in CWA  impoundment-
based treatment systems as it does in
conventional RCRA treatment systems.
As discussed above, the court's opinion
does not explicitly require more.
   If ostensible treatment impoundments
generally acted as conduits for extensive
cross-media transfers of untreated
hazardous constituents, it  is not clear
that the standard enunciated by the
court would be satisfied. However, there
are existing or forthcoming regulatory
mechanisms which tend to protect
against such wholesale releases.
   Following is a brief description of
what coverage federal and State
regulations may provide to control
excessive releases from surface
impoundments receiving
decharacterized wastes. For more
information, see the following in the
RCRA Docket: "Technical Support
Document—Options for Management
Standards for Leaks, Sludges, and Air
Emissions From Surface Impoundments
Accepting Decharacterized Wastes," and
the Executive Summary of the
"Regulatory Impact Analysis of the
Proposed Phase IV Land Disposal
Restrictions Rule."
  The Toxicity Characteristic (TC),
which exists for 39 of the  212 UHCs,
cannot be exceeded in the wastewater or
sludges contained in the surface
impoundments, and therefore, provides
some control. See, e.g. 976 F.2d at 24 fn.
10. Also, approximately 42% of the
facilities with impoundments which
receive decharacterized wastes are
RCRA Treatment, Storage, or Disposal
Facilities (TSDFs). RCRA  TSDFs have at
least one unit at the facility which
requires a RCRA Subtitle  C permit.
Under RCRA § 3004(u), the primary
cleanup authority for permitted TSDFs,
releases of hazardous constituents from
solid waste management units at such
facilities are subject to corrective action.
TSDFs that have not yet received
permits, and are operating under
interim status, are subject to cleanup
under § 3008(h), which provides EPA
with similar authority to compel
corrective action. Surface
impoundments affected by today's
proposed rule are solid waste
management units; releases from these
impoundments are subject to corrective
action on a site-specific basis. While the
State or EPA has the authority to control
emissions from Subtitle D surface
impoundments at Subtitle C TSDFs not
only during corrective action, but also
during normal operations, they may
choose not to do so, primarily because
of priorities, resources, and perceived
risk.
  EPA also is presently implementing
Section 112 of the CAA to impose
technology-based standards for
hazardous air pollutants at enumerated
major sources, requiring control by
means of Maximum Available Control
Technology (MACT). These rules are
subject to explicit deadlines, and
already address wastewater treatment
impoundments in certain industries
potentially affected by the Phase IV rule
(e.g. the Hazardous Organics National
Emission Standards for Hazardous Air
Pollutants (NESHAP) at 59 FR 19402,
April 22, 1994), or will address such
impoundments. Several rules have been
promulgated addressing air emissions
from portions of the hazardous of the
organic, benzene, chromium
electroplating, ethylene oxide,
halogenated solvent, polymers and
resins, petroleum, and ferroalloy
industries. Examples of forthcoming

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standards are the MACT for the
pharmaceutical industry and the pulp
and paper industry. In addition,
NESHAPs that may affect portions of the
petroleum, metal plating, organic
chemical and inorganic chemical
industries are scheduled for
promulgation in 1995 and 1996.  EPA
believes, however, that some surface
impoundments in the potentially
affected universe of industries will not
be covered by these CAA regulations.
For a detailed description of coverage by
CAA rules, see the Table entitled
"NESHAP Programs Identified in
Semiannual Regulatory Agenda" in the
"Technical Support Document-
Options for Management Standards for
Leaks, Sludges, and Air Emissions From
 Surface Impoundments Accepting
 Decharacterized Wastes," and see also
 the background document entitled
 "Description of Process to Determine
 the Potentially Affected Universe for the
 Phase IV LDR Rule."
   With regard to other on-going ettorts,
 EPA is actively investigating whether to
 list additional wastes as hazardous, and
 is investigating the possibility of
 developing voluntary guidelines for
 Subtitle D facility standards that would
 more broadly address non-hazardous
 industrial wastes.
   In addition to federal controls, some
 States have environmental controls on
 surface impoundments that receive
 nonhazardous industrial waste, such as
 ground water monitoring for hazardous
 constituents, leachate collection
 systems, sludge management programs,
 and cleanup authorities. Thirty-six
  States have at least some regulations
  that may be relevant to the cross-media
  concerns in this rule. Among those
  States, requirements to prevent ground
  water contamination from surface
  impoundments vary considerably.
  States with the most requirements
  include such controls as specific liner
  requirements, leachate collection  and
  removal systems, ground water
  monitoring, closure and post-closure
  plans, corrective action, and permits. In
  contrast, States with less comprehensive
  programs may require only two or three
  of these requirements, or may apply
  them only to dischargers, only to non-
   dischargers, or in other ways limit the
   applicability of their programs.
   However, EPA does not have
   information on key factors to  help it
   assess the degree to which State
   programs can be relied upon to prevent
   excessive releases from surface
   impoundments via leakage. For
   example, it is not known which
   constituents are monitored, what
   concentrations are considered
   acceptable levels, or whether the State
requirements mentioned above apply to
existing units, or only to new ones. For
a more detailed assessment of how State
programs protect ground water from
contamination from the type of surface
impoundments at issue in this rule, see
"Technical Support Document-
Options for Management Standards for
Leaks, Sludges, and Air Emissions From
Surface Impoundments Accepting
Decharacterized Wastes," in the RCRA
Docket.
   State controls on sludge from
nonhazardous surface impoundments
are generally far less than the controls
 for preventing leaks. EPA's information
 is that thirty-seven states have no sludge
 requirements. Other states, such as
 Alabama, Florida, and Missouri, have
 minimal requirements under their
 National Pollutant Discharge
 Elimination System (NPDES) permits for
 sludge management. Pennsylvania
 requires sludge to be removed annually
 from storage surface impoundments. In
 California, sludge must be  disposed in
 a landfill or monofill. One of the states
 with more controls is Michigan, which
 requires a plan for sludge monitoring,
 treatment, transportation, storage, and
  disposal, along with a hydrogeological
  study if there is a threat to ground
  water.
    With respect to air emissions, the
  Agency recognizes that State
  Implementation Plans, or SIPS, which
  are mandated under the Clean  Air Act,
  may provide some control. EPA solicits
  information on the extent to which State
  and Tribal programs control leaks,
  sludge, and air emissions  from surface
  impoundments receiving
  decharacterized wastes.
  H. Option 2
  1. Introduction
    Option 2 is an intermediate approach
  between saying the LDRs do not apply
  and saying they do apply in the
  traditional manner. In defining this
  regulatory option for consideration, EPA
  tried to accomplish seven basic
  objectives: (1) Focus controls on those
  situations that present risks that amount
  to significant permanent disposal; (2)
  avoid duplication with other Agency
  requirements; (3) provide flexibility in
  dealing with site-specific factors and
  cost-effective control alternatives; (4)
  recognize the effective treatment
   function performed by waste water
   treatment impoundments, and avoid
   needlessly invalidating such function;
   (5) identify controls that protect human
   health and the environment; (6)
   minimize implementation burden; and
   (7) create incentives for alternative
   controls (state, tribal or federal) to
address significant releases from such
units and so render LDR controls
unnecessary.
2. Applicability
  To focus on risks, Option 2 excludes
from control those situations which are
expected to pose little risk. First it
excludes wastewaters that do not have,
at the point of generation, hazardous
constituents present above the UTS.
Such wastes obviously are not
prohibited from land disposal. Second,
wastewaters with de minimis amounts
of hazardous constituents are
excluded—i.e., not prohibited. (Criteria
for determining de minimis situations
would be identical to those proposed in
the Phase III rule for discharges to UIC
 wells.) Third, sludges and leaks from
 biotreatment and post-biotreatment
 units would not be covered due to the
 lower risks posed by these units. Fourth,
 characteristic wastes which at the point
 of generation do not exceed 100 ppmw
 of total volatile organics on an annual
 average would not be subject to air
 emission controls. Fifth, surface
  impoundments containing underlying
  hazardous constituents at
  concentrations below a trigger level
  (e.g.,  10 times the Maximum
  Contaminant Level, or MCL) would not
  be addressed for leaks. Finally, none of
  the Option 2 standards would apply if
  the impoundment satisfies Minimum
  Technology Requirements or the
  statutory no migration standard. These
  applicability principles are explained in
  more detail below.
    To avoid duplication with other
  requirements, EPA would defer to other
  federal rules which establish controls
  addressing the same situations. Deferral
  would occur where the existing program
  addressed the specific UHCs of concern.
  In the case of air emissions, EPA would
  defer to standards regulating total
  volatile organics, as adequately covering
  air emissions of UHCs from this type of
  treatment. In addition to existing
  regulations, there are some CAA air
  emission limits under development.
  Inefficiencies and confusion could
  occur if Option 2 controls were applied
  and soon superseded by upcoming CAA
  standards. Facilities subject to CAA
  standards for hazardous air pollutants
   (in particular, those promulgated
   pursuant to CAA § 112) in the near
   future thus would not be covered by
   Option 2 air emission controls. In the
   case of releases to ground water, EPA
   would defer to certain existing
   programs, as is explained in more detail
   below.                        .
     This option also would recognize the
   existence of the types  of controls
   mentioned above in connection with

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r
                       Federal  Register  /  Vol.

          		~~
          Option 1. Thus, if an impoundment is
          located at a permitted TSDF, no further
          control would be adopted under Phase
          IV. EPA Regional, State, or Tribal limits
          which control releases of specific UHCs
          from impoundments also would be
          considered controlling and so make
          Phase IV controls unnecessary.
            Option 2 provides flexibility in
          dealing with site-specific factors and
          cost-effective control alternatives.
60, No.  162 / Tuesday, August 22,  i995^Proposed Rules
                                                                                                                    43661
Facilities have the choice of treating the
characteristic wastestream to meet U Ib
before entering a surface impoundment,
thus avoiding any management
standards enumerated in the option.
This option also incorporates alternative
means of compliance proposed in the
Phase III rule, namely an exception tor
de minimis decharacterized
wastestreams (i.e., prohibited
 wastewaters  containing de nuiumis
amounts of UHCs) and an option
allowing the requisite mass reduction ot
hazardous constituents to be achieved
by means of pollution prevention rather
than wastewater treatment. For a
simplified guide to which facilities
would be affected by option 2, see the
following now chart entitled Figure 1.

BILLING CODE 6560-50-P

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43662       Federal Register / Vol. 60, No. 162  / Tuesday,  August 22, 1995  / Proposed Rules
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              Federal Register / Vol. 60, No. 162  / Tuesday,  August  22,  1995 / Proposed  Rules       43663
  For those facilities which do not meet
the criteria to screen out the low risk
situations, and are not subject to other
federal, State, or Tribal limits to address
the UHCs of concern, Option 2 would
provide controls similar to those
currently applied to other industrial
wastes. Air emissions would be subject
to the substantive requirements for
surface impoundments of RCRA Subpart
CC. (59 FR 62896; December 6,1994.)
Leaks would necessitate ground water
monitoring for UHCs, and corrective
action would be triggered if ground
water exceeds levels of concern. Sludges
would be subject to UTS when removed
from the surface impoundment. The
following sections provide a more
detailed description of these potential
requirements.
  To minimize implementation burdens
make many of the requirements self-
implementing, and set minimal
reporting/recordkeeping requirements.
All of the requirements would be
effective two years after promulgation,
due to a proposed national capacity
variance (see Section VIII of this rule).
Under circumstances when the air
emission, leaks, or sludge control
equipment required to comply with the
standard cannot be operational at an
existing facility by the two-year
deadline, an implementation schedule
for installation of the equipment would
have to be developed and placed in the
facility operating records. In such cases,
the facility owner or operator would
have to have all controls in operation no
later than 48 months after the effective
date. Furthermore, surface
impoundments that have stopped
receiving decharacterized wastewaters
on or before the date of promulgation
would not be subject to any of the
requirements proposed today. Surface
impoundments that stop receiving
decharacterized wastewaters after the
date of promulgation and on or before
the date two years after promulgation
would be subject only to the
recordkeeping requirements. Where
alternative non-RCRA standards are set
by EPA, States, or Tribes (e.g., CAA
standards for air emissions), deferral to
standards means there is no RCRA
requirement.
  The following sections describe
management standards the Agency is
considering  for leaks, sludges, and air
emissions from surface impoundments
accepting decharacterized wastes. EPA
seeks comment on these standards,
including the possibility of adopting
standards for certain of the potential
problems and not others, e.g., finalizing
standards for leaks and air emission
control, but  not for sludge control.
  Additionally, Option 2 would apply
controls on air emissions for all three
types of surface impoundments (pre-
biological, biological, and post-
biological), while limiting sludge and
leak controls to pre-biological units
only, based  on the risk findings. The
statute already specifies more lenient
regulatory controls for biological and
post-biological treatment
impoundments. Section 3005(j)(3)
exempts from minimum technology
requirements hazardous waste
biological and post-biological surface
impoundments. Such impoundments
must in general be performing
aggressive biological treatment (or
performing post-biological treatment),
be in compliance with CWA permits
and with generally-applicable ground
water monitoring requirements, and be
achieving significant degradation of
toxic pollutants. This provision
recognizes that  such treatment
impoundments both perform an
important treatment function and pose
less risk than other impoundment types.
Today's proposal is premised on similar
findings. EPA seeks comment on all
combinations of applying the three
types of controls (leaks, sludges, and air
emissions) to all three types of
impoundments.
3. Proposed Management Standards for
Air Emissions
  a. Scope. Option 2 would extend
requirements of Subpart CC regulations
to surface impoundments in CWA,
CWA-equivalent, or nonhazardous
wastewater treatment systems that
accept wastes decharacterized by
dilution. Subpart CC rules would not
apply directly under this option, since
that rule applies only to units managing
hazardous waste. § 264.1080(a).
However, substantive requirements,
borrowed from that rule, could apply to
surface impoundments receiving
prohibited, decharacterized wastes. The
specific standards in this option would
be: general standards (264.1082), waste
determination procedures (§264.1083),
surface impoundment unit standards
(§ 264.1085), closed-vent and control
device standards (§ 264.1087),
inspection and monitoring procedures
(§264.1088), recordkeeping
requirements (§ 264.1089), and reporting
requirements (§264.1090). The
provisions would only apply to affected
surface impoundments'used  to manage
decharacterized wastes if the
decharacterized waste (containing UHCs
above UTS at the point of generation)
placed in the unit is determined to have
an average volatile organic
concentration greater than or equal to
100 ppmw based on the organic
composition of the waste at the point of
generation. Averaging periods of up to
1 year in duration would be utilized for
each individual wastestream. The types
of requirements EPA is considering are
quite similar to those required generally
under the CAA for control of volatile
organic hazardous air pollutants (e.g.,
see the Hazardous Organic NESHAP (59
FR 19402, April 22, 1994) and the
Benzene Waste Operations NESHAP (58
FR 3072, January  7, 1993)). For a
simplified guide to the management
standards for air emissions, see the
following flow chart entitled Figure 2.
BILLING CODE 6560-60-P

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        Federal Register /  Vol. 60, No. 162 / Tuesday. August 22. 1995 / Proposed Rules
         iiili!
BILLING CODE 6560-SO-C

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              Federal Register  /  Vol.  60, No. 162 / Tuesday, August  22,  1995  /  Proposed Rules
                                                                     43665
  b. Applicability. For each surface
impoundment identified in today's rule
to which the extended subpart CC
requirements apply, the owner or
operator would be required to use the
air emission controls specified herein
except when the decharacterized waste
placed in the surface impoundment
meets certain conditions.
  (i.) Volatile organic concentration
exemption. Under this option, a surface
impoundment accepting
decharacterized  waste would not be
considered to engage in impermissible
transfer of untreated hazardous
constituents to the ambient air if all the
prohibited waste (i.e., the
decharacterized waste) placed in the
impoundment is determined to  have an
average volatile  organic concentration
less than 100 ppmw based on the
organic composition of the waste at the
point of generation. Establishing the
trigger concentration of point of
generation, rather than point of
 placement in an impoundment, is
 designed to prevent dilution and
 volatilization of organics in the waste.
 59 FR at 62915. This feature of  the
 option thus dovetails with the central
 concern of the D.C. Circuit in allowing
 dilution rather than destruction/removal
 via treatment for hazardous
 constituents.
   (ii.)  Treated hazardous waste
  exemption. Under this option,  each
 affected surface impoundment  that
  manages a characteristic waste that has
 been decharacterized by dilution but
  contains UHCs above UTS and has an
  average volatile organic concentration
  equal  to or greater than  100 ppmw, as
  determined by  the procedures  found in
  § 264.1083, is required to be managed in
  accordance with the applicable Subpart
  CC requirements. See § 264.1085.
  Realizing that many organic UHCs likely
  to be present in characteristic  waste
  being treated in a surface impoundment
  are also VOCs, and because the Agency
  wishes to be consistent with other air
  regulations and therefore necessitate
  control, the Agency believes that total
  VOCs is an appropriate measure for
  determining when potential releases
  through air emissions would be
  excessive. 976 F.2d at 17. The owner or
  operator would install and operate the
  specified air emission controls on every
  affected unit used in the waste
  management sequence from the point of
  generation (as it applies to the specific
  prohibited wastestream) through the
  point where the organics in the waste
  are removed or destroyed in accordance
  with § 264.1082. If the decharacterized
  wastestream is not treated to meet these
  requirements, then all  surface
  impoundments at the facility  used in
the waste management sequence for this
decharacterized waste would be
required to use the air emissions
controls specified in the extended
subpart CC surface impoundment
standards.
  The extended subpart CC standard
would thus provide owners or operators
of surface impoundments accepting
decharacterized wastes with several
alternatives for determining when
wastes have already been treated
sufficiently so that surface
impoundments would not have to meet
the air emission control requirements.
Put another way, the organic component
of the prohibited wastes would be fully
treated before land disposal and  so the
impoundment would not be subject to
control. Types of treatment processes
that would obviate the need for further
 control are an organic destruction,
 biological degradation, or organic
 removal process that reduces the
 organic content of the decharacterized
 waste and is designed and operated in
 accordance with certain conditions
 specified in the rule, or combustion in
 an incinerator, boiler or industrial
 furnace.
   The requirements for a destruction,
 biological degradation, or removal
 process that reduces the organic content
 of the waste are specified in the
 extended Subpart CC rule as follows:
   (1) It must reduce the volatile organic
 concentration of the waste to meet a site-
 specific treatment process exit concentration
 limit determined by an equation (specified in
 the rule) that accounts for the portion of the
 reduction due to dilution; or
   (2) It must be a single process that achieves
  an organic reduction efficiency of 95 percent
  or greater on a mass basis, and reduces the
  average volatile organic concentration of the
  wastestream exiting the process to a level less
  than 50 ppmw; or
   (3) It must be a biological process that
  either (a) achieves an organic reduction
  efficiency equal to or greater than 95 percent,
  and achieves an organic biodegradation
  efficiency for the process equal to or greater
  than 95 percent, or (b) achieves a total actual
  organic mass biodegradation rate for all
  decharacterized wastes treated by the process
  equal to or greater than the required organic
  mass removal rate for the process.
    c. Surface impoundment management
   standards. If the prohibited,
   decharacterized wastes are not
   pretreated, the requirements under the
   subpart CC standards for surface
   impoundment air emission control
   equipment specify that the owner or
   operator install and operate on each
   affected surface impoundment a cover
   (an air supported structure or cover) that
   is vented through a closed-vent system
   to a control device meeting the
   requirements  specified in 264.1085(d).
As an alternative, an owner or operator
may place the waste in a surface
impoundment equipped with a floating
membrane cover meeting the
requirements specified in 264.1085(e).
  d. Closed-vent system and control
device requirements. Since emissions
from impoundments would be captured
and vented, this option contains
provisions to assure that the vented
emissions are treated properly before
release. See 976 F.2d at  17. The subpart
CC standards, which would be utilized
under this option, require that each
control device achieve at least a 95
percent reduction in the total organic
content of the vapor stream vented to
the device or, in the case of an enclosed
combustion device, a reduction of the
total organic content of the vapor stream
to a level less than or equal to 20 ppmw
 on a  dry basis corrected to 3 percent
 oxygen. These requirements are
 generally the same as those used in EPA
 air rules. See 59 FR 19402 and 59 FR
 62896.
   e.  Inspection and monitoring. To
 ensure that emission control equipment
 is  properly operated and maintained,
 the extended subpart CC standards
 would require the owner and operator to
 visually  inspect certain emission control
 equipment items semiannually. For
 example, emission control equipment
 covers on surface impoundments would
 be checked semiannually by facility
 employees to ensure that (1) equipment
 is being  used properly  (e.g., covers are
 closed and latched except when an
 opening must be used to add, remove,
 inspect,  or sample the  waste in the
 surface impoundment  or to inspect,
 maintain, replace, or repair equipment
  located inside the surface impoundment
  or to vent gases or vapors from the
  surface impoundment) and (2)
  equipment is being maintained in good
  condition  (e.g., no visible holes, gaps,
  tears, or splits have developed in
  covers).
    Continuous monitoring of control
  device operation is required under the
  subpart CC standards. This involves the
  use of automated instrumentation to
  measure critical operating parameters
  that indicate whether  the control device
  is operating correctly or is
  malfunctioning. Semiannual leak
  detection monitoring using Method 21
  under 40  CFR part 60, appendix A, is
  required for certain cover components
  to ensure gaskets and seals are in good
  condition and for closed-vent systems to
  ensure  all fittings remain leak-tight. In
  addition, each closed-vent system must
  be  monitored for leaks using Method 21
  at least once per year.
     The extended subpart CC standards
   would  require that the owner or

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43666       Federal Register  / Vol.  60,  No. 162  / Tuesday, August 22, 1995  /  Proposed Rules
operator repair a cover fitting found to
be leaking within 15 days of detection.
Repair of control equipment on a
surface impoundment may be delayed
beyond 15 calendar days under certain
circumstances. To delay repair, the
owner or operator would have to
document that the repair cannot be
completed without emptying the
contents of the unit and also that
removing the unit from service would
result in the unscheduled cessation of
production from the process unit or
operation of the waste management unit
that is generating the decharacterized
waste. Repair of this control equipment
would have to be completed the next
time the process unit or waste
management unit is generating the
decharacterized waste managed in the
surface impoundment is shut down.
   /. Recorakeeping requirements. The
extended requirements of the subpart
CC standards would require the owner
or operator to record certain information
in the on-site facility operating logs or
files. This information is to be readily
available for review by authorized
representatives of the EPA. Consistent
with 40 CFR 264.73 and 40 CFR 265.73,
the rule requires that air emission
control equipment design records and
certain other records be maintained in
the facility operating record until
 facility closure. Records and results of
 waste determinations,  inspections, and
 monitoring are required to be kept for at
 least three years from the date of entry.
   The information to be collected and
 recorded includes: the results of all
 waste determinations such as of volatile
 organic concentrations at the point of
 waste generation and organic vapor
 pressure; design specifications for
 closed-vent systems and control devices
 and certain control equipment; emission
 control equipment inspection and
 monitoring results; Methods 27 test
 results; control device exceedances and
 actions taken to remedy them; leak
 repairs;  management of carbon removed
 from carbon adsorption systems;
 identification of incinerators, boilers, or
 industrial furnaces used to treat
 decharacterized waste in accordance
 with the general requirements of the
 rule; documentation for biological
 wastewater treatment  units using air
 emission controls in accordance with
 the rule requirements; and identification
 of equipment fittings designated as
 unsafe or difficult to monitor or inspect.
    g. Reporting requirements. The
 extended requirements of subpart CC
 standards would require an owner or
 operator to submit reports to the EPA
 only when circumstances occur at the
 facility  resulting in noncompliance with
 certain  provisions of the rule. Each
report required under the extended
subpart CC standards would be
submitted to the EPA Regional office
having jurisdiction for that particular
location. The report would be signed
and dated by an authorized
representative of the facility owner or
operator.
  An owner or operator subject to the
extended requirements of 40 CFR 264
subpart CC would have to report to the
EPA all circumstances resulting in
placement of a decharacterized waste in
a surface impoundment subject to the
proposed  rule and not using air
emission controls required by the rule
when either of the following conditions
occur: (I) The characteristic  waste has a
volatile organic concentration equal to
or greater than 100 ppmw as determined
on a mass-weighted average  basis at the
point of waste origination, or (2) the
process used to treat the characteristic
waste  fails to meet the applicable
conditions specified in the rule. The
owner or  operator would have to submit
a written  report within 15 calendar days
of the  time that the owner or operator
becomes aware of the circumstance.
   An owner or operator subject to the
extended requirements of 40 CFR part
264, subpart CC and using a control
device in accordance with the
requirements of the rule would be
required to submit a semiannual written
report to the EPA. This report would
 describe each occurrence during the
 previous  6-month period when a control
 device is operated continuously  for 24
 hours or longer in noncompliance with
 the applicable operating values defined
 in 40  CFR 264.1035(c)(4) or when a flare
 is operated  with visible emissions as
 defined in 40 CFR 264.1033(d). An
 owner or operator would not be
 required  to submit this report for a 6-
 month period during which all control
 devices at a facility subject to the
 extended subpart CC standards are
 operated by the owner or operator so
 that during no period of 24  hours or
 longer did a control device  operate
 continuously in noncompliance with
 the applicable operating values defined
 in the rule.
 4. Proposed Management Standards for
 Leaks
   a. Scope. If surface impoundments
 receiving decharacterized wastes (i.e.,
  prohibited  wastes) are leaking
  excessively, arguably disposal of
  untreated UHCs is occurring at a level
  which invalidates the treatment
  function of the impoundment (i.e.,
  which constitutes an impermissible
  cross-media transfer of hazardous
  constituents. 976 F.2d at 17.). In
  addressing this possibility, this  option
presents facilities with a sequence of
monitoring, detection, and correction
mechanisms to assure that
impoundments do not leak UHCs at
these levels, and thus allows continued
use of the impoundment as part of a
system achieving RCRA-equivalent
treatment. Thus, facilities choosing to
adopt the ground water protection
approach set out below could continue
to use impoundments to treat
decharacterized wastewaters.
   An alternative to adopting a ground
water protection program is to treat
decharacterized wastes before they
reach the impoundment, to segregate
them altogether, or to retrofit the
impoundment so that it meets section
3005(j)(ll) minimum technology
requirements. These options remain
available at any time to a facility, so that
a  facility would not be locked in to the
ground water protection alternative if it
wishes to pursue alternative means of
compliance. There is a caveat, however.
If a facility chooses to comply with the
ground water protection alternative and
later detects impermissible levels of
contamination in the ground water at
the well sites, the contamination would
still have to be remediated as set out in
this proposed rule, even if the facility
begins to divert or pretreat the
prohibited characteristic wastestream at
that time. The logic for this is that there
would have been documented disposal
of prohibited wastes not treated to meet
LDR standards. In  such circumstances,
the Agency has available to it the
 remedy that the illegally disposed waste
 must be retrieved and properly
 managed. (See U.S. v. Structural Metals,
 Inc. Civil Action No. SA—91—CA—201
 (W.D. TX May 27, 1992)—a consent
 decree requiring that 3600 tons of
 illegally disposed  hazardous waste be
 removed from a landfill and properly
 treated before being disposed.)
   Option 2 would adopt, with
 modifications, certain sections of the
 Municipal Solid Waste Landfill rule
 (referred to herein as the MSWLF rule)
 at 40 CFR Part 258 Subpart E,  for the
 control of leaks and the application of
 corrective action to the following
 affected units: surface impoundments in
 CWA, CWA-equivalent, or
 nonhazardous wastewater treatment
 systems that accept wastes
 decharacterized by dilution. The
 specific standards in this option include
 portions of ground water monitoring
 systems (§258.51); ground water
 sampling and analysis requirements
 (§ 258.53); assessment monitoring
 program (§ 258.55); assessment of
 corrective action measures (§ 258.56);
 selection of remedy (§258.57);
  implementation of the corrective action

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              Federal Register / Vol. 60, No.  162 / Tuesday, August 22, 1995  /  Proposed  Rules
43667
program (§ 258.58). For a simplified
guide to applicability criteria and
management standards for leaks, see
Figure 3.
BILLING CODE 6560-50-P

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43668
Federal Renter / Vol.  60, No. 162  /  Tuesday.  August 22.  1995 / Proposed Rules
   BILLING CODE 6560-60-C

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              Federal  Register /  Vol. 60, No. 162 / Tuesday, August 22, 1995 / Proposed Rules        43669
  b. Applicability. The proposed
 management standards for leaks would
 only apply to owners and operators of
 facilities that generate characteristic
 wastes that at the point of generation
 (and prior to decharacterization) contain
 UHCs at concentrations that are greater
 than UTS levels. The UHCs that are
 present at greater than UTS are known
 as "regulated constituents." Only these
 regulated constituents must be
 considered in complying with the
 management standards for leaks. UHCs
 present in a characteristic waste at
 levels less than or equal to UTS are not
 subject to the proposed management
 standards for leaks. If these
 decharacterized wastes are discharged
 to a surface impoundment that meets
 the substantive minimum technology
 requirements of 40 CFR 268.4, the Phase
 IV leak requirements would not apply.
  The Agency's primary concern with
 regard to leaks from these surface
 impoundments is the potential for
 regulated constituents to migrate to the
 ground water in significant
 concentrations. The most direct method
 available for assessing the presence of
 regulated constituents in the ground
 water is groundwater monitoring.
 However, the Agency believes it would
 be overly burdensome and unnecessary
 to achieve the rule's intended purposes
 to require every surface impoundment
 that manages decharacterized wastes to
 install ground water monitoring wells.
 As a result, the Agency is proposing that
 regulated constituents for which an
 MCL has been promulgated under
 section 1412 of the Safe Drinking Water
 Act (SDWA), codified under 40 CFR
 part 141, must be present at
 concentrations in the surface
 impoundment wastewaters that meet or
 exceed 10 times the MCL before ground
 water monitoring is warranted. Thus, if
 the MCL for a hazardous constituent is
 1 mg/1 and the hazardous constituent is
 present in surface impoundment
 wastewaters at less than 10 mg/1, no
 groundwater monitoring would be
 required. The Agency believes that the
 use of MCLs as a trigger level for ground
 water monitoring is appropriate because
 MCLs are a reasonable benchmark of
 risk posed to human health from a
 drinking water source. By using a trigger
 of 10 times the MCL, the Agency is
 taking into account the reasonable
 dilution and attenuation that would
 occur as constituents migrate in the
 substrate. This trigger level corresponds
to the dilution and attenuation factor
 (DAF) of 10 (at the point of release to
the aquifer) currently under
consideration for the Hazardous Waste
Identification Rule (HWIR) proposal.
  For UHCs that do not have MCLs, the
Agency is proposing the following
approach. In the absence of an MCL, the
state or tribal risk-based number (i.e., 10
times the state or tribal ground water
protection number) would be used for
the regulated constituent (see 40 CFR
258.55(i)). In the absence of both an
MCL and state or tribal risk-based
number, the UTS level—the directly
RCRA-equivalent level—would be used
for the regulated constituent.
  c. Surface impoundment management
standards. The Agency is proposing to
use annual sampling of the wastewaters
in the surface impoundment to
determine if regulated constituents are
present at concentrations that exceed
the trigger level. Sampling and analysis
need only be conducted for those
regulated constituents identified in the
characteristic waste at the point of
generation. If a new decharacterized
wastewater is accepted by the surface
impoundment, then the owner or
operator would be required to
characterize the new decharacterized
wastewater at point of generation to
identify additional regulated
constituents prior to the next annual
sampling date. Annual sampling must
be continued for as long as the unit is
receiving decharacterized wastes.
Sampling and analysis is discussed  in
further detail in the technical support
document entitled, "Technical Support
Document for Leaks, Sludges, and Air
Emissions—Phase IV."
  To determine if a trigger level has
been exceeded, the owner or operator
would calculate an annualized average
concentration for each regulated
constituent identified. This annualized
average will account for process
fluctuations and process upsets and
would appropriately represent the
wastewaters in the surface
impoundment. At a minimum, the
owner or operator would be required to
include at least four sampling events
(i.e. quarterly), and a minimum of four
independent samples from each
sampling event. (See "Technical
Support Document—Options for
Management Standards for Leaks,
Sludges, and Air Emissions From
Surface Impoundments Accepting
Decharacterized Wastes" in the RCRA
docket for more information on
sampling.)
  d. Ground water and corrective action
management standards. EPA is
proposing that the ground water
monitoring and corrective action
regulations for municipal solid waste
landfills (MSWLFs) under the Subtitle D
program (Solid Waste Disposal Facility
Criteria, 56 FR 50978, October 9, 1991)
be adopted with minor modifications for
the monitoring and remediation of
surface impoundments subject to
today's proposed rulemaking. EPA
believes that the ground water
monitoring and corrective action
standards in the MSWLF rule, as
modified in today's rule, are appropriate
and protective for the surface
impoundments subject to today's
rulemaking. Thus, under this option, an
impoundment choosing to operate with
these measures would be considered a
treatment impoundment not engaging in
permanent disposal of waste. Put
another way, the impoundment could
be part of a treatment process that can
perform LDR-equivalent treatment. EPA
is not, however, intending that the
approach  outlined in today's proposed
rule is necessarily appropriate for other
industrial solid waste management
units.
  Many states have ground water
protection programs that include ground
water monitoring and corrective action
that may apply to the types of units that
EPA is covering in today's proposal. To
the extent that state programs  require
ground water monitoring and corrective
action that include the UTS constituents
of concern (or can be modified to cover
those constituents) and are substantially
similar to today's proposal (i.e.,
frequency of monitoring, requirements
regarding  ground water monitoring
wells), EPA would defer to those State
and Tribal Programs. The owner/
operator would have  to demonstrate that
there exists a State or Tribe numerical
limit for each regulated constituent and
document that in their operating
records. For those constituents not
covered by State or Tribal limits, today's
rule would apply. Further, facilities
affected by today's rulemaking that have
existing ground water monitoring and
corrective action programs that are not
required by State or federal government
may be able to continue those programs
in lieu of the regulations proposed here.
  (i) MSWLF rule. Under this option,
EPA is proposing to adopt some, but not
all provisions of the MSWLF
regulations, which are promulgated
under 40 CFR Parts 257 and 258. The
sections of Part 258 that EPA would
adopt with minor modifications are in
Subpart E: Ground Water Monitoring
and Corrective Action. These are:
Ground Water Monitoring Systems
(§ 258.51); Ground Water Sampling and
Analysis Requirements (§ 258.53);
Assessment Monitoring Program
(§ 258.55); Assessment of Corrective
Measures (§ 258.56); Selection of
Remedy (§258.57); and Implementation
of the Corrective Action Program
(§ 258.58). The section in Subpart E not
being considered in today's rule is

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43670
Federal Register / Vol.  60,  No. 162 / Tuesday, August  22, 1995 / Proposed  Rules
section § 258.54, which requires a
ground water monitoring detection
program. General descriptions of the
sections and changes that EPA is
proposing for adoption in today's rule
are provided below and under the
following section titled "Specific
Requirements".

Self-Implementing Provisions
   The MSWLF regulations are
structured to be either self-implemented
by an owner or operator or implemented
in "approved states" through approval
and interaction with state regulatory
agencies. The MSWLF rule was
 designed so that states with federally
 approved programs could define ground
 water protection and corrective action
 programs for individual MSWLFs that
 accounted for  site-specific factors.
   In referencing the MSWLF rule for
 ground water monitoring and corrective
 action activities for surface
 impoundments under today's rule, the
 Agency is proposing to adopt only those
 provisions that are self-implementing.
 EPA would modify the applicability of
 the MSWLF rule such that any
 provisions that require state approval
 would not apply. EPA is aware,
 however, that some of the site-specific
 provisions in the MSWLF rule that ^
 would not be available under today's
 proposed rule might be reasonable
 approaches for monitoring surface
  impoundments.  For example,
  § 258.51(b) allows the director of an
  approved state to approve a multi-unit
  ground-water monitoring system, rather
  than require separate ground water
  monitoring systems for each unit.1 At
  some facilities subject to today's rule
  with closely spaced surface
  impoundments, multi-unit monitoring
  may be protective and less expensive to
   install and monitor. EPA seeks comment
   on whether the multi-unit provision and
   any other site-specific provisions in the
   MSWLF rule that would not be available
   should be allowed to be self-
   implemented by facilities subject to
                         ground-water monitoring and corrective
                         action under the Phase IV rulemaking.
     ' The multi-unit system must be as protective of
   human health and the environment as individual
   monitoring systems, based on factors including the
   number, spacing, and orientation of the units, the
   hydrogeologic setting, site history, engineering
   design of the units, and type of waste accepted in
   the units. In addition to approval of the multi-unit
   system, § 258.51(d) requires that the number,
   spacing, and depths of monitoring systems must be
   certified by a "qualified ground water scientist" or
   by the director of an approved state. In today's
   rulemaking,  certification by the qualified ground
   waster scientist would be required, rather than
   approval by  the state. In the absence of state
   approval, this certification would help ensure that
   a protective  multi-unit monitoring system was
   installed (independent certification of certain
   ground water monitoring and corrective provisions
   is discussed further below).
                         Certification of a Self-Implementing
                         Program
                            In the MSWLF rule, the Agency stated
                         that independent party review and
                         certification of certain self-implemented
                         programs or demonstrations required by
                         the rule is necessary to ensure technical
                         adequacy of critical ground water
                         monitoring and corrective action
                         milestones. Four provisions adopted
                          from the MSWLF rule require
                          certification by an independent
                          "qualified ground water scientist": (1)
                          Number, spacing and depths of
                          monitoring systems (§ 258.51(d)); (2)
                          determination that contamination was
                          caused by another source or that a
                          statistically significant increase resulted
                          from an error in sampling analysis or
                          evaluation (§258.55(h)(2)); (3)
                          determination that compliance with a
                          remedy requirement is not technically
                          practicable (§ 258.58(c)(l)); and (4)
                          completion of remedy  (§ 258.58(f)).
                             The Agency defined a "qualified
                          ground water scientist" at § 258.50  and
                          discussed the relevant background  and
                          experience needed for these
                           professionals to certify ground water
                           monitoring and corrective action
                           requirements in the MSWLF rule. This
                           definition is also promulgated under
                           § 260.10 for certain ground water
                           monitoring, but not corrective action,
                           certifications under the hazardous  waste
                           program. Individuals who qualify to
                           certify ground water regulatory
                           milestones under either the Subtitle D
                           or C programs would also qualify to
                           certify the ground water requirements
                           adopted under today's rulemaking.
                            Owners or operators of surface
                            impoundments that undergo corrective
                            action under today's rulemaking should
                            ensure that any "qualified ground-water
                            scientists" working in the Subtitle C
                            program are qualified to certify
                            corrective action requirements in
                            addition to ground water monitoring
                            requirements.
                              (ii) Ground water monitoring.
                            Installing a ground water monitoring
                            system. For today's proposed rule, EPA
                            would require within one year of
                            triggering ground water monitoring (that
                            is, when a regulated constituent is
                            detected at levels above regulatory
                            concern in the surface impoundment),
                            the owner/operator must install a
                            ground water monitoring system and
                            begin monitoring those wells for all
                             regulated constituents. The Agency
                             believes that it is appropriate to monitor
                             for all the regulated constituents  in the
                             wells for the following reasons: (I)
                             There will no longer be any type  of
monitoring conducted in the surface
impoundment (as long as the chemical
composition of the waste remains the
same at the point of generation); (2)
monitoring of all regulated constituents
is similar to the requirements
established under the MSWLF rule
where analysis of a number of
constituents is required to determine the
severity of a leak; and (3) it is essential
to accurately characterize the chemical
composition of a ground water release
in order to aid in the corrective action
plan, if necessary. EPA believes that
allowing one year will enable owner/
operators sufficient time to properly
characterize their site and install ground
water monitoring  wells that will meet
the performance standards of 258
 Subpart E. EPA is aware that many sites
 with less complex hydrogeology  and
 few units may not need the entire year
 to install their systems and commence
 monitoring. Facilities with existing
 monitoring systems that meet the
 applicable performance standards of
 Subpart E, Part 258 ground water
 monitoring systems will be required to
 begin monitoring for the UTS
 constituents regulated under today's
 rule at the next planned monitoring
  period under existing monitoring
  programs,  or within one year.
  Establishing a Ground Water Monitoring
  Program
    The ground water monitoring program
  in today's proposed rule focuses on a
  different set of constituents than those
  in the MSWLF rule. Owners or
  operators subject to today's rule are
  required to sample waste water  in the
  affected surface impoundments to
  determine if they have to install ground
  water monitoring systems. If ground
  water monitoring is triggered, owners or
  operators are required to undertake a
  monitoring program under § 258.55 of
  the MSWLF rule to monitor for only
  those UHCs that are present in the
  decharacterized waste prior to its
  dilution and disposal in the surface
  impoundment treatment system.
     The ground water monitoring system
  must include a sufficient number of
  wells at the appropriate location and
   depth to determine background level
   and the quality  of the ground water at
   the relative point of compliance. The
   relative point of compliance is required
   to be less than or equal to 150 m from
   the waste management unit boundary
   located on land owned by the facility.
   The MSWLF rule allowed for the
   director of an approved state to
   determine an alternative boundary.
   Today's rule is not allowing an
   alternative boundary, but rather requires
   the owner/operator to select the relative

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               Federal Register / Vol.  60,  No. 162 / Tuesday, August 22, 1995 / Proposed Rules        43671
  point of compliance as stated above, and
  document this in the facility's records.
   If statistically significant levels of
  these constituents are detected above
  the constituent-specific ground water
  protection standards as determined by
  § 258.55(h) of the MSWLF rule, the
  owner or operator is required to
  undertake corrective action to bring
  levels of the regulated constituents in
  the ground water to below the ground
  water protection standards. In contrast,
  under the MSWLF detection  monitoring
  regulations, which are not being
  considered under this option, owners or
  operators are required to monitor for a
  list of constituents from specified lists
  (see Appendix I to Part 258).
 Constituents on this list are generally
 thought to be present at MSWLFs, have
 physical and chemical properties that
 cause them to be early indicators of a
 release from a unit and are easy and
 inexpensive to analyze. The MSWLF
 rule has provisions to modify the
 detection monitoring list via  the
 overseeing regulatory authority if
 parameters are not reasonably expected
 to be found in ground water at the site.
 In contrast, the UHCs that the owner or
 operator is monitoring for under
 proposed Option 2 may not have fate
 and transport characteristics that would
 provide earliest indication of a release.
 However, EPA does not at this time
 have information to indicate whether
 the list of indicator parameters
 monitored for under the MSWLF
 detection monitoring program are
 present at the surface impoundments
 subject to today's proposed rule.
 Monitoring for constituents that are not
 present obviously would not provide
 protection from releases of site-specific
 UHCs. For these reasons, EPA is not
 proposing to adopt the requirement for
 facilities to monitor the ground  water
 under the detection ground water
 monitoring program specified in 258.54.
 EPA is, however, proposing to require
 facilities to directly implement a
 program to monitor the regulated
 constituents in the ground water.
 Detecting Releases
  Today's proposed rule also  would
 have a different approach when releases
 have been detected. When constituents
 are found under MSWLF rule  detection
 monitoring at levels that trigger the next
 phase of monitoring (assessment), the
 owner/operators are required to analyze
the ground water for a broad list of
constituents (Appendix II to Part 258 of
the MSWLF rule) that may be  present to
better characterize the nature of the
release. Facilities that move to
corrective action generally are required
to address all ground water
 contamination, rather than a subset of
 facility-specific UHCs. Today's
 proposed rule does not require facilities
 to scan for the § 258 Appendix II
 constituents because EPA's authority is
 limited to the UHCs in the prohibited
 wastes that are required to receive
 RCRA-equivalent treatment. Rather,
 owner/operators under today's rule
 would be required to move directly to
 assessment of corrective measures upon
 detecting that releases are statistically
 significant.

 Corrective Action
   If corrective action is required, this
 means that untreated UHCs are being
 released to the environment at an
 excessive level. The impoundment thus
 is not performing equivalent treatment.
 An operator can, however, capture and
 treat the constituents via corrective
 action, which would have the effect of
 re-validating the surface impoundments
 treatment function.
   EPA is aware that owners or operators
 undertaking corrective action under
 today's proposed approach might de
 facto remediate constituents other than
 the regulated  constituents in the ground
 water. For example, a ground water
 extraction system with an air stripping
 treatment unit designed to remove site-
 specific regulated constituents could
 also strip and collect other VOCs
 present in the ground water. Facilities
 may also be required to remediate all
 ground water  contamination under
 other state or federal actions or may
 remediate additional contamination
 voluntarily because of concern over
 liability associated with leaving ground
 water partially contaminated.
 Alternatives to Ground Water
 Monitoring
  EPA is aware that the MSWLF rule
 does not adequately allow for
 alternatives to ground water monitoring
 when ground water monitoring is not
 practicable or  would not detect early
 releases. For example, some landfills are
 located in arid regions where depth to
 ground water may exceed many
 hundreds of feet. In such a situation,
 ground water monitoring wells located
 at the margin of a unit might not
 intercept a release, as it might move
 laterally as well as vertically prior to
 intercepting the ground water at great
 depth. In addition, such wells would
 not detect a release until considerable
 contamination has entered the
 subsurface. EPA is currently developing
 a proposed rule to allow for alternative
monitoring systems for remote, small
arid landfills where monitoring of the
unsaturated zone would afford early
detection of releases before the release
 migrates to the ground water. EPA has
 not included a related provision in
 today's proposed rule, because existing
 information indicates that the affected
 facilities are located adjacent to bodies
 of water, where ground water under the
 facility would be close to the surface. As
 with other ground water monitoring
 programs, EPA encourages owners or
 operators to install innovative
 monitoring systems, such as vadose
 zone monitoring, in addition to ground
 water monitoring, if those systems
 would aid in the early detection of
 releases.
   (iii) Integration of option 2 with
 existing programs.—EPA is aware that
 many of the facilities that would be
 subject to the requirements of Option 2
 will be undergoing ground water
 monitoring and corrective action under
 existing state or federal authorities.
 Approximately one half of the universe
 of affected facilities will be RCRA
 hazardous waste treatment, storage, or
 disposal facilities (TSDFs) that are
 permitted or operating under interim
 status. As noted above, at these
 facilities, the surface impoundments
 subject to the Phase IV rule will be
 "solid waste management units"
 (SWMUs) that are eligible for corrective
 action under § 3004(u) and (v),
 § 3008(h), § 7003, and other authorities,
 such as CERCLA § 106. These surface
 impoundments, as SWMUs, may or may
 not be undertaking ground water
 monitoring or corrective action when
 the Phase IV rule becomes effective.
 Similarly, certain states already require
 ground water monitoring or corrective
 action of surface impoundments,
 regardless of their status under RCRA
 Subtitles C or D. Further, some facilities
 affected by today's rulemaking may be
 conducting ground water monitoring
 and corrective action activities that are
 not required by a State or federal
 government.
  As stated above, to the extent that
 state programs require ground water
 monitoring and corrective action that
 include the UTS constituents of concern
 (or are modified to cover those
 constituents) and are substantially
 similar to today's proposal  (i.e.,
 frequency of monitoring, requirements
 regarding  ground water monitoring
 wells), EPA is deferring to those State
 and Tribal programs. However, EPA
 anticipates that many of these state or
 federal corrective action ground water
 monitoring programs will not require
 monitoring of all of the regulated
 constituents identified by facilities
 subject to  today's rule. Owners or
 operators could need to modify existing
ground water monitoring programs to
add any UHCs (and their associated

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43672       Federal  Register /  Vol. 60, No.  162 / Tuesday, August  22,  1995  /  Proposed Rules
ground water protection standards
under 258.55(h)) that are not currently
being monitored to avoid any of the
potential Phase IV controls.
  EPA also seeks comment on a ground-
water monitoring approach not
proposed in today's rule. As an
alternative, facilities that are triggered
into ground water monitoring under
today's rule would be required to
undertake a detection monitoring
program under 258.54, rather than
commence directly with an assessment
program. The purpose of a detection
monitoring program in the MSWLF rule
is to detect releases by monitoring a set
of constituents or parameters that
provide a reliable indication of ground
water contamination. In the MSWLF
rule, Appendix I to Part 258 was
developed as a list of organic and
inorganic constituents that are likely to
be found in the ground water if releases
occur from a MSWLF. As stated earlier,
EPA does not believe that this list is
appropriate for the facilities that are
subject to today's rulemaking, as they do
not have the type and variety of wastes
that are typically found in landfills.
Under this alternate option, EPA would
not require facilities under today's
rulemaking to monitor  for Appendix I
Part 258 parameters under their
detection monitoring programs. Instead,
facilities would be required to monitor
for indicator parameters (such as
specific conductance, total organic
carbon, or total organic halogen), waste
constituents, or reaction products that
provide a reliable indication of the
presence of hazardous constituents in
ground water. If statistically significant
levels were detected above background
conditions of these indicator
parameters, the facility would be
required to undertake assessment
monitoring, wherein the facility would
analyze  for the presence of UTS
constituents, assess the potential for
offsite releases, and initiate an
assessment of corrective measures. This
approach would shift the focus of the
initial ground water monitoring program
to the detection of releases, rather than
the detection of site-specific UHCs that
are regulated in today's rule. The
MSWLF rule, under 258.54(1) and (2),
lists several factors to allow an owner or
operator to deviate from the Appendix
I list under the approval of a state
director. Under this alternative
approach, facilities would establish an
alternate list through self-
implementation, rather than by state
approval.
   (iv) Summary of specific requirements
for ground water monitoring and
 corrective action from  the MSWLF rule
 §258.51 ground water monitoring
systems.—This section requires ground
water monitoring systems (if constituent
levels in impoundments exceed certain
levels) to meet certain requirements and
design specifications. Systems are
required to monitor both background
water quality and ground water at the
point of compliance.
  § 258.53  Ground Water Sampling
and Analysis. This section requires that
the owner/operator follow certain
sampling and analysis procedures,
including quality assurance and quality
control, and specifies the number of
samples taken and the statistical
procedures to be followed.
  § 258.55  Assessment Monitoring
Program. As discussed above, EPA is
proposing to require that owners or
operators that would be compelled to
undergo ground water monitoring under
today's rule bypass the MSWLF rule
detection monitoring program and
undertake assessment monitoring
directly. The purpose of the assessment
monitoring program in today's proposed
rule would be to monitor ground water
for the presence of site-specific
regulated constituents determined to be
present in the decharacterized
wastestream at the point of generation,
and to assess whether any statistically
significant releases need to undergo
corrective action. The assessment
monitoring program contains
requirements for sample number and
determination of background for
constituents, criteria for moving into
corrective action and additional
monitoring requirements under
corrective action. This section also
requires the owner/operator to establish
ground water protection standards for
each of the regulated constituents as
follows: (1) If an MCL is available, the
MCL is the ground water protection
standard; (2) if there is no MCL, the
background concentration is used as the
ground water protection standard; and
(3) if the background concentration is
greater than the MCL, the background
level is the ground water protection
standard. The Agency believes that it
may not be reasonable to require the
owner or operator to reduce the
concentrations of hazardous
constituents below background. (See 56
FR 51087, October 9, 1991). Although
background levels are not health-based
standards, they are a practical
measurement of what can be achieved
by remediation and today's proposal
would not preclude a State or other
entity from requiring an owner or
operator to clean up contamination
below background levels where it is
warranted. As noted earlier, specific
federal (e.g., 3004(u) corrective action),
state, local, or tribal levels also could be
used in lieu of these levels.
  Furthermore, in light of the self-
implementing nature of these specific
standards for leaks for surface
impoundments, the Agency is not
adopting the provisions of 268.55(1)
which address the site specific
protection standards.
  As discussed above, EPA will not
require owner/operators under
assessment monitoring to scan the
ground water for constituents listed in
Appendix II to Part 258. Instead,
facilities will move directly to
assessment of regulated constituents as
required in §258.56 if statistically
significant levels of contaminants are
found to exceed the ground water
protection standard. More information
on the required monitoring program can
be found in "Technical Support
Document—Options for Management
Standards for Leaks, Sludges, and Air
Emissions From Surface Impoundments
Accepting Decharacterized Wastes" in
the RCRA Docket.
  § 258.56  Assessment of corrective
measures.—Within 90 days of finding
that any of the regulated constituents
have been detected at a statistically
significant level exceeding the ground
water protection standards, the owner/
operator must undertake an assessment
of corrective measures that addresses
specified criteria.
  As discussed above, today's rule
would also introduce the new
requirement into § 258.57 that once it is
determined that corrective measures are
necessary, the facility would be required
to implement one of the following: (1)
cease  discharge of the decharacterized
wastestream into the surface
impoundment  as soon as is practical
(i.e., reroute decharacterized
wastestream to a tank) or (2) installation
of a double liner and leachate collection
system.
   §258.57  Selection of remedy. Based
on the results of the assessment required
by § 258.56, the owner/operator must
select a remedy that meets several
protectiveness standards. This section
also requires that the owner/operator
consider several evaluation  factors
when selecting a remedy and establish
a schedule for  initiating and completing
the  remedial activities. This section also
allows for no remediation under
enumerated circumstances,  e.g., ground
water is already contaminated by
multiple sources and clean up of release
would provide no significant reduction
 of risk. The Agency has determined that
 since these remediation waivers are not
 self-implementing, they will not be
 adopted as part of this proposal.

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              Federal Register  / Vol.  60,  No. 162  /  Tuesday,  August 22,  1995  /  Proposed  Rules
                                                                    43673
  §258.58  Implementation of the
corrective action program. This section
requires that once a remedy is selected,
the owner/operator must implement a
corrective action program that
demonstrates compliance with the
ground water protection standards
established under § 258.55. If necessary,
the owner/operator must also take
interim measures to protect human
health and the environment. Other
requirements in this section include
implementing alternative methods or
techniques  for remediation if the
selected remedy is not effective, and
criteria for establishing when meeting
the ground  water protection standard
cannot practicably be achieved.

5. Proposed Management Standards for
Sludges

  a. Scope. Under Option 2, the Agency
would require management standards
for sludges  from prebiological surface
impoundments in CWA,  CWA-
equivalent, or nonhazardous wastewater
treatment systems that accept
decharacterized wastes, when the
sludges are removed from the
impoundments for land disposal
elsewhere. Data available to the Agency
indicate that UHCs  may be  present in
the decharacterized wastewaters and
may be transferred to  sludges in these
impoundments at concentrations that
pose a threat to human health and the
environment. The Agency has limited
data indicating biological or post-
biological surface impoundment sludges
do not pose significant risks when
disposed. Nor would the Agency expect
significant concentrations of hazardous
constituents to be present. A more
detailed discussion of today's proposed
rule can be found in the technical
support document entitled, "Technical
Support Document for Leaks, Sludges,
and Air Emissions—Phase IV."
  b. Rationale. The approach for sludges
under this option is conceptually
similar to that proposed for the ground
water and air exposure scenarios. If
sludges contain hazardous constituents
in excess of levels that pose  a risk to
human health or the environment (see
976 F. 2d at 17), this form of cross-
media transfer of hazardous  constituents
could be considered too excessive to
allow the impoundment to be
considered an equivalent form of
treatment, unless the sludges were to be
treated to remove that risk. Under this
option, the evaluation would be made at
the time sludges are removed from the
impoundment, not while the sludges
remain within an impoundment. This is
because EPA does not believe in-place
sludges would be a release pathway
separate from the leaks pathway. Put
another way, by controlling  leaks (as
explained in the previous section), any
risks posed by sludges while in the
impoundment should be accounted for.
Consequently, any potential incremental
risk would arise when the sludges are
disposed elsewhere. (Cf. RCRA section
3005 (j) (11) indicating that treatment
standards for hazardous sludges do not
apply while sludges are in the
impoundment, and thus apply only
when the sludges are removed and land
disposed).
  EPA is proposing the technology-
based UTS as the benchmark for
evaluating whether sludges are capable
of posing significant risk. This approach
could be replaced when the Agency
develops risk-based levels through the
Hazardous Waste Identification Rule
process. In the interim, the UTS
standards serve as the best available
measure of when threats are minimized,
and treatment to  those levels certainly
satisfies any requirement of equivalent
treatment.
  EPA also reiterates that, as a legal
matter, it can be argued that even no
treatment of sludges is equivalent to
subtitle  C LDR controls. This is because
generation of sludges is usually a new
point of generation at which the newly-
generated waste is reevaluated to
determine if it is  subject to the LDR
standards. If non-hazardous, the sludges
would not be so subject (i.e., would not
be prohibited wastes). See 55 FR 22661-
62. Thus, literal application of an
equivalence  test would result in  no
treatment of these sludges, since the
sludges  will  be non-hazardous wastes
by definition (they cannot be hazardous
wastes because they are being generated
in subtitle D impoundments), and so
would not require further treatment
under the standard subtitle C approach.
  c. Applicability. For a simplified
guide to applicability criteria and
management standards for sludges, see
Figure 4.
BILLING CODE 6560-SO-P

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          Examine the FoNowbig to
          Determine H the Surface
          Impoundment may be
          Excluded from the
          Management Standards
          tor Sludge*:	
Evaluate Sludges at
the Time they are
Removed from the
Surface Impoundment

Y
p
' m • •- *
Surface •npounomem
Is not Subject to
Management Standards
for Sludge*
   Does the
 ludge Contain
any Regulated
Constituents at
Concentrations
  Exceeding
     UTS
treat Sludges (by Means
other than Dilution) to
Meet UTS Prior to Land
Disposal
• Pre-Wologlcal surface Impoundments are used for physical and chemical
treatment of raw or partially treated wastewater streams. Blotoglcal surface
Impoundments are used tor biological treatment of wastewater streams.  Post-
buSoglcal surface Impoundments are used to clarify biologically treated wastewater
prior to additional treatment or discharge.
                             Figure 4: Option 2 - Applicability Criteria and Management Standards for Sludges

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              Federal Register / Vol. 60, No.  162 / Tuesday, August 22,  1995  /  Proposed  Rules       43675
  d. Determining UHC concentrations in
surface impoundment sludges. The
Agency would require sampling of the
sludges removed from prebiological
surface impoundments at the time the
sludges are removed to determine if the
concentrations of LJHCs in the removed
sludge exceed UTS. Representative
sampling and analysis of the sludge
need only be conducted for those UHCs
identified in the characteristic
wastewater at the point of generation. A
more detailed discussion of
representative sampling and analyses is
provided in the technical support
document entitled, "Technical Support
Document for Leaks, Sludges, and Air
Emissions—Phase IV."
  e. Management standards. If the
concentration level of one or more of the
UHCs exceeds UTS, then the sludge
must be treated by means other than
dilution to meet UTS. If the surface
impoundment will no longer be
receiving decharacterized wastewaters,
then the owner or operator would be
required to conduct representative
sampling of the sludges when sludges
are next removed from the
impoundment. No further sampling of
removed sludges would be required
after decharacterized wastes are no
longer received by the unit.

6. Recordkeeping Requirements for
Leaks and Sludges
  Under Option 2, the Agency would
establish recordkeeping requirements
for leaks and sludges. An owner or
operator that utilizes surface
impoundments in CWA, CWA-
equivalent, or non-hazardous
wastewater treatment systems to manage
decharacterized wastes would have to
maintain records of any test results,
waste analyses, or other determinations
for at least three years.

7. Sampling and Analysis
  The Agency would like to point out
that the sampling and analysis
requirements are not overly
burdensome. Owners and operators that
would be affected by today's proposed
Phase IV rules would only be required
to perform a minimum number of
analyses. Generator knowledge could be
used in lieu of sampling and analysis.
See section I.D.S.c. for a discussion of
what constitutes acceptable generator
knowledge.

I. Option 3

  A final option to address the potential
problem of releases of hazardous
constituents from decharacterized
wastes in surface impoundments is to
require that such wastes meet UTS for
the UHCs before entering the
impoundment (unless the impoundment
satisfies Minimum Technology
Requirements or the statutory no
migration standard). A waste could be
aggregated and diluted, but achievement
of UTS for the hazardous constituents
would have to be accomplished by mass
removal/destruction before entering a
surface impoundment. The pollution
prevention compliance alternative and
the de minimis exemption would be
allowed for Option 3. For a simplified
guide to Option 3, see Figure 5.
BILLING CODE 6560-60-P

-------
I
                           Does
                         the Facility
                         Generate a
                        Characteristic
                         Hazardous
                        Waste that Is
                       Decharact
                         by Dilution
                                                                                                                           Document
                                                                                                                           how Waste
                                                                                                                           meets
                                                                                                                           Exclusion
                                                                                                                           Criterion
                                                                                                         Does the
                                                                                                        characterized
                                                                                                     Waste Meet the De
                                                                                                      Minlmis Waste
                                                                                                         Exclusion
                                                                                                          riterion
                                                                                                            7
Examine the Following to Determine if the
Decharacterized Waste may be Excluded
from the Management Standards:
Waste is Not Subject
to Management Standards
                                                                                                                              Has the
                                                                                                                           Facility Met the
                                                                                                                         Pollution Prevention
                                                                                                                            Compliance
                                                                                                                             Alternative
                                                                                                                             Exclusion
                                                                                                                              Criterion
                                                                                                                                 7
                                                                                                                            Document
                                                                                                                            how Waste
                                                                                                                            meets
                                                                                                                            Exclusion
                                                                                                                            Criterion
Wast* Managed in a
                             Wa«<« to Not Subject
                             to Management Standards
 Surface Impoundment^
In a CWA. CWA-eflutvalent,
                     or Other Non-hazardous
                      Wastewater Treatment
                                                    Owner/Operator must
                                                    Document Waste
                                                    Analyses or Generator
                                                    Knowledge Used.
                                                    Owner/Operator must
                                                    Reevahiate Waste if
                                                    Process or Other Chang*
                                                    Occurs Affecting the Waste.
                                                                                                           Is
                                                                                                        the Waste
                                                                                                        Redirected
                                                                                                      to Tank-based
                                                                                                        Treatment
                                                                                                            7
                                                                                                                               Document Demonstration
                                                                                                                               of Change In Management
                                                                                                                               Practices from Surface
                                                                                                                               Impoundments to Tank
                                                                                                                               Based Treatment
      DOM the
   Decharacterized
 Waste Contain UHCs
  at Concentrations
  Greater than UTS
    •« the Point of
                                                                                                                             Waste Must
                                                                                                                             be Treated by
                                                                                                                             Means other
                                                                                                                             than Dilution to
                                                                                                                             Meet UTS Prior
                                                                                                                             to Discharge
                                                                                                                             to the Surface
                                                                                                                             Impoundment
                                Impoundment
                              Meet the Subtitle C
                                  Minimum
                                 Technology
                                                           Impoundment
                                                          Meet the Statutory
                                                            No Migration
                                                              Standard
                                                                 7
                                                     Waste Is not Subject
                                                     to Management
                                                     Standards
                                        Figures:  Option 3 - Applicability Crileri. .id Compliance
                                AH«rn.til« f.r Surface Impoundment. Accepting Dech.r.ct«m«d W«t«»
                                                                                                                                                                                W
                                                                                                                                                                                O5
                                                                                                                                                                                OJ
                                                                                                                             "fl
                                                                                                                             CD
                                                                                                                             CL
                                                                                                                             CD
                                                                                                                                                         log.
                                                                                                                                                          w»"
                                                                                                                                                             05
                                                                                                                                                             p

                                                                                                                                                             Z
                                                                                                                                                             o
                                                                                                                                                                                 05
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                                                                                                                                                                                  to
                                                                                                                                                            CO
                                                                                                                                                            CO
                                                                                                    "d

                                                                                                   I
                                                                                                    o
                                                                                                    CD

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              Federal Register / Vol.  60,  No. 162  /  Tuesday,  August 22, 1995 / Proposed Rules        43677
  It should be noted that this option is
already available as a means of
complying with any of the requirements
in Option 2. The question here is
whether this should be the only
alternative allowed. EPA's view is that
it should not be the exclusive approach,
for reasons of law and policy. This
approach destroys the very
accommodation between the CWA and
RCRA upheld by the B.C. Circuit. It
would invalidate impoundment-based
treatment systems, even if such
treatment systems  can be shown to be
equivalent to RCRA treatment within
the meaning of the opinion. Since the
court hinted that RCRA "requires" some
accommodation with the CWA on this
issue (976 F. 2d at 20), there is some
question whether EPA even has the
authority to mandate the approach. The
Agency believes the approach unwise in
any case, and has so stated in the Third
rule itself as well as later discussions.
Very simply, impoundment-based
wastewater treatment systems can be
effective means of treating
decharacterized wastewaters, and can
do so without undermining core values
of RCRA and the LDR program.
Consequently, such treatment should
not be effectively invalidated by
requiring all treatment of characteristic
wastes to occur upstream of
impoundments.

II. Proposal Not to Ban Nonamenable
Wastes From Land-Based Biological
Treatment Systems
  Summary: EPA believes that
prohibiting certain decharacterized
wastes from  land-based wastewater
treatment systems  on the basis of
whether the constituents in those wastes
are "amenable" to biological treatment
is unnecessary at this time. Instead, EPA
is proposing to prevent excessive
environmental contamination of
hazardous constituents that leave
surface impoundments. Technical
obstacles present another reason not to
ban nonamenable wastes.

A. Background
  The Environmental Technology
Council (ETC) has suggested that EPA
develop regulations restricting Subtitle
D surface impoundment disposal of
organic compounds and metals resistant
to biological degradation in these units.
The Chemical Manufacturer's
Association (CMA) provided EPA with
comments on ETC's suggested approach.
These strategies focused on identifying
those constituents which are relatively
resistant to biological degradation in
order to develop regulations setting
maximum acceptable concentrations for
these constituents  in surface
impoundment influent. The Phase III
proposed LDR rule summarizes the ETC
and CMA positions, and discusses
several technical issues (41 FR 11717).
ETC's comment is included in the
rulemaking docket for the Phase HI
proposal.

B. Rationale for Proposing Not to Ban
Nonamenable Wastes From Biological
Treatment Systems
  EPA has carefully considered the
policy and technical issues raised by the
suggestion to ban nonamenable wastes
from biological treatment
impoundments. The Agency believes
that the key issue of whether such
impoundments serve as transfers of
nonamenable constituents to air, leaks,
sludges, or  discharges to surface waters
is best addressed by the Phase III end-
of-pipe limits on constituents, coupled
with the options in Section I of this
preamble. The provisions in Phase III
and Phase IV are designed to protect
human health and the environment
from hazardous constituents in surface
impoundments, therefore, there is no
need to regulate nonamenable wastes.
Additionally, if constituents are not
excessively migrating to ground water
through leaks, to air through emissions,
adsorbing onto sludge sediments, or
being discharged at the end of pipe,
then EPA can be reasonably certain  that
treatment in the impoundment  is
adequate.
  Furthermore,  EPA believes that the
technical impediments to banning
nonamenable wastes  from biological
treatment impoundments are
significant. First, the  design and
operating conditions  of biological
treatment can vary widely. Second,  the
"amenability" of constituents at the
point of generation may not reflect the
ultimate amenability  in the biological
treatment system. Finally, variations in
the influent stream composition,
acclimation of the biomass, and the
effect of other constituents add  another
level of uncertainty to the process of
determining the amenability of a
particular waste stream. These multiple
uncertainties make an accurate
assessment of amenability on the level
of the stream or of the constituent
extremely difficult.

III. Improvements to Land Disposal
Restrictions Program

A. Clean Up of Part 268 Regulations
  In today's rule, EPA is proposing to
"clean up"  existing regulatory language
that is outdated, confusing, or
unnecessary. Some sections are
clarified, some have been condensed,
while others are altogether removed.
Comments are solicited on the proposed
changes that follow.

1. Section 268.4
  Section 268.4(a)(2)(iv) would be
changed to read, "Recordkeeping. The
sampling, analysis, and recordkeeping
provisions of §§ 264.13 and 265.13
apply." The existing language in § 268.4
duplicates the substantive requirements
of §§ 264.13 and 265.13. Referencing the
§§ 264.13 and 265.13 requirements in
§ 268.4 clarifies that there are no
additional recordkeeping  requirements
at § 268.4; the general facility
recordkeeping requirements apply, thus
the  LDR program does not add
additional burden.

2. Section 268.5
  Section 268.5(e) would  be amended to
clarify that an applicant could be
granted additional time (up to one year)
beyond the one-year case-by-case
extension; when first applying for the
case-by-case extension, the applicant
would be required to show that the
additional time (beyond the extension
in the first year) would be necessary to
provide capacity to treat the applicant's
waste. Comments  are requested on this
issue.

3. Section 268.7
  Much of the language specifying what
must be included  on LDR notifications
at § 268.7 needs revision;  therefore, this
section is proposed to be rewritten to
reflect changes, clarify the existing
notification requirements, and generally
simplify  the requirements for generators
of hazardous waste. The proposed
changes in § 268.7(a) would result in
renumbering of the paragraphs. The new
numbering scheme for this section is
used in this discussion. Also, the
generator paperwork requirements are
proposed to be consolidated into a table
at § 268.7(a)(4),  and the treatment
facility requirements into a table at
§268.7(b)(4).
  References in Part 268 to LDR
treatment standards that have
previously been found in  tables in
§§ 268.41, 268.42, and 268.43, are
proposed to be changed to refer to the
consolidated table in § 268.40—
Treatment Standards for Hazardous
Wastes.
  References to § 268.32 and RCRA
3004(d), California List wastes, are
removed, because the treatment
standards for these wastes have been
superseded by subsequent treatment
standards.
  In § 268.7(a)(3),  the rule requires that
to each receiving land disposal facility,
a notification must go with each
shipment of restricted waste that meets

-------
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                                1995 / Proposed Rules^
                                   ^——•^^^^" —-
               ^identify the  method
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                                 •**• r* r
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                                                                      ncy finalizes the
                                                                    Aff

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              Federal Register / Vol.  60,  No. 162  /  Tuesday,  August 22, 1995  /  Proposed Rules
                                                                    43679
and 268.7(b), there is no need for
summary tables in the appendix.
  The Agency is committed to
identifying new ways the LDR program
can be simplified, and will continue to
seek additional opportunities for such
streamlining efforts in the future.

B. Simplification of Treatment Standard
for Waste Code F039
  Summary: Today's proposal
simplifies the presentation of the
treatment standard for multisource
leachate, which is waste code F039.
  Discussion: With the promulgation of
the Universal Treatment Standards
(UTS) in the Phase II rule  (59 FR 47982),
there is no longer a need for the separate
list of constituents for F039 which
currently appears in the table titled
"Treatment Standards for Hazardous
Wastes" at 40 CFR 268.40. EPA
proposes that F039 meet all the UTS for
the constituents at § 268.48, with the
exceptions of fluoride, vanadium, and
zinc. In other words, while F039
remains the waste code for leachate
from hazardous waste disposal facilities,
the treatment standards for wastewater
and nonwastewater  forms of individual
constituents now reference the UTS
(§ 268.48), with the exceptions of
fluoride, vanadium, and zinc.
C. POLYM Method of Treatment for
High-TOC Ignitable D001  Wastes
   Summary: EPA proposes to add
polymerization (POLYM)  to the set of
required methods of treatment
designated Best Demonstrated Available
Technology (BOAT) for high-TOC
ignitable (D001) wastes resulting from
commercial polymerization processes.
   Discussion: Polymerization (POLYM)
processes convert deactivated waste into
a chemically stable plastic in the same
manner that commercial plastics were
formed with the reagent which is being
disposed of as a high-TOC D001 waste.
   The National Marine Manufacturer's
Association contacted EPA with
concerns that the May 1993 Interim
Final Rule (58 FR 29860)  prohibited the
practice of polymerizing excess
polyester/styrene waste left over from
the manufacture of modular shower
stalls and recreational boats. The
prohibition was actually established in
the 1990 Third  Third (55  FR 22520). In
these manufacturing processes
polyester/styrene reacts with methyl
ethyl ketone peroxide in a mold to form
fiberglass. The ignitable waste
polyester/styrene and MEK peroxide are
the wastes of concern.
   Waste polyester/styrene monomers
and MEK peroxide are commonly
disposed of by reacting small quantities
together to create fiberglass scraps. The
waste polyester/styrene monomers and
MEK peroxide are currently regulated as
high-TOC ignitable wastes for which the
current standard is treatment by CMBST
(combustion) or by RORGS (recovery of
organics) before land disposal. Neither
CMBST nor RORGS allows for
polymerization of high-TOC ignitable
wastes into inert materials which do not
exhibit any characteristics of toxicity,
ignitability, corrosivity or reactivity.
The Agency believes that the ongoing
practice of polymerizing characteristic
wastes to a noncharacteristic inert mass
adequately protects human health and
the environment.
  Today's rule proposes POLYM as an
alternative to CMBST or RORGS for
those high-TOC D001 wastes which are
chemical components  in the
manufacture of plastics. POLYM
requires the addition of a polymerizing
component or catalyst to the  discarded
high-TOC D001 monomer stream
intended for land disposal. POLYM is
defined as "Formation of complex high-
molecular weight solids through
polymerization of monomers in high-
TOC D001 nonwastewaters." The
Agency notes that the  accumulation
time provisions for on-site storage  of
hazardous waste in tanks (40 CFR
262.34) allow facilities to store waste
monomers and catalysts up to 90 days
after the ignitable components are
discarded provided that these wastes are
kept in adequate tanks. (40 CFR
 IV. Exclusion for Recycled Wood
 Preserving Process Wastewaters
   Summary: In response to wood
 preserving industry concerns that
 production wastewaters being reclaimed
 are improperly classified as solid waste
 under RCRA Subtitle C, EPA is
 providing an opportunity for the
 industry to supply information that
 could potentially form the basis for an
 industry-wide variance.
   Discussion: EPA has recognized that
 certain wastes from wood preserving
 and surface protection, most notably
 drippage, are reclaimed and then
 returned to the wood preserving process
 for reuse (see 53 FR 53311). The Agency
 received numerous comments to its
 proposed wood preserving rule claiming
 that waste recycling and reuse practices
 at wood preserving and surface
 protection plants should be excluded
 from the definition of solid waste.
   In its December 6, 1990 wood
 preserving listing, EPA rejected that
 claim. The Agency stated that the
 current regulations correctly classify
 drippage and wastewaters from the
 wood processing industry destined for
 reclamation as solid waste since the
capture and conveyance mechanisms
used in the operation do not meet the
terms of the § 261.4(a)(8) closed-loop
exclusion (see 53 FR 50460). While
rejecting any broad attempt to exclude
these wastes from the definition of solid
waste, the Agency did point out a
variance provision in the regulations,
§ 260.30 and § 260.31(b), that could
apply to the wood preserving industry.
The provision allows for variances to be
granted on a case-by-case basis  to
individual facilities, provided that an
EPA Regional Administrator or
authorized State Director makes a
determination that a particular
reclamation operation is an essential
part of the production process,  taking
into account a number of criteria,
including how carefully the material is
handled before it is reclaimed (see 53
FR 50460).
  The Agency's rationale for creating
the § 260.30 and § 260.31(b) variance
was that it may be inappropriate to
regulate a reclamation process under
RCRA when the process is an essential
part of production, assuming the
secondary materials being reclaimed are
not part of the waste disposal problem.
Section 260.31(b) lists a number of
criteria to be considered by a regulator
when determining whether a
reclamation operation meets the terms
of this provision. Although this variance
was originally intended to be granted on
a case-by-case basis, if these criteria can
be demonstrated on an  industry-wide
basis, EPA will consider a conditional
exclusion. Comments are requested on
the extent to which the reclamation of
production wastewaters from the wood
preserving industry meet the criteria
found in§260.31(b).
  Section 260.31(b)(3), which requires
the regulator to take into account "the
extent to which the material is  handled
before reclamation to minimize loss," is
of particular interest in evaluating this
reclamation operation.  In the wood
preserving industry, this would
certainly apply to releases from a drip
pad, clearly a waste and clearly a
potential part of the waste management
problem (damage cases described in 53
FR 53323), and the extent to which such
releases could be prevented. It  appears
that prevention of drip pad releases
could be adequately achieved through
compliance with  40 CFR 264, Subpart
W  (drip pads). EPA is interested in
receiving comments on any alternative
and perhaps better ways that the
industry might meet the § 260.31(b)(3)
standard.
   As part of an ongoing effort to revise
the current definition of solid waste,
EPA is taking a close look at the
regulations for on-site recycling.  In the

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 43680
Federal Register / Vol. 60, No.  162  /  Tuesday, August 22, 1995 / Proposed Rules
meantime, we are willing to consider
quicker action on wood processing
production wastewaters, provided we
receive adequate information to make an
industry-wide determination that the
reclamation operation is an essential
part of production and that the
secondary materials being reclaimed are
not likely to be a part of the waste
disposal problem.

V. Treatment Standards for Newly
Listed and Identified Wastes

A. Background
  The Hazardous and Solid Waste
Amendments (HSWA) to RCRA, which
were enacted on November 8, 1984,
largely prohibit the land disposal of
untreated hazardous wastes. RCRA
requires EPA to promulgate treatment
standards for a waste within six months
after determining it is hazardous (RCRA
section 3004(g)(4)).
  The Agency did not meet this latter
statutory deadline for all of the wastes
identified or listed after the 1984
amendments. As a result, a suit was
filed by the Environmental Defense
Fund (EOF) EPA and  EOF signed a
consent decree that establishes a
schedule for adopting prohibitions and
treatment standards for newly identified
and listed wastes. (EDF v. Reilly, Cir.
No. 89-0598, D.D.C.).  Today's notice
proposes treatment standards for two of
those waste groups: wood preserving
wastes and metal wastes that are
considered hazardous under the revised
Toxicity Characteristic (TC).
B. Treatment Standards for Soil
Contaminated With Newly Listed
Wastes
  The Agency has stated a presumption
that the treatment standards for as-
generated wastes are generally
inappropriate or unachievable for soils
contaminated with hazardous wastes,
within the meaning of 40 CFR 268.44(a)
(see 55 FR 8759-60, March 8, 1990). It
has been the Agency's experience that
contaminated soils are significantly
different in their treatability
characteristics from the wastes that have
been evaluated in establishing the
BDAT standards, and thus, will
generally qualify for a treatability
variance under 40 CFR 268.44. For
guidance on treatability variances for
soils, see the EPA Fact Sheet entitled
"Regional Guide: Issuing Site-Specific
Treatability Variances for Contaminated
Soils and Debris from Land Disposal
Restrictions" (OSWER Publication
9839.3-08FS). For RCRA actions, the
Regional Administrator was delegated
the authority to deny or grant these
variances in a non-rulemaking
                         procedure under 40 CFR 268.44(h) on
                         April 22, 1991. These variances may be
                         granted by State agencies in States
                         authorized for § 268.44. Variance
                         authority for CERCLA actions is
                         discussed in LDR Guides 6A (revised
                         Sept. 1990) and 6B (OSWER 9347.3-
                         06FS and 9347.3-06BFS).
                           EPA is proposing a national capacity
                         variance for soil and debris
                         contaminated with Phase IV newly
                         listed wastes. If the capacity variance is
                         made final, any site-specific treatability
                         variance would not be necessary during
                         the period the capacity variance is in
                         effect.
                         C. Treatment Standards for Wood
                         Preserving Wastes 2
                           Summary: NEPA is proposing to
                         apply Universal Treatment Standards
                         (UTS) to wood preserving wastes (F032,
                         F034, and F035).

                         1. Identification of Wastes
                           F032—Wastewaters, process
                         residuals, preservative drippage, and
                         spent formulations from  wood
                         preserving processes generated at plants
                         that currently use or have previously
                         used chlorophenolic formulations.3
                           F034—Wastewaters, process
                         residuals, preservative drippage, and
                         spent formulations from  wood
                         preserving processes generated at plants
                         that use creosote formulations.
                           F035—Wastewaters, process
                         residuals, preservative drippage, and
                         spent formulations from  wood
                         preserving processes generated at plants
                         that use inorganic preservatives
                         containing arsenic or chromium.
                           Wastes from the wood  preserving
                         industry, F032, F034, and F035, were
                         listed as hazardous on December 6,
                         1990, (see 55 FR 50450).  EPA is
                         proposing to regulate specific
                         constituents from each of these
                         hazardous wastes groups. (A list of the
                         hazardous constituents proposed for
                         regulation are found within  the Table at
                         the end of this preamble  discussion.)
                         These wastes are generated during the
                         treatment or preservation of wood
                         products such as poles, crossarms,
                         timbers, rail road ties, and fence posts.
                         Pentachlorophenol, creosote, and
                         inorganic arsenical and/or chromated
                         salts are the primary active ingredients
                         that are used to preserve  wood products.
                          2 These listings do not include K001 bottom
                        sediment sludge from the treatment of wastewater
                        from wood preserving processes that use creosote
                        and/or pentachlorophenol.
                          3 This treatment standard would apply except
                        where potentially cross-contaminated wastes have
                        had the F032 waste code deleted in accordance
                        with section 40 CFR 261.35 and where the generator
                        does not resume or initiate use of chlorophenolic
                        formulations.
The application of these chemicals
generate wastewaters, process solid
residuals, preservative drippages, and
spent formulations. The listing
document for F032, F034, and F035
provides additional information on the
processes generating each of these
wastes.

2. Proposed Treatment Standards
  After reviewing the available
characterization data on untreated and
treated wastes that are believed to be at
least as difficult to treat as F032,  F034,
and F035, EPA has determined that UTS
are technically achievable for the
constituents proposed for regulation in
F032, F034, and F035. (The BDAT
background document provides
information on EPA's rationale for
developing and applying UTS to these
wastes. Also see LDR Phase II final rule,
59 FR 47982, September 19, 1994, for
further discussion of UTS.) EPA is thus
proposing that each constituent
proposed for regulation in F032,  F034,
and F035 comply with its applicable
UTS in the treatment standard table at
40 CFR 268.40, as a prerequisite for land
disposal.
  EPA believes that this proposal is
consistent with EPA's efforts to ease
compliance burdens by setting one
treatment standard for the same
regulated constituent in various wastes.
Wood preserving facilities currently
manage these hazardous wastes at
commercial hazardous waste
management facilities that manage
wood preserving wastes as well as other
hazardous wastes prohibited from land
disposal. These commercial treatment
facilities will likely commingle wood
preserving wastes with other similar
wastes in treatment trains that achieve
UTS. Furthermore, the data available on
the treatment of wastes believed to  be as
difficult, or more difficult, to treat as
F032, F034, and F035 support the
achievability of UTS.
3. Review of Available Characterization
Data
  EPA has reviewed available
characterization data on F032, F034,
and F035 from documents supporting
the listing of these wastes as hazardous.
EPA has also used additional  data
gathered by EPA on F035 during  1991
(EPA's 1991 study), which include  data
on untreated and treated F035 wastes
(with the exception of one study that
describes the bench scale treatment of a
CCA formulation believed to simulate
the treatment of F035 wastewaters) from
three wood preserving facilities; from
untreated and treated F035 wastes
commingled at a hazardous waste
treatment facility prior to their

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              Federal Register / Vol. 60,  No. 162  / Tuesday,  August 22,  1995  /  Proposed  Rules
                                                                    43681
 stabilization with lime and cementious
 agents; from an EPA in-house
 treatability study of F035 via
 stabilization with lime, fly ash, and
 cementious agents; and, from an EPA in-
 house feasibility study to selectively
 remove arsenic, chromium, and copper
 from a synthetic simulated F035
 wastewater.
  Other literature consulted includes
 EPA's Preliminary Data Summary for
 the Wood Preserving Segment of the
 Timber Products Processing Point
 Source Category, September 1991 (EPA
 440/1-91/023) (referred to here  as the
 1991 Preliminary Data Summary of the
 Wood Preserving Industry (1991
 PDSWPI)). Other documents reviewed
 include 1986-1990 summary abstracts
 on the treatment of F032, F034, and
 F035 contaminated soils at Superfund
 sites,  other literature published on the
 treatment of wood preserving and
 petroleum refining contaminated soils,
 and data submitted by commenters on
 the Advanced Notice of Proposed
 Rulemaking of October 21, 1990
 (ANPRM) (see 56 FR 55160) and the
 LDR Phase  II rule of September 19, 1994
 (59 FR 47980).

 4. Determination of Best Demonstrated
 Available Technology (BOAT)
  a. Nonwastewaters. For
 nonwastewater forms of F032 and F034,
 the proposed treatment  standards of
 each of the  organic constituents are
 based on the combustion of wastes
 believed to  be as difficult, or more
 difficult, to treat as P'032 and F034. For
 metals in nonwastewater forms of F032,
 F034, and F035, EPA has determined
 that stabilization is BOAT for chromium
 (total), and  that vitrification  is BOAT for
 arsenic.
  b. Wastewaters. For wastewater forms
 of F032 and F034, the proposed UTS for
 each organic constituent are based on
 treatment technologies such as
 biological treatment, steam stripping,
 carbon absorption, or by a train of two
 or more wastewater treatment
 technologies. The proposed treatment
 standards for metals in wastewater
 forms of F032, F034, and F035 are based
 on lime addition followed by
 sedimentation, and filtration for arsenic
 and in chemical precipitation followed
by sedimentation for chromium. Like
chromium,  copper, lead, and zinc are
also amenable to chemical precipitation
 followed  by filtration.
  EPA believes that the treatment
technologies supporting the proposed
 UTS are also BOAT for F032, F034, and
 F035.  This is because they are
 demonstrated for wastes as difficult or
more difficult, to treat. EPA also
believes that none of the hazardous
 constituents in F032, F034, and F035
 are likely to interfere with the treatment
 of the constituents proposed for
 regulation. In addition, EPA reviewed
 the performance of other thermal and
 non-thermal treatment or recovery
 technologies demonstrated on wastes
 similar to F032, F034, and F035. EPA
 believes that these other technologies
 can reach or can be optimized to meet
 the proposed UTS limits. Therefore, the
 Agency is not prohibiting the use of
 other technologies capable of achieving
 the proposed treatment standards except
 for those constituting land disposal or
 impermissible dilution.

 5. Proposed Regulation of Dioxin and
 Furan Constituents in F032

  EPA has found in F032 hornologues of
 polychlorinated di-benzo-p-dioxins
 (PCDDs) and polychlorinated di-
 benzofurans (PCDFs). These homologue-
 isomers are a result of impurities from
 formulations that employ
 chlorophenolic chemicals such as
 pentachlorophenol (PCP) and other
 chlorinated aromatic hydrocarbons. EPA
 is proposing treatment standards that
 would require meeting a concentration
 that does not exceed 1 ppb (also
 expressed as ug/kg) for all the PCDD and
 PCDF homologue and isomer
 constituents proposed for regulation.
 EPA also requests data on the treatment
 of these constituents.
  Commenters to the ANPRM of April
 1991, were concerned that the selection
 of PCDD and PCDF as hazardous
 constituents in nonwastewater forms of
 F032 could result in commercial
 treatment facilities refusing to manage
 F032 wastes due to public sensitivities
 about these chemicals. Some
 commenters urged EPA not to regulate
 PCDD and PCDF but rather, to regulate
 surrogate constituents such as
 pentachlorophenols, gross parameters
 such as total suspended solids and oil
 and grease levels, or precursor
 constituents of PCDD and PCDF such as
 "hexachlorobenzene, 1,2,4-
 trichlorobenzene, and 1,2,4,5-
 tetrachlorobenzene". Only one
 commenter, however, submitted  data on
 the use of alternate constituents-  The
 data consisted of the influent
 characterization data for wastewaters
 treated via biological treatment and the
 end-of-pipe treated effluents. The data
 did not include the concentrations  of
 PCDD and PCDF that were achieved in
 the biosludges and end-of-pipe treated
 wastewater effluents; thus EPA is
unable  to determine how the monitoring
of alternative constituents or gross
 parameters can ensure the destruction  of
PCDD and PCDF constituents.
  Other commenters requested that EPA
 defer or forgo the regulation of PCDD
 and PCDF in F032. They believe that
 regulation of other hazardous
 constituents in F032 will provide PCDD
 and PCDF with adequate treatment. No
 data were provided to support these
 statements.
  EPA believes that the regulation of
 PCDD and PCDF is necessary to ensure
 their destruction. PCDD and PCDF are
 relatively insoluble in wastewaters.
 Because they tend to adhere to
 suspended particles, they may go
 untreated through wastewater treatment
 systems.  Also, PCDD and PCDF can be
 solubilized in oils, and thus may go
 untreated through biological treatment
 systems.  In contrast, EPA has data from
 the combustion of hazardous wastes and
 soils which shows that the combustion
 of PCDD- and PCDF-constituents wastes
 in two stage combustion devices leaves
 behind incineration ash and other
 residues  with PCDD and PCDF levels
 below 1 ppb. Other performance data
 include residues from other thermal
 destruction devices such as supercritical
 oxidation (Hubber Process) and infrared
 incineration (Shirco reactor).
  Another consideration in proposing
 regulation of PCDD and PCDF is that
 FO32 can potentially contain
 concentrations of up to 300 ppb in
 wastewaters and between 1 ppb to
 140,000 ppb in nonwastewaters. These
 concentrations become more significant
 if they are allowed to go untreated in
 non-thermal treatment technologies
 such as separation and filtration. EPA
 has identified one commercial facility
 currently permitted to combust wastes
 that may have PCDD and PCDF
 constituents with concentrations one to
 two orders of magnitude higher than
 those levels found in F032.
  For nonwastewater forms, the
 proposed treatment standards are based
 on the performance of combustion. For
 wastewater forms, the proposed
 treatment standards are based on the
 performance of biological treatment. As
 mentioned earlier, other aggressive
 oxidation technologies such as infrared
 incineration (Shirco process),
 supercritical oxidation (Hubber
 process),  and pyrolytical destruction
 devices can also achieve the proposed
 treatment standards. EPA requests
 comments on the use of non-thermal
 treatment technologies that have been
 optimized to treat PCDD and PCDF in
 wastes as difficult to treat as F032. In
 particular, EPA requests comments on
whether non-thermal technologies such
as chemical dechlorination via the use
of the Alkaline Polyethylene Glycolate
 (APEG or KPEG) process or the Based
Catalyzed Decomposition process and

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43682
Federal  Register  /  Vol. 60, No.  162 / Tuesday, August 22, 1995 / Proposed  Rules
ultraviolet (uv) photolysis are also
capable of achieving limits at or below
the proposed UTS limits for dioxins and
furans in wastewater and
                         nonwastewater forms of F032. EPA has
                         been testing the applicability of the BCD
                         Process and APEG on various
                         chlorinated wastes and contaminated
soil, and wood preserving wastes. EPA
expects to make the results of the BCD
treatability studies available to the
public in the fall of 1995.
                                PROPOSED BOAT STANDARDS FOR F032, F034, F035
                                           [Wastewaters and nonwastewaters]
Constituent
Phenols:
Phenol 	
2,4-Dimethylphenol 	 	 	
2,4,6-Trichlorophenol 	
2,3,4,6-Tetrachlorophenol 	
Pentachlorophenol 	
PAHs:
Acenaphthene 	
Anthracene 	
Benz(a)anthracene 	
Benzo(a)pyrene 	 	 	
Benzo(k)fluoranthene 	
Chrysene 	 	 	
Dibenz (a,h) anthracene 	
Fluorene 	
lndeno(1,2,3-c,d)pyrene 	
Naphthalene 	 	
Phenanthrene 	
Pyrene 	 	 	
Dioxins and Furans:
Tetrachlorodibenzo-p-dioxins 	
Pentachlorodibenzo-p-dioxins 	 	 	
Hexachlorodibenzo-p-dioxins 	
Tetrachlorodibenzofurans 	
Pentachlorodibenzofurans 	
Hexachlorodibenzofurans 	
Inorganics:
Arsenic 	
Chromium (total) 	
Wastewaters
maximum for
any 24 Hr.
composite
Total com-
position
(mg/l)
0.039
0.035
0.035
0.035
0.089
0.059
0.059
0.059
0.061
*0.11
0.059
0.055
0.059
0.0055
0.059
0.059
0.067
0.000063
0.000063
0.000063
0.000063
0.000035
0.000063
1.4
2.77
Nonwastewa-
ters maxi-
mum for any
grab sample
Total com-
position
(mg/kg)
6.2
14.0
7.4
7.4
7.4
3.4
3.4
3.4
3.4
*6.8
3.4
8.2
3.4
3.4
5.6
5.6
8.2
0.001
0.001
0.001
0.001
0.001
0.001
5.0
0.86
Constituents proposed for regulation
F032
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
F034
X
X
X
X
X
X
X
X
X
X
X
X
X
X
F035
X
X
  * Because Benzo(b)fluoranthene and Benzo(k)fluaranthane coelute on gas chromatography columns, this constituent is regulated as a sum of
the two compounds.
D. Treatment Standards for Toxic
Characteristic Metal Wastes

I. Rationale for Applying Universal
Treatment Standards (UTS) to Toxic
Characteristic Metal Wastes (D004-
D011)
  In the Third Third LDR Rule (55 FR
22520), EPA established treatment
standards for the metal wastes that were
characteristic by the Extraction
Procedure (EP) test. Since promulgation
of the TC rule in September 1990, the
Toxic Characteristic Leaching Procedure
(TCLP) is used to determine whether a
metal waste is characteristic.  Wastes
that are characteristic by the TCLP but
not by the EP are considered newly
identified wastes and are not currently
subject to the land disposal restrictions.
Today, EPA is proposing to apply
treatment standards to all characteristic
metal wastes. In addition, the Agency is
                        proposing to change the treatment
                        standard levels for characteristic metal
                        wastes from those established in the
                        Third Third rule at the characteristic
                        levels to previously promulgated UTS
                        levels for metal constituents.
                        Furthermore, when promulgated, the
                        characteristic metal wastes must be
                        treated not only to meet today's
                        proposed treatment standards, but also
                        to meet treatment standards for any
                        UHCs reasonably expected to be present
                        in those wastes at the point of the
                        wastes' generation. This approach  is
                        consistent with the promulgated
                        requirements for other characteristic
                        wastes (D012-D043) (see 59 FR 47982
                        September 19, 1994).
                          EPA promulgated the UTS for organic,
                        metal, and cyanide constituents on
                        September 19, 1994 (see 59 FR 47982).
                        The UTS eliminated differences in
                        concentration limits for the same
constituent in order to provide a better
assessment of treatability, to reduce
confusion, and to ease compliance and
enforcement. (The complete table of
UTS is located at 40 CFR 268.48 and the
levels have been incorporated in the
treatment standard table at § 268.40.)
The UTS replaced the existing metal
constituent treatment standards for all
listed wastes, and constituted applicable
levels for underlying hazardous metal
constituents (metal UHCs) in ignitable,
corrosive and TC organic wastes. As
explained above, they did not apply to
TC waste codes D004-D011, nor did
they replace the treatment standards
promulgated in the Third Third rule for
EP metals.
  EPA performed a comprehensive
reevaluation of the available treatment
performance data from both listed and
characteristic wastes for all  metal
constituents in the  UTS table in order to

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              Federal Register / Vol. 60, No.  162  / Tuesday,  August  22, 1995  /  Proposed Rules
                                                                     43683
determine whether the metal UTS levels
are appropriate to transfer to TC metals.
The Agency has determined that a
transfer of UTS is appropriate based on
treatment levels achieved for the
characteristic wastes and the metal
concentrations in untreated wastes used
for UTS being more highly
contaminated than the characteristic
wastes. Some of the historic data on
treatment of characteristic wastes
simply reflects a design to remove the
characteristic, not a true measure of the
treatability by stabilization and HTMR
(see "BDAT Background Document for
Toxicity Characteristics Metal Wastes
D004-D011)" in  the RCRA docket). EPA
is proposing that the metal UTS are the
LDR treatment standards for
characteristic metal wastes. This means,
in effect, that most of the metal
treatment standards are proposed to be
changed, however, a few treatment
standards are not. Tables at the end of
this section provide the old level, the
new level, and whether or not the
treatment standard is proposed to be
changed.
  The UTS for metal nonwastewaters
can be achieved by high temperature
metals recovery (HTMR) or stabilization.
HTMR is a  common technology for the
extraction and recovery of metals from
complex matrices. HTMR is based
primarily on pyrometallurgical
separation principles. HTMR has been
demonstrated to be applicable to almost
all metals in a relatively wide variety of
matrices. This is primarily due to the
thermodynamic and kinetic reactivity of
these metals (and other inorganics
present) at the high temperatures and
oxidation states in the unit. Depending
on the type of HTMR unit and the
temperatures utilized, nonwastewater
residues that would be classified as
slags, are likely to be produced.
  Conventional stabilization
technologies include cementious and
pozzolanic stabilization with the
potential addition of specialized
reagents for the enhancement of
structural stability, curing time, and/or
reduced leachability. The reduction in
teachability of the hazardous metal
constituents of the wastes is
accomplished by the formation of a
lattice structure (i.e., chemical bonds)
that binds or entraps the metals in a
solid matrix. Before addition of the
stabilizing agents, the forms of the
metals in the wastes need to identified.
Often pretreatment involving chemical
conversion of the metals in the  wastes
to a more favorable oxidation state or to
a different metallic salt must be
performed or the stabilization could be
relatively ineffective or incomplete.
2. Proposed Revision of UTS for
Beryllium
  In today's rule, EPA is proposing to
change the UTS for beryllium to 0.04
mg/1 TCLP. After UTS were
promulgated, additional  data on TC
metals were submitted to the Agency.
These grab sample data were from a
HTMR facility and were  comprised of
480 data points from their in-house
metal treatment processes. These data
were submitted as "Confidential
Business Information." While UTS
nonwastewater limits for metals specify
a grab sample, the data used to develop
the standards included both grab and
composite samples. These data
demonstrated HTMR could not
necessarily achieve the limits using grab
samples. Out of the 40 data points for
beryllium, five exhibited levels
exceeding the UTS level of 0.014 mg/1
TCLP. A log-normal statistical analysis,
based on QA/QC Methodology, was
performed on these beryllium data
points. Based on this analysis, the
Agency  is  proposing to modify the
beryllium  UTS level to 0.04 mg/1 TCLP.
The Agency believes that this proposed
level provides assurance that metal
nonwastewater standards can comply
with UTS using grab samples.
  The Agency also reevaluated the new
cadmium data submitted. Based on a
log-normal statistical analysis the
cadmium data, the UTS level of 0.19
mg/1 TCLP is essentially at the 99th
percentile. The Agency, therefore, does
not see a need to modify this standard
and is not  proposing a change in the
previously promulgated  cadmium UTS
level. However, due to the two data
exceedances out of the 40 data point
samples submitted, the Agency is
soliciting further data.
  The issue of grab versus composite
sampling has been raised as needing
clarification. As previously
promulgated, these metal treatment
standards specify grab samples. If grab
sampling creates inconsistencies  in
achieving UTS levels for a treatment
process, the facility should evaluate its
process and submit data  to EPA in
support of their treatment process (40
CFR 268.41 and 55 FR 22539 June 1,
1990). The use of grab versus composite
standards does not mean more frequent
sampling is necessary. Grab samples
normally reflect maximum process
variability, and thus will reasonably
characterize the range of treatment
system performance. The sampling
analysis for both wastewater and
nonwastewater is composite and grab
respectively (40 CFR 268.41 and
268.43).

3. Treatment Standard for Previously
Stabilized Mixed Radioactive and
Characteristic Metal Wastes
  Some radioactive wastes which
exhibit a  hazardous characteristic for a
metal have been  stabilized to meet the
existing LDR standards, but may not be
land disposed until after Phase IV is
finalized. Such circumstances could
result in treated wastes not meeting the
revised standards. For example, as part
of the West Valley Demonstration
Project, approximately 21,000 drums of
mixed radioactive/formerly metal
characteristic wastes have been
stabilized to meet the current LDR
treatment standards for metals.) The
wastes at the West Valley site are being
stored awaiting development of disposal
capacity. Because of siting difficulties
for radioactive wastes, it is expected to
take more than three years to develop
disposal capacity. There is a good
possibility that when these treated
wastes are disposed, the  Phase IV final
rule will  be in effect and the metal
portion will be subject to the more
stringent Universal Treatment Standard
levels. If this were the case, the wastes
would require re-treatment to achieve
UTS prior to disposal. Such a practice
would present significant risks. Opening
the drums and grinding the already
treated mass of stabilized waste to re-
treat could expose workers, and
possibly others, to unacceptable levels
of metal containing dusts and
radioactivity.
  The Agency believes the prior
stabilization of such wastes achieves the
statutory minimized threat standard,
and to require re-treatment would not
only minimize threat, but could increase
it. Therefore, the Agency is proposing to
allow characteristic metal mixed wastes,
that have undergone stabilization prior
to the effective date of the Phase IV final
rule, to comply with the  LDR metal
standards that were in effect at the time
the waste was stabilized. Mixed
radioactive/characteristic metal wastes
that are stabilized after the effective date
of Phase IV would be subject to the
metal treatment standards in the Phase
IV rule.

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43684
 Arsenic (D004)  	
 Barium (D005) 	
 Cadmium (D006) 	
 Chromium (Total) (D007)
 Lead (D008) 	
 Mercury-retort residues
 Mercury—all others (D009)
 Selenium (D010) 	
 Silver (D011) 	
                          PBOPOSHD CHANGES FOR
   Arsenic (D004)
   Barium (D005)
   Cadmium (D006) 	
   Chromium (Total) (D007)  	
   Lead (D008)	»-••••"•
   Mercury-retort residues (D009)
   Mercury—all others (D009) ....
   Selenium (D010) 	
   Silver (D011)
    VI. Mineral Processing Waste Issues
      EPA is planning revisions to the
    regulations pertaining to mineral
    processing wastes, including the
    definition of solid waste, the rules
    applying to mixtures of Bevill-exemp
    wastes and those which are not Bevil -
    Exempt, application of land disposal to
    characteristic mineral processing
    wastes, and responses to various court
    remands. The Agency plans to address
     these issues in a supplemental proposal
     to today's rule.
     VII. Environmental Justice
     A. Applicability of Executive Order
      12898
       EPA is committed to address
      environmental justice concerns and is
      assuming a leadership role in
      environmental justice initiatives to
      enhance environmental quality for all
      residents of the United States  The
      Agency's goals are to ensure that no
      segment of the population, regardless of
      rtcTcolor, national origin, or income
      bears disproportionately high and
      adverse human health and
      environmental effects as a resul.of
      EPA's policies, programs, and activities,
       and all people live in clean and
       SstahiJble'communities. In response to
       the Executive Order and to concerns
       voiced by many ff°"P*t°^^$"L0
       Agency, EPA's Office of Solid Waste
and Emergency Response formed an
Environmental Justice Task Force to
analyze the array of environmental
justice issues specific to waste programs
and to develop an overall strategy to
identify and address these issues
(OSWER Directive No. 9200.3-17).

B Potential Effects
   Today's proposed rule covers several
 wastes- wood preserving wastes, 1L,
 metals' and leaks/sludges/and emissions
 from surface impoundments The rule
 involves not one site, but will possibly
 affect many facilities nationwide.
 Because of the locations of some ot
 these facilities and surface
 impoundments, the potential exists for
 impacts to minority or low income
    Toaay s rui« is intended to reduce
  risks of hazardous and characteristic
  wastes as proposed  and to benefit all
  populations. As such, this rule is not
  expected to cause any disproportionate
  impacts to minority or low income
  communities versus affluent or non-
  minority communities.
     T*e Agency is soliciting comment and
   input from all stakeholders, including
   members of the environmental justice
   community and members of the
   regulated community. The Agency
   encourages all interested parties to
   provide comments or further
   Fnformation that might be necessary on
the data, analysis, and findings
contained in this section  The Agency is
interested in receiving additional
information and/or comment on the

f°l.l°Smation on facilities with
surface impoundments that have
evaluated potential ecological human
health (taking into account subsistence
 patterns and sensitive populations) and
 socioeconomic impacts to minority or
 low-income communities.
   . Information on facilities with
 surface impoundments that have
 conducted human health analyses
 identifying multiple and cumulative
 exposures (populations at risk) from
 leaks, emissions, sludees.
    . Information on releases (leaks
  emissions) that have occurred in the
  community and their health and
  environmental effects; and possible
  effects of exposure to the chemicals in
    .  miormaiioii on hazardous materials
   stored, used, and transported in the
   community.
   VIII. Capacity Determinations

   A. Introduction
     This section summarizes the results ot
   the capacity analysis for the wastes
   covered by this proposal, tor
   background information on data
   sources, methodology, and a summary
         , capacity analyses for each group

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                Federal Register / Vol. 60. No. 162 / Tuesday, August  22,  1995  /  Proposed Rules       43685
  of wastes covered in this rule, see
  "Background Document for Capacity
  Analysis for Land Disposal Restrictions,
  Phase IV—Issues Associated with Clean
  Water Act Treatment Equivalency, and
  Treatment Standards for Wood
  Preserving Wastes and Toxicity
  Characteristic Metal Wastes.
    In general, EPA's capacity analysis
  focuses on the amount of waste to be
  restricted from land disposal that is
  currently managed in land-based units
  and that will require alternative
  treatment as a result of the LDRs. The
  quantity of wastes that are not managed
  in land-based units (e.g., wastewaters
  managed only in RCRA exempt tanks,
  with direct discharge to a Publicly
  Owned Treatment Works (POTW))  is
  not included in the quantities requiring
  alternative treatment as a result of the
  LDRs. Also, wastes that do not require
  alternative treatment (e.g., those that are
  currently treated using an  appropriate
  treatment technology) are not included
  in these quantity estimates.
   EPA's decisions on whether to grant
  a national capacity variance are based
  on the availability of alternative
  treatment or recovery technologies.
  Consequently, the methodology focuses
  on deriving estimates of the quantities
  of waste that will require either
 commercial treatment or the
 construction of new on-site treatment as
 a result of the LDRs. Quantities of waste
 that will be treated adequately either on
 site in existing systems or off site by
 facilities owned by the same company
 as the generator (i.e., captive facilities)
 are omitted from the required capacity
 estimates.4

 B. Capacity Analysis Results Summary
 I. Available Capacity
   EPA estimates that there  are 115,900
 tons per year of commercial sludge/
 solid combustion capacity and
 1,145,000 tons per year of commercial
 liquid combustion capacity available to
 meet the treatment requirements of
 Phase IV wastes. EPA estimates that
 there are over one million tons of
 available stabilization capacity. In
 addition, EPA estimates that there are
 approximately 47 million tons per year
 of available  wastewater treatment
 capacity.
  4 Traditionally, capacity analyses have focused on
the demand for alternative capacity once existing
on-site capacity and captive off-site capacity have
been accounted for. However, for some of the
wastes at issue in this rule it may not be feasible
to ship wastes off site to a commercial facility. In
particular, facilities with large volumes of
wastewaters may not readily be able to transport
their waste to treatment facilities. Alternative
treatment for these wastes may need to be
constructed on site.
    EPA believes that some facilities may
  face logistical problems in complying
  with the sludges, leaks, and air
  emissions standards. For example, if the
  standards require alternative
  management of characteristic wastes,
  modifications (e.g., waste segregation,
  plant replumbing, the installation of a
  new waste treatment system or
  pollution prevention mechanisms)
  might require significant time. If EPA
  determines that on-site treatment
  capacity will not be available when the
  final rule is promulgated, and that there
  would be no feasible way for generators
  to transport their wastes to commercial
  treatment facilities, EPA may grant a
  capacity variance for up to two years.
  EPA requests comments on the types of
  modifications that might be necessary at
  facilities that need to manage their
  Phase IV wastes on-site, and the  time
  required to make such modifications.
  2. Surface Impoundment Sludges,
  Leaks, and Air Emissions
   EPA is considering several regulatory
  options for surface impoundment
  sludges, leaks, and air emissions. Details
  of the methodology and estimates of
  affected facilities and waste quantities
  are provided in the capacity analysis
  technical background document.
   EPA estimates that for the regulatory
  option that relies on Phase III
  rulemaking and other EPA regulatory
  activities (e.g., CAA) to achieve RCRA-
  equivalent levels of control (Option 1),
  no facilities or quantities will be
 affected by the Phase IV rule.
   The other regulatory options apply
 some additional controls beyond
 treatment standards for surface
 impoundment wastewaters regulated
 under the Phase III rule. EPA analyzed
 these other regulatory options by
 focusing on the 15 industry sectors
 identified in the Phase III LDR capacity
 analysis as the industries most likely to
 be affected by the Phase IV LDR rule.
   EPA estimates that for Option 2, the
 wastewater affected by the air emissions
 standard for surface impoundments in
 CWA or CWA-equivalent treatment
 systems will be about 0.4 billion to 5.8
 billion tons of decharacterized
 wastewater per year. About 0.3 billion
 to 3.7 billion tons of decharacterized
 wastewater could be affected by the leak
 standard. The facilities generating
 affected wastewater may need to
 conduct ground water monitoring,
 install liners, or conduct ground water
 remediation. EPA estimates that 0.1
 million to 3.5 million tons per year of
 sludges might be affected by the sludges
 component of the Phase IV LDR rule.
 For Option 3, EPA estimates that 2.4
billion to 16 billion tons of
  decharacterized wastewater will be
  affected each year by the air emissions,
  leaks, and sludges standards.
    For Options 2 and 3, EPA believes
  that some affected facilities need time to
  reconfigure their waste management
  systems or to build treatment capacity
  for these wastes, since the volumes of
  waste affected are large enough to make
  off-site treatment impractical for many
  facilities. EPA is proposing to grant a
  two-year national capacity variance for
  surface impoundment sludges, leaks,
  and air emissions under  the regulatory
  options that require additional
  management of these wastes beyond the
  Phase III standards (i.e., Options 2 and
  3). EPA requests comments on this
  proposal and data on the number of
  affected facilities and the quantities of
  affected wastes.

  3. Newly Identified Characteristic Metal
  Wastes
    EPA estimates 41,250 tons per year of
  newly identified D008 (lead)
  nonwastewaters will require
  stabilization as a result of the TCLP test.
  EPA believes that any additional
  quantities of other newly identified TC
  metal wastes are very small. Since there
  are over 1 million tons of stabilization
  capacity available to treat these wastes,
  EPA is proposing to not grant a variance
  to TC metal wastes.

  4. Wood Preserving Wastes
   EPA estimates that very small
 quantities of wood preserving
 wastewaters (approximately 340 tons of
 organic wastewater and 40 tons of
 inorganic wastewater per year) will
 require alternative treatment capacity in
 order to comply with the  proposed
 LDRs. EPA estimates that approximately
 28,000 per year tons of nonwastewaters
 (24,860 tons of organic nonwastewaters
 and 2,880 tons of inorganic
 nonwastewaters) will require alternative
 treatment as a result of the proposed
 LDRs.
   EPA believes that incineration should
 be able to meet the proposed treatment
 standards for organic wastewaters and
 nonwastewaters, stabilization should be
 able to meet the proposed treatment
 standards for inorganic nonwastewaters,
 and chemical precipitation should be
 able to meet the treatment standards for
 the inorganic wastewaters. There is
 sufficient liquid and sludge/solid
 combustion capacity for both the
 organic wood preserving wastewaters
 and nonwastewaters.  In addition,  EPA
 believes that there is sufficient chemical
 precipitation capacity for the inorganic
wastewaters. Finally,  there are over 1
million tons of stabilization capacity for
the inorganic nonwastewaters.

-------
   Therefore EPA is proposing not to grant
   a variance for the newly listed wood
   preserving wastes. Although many
   commenters to the ANPRM (56 FR
   55160) expressed concern that treatment
   facilities would not accept F032 waste
   if the treatment standards include a
   dioxin concentration, EPA believes that
   its Combustion Strategy will alleviate
   this problem.
     Given the potentially large quantity of
   soil and debris contaminated with
   newly listed wood preserving wastes
   and the lack of adequate treatment
   capacity to meet this demand, EPA is
   proposing  to grant a two-year capacity
   variance to soil and debris contaminated
   with newly listed wood preserving
   wastes. The Agency requests comments
   on this proposal, including data on the
   quantities of soil and debris
   contaminated with wood preserving
   wastes that are generated.

   5. Mixed Radioactive Wastes
    Despite the uncertainty about
  quantities of mixed radioactive wastes
  containing  wastes that will require
  treatment as a result of today's proposed
  rule, any new commercial capacity that
  becomes available will be needed for
  mixed radioactive wastes that were
  regulated in previous LDR rulemakings
  and whose  variances have already
  expired. Thus, EPA has determined that
  sufficient alternative treatment capacity
  is not available, and is proposing to
  grant a two-year national capacity
  variance for mixed RCRA/radioactive
  wastewaters and nonwastewaters
  contaminated with wastes whose
  standards are being proposed today.
  6. Phase IV Wastes Injected Into Class I
  Wells

   EPA estimates that approximately 11
 million tons of newly identified and
 listed wastes are being injected in Class
 I injection wells. These injected
 volumes vary in amount by facility and
 are all disposed on site. None of these
 facilities transport their waste off site or
 currently have the necessary capacity to
 treat their waste on site by acceptable
 means. Additionally, for those facilities
 affected by the proposed prohibitions
 which are unable to make a successful
 no migration demonstration and/or are
 unable to meet the requirements of other
 proposed options, constructing a
 treatment facility on site would require
 a significant amount of time. Therefore
 the Agency is proposing to grant a two-
 year national capacity variance for these
 wastes.
  EPA requests comments on the above
capacity determinations. In particular,
EPA requests data on the generation,
characteristics, and management of the
   wastes discussed above. In addition,
   EPA requests data on the availability of
   treatment capacity for any of these
   wastes.
     Table 1 lists each category of RCRA
   wastes for which EPA is today
   proposing LDR standards. For each
   category, this table indicates whether
   EPA is proposing to grant a national
   capacity variance for land-disposed
   wastes.5
     TABLE 1 .—VARIANCES FOR NEWLY
      LISTED AND IDENTIFIED WASTES
    ["Yes" indicates EPA is proposing to grant a
                 variance]1
Waste description
Phase IV Sludges2 .
Phase IV Leaks2 ....
Phase IV Air Emis-
sions2.
Newly Identified TC
Metals (D004-
D011).
Newly Listed Wood
Preserving
Wastes (F032,
F034, F035).
Soil and Debris Con-
taminated with
Newly Listed
Wood Preserving
Wastes.
Phase IV Mixed Ra-
dioactive Wastes.
Surface-
disposed
wastes
Yes 	
Yes 	
Yes 	
No 	
No 	
Yes 	
Yes 	

Deep
well-in-
jected
wastes
N/A
N/A
N/A
Yes
Yes
N/A
Yes

   treatment capacity variances are for two
 years.
   2 The  variance  determinations listed here
 apply only to wastes derived from surface im-
 poundments in CWA or CWA-equivalent sys-
 tems  that  manage  decharacterized  ICRT
 wastes.

 IX. State Authority

 A. Applicability of Rules in Authorized
 States
   Under section 3006 of RCRA, EPA
 may authorize qualified States to
 administer and enforce the RCRA
 program within the State. Following
 authorization, EPA retains enforcement
 authority under sections 3008 3013
 and 7003 of RCRA, although authorized
 States have primary enforcement
 responsibility. The standards and
 requirements for authorization are
 found in 40 CFR Part 271.
  Prior to HSWA, a State with final
 authorization administered its
 hazardous waste program in lieu of EPA
 administering the Federal program  in
 that State. The Federal requirements no

  sThe term "land-disposed wastes" denotes
wastes that are managed in land-based units at any
time during the waste's storage, treatment, or
disposal.
   longer applied in the authorized State,
   and EPA could not issue permits for any
   facilities that the State was authorized
   to permit. When new, more stringent
   Federal requirements were promulgated
   or enacted, the State was obliged to
   enact equivalent authority within
   specified time frames. New Federal
   requirements did not take effect in an
   authorized State until the State adopted
   the requirements as State law.
     In contrast, under RCRA section
   3006{g) (42 U.S.C. 6926(g)), new
   requirements and prohibitions imposed
   by HSWA take effect in authorized
   States at the same time that they take
   effect in unauthorized States. EPA is
   directed to carry out these requirements
   and prohibitions in authorized States,
   including the issuance of permits, until
   the State is granted authorization to do
   so.
    Today's rule is being proposed
   pursuant to sections 3004(d) through
   (k), and 3004(m), of RCRA (42 U.S.C.
   6924(d) through (k), and 6924(m)). The
   rule would be added to Table 1 in 40
  CFR 271.l(j), which identifies the
  Federal program requirements that are
  promulgated pursuant to HSWA. States
  may apply  for final authorization for the
  HSWA provisions in Table 1, as
  discussed in the following section of
  this preamble. Table 2 in 40 CFR
  271.l(j) is also modified to indicate that
  this rule is a self-implementing
  provision of HSWA.

  B. Abbreviated Authorization
  Procedures for Specified Portions of the
  Land Disposal Restrictions Phase II  III
  and IV Rules                    '   '
   Under the current authorization
  structure, all revisions to authorized
  state hazardous waste programs, no
  matter how  minor the change, are
  reviewed under the same procedures
 and standard of review. While these
 procedures may be appropriate for
 significant changes to the RCRA
 program, EPA believes they are too
 detailed for minor changes. EPA is
 aware that this situation may result in
 unnecessary costs and delays in
 authorizing States and add costs for the
 Agency to process these revisions.
 Because of these problems, EPA believes
 that the procedures for authorization
 should reflect the different  scope of new
 rules. For example, a State should be
 able to gain authorization for  minor
 revisions to a basic aspect of the
 program (i.e., the Land Disposal
 Restrictions) in an expedited fashion if
 that State is authorized for that major
 part of the program. Therefore, EPA is
 today proposing to create an expedited
 authorization procedure that would be
applied to certain minor revisions to the

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               Federal Register / Vol. 60, No.  162 / Tuesday, August  22,  1995 / Proposed Rules
                                                                      43687
  LDR program in the Phase II, III, and IV
  rules.
   Under this proposed approach, EPA's
  review and approval of a State's
  authorization application would be
  expedited. A State would be required to
  certify that provisions it has adopted
  provide authority that is equivalent and
  no less stringent than the Federal
  provisions. Within 60  days of receiving
  a complete application, EPA would
  provide notice to the public approving
  a complete State application. Then, the
  public would have an  opportunity for
  comment, as provided by the existing
  regulations governing authorization
  revisions. A detailed explanation of
  today's proposed procedures is
  provided below.
   Today's Phase IV proposal contains
  two very distinct types of changes to the
  Land Disposal Restrictions program.
  The abbreviated authorization process
  that EPA is proposing today would
  apply to minor changes to the existing
  program. Specifically,  the new process
  would apply to  the regulation of newly
  identified wastes under BOAT, and to
 several clarifications and improvements
 to the existing LDR program. These
 provisions involve minor and routine
 changes to the Land  Disposal
 Restrictions (LDR) regulations. The
 other part of today's  Phase IV proposal
 would potentially expand the scope of
 EPA's program under RCRA  in
 significant ways. Specifically, EPA is
 proposing options that  would address
 the management of decharacterized
 wastes in surface impoundments that
 are not subject to RCRA Subtitle C.
 Depending on the option that the
 Agency chooses, the  universe of
 facilities covered by Subtitle C could
 significantly increase. The regulatory
 approach that EPA may use for these
 surface impoundments may also differ
 from previous regulatory schemes. EPA
 would use the existing  authorization
 procedures for this part of the Phase IV
 proposal, except for option one in the
 management of decharacterized wastes.
 This option would use existing non-
 RCRA regulatory authorities to address
 these units, and therefore RCRA
 regulatory amendments would not be
 required. Thus, a State's authorization
 would not need to be revised.
  EPA is also proposing to apply the
 same abbreviated authorization
 procedures to the more  minor changes
 in the March 2,1995, proposed Phase III
 LDR rule (see 60  FR 11702) that are
 similar to those in today's Phase IV
 proposal, as they also are routine
 changes to the LDR program.  EPA also
believes that the revised numerical
 values represented by the Universal
Treatment Standards  (UTS) in §§ 268.40
 and 268.48 that were promulgated in the
 Phase II LDR rule (see 59 FR 47982,
 September 1,1994) are changes
 appropriate for the abbreviated process.

 Basis/Rationale for Streamlined
 Authorization

   EPA believes that an abbreviated
 procedure can and should be used to
 authorize States for sections of the
 Phase II,  III, and Phase IV LDR rules
 (discussed below) for several reasons.
 First, the applicable portions of these
 rules are  relatively minor in nature.
 Over time, changes such as these have
 become a routine part of the LDR
 program. Second, the States that would
 use this procedure would already be
 authorized for the Third  Third LDR rule.
 During the authorization process for the
 LDR rules up to and including the Third
 Third rule, EPA would have already
 determined whether the  State  has an
 LDR program that is consistent with the
 Federal program, and also whether there
 is adequate enforcement. Third, since
 the State  has been implementing the
 LDR program, EPA will be familiar with
 the State's implementation performance.
 Last, EPA believes that implementation
 of the LDR program will be enhanced by
 expedited authorization of these
 provisions, since authorization will
 remove any confusion about who is the
 implementing Agency for specific
 requirements.
  Section 3006(b) of RCRA establishes
 the legal standard for State program
 approval. EPA believes that for the
 routine changes in the Phase II, III, and
 IV LDR rules, the certification submitted
 to EPA by the State provides an
 adequate basis for EPA to propose
 approval of the program revision, as this
 certification simply updates EPA's
 previous findings regarding the LDR
 program. EPA also believes that by
 virtue of a State having obtained
 authorization for the LDR program, the
 State has demonstrated its capability
 both in the administration and
 implementation of the program, and in
 its understanding of the requisite legal
 requirements. States that are authorized
 for significant portions of the LDR
 program are  familiar with the type of
 rule changes needed, have adopted all
 or most  of the underlying LDR program,
 and have experience in implementing
 and enforcing the rules. Thus, EPA will
give great  weight to the statements and
 legal certification submitted by the
State. Accordingly, the Agency believes
that a second detailed evaluation by
EPA is not warranted under such
circumstances.
 Proposed Streamlined Authorization
 Procedures
   Today's notice proposes to amend 40
 CFR Part 271 to create a streamlined
 authorization procedure in new section
 271.28. EPA is proposing today to apply
 this procedure only to the specific parts
 of the Phase II, III, and IV rules that are
 identified in paragraph (a) of section
 271.28. EPA is also soliciting comment,
 however, on whether this approach
 should be applied to other aspects of the
 land disposal program.
   The parts of the Phase III proposal to
 which today's streamlined authorization
 proposal would be applicable are: (1)
 Treatment standards for newly listed
 wastes, (2) improvements to the existing
 land disposal restrictions program, (3)
 revisions and corrections to the
 treatment standards in §§ 268.40 and
 268.48, and (4) the prohibition of
 hazardous waste as fill material. The
 preamble discussion for these parts of
 the  Phase III proposal is in Sections VI,
 VII, and VIII of the March 2, 1995,
 notice (see 60 FR 11702). The applicable
 parts of today's proposed Phase IV rule
 are: (1) Treatment standards for newly
 listed and identified wastes and (2)
 improvements to the land disposal
 restrictions program. In the final Phase
 II rule, the applicable parts  are the
 treatment standards in §§ 268.40 and
 268.48.
   Note that EPA is not proposing the
 use  of this streamlined procedure  for the
 authorization of those sections of the
 Phase III rule that address end-of-pipe
 treatment standards for (1) Clean Water
 Act  and equivalent wastewater
 treatment systems, and (2) Class I non-
 hazardous injection wells. The
 streamlined procedures would also not
 be used for the authorization of the
 option the Agency chooses in the Phase
 IV final rule to address the management
 of leaks, sludges, and air emissions of
 toxic constituents from decharacterized
 wastes. As explained earlier, EPA has
 tentatively concluded that these
 requirements would involve significant
 expansions of the program deserving
 more detailed review.
   Paragraph (a) of proposed § 271.28
 also  specifies that the State must already
 be authorized for the Third Third LDR
 rule  (see 55 FR 22520, June 1, 1990) to
 be able to use the proposed streamlined
 procedure to gain authorization for the
 Phase II, III, and IV rules. EPA is
 proposing this approach because the
 structure of the LDR program is
essentially complete with the Third
Third rule, and few changes have been
made since this rule, EPA believes that
it is appropriate to require LDR program
authorization up to and including this

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43688       Federal  Register  /  Vol.  60, No.  162 / Tuesday. August 22, 1995 / Proposed Rules
rule as a condition for using the
proposed streamlined procedures. As of
May 31, 1995, 19 States have been
authorized to implement the Third
Third LDR rule. At the same time, EPA
recognizes that this proposed approach
may unnecessarily limit the benefits of
streamlined authorization procedures.
Therefore, EPA solicits comment on (1)
whether the use of the streamlined
procedure should be expanded to other
Land Disposal Restrictions rules, and (2)
whether a State should only be required
to be authorized for the Solvents and
Dioxins rule (51 FR 40572, November 7,
1986) to use this procedure, since this
rule put in place the basic structure of
the LDR program.
  Under proposed section 271.28(b), a
State would submit an abbreviated
application (primarily consisting of a
certification from the State) that the
laws of the State provide authorities that
are equivalent to,  and no less stringent
than the Federal authorities. The
certification would also include
appropriate citations to the specific
statutes, administrative regulations and
where appropriate, judicial decisions.
The cited  State statutes and regulations
would also have to be fully effective at
the time the certification is signed. As
discussed above, in the case of routine
or minor program changes, EPA believes
that this certification will provide an
adequate basis for EPA's authorization
of a program revision under RCRA
section 3006 (absent contrary
information in the possession of EPA, or
supplied in comments during the public
comment  period).
  Under proposed section 271.28(c),
within 30 days of receipt of the
application EPA would be required to
notify the State if EPA determines that
the application, including the
certification,  is not complete.
Accordingly, when the application is
received, EPA would conduct a
completeness check to determine
whether the application contains all the
required components. EPA will address
the extent of this completeness check in
future authorization guidance. However,
EPA does not intend that this
completeness check involve a detailed
and substantive review. EPA
specifically requests comment on what
activities this check should be limited
to. The reasons why EPA could
determine that an application is not
complete  are specified in section
271.28(d). To minimize any errors  such
as these, EPA continues to encourage
States to submit draft rules to EPA for
review. If EPA does find that an
application is incomplete or contains
errors, EPA will summarize the
deficiencies in the completeness notice
sent to the State under § 271.28(c). After
the deficiencies are corrected, the State
would resubmit the application to EPA.
  When EPA determines that a State's
application is complete, EPA would
issue an immediate final rule under
section 271.28(e) within 60 days of
receiving the application under
paragraph (c). Thus, if a State's initial
application is complete, this notice
would be published no later than 30
days after EPA finishes its completeness
check. This immediate final rule is
similar to the notice used in § 271.21 for
other revision authorization decisions.
Thus, the public would have the same
ability to comment as for other
authorization decisions. The notice
would provide for a 30-day public
comment period, and would go into
effect 60 days after publication unless a
significant adverse comment is received
by EPA. An example of a significant
adverse comment would be that the
State did not have the necessary
authority to implement the new
requirements.
  EPA solicits comments on this
proposed approach, as well as
suggestions of possible modifications or
alternative approaches. For example, is
the step of a 30-day completeness
review necessary? Are the criteria in
§ 271.28(d) for completeness
appropriate? Are there further
efficiencies that could be made, for
example, in the approval process for
program changes that are purely
technical? Does the proposed process
provide adequate assurance that the
State program will be consistent with
and no less stringent than the Federal
program?
  Although EPA has proposed to use
this streamlined authorization
procedure only for portions of the Phase
II, III, and IV LDR rules, EPA is
considering this procedure for other
aspects of the Land Disposal
Restrictions and other rules in the
future. Future proposals will further
discuss EPA's plans for improving and
streamlining the state authorization
program. EPA is planning to propose to
use a similar authorization approach for
the upcoming Hazardous Waste
Identification Rule (HWIR) for
contaminated media. This different
procedure would provide for additional
EPA review of the State's authorization
application. EPA expects that the
procedure proposed today would
constitute the most expedited
authorization procedure available to
States.

C. Effect on State Authorization
  Because today's proposed Phase IV
LDR rule is being proposed under
HSWA authority, when finalized, those
sections of today's proposal that expand
the coverage of the LDR program (e.g.,
to newly identified wastes) would be
implemented by EPA in authorized
States until their programs are modified
to adopt these rules and the
modification is approved by EPA.
However, some of the regulatory
amendments proposed today are less
stringent than, or reduce the scope of,
the existing Federal requirements.
Others are neither more or less
stringent.
   States that are authorized for
provisions that would be amended in a
less stringent manner by today's
proposal would not be required to
modify their program to adopt the
revised provisions. Those provisions are
described in Section  VI of today's
preamble, entitled Improvements to
Land Disposal Restrictions Program.
The regulatory provisions that are
considered to be less stringent are in
sections: 268.4, 268.5, 268.7, 268.30-37,
waste code F039 in the table titled
"Treatment Standards for Hazardous
Wastes"  in § 268.40,  and the use of
polymerization as a treatment method
for certain D001 wastes in Table 1 of
§268.42.
   Other provisions are neither more or
less stringent. EPA clarified in a
December 19,  1994, memorandum
(which is in the docket for today's
proposal) that EPA would not
implement the Universal Treatment
Standards (promulgated under HSWA
authority in the Phase II LDR rule)
separately for those States for which the
State has received LDR authorization.
EPA views any changes  from the
existing limits to be neither more or less
stringent since the technology basis of
the standards  has not changed.
Accordingly, EPA will not implement
the amendments to the UTS that are
proposed in the LDR Phase III and IV
proposals.
   States should note that EPA is also
proposing to include newly identified
wastes under the LDR program. Because
these more stringent  HSWA provisions
expand the scope of LDR coverage, EPA
would generally implement them in
authorized States on the effective date of
today's rule. EPA's authorization
guidance for the final rule will identify
in more detail which provisions in these
sections will be implemented. However,
EPA strongly encourages States that are
authorized for the Land Disposal
Restrictions program to make these
proposed improvements to their
regulations because of the clarity they
will give to the regulated community
and to the Agency.

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                Federal Register  /  Vol.  60,  No.  162 / Tuesday. August 22, 1995 / Proposed Rules       43689
    Because today's rule is proposed
  pursuant to HSWA, a State submitting a
  program modification may apply to
  receive interim or final authorization
  under RCRA section 3006(g)(2) or
  3006(b), respectively, on the basis of
  requirements that are substantially
  equivalent or equivalent to EPA's. The
  procedures and schedule for State
  program modifications for final
  authorization are described in 40 CFR
  271.21. It should be noted that all
  HSWA interim authorizations will
  expire January 1, 2003. (See § 271.24(c)
  and 57 FR 60132, December 18, 1992.)
   Section 271.21(e)(2) requires that
  States with final authorization must
  modify their programs to reflect Federal
  program changes and to subsequently
  submit the modification to EPA for
  approval. The deadline by which the
  State would have to modify its program
 to adopt these regulations is specified in
 section 271.21(e). This deadline can be
 extended in  certain cases (see section
 271.21(e)(3)). Once EPA approves the
 modification, the State requirements
 become Subtitle C RCRA requirements.
   States with authorized RCRA
 programs may already have
 requirements similar to those in today's
 proposed 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
 is not  authorized to implement these
 requirements in lieu of EPA until the
 State program modifications are
 approved. Of course, states with existing
 standards could continue to administer
 and enforce their standards as a matter
 of State law.  In implementing the
 Federal program, EPA will work with
 States  under  agreements to minimize
 duplication of efforts. In most cases,
 EPA expects  that  it will be able to defer
 to the States in their efforts to
 implement their programs rather than
 take separate actions under Federal
 authority.
  States that  submit official applications
 for final authorization less than 12
 months after the effective date of these
 regulations are not required to include
 standards equivalent  to these
 regulations in their application.
 However, the State must modify its
 program by the deadline set forth in
 §271.21(e). States that submit official
 applications for final  authorization 12
 months after the effective date of these
 regulations must include standards
equivalent to  these regulations in their
application. The requirements a State
must meet when submitting its final
authorization application are set forth in
40 CFR 271.3.
  X. Regulatory Requirements

  A. Regulatory Impact Analysis Pursuant
  to Executive Order 12866
    Executive Order No. 12866 requires
  agencies to determine whether a
  regulatory action is "significant." The
  Order defines a "significant" regulatory
  action as one that "is likely to result in
  a rule that may: (l) Have an annual
  effect on the economy of $100 million
  or more or 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
  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; 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."
   The Agency estimated the costs of
  today's proposed rule to determine if it
  is a significant regulation as defined by
  the Executive Order. The analysis
  considered compliance cost and
 economic impacts  for ensuring adequate
 control of underlying hazardous
 constituents in air emissions, leaks, and
 sludges produced in surface
 impoundments used to treat
 decharacterized ICRT wastewaters. Also
 covered under this rule are three wood
 preserving wastes (F032, F034, and
 F035) and TC metals (D004-D011). The
 analysis considered compliance cost
 and economic impacts for both
 characteristic wastes and newly listed
 wastes affected by this rule. The Agency
 would like to have better information
 regarding how many facilities and waste
 management units are potentially
 affected, waste volumes, constituents,
 concentrations, how often and under
 what  circumstances additional
 treatment is required, and treatment
 costs.
  Detailed discussions of the
 methodology used for estimating the
 costs, economic impacts and the
 benefits attributable to today's proposed
 rule, followed by a presentation of the
 cost, economic impact and benefit
 results may be found in the background
 document, "Regulatory Impact Analysis
 of the Proposed Phase IV Land Disposal
 Restrictions Rule," which is in the
 docket for today's proposed rule.
 1. Methodology Section
  Three regulatory options were
considered to establish "RCRA
  equivalency" for decharacterized ICRT
  wastes. In other words, wastes
  decharacterized by dilution may be
  placed in a nonhazardous surface
  impoundment only if the toxic
  constituents are treated to the same
  extent that they would be under the
  treatment standards mandated by RCRA
  section 3004(m)(l). The analysis of
  these regulatory options involved
  characterizing the affected universe of
  facilities in terms of current
  management practices, waste volumes,
  and constituent concentrations in
  wastewater (i.e., characterizing baseline
  conditions).
   Agency estimated the volumes of
  waste affected by today's rule to
  determine the national level
  incremental costs (for both the baseline
  and post-regulatory scenarios),
  economic impacts (defined as the
  difference between the industrial
  activity under post-regulatory
  conditions and the industrial activity in
  the absence of regulation), and benefits
  (including estimation of pollutant
  loadings reductions, estimation of
  reductions in exceedances of health-
  based levels,  and qualitative description
  of the potential benefits.) The procedure
  for estimating the volumes of
  decharacterized ICRT wastes and newly
  listed wood preserving wastes affected
 by today's proposed rule is detailed in
 the background document "Regulatory
 Impact Analysis of the Proposed Phase
 IV Land Disposal Restrictions Rule,"
 which was placed in the docket for
 today's proposed rule.
 2. Results
   a. Volume results. The Agency has
 estimated the volumes of
 decharacterized ICRT wastes potentially
 affected by today's proposed rule in the
 background document "Regulatory
 Impact Analysis of the Proposed Phase
 IV Land Disposal Restrictions Rule,"
 which was placed in the docket for
 today's proposed rule.
   The Agency requests comment on
 waste volumes affected by the proposed
 Phase IV LDR rule.
   b.  Cost results. The Agency has
 prepared a cost and impacts analysis
 for the options previously described
 in this preamble. Under Option 1,
 the Agency proposes to defer to
 existing regulations, and as a result,
 expects minimal impacts to occur. The
 Agency has estimated that roughly 300
 facilities (with approximately 800
 surface impoundments) under Option 2
 and roughly 850 facilities (with
 approximately 2,000 surface
 impoundments) under Option 3 may
manage decharacterized wastewaters
containing constituents exceeding UTS.

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 43690       Federal Register / Vol. 60, No.  162 / Tuesday, August 22, 1995 / Proposed  Rules
 The Agency estimates that total annual
 compliance costs for facilities under
 Option 2 range from $10 to $65 million.
 Total annual compliance costs for
 facilities under Option 3 are estimated
 to be in the range of $200 to $300
 million. The Agency requests comment
 and data regarding how often additional
 treatment may be required.
  The Agency has estimated that
 minimal impacts will occur as the result
 of setting treatment standards for TC
 metals.
  c. Economic impact results. The
 Agency has estimated the economic
 impacts of today's proposed rule to be
 small. Results of the analysis were
 included in the docket for today's
 proposed rule. The Agency requests
 comment on anticipated economic
 impacts resulting from the proposed
 Phase IV LDR rule.
  d. Benefit estimate results. The
 Agency has estimated the benefits
 associated  with today's proposed rule to
 be small. Screening risk results for air
 emissions suggest that 20 to 25 percent
 of samples (306 to 349 of 1,562 facilities
 for which data are available) exceed the
 100 parts per million by weight (ppmw)
 control limit set  by the Subpart CC rule.
  Central tendency  screening risk
 results for leaks to groundwater indicate
 that samples from the pharmaceutical
 and OCPSF industries have potential
 individual lifetime cancer risk
 exceedances of 10 ~5 at the raw
 wastewater and biological pond influent
 sampling points. In  the pharmaceutical
 industry, methylene chloride and
 acrylonitrile are  the constituents of
 concern; in the OCPSF industries,
 acrylonitrile is the constituent of
 concern. Point of generation data
 indicate the potential for risks from
 leaks, however, surface impoundment
 data are not available for all industries.
  Central tendency screening risk
 results for sludges from the OCPSF
 industry indicate that two samples
 present individual lifetime cancer risk
 in excess of 10 ~5, where acrylonitrile is
 the constituent of concern. The Agency
 requests comment on anticipated
 benefits resulting from the proposed
 Phase IV LDR rule.

 B. Regulatory Flexibility Analysis
  Pursuant to the Regulatory Flexibility
Act of 1980, 5 U.S.C. 601 et seq., when
an agency publishes notice of
rulemaking, for a rule that will have a
significant effect  on  a substantial
number of small  entities, the agency
must prepare and make available for
public comment  a regulatory flexibility
analysis that considers the effect of the
rule on small entities (i.e.: small
businesses, small organizations, and
 small governmental jurisdictions.)
 Under the Agency's Revised Guidelines
 for Implementing the Regulatory
 Flexibility Act, dated May 4, 1992, the
 Agency committed to considering
 regulatory alternatives in rulemakings
 when there were any economic impacts
 estimated on any small entities.  See
 RCRA sections 3004 (d), (e), and (g)(5)
 which apply uniformly to all hazardous
 wastes. Previous guidance required
 regulatory alternatives to be examined
 only when significant economic effects
 were estimated on a substantial number
 of small entities.
  In assessing the regulatory approach
 for dealing with small entities in today's
 proposed rule, for both surface disposal
 of wastes and underground  injection
 control, the Agency considered two
 factors. First, EPA is not aware of any
 data on potentially affected  small
 entities. Second, due to the  statutory
 requirements of the RCRA LDR program,
 no legal avenues exist for the Agency to
 provide relief from the LDRs for small
 entities. The only relief available for
 small entities is the existing small
 quantity generator provisions and
 conditionally exempt small  quantity
 generator exemptions found in 40 CFR
 262.11-12, and 261.5, respectively.
 These exemptions basically prescribe
 100 kilograms (kg) per calendar month
 generation of hazardous waste as the
 limit below which one is exempted from
 complying with the RCRA standards.
  Given these two factors, the Agency
 was unable to frame a series of small
 entity options from which to select the
 lowest cost approach; rather, the Agency
 was legally bound to address the land
 disposal of the hazardous wastes
 covered in today's proposed rule
 without regard to the size of the entity
 being regulated.

 C. Paperwork Reduction Act
  The information collection
 requirements in today's proposed rule
 have been submitted for approval to the
 Office of Management and Budget under
 the Paperwork Reduction Act, 44 U.S.C.
 3501 et seq. An Information  Request
 (ICR) document was prepared by EPA
 and a copy may be obtained from Sandy
 Farmer (EPA ICR #1442.10),
 Environmental Protection Agency,
 Regulatory Information Division, 401 M.
 Street,  S.W. (mail code 2136),
 Washington, D.C. 20460, or by calling
 (202) 260-2740. Only incremental
burdens are discussed in the ICR. This
burden will eventually be merged with
the LDR program ICR.
  The overall reporting and
recordkeeping burden is estimated to be
approximately 66,000 hours. The
average recordkeeping burden  per
 respondent is approximately 3 hours.
 The public reporting burden for this
 collection is estimated to average 16
 hours per respondent. This includes
 time for reviewing instructions,
 gathering and compiling data,
 maintaining the data, and preparing and
 submitting data.
  The public should send comments
 regarding the burden estimate, or any
 other aspect of this collection of
 information (please refer to EPA ICR#
 1442.10 and OMB# 2050-0085)
 including suggestions for reducing
 burden to: Sandy Farmer (EPA ICR
 1442.10), Environmental Protection
 Agency, Regulatory Information
 Division, 401 M. Street,  S.W. (mail code
 2136), Washington, D.C. 20460; and to
 Jonathan Gledhill (OMB 2050-0085),
 Office of Management and Budget,
 Office of Information and Regulatory
 Affairs, Washington, D.C. 20460.

 XL Unfunded Mandates Reform Act
  Under Section 202 of the Unfunded
 Mandates Reform Act of 1995, signed
 into law on March 22, 1995, EPA must
 prepare a statement to accompany any
 rule where the estimated costs to State,
 local, or tribal governments in the
 aggregate, or to the private sector, will
 be $100 million or more in any one year.
 Under Section 205, EPA must select the
 most cost-effective and least
 burdensome alternative that achieves
 the objective of the rule and is
 consistent with statutory requirements.
 Section 203 requires EPA to establish a
 plan for informing and advising any
 small governments that may be
 significantly impacted by the rule.
  EPA has completed an analysis of the
 costs and benefits from the proposed
 Phase IV LDR rule and has determined
 that this rule does not include a Federal
 mandate that may result in estimated
 costs of $100 million or more to either
 State, local or tribal governments in the
 aggregate. As stated above, the private
 sector may  incur costs exceeding $100
 million  per year depending upon the
 option chosen in the final rulemaking.
 EPA has fulfilled the requirement for
 analysis under the Unfunded Mandates
 Reform Act, and results of this analysis
 have been included in the background
 document "Regulatory Impact Analysis
 of the Proposed Phase IV Land Disposal
 Restrictions Rule," which was placed in
the docket for today's proposed rule.

 List of Subjects

 40 CFR Part 148
  Administrative practice and
procedure, Hazardous waste, Reporting
and recordkeeping requirements, Water
supply.

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               Federal Register / Vol. 60, No. 162  /  Tuesday, August 22, 1995 / Proposed  Rules
                                                                       43691
 40 CFR Part 268
   Hazardous waste, Reporting and
 recordkeeping requirements.

 40 CFR Part 271
   Administrative practice and
 procedure, Hazardous materials
 transportation, Hazardous waste,
 Penalties, Reporting and recordkeeping
 requirements.
   Dated: August 11, 1995. '
 Carol M. Browner,
 Administrator,
   For the reasons set out in the
 preamble, title 40, chapter I of the Code
 of Federal Regulations as proposed to be
 amended at 60 FR 11702 (March 2,
 1995) is further proposed to be amended
 as follows:

 PART 148—HAZARDOUS WASTE
 INJECTION RESTRICTIONS

   1. The authority citation for part 148
 continues to read as follows:
   Authority: Section 3004, Resource
 Conservation and Recovery Act, 42 U.S.C.
 6901,etseq.
   2. Section 148.18 is amended by
 redesignating paragraphs (a), (b), and
 (c), as paragraphs (b), (c), and (dj, and
 by adding paragraph (a) to read as
 follows:

 § 148.18  Waste specific prohibitions—
 Newly Listed and Identified Wastes.
   (a) Effective August 22, 1997, the
 wastes specified in 40 CFR 261 as EPA
 Hazardous waste numbers F032, F034,
 and F035, D004—D011 (as measured by
 the Toxicity Characteristic Leaching
 Procedure), and mixed D004-D011 TC/
 radioactive wastes, are prohibited from
 underground injection.
PART 268—LAND DISPOSAL
RESTRICTIONS

  3. The authority citation for Part 268
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.

Subpart A—General

  4. Section 268.1 is amended by
revising paragraph (e)(4)(ii) to read as
follows:

§ 268.1   Purpose, scope and applicability.
*****
  {e) * * *
  (4) * * *
  (ii) Characteristic wastes which are
injected into Class I nonhazardous
waste wells or placed in a Clean Water
Act (CWA) or CWA-equivalent
wastewater treatment surface
 impoundment, whose combined volume
 is less than one per cent of the total flow
 at the wellhead, or at the surface
 impoundment influent, on an
 annualized basis; and for which any
 underlying hazardous constituents in
 the characteristic wastes are present, at
 the point of generation, at levels less
 than ten times the treatment standards
 found at § 268.48.
 *****
   5. Section 268.4 is amended by
 revising paragraphs (a)(2)(iv), and (a)(4)
 introductory text to read as follows:
 § 268.4  Treatment surface impoundment
 exemption.
   (a) * * *
   (2) * * *
   (iv) Recordkeeping: Sampling and
 testing and recordkeeping provisions of
 §§ 264.13 and 265.13 of this chapter
 apply.
 *****
   (4) The owner or operator submits to
 the Regional Administrator a written
 certification that the requirements of
 § 268.4(a)(3) have been met. The
 following certification is required:
 *****
   6. Section 268.5 is amended by
 revising paragraph (e) to read as follows:

 § 268.5  Procedures for case-by-case
 extensions to an effective date.
 *****
   (e) On the basis of the information
 referred to in paragraph (a) of this
 section, after notice and opportunity for
 comment, and after consultation with
 appropriate State agencies in all affected
 States, the Administrator may grant an
 extension of up to one year from the
 effective date. The Administrator may
 grant additional time, up to one
 additional year, if requested in the
 application for the original extension of
 the effective date, or  if requested at a
 later date, so long as  the demonstration
 can be made that additional time
 beyond one year is necessary. In no
 event will an extension extend beyond
 24 months from the applicable effective
 date specified in Subpart C of Part 268.
 The length of any extension authorized
 will be determined by the Administrator
 based on the time required to construct
 or obtain the type of capacity needed by
 the applicant as described  in the
 completion schedule discussed in
 paragraph (a)(5) of this section. The
 Administrator will give public notice of
 the intent to approve or deny a petition
and provide an opportunity for public
comment.  The final decision will be
published in the Federal Register.
   7. Section 268.7 is amended by
 removing paragraph (b)(2) and
 redesignating paragraph (b)(3) as (b)(2),
 (b)(4) as (b)(3), (b)(5) as (b)(4), (b)(6) as
 (b)(5) and (b)(7) as (b)(6; by revising the
 heading, paragraph (a), the introductory
 text of paragraph (b), (b)(l), (b)(2), (b)(3),
 (b)(4) introductory text, (b)(4)(i)
 introductory text, (b)(4)(ii) introductory
 text, (b)(4)(iii) introductory text, (c)(l),
 and (c)(2) to read as follows:

 § 268.7  Testing, tracking, and
 recordkeeping requirements for generators,
 treaters, and disposal facilities.
   (a) Requirements for generators:
   (1) Determine if the waste has to be
 treated before being land disposed, as
 follows: A generator of a hazardous
 waste must determine  if the waste has
 to be treated before it can be land
 disposed. This is done by determining
 if the hazardous waste meets the
 treatment standards in § 268.40 or
 § 268.45. This determination can be
 made in either of two ways: testing the
 waste or using knowledge of the waste.
 If the generator tests the waste, testing
 would normally determine the total
 concentration of hazardous constituents,
 or the concentration of hazardous
 constituents in an extract of the waste
 obtained using test method 1311 in
 "Test Methods for Evaluating Solid
 Waste, Physical/Chemical Methods,"
 EPA Publication SW-846, as referenced
 in § 260.11 of this chapter, depending
 on whether the treatment standard for
 the waste is expressed as a total
 concentration or concentration of
 hazardous constituent in the waste's
 extract. In addition, some hazardous
 wastes must be treated by particular
 treatment methods before they can be
 land disposed. These treatment
 standards are also found in § 268.40,
 and are described in detail in § 268.42,
 Table 1. These wastes do not need to be
 tested. If a generator determines they are
 managing a waste that displays a
 hazardous characteristic of ignitability,
 corrosivity, reactivity, or toxicity, they
 must comply with the special
 requirements of § 268.9 of this part in
 addition to any applicable requirements
 in this section.
  (2) If the waste does not meet the
 treatment standard: With each shipment
 of waste, the generator must notify the
 treatment or storage facility in writing.
 The notice must include the information
 in column "268.7(a)(2)" of the
 Notification Requirements Table in
 §268.7(a)(4).
  (3) If the waste meets the treatment
 standard: The generator must send a
 one-time notice and certification to each
treatment or storage facility receiving
the waste. The notice must state that the

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 43692	Federal  Register  /  Vol. 60, No.  162 /  Tuesday,  August  22,  1995  /  Proposed Rules
 waste meets the applicable treatment
 standards set forth in § 268.40 or
 § 268.45. The notice must also include
 the information indicated in column
 "268.7(a)(3)" of the Notification
 Requirements Table in § 268.7(a)(4).
 However, generators of hazardous debris
 excluded from the definition of
 hazardous waste under §261.3(e)(2) of
 this chapter are not subject to these
 requirements. If the waste changes, the
 generator must send a new notice and
 certification to the receiving facility,
 and place a copy in their files.
   (4) For reporting, tracking and
 recordkeeping when exceptions allow
 certain wastes that do not meet the
 treatment standards to be land disposed:
 There are certain exemptions from the
 requirement that hazardous wastes meet
 treatment standards before they can be
 land disposed. These include, but are
 not limited to case-by-case extensions
 under § 268.5, disposal in a no-
 migration unit under § 268.6, or a

   PAPERWORK REQUIREMENTS TABLE
 national capacity variance under
 subpart C of this part. If a generator's
 waste is so exempt, then the generator
 must submit a one-time notice and
 certification to each land disposal
 facility receiving the waste. The notice
 must include the information marked
 off in column "268.7(a)(4)" of the
 Notification Requirements Table below.
 If the waste changes, the generator must
 send a new notice and certification to
 the receiving facility, and place a copy
 in their files.
Required Information
1. EPA Hazardous Waste and Manifest Numbers 	
2. The constituents for F001-F005, F039, and underlying hazardous constituents,
unless the waste will be treated and monitored for all constituents (in which
case none are required to be listed). The notice must include the applicable
wastewater/ nonwastewater category (see §§268.2(d) and (f)) and subdivisions
made within a waste code based on waste-specific criteria (such as D003 reac-
tive cyanide) 	
3. Waste analysis data (when available) 	
4. Date the waste is subject to the prohibition 	
5. Certification statement: I certify under penalty of law that I personally have ex-
amined and am familiar with the waste through analysis and testing or through
knowledge of the waste to support this certification that the waste complies with
the treatment standards, or is subject to an exmeption from the treatment
standards, specified in 40 CFR part 268 subpart D. I believe that the informa-
tion I submitted is true, accurate, and complete. I am aware that there are sig-
nificant penalties for submitting a false certification, including the possibility of a
fine and imprisonment 	
6. For hazardous debris, when treating with the alternative treatment technologies
provided by §268.45: the contaminants subject to treatment, as described in
§268.45(b); and an indication that these contaminants are being treated to
comply with §268.45 	

§268.7(a)(2)
v
v
v


v

§268.7(a)(3)
v



J


§268.7(a)(4)
J


j
j


  (5) If a generator is managing
prohibited waste in tanks, containers, or
containment buildings regulated under
40 CFR 262.34, and is treating such
waste in  such tanks, containers, or
containment buildings to meet
applicable treatment standards under
subpart D of this part, the generator
must develop and follow a written
waste analysis plan which describes the
procedures the generator will carry out
to comply with the treatment standards.
(Generators treating hazardous debris
under the alternative treatment
standards of Table 1, §268.45, however,
are not subject to these waste analysis
requirements.) The plan must be kept on
site in the generator's records, and the
following requirements must be met:
  (i) The waste analysis  plan must be
based on a detailed chemical and
physical  analysis of a representative
sample of the prohibited waste(s) being
treated, and  contain all information
necessary to treat the waste(s) in
accordance with the requirements of
this Part, including the selected  testing
frequency.
  (ii) Such plan must be kept in the
facility's on-site files and made
available to inspectors.
  (iii) Wastes shipped off-site pursuant
to this paragraph must comply with the
notification requirements of
§268.7(a)(4).
  (6) If a generator determines that the
waste is restricted based solely on his
knowledge of the waste, all supporting
data used to make this determination
must be retained on-site in the
generator's files. If a generator
determines that the waste is restricted
based on testing this waste or an extract
developed using the test method 1311 in
"Test Methods  for Evaluating Solid
Waste, Physical/Chemical Methods,"
EPA Publication SW-846, as referenced
in § 260.11 of this chapter, and all waste
analysis data must be retained on-site in
the generator's files.
  (7) If a generator determines that he is
managing a restricted waste that is
excluded from the definition of
hazardous or solid waste or exempt
from Subtitle C regulation, under 40
CFR 261.2 through 261.6 subsequent to
the point of generation, he must place
a one-time notice stating such
generation, subsequent exclusion from
the definition of hazardous or solid
waste or exemption from RCRA Subtitle
C regulation, and the disposition of the
waste, in the facility's file.
  (8) Generators must retain on-site a
copy of all notices, certifications, waste
analysis data, and other documentation
produced pursuant to this section for at
least three years from the date that the
waste that is the subject of such
documentation was last sent to on-site
or off-site treatment, storage, or
disposal. The three year record retention
period is automatically extended during
the course of any unresolved
enforcement action regarding the
regulated  activity or as requested by the
Administrator. The requirements of this
paragraph apply to solid wastes even
when the  hazardous characteristic is
removed prior to disposal, or when the
waste is excluded from the definition of
hazardous or solid waste under 40 CFR
261.2-261.6, or exempted  from Subtitle
C regulation, subsequent to the point of
generation.

-------
                Federal  Register / Vol. 60, No. 162 / Tuesday. August 22, 1995 / Proposed  Rules        43693
    (9) If a generator is managing a lab
  pack waste and wishes to use the
  alternative treatment standard for lab
  packs found at § 268.42(c), with each
  shipment of waste the generator must
  submit a notice to the treatment facility
  in accordance with paragraph (a)(2) of
  this section. If the lab pack contains
  characteristic hazardous wastes (D001-
  D043), underlying hazardous
  constituents (as defined in § 268.2(i))
  need not be determined. The generator
 must also comply with the requirements
 in paragraphs (a)(6) and (a)(7) of this
 section and must submit the following
 certification, which must be signed by
 an authorized representative:
   I certify under penalty of law that I
 personally have examined and am familiar
 with the waste and that the lab pack contains
 only wastes that have not been excluded
 under appendix IV to 40 CFR part 268.1 am
 aware that there are significant penalties for
 submitting a false certification, including the
 possibility of fine or imprisonment.
   (10) Small quantity generators with
 tolling agreements pursuant to  40 CFR
 262.20(e) must comply with the
 applicable notification and certification
 requirements of paragraph (a) of this
  section for the initial shipment of the
  waste subject to the agreement. Such
  generators must retain on-site a copy of
  the notification and certification,
  together with the tolling agreement, for
  at least three years after termination or
  expiration of the agreement. The three-
  year record retention period is
  automatically extended during the
  course of any unresolved enforcement
  action regarding the regulated activity or
  as requested by the Administrator.
   (b) Treatment  facilities must test their
  wastes according to the frequency
  specified in their waste analysis plans
  as required by 40 CFR 264.13 (for
  permitted TSDs) or 40 CFR 265.13 (for
  interim status facilities). Such testing
  must be performed as provided in
  paragraphs (b)(l), (b)(2) and (b)(3) of this
  section.
   (1) For wastes with treatment
  standards expressed as concentrations
  in the waste extract (TCLP) the owner or
  operator of the treatment facility must
 test the  treatment residues, or an extract
 of such  residues developed using  test
 method 1311 (the Toxicity
 Characteristic Leaching Procedure,
 described in "Test Methods for

   PAPERWORK REQUIREMENTS TABLE
  Evaluating Solid Waste, Physical/
  Chemical Methods," EPA Publication
  SW-846 as incorporated by reference in
  § 260.11 of this chapter), to assure that
  the treatment residues or extract meet
  the applicable treatment standards.
   (2) For wastes with treatment
  standards expressed as concentrations
  in the waste, the owner or operator of
  the treatment facility must test the
  treatment residues (not an extract of
  such residues) to assure that the
  treatment residues meet the applicable
  treatment standards.
   (3) A notice must be sent with each
  waste shipment to the land disposal
  facility except that debris excluded from
  the definition of hazardous waste under
  § 261.3(e) of this chapter (i.e., debris
  treated by an extraction or destruction
  technology provided by Table 1,
  § 268.45, and debris that the Director
  has determined does not contain
  hazardous waste) is subject to the
 notification and certification
 requirements of paragraph (d) of this
 section rather than these notification
 requirements. The notice must include
 the information in the Notification
 Requirements Table in this section.
                                            Required information
                                                                                                            §268.7(b)
 1. EPA Hazardous Waste and Manifest numbers 	
 2. The constituents for F001-F005, F039, and underlying hazardous constituents, unless the: wasteTwill be^treated and mon-
   itored for all constituents (in which case none are required to be listed). The notice must include the applicable wastewater/
   nonwastewater category (see §§268.2 (d) and (0) and subdivisions made within a waste code based on waste-specific cri-
   teria (such as D003 reactive cyanide)  	
 3. Waste analysis data (when available)	.'"!"!.".'.'"!""!""	
  (4) The treatment facility must submit
a certification with each shipment of
waste or treatment residue of a
restricted waste to the land disposal
facility stating that the waste or
treatment residue has been treated in
compliance with the applicable
performance standards specified in
subpart D of this part. Debris excluded
from the definition of hazardous waste
under § 261.3(e) of this chapter (i.e.,
debris treated  by an extraction or
destruction technology provided by
Table 1, § 268.45, and debris that the
Director has determined does not
contain hazardous waste), however, is
subject to the notification and
certification requirements of paragraph
(d) of this section rather than the
certification requirements of this
paragraph.
  (i) For wastes with treatment
standards expressed as concentrations
in the waste extract or in the waste
under § 268.40 of this part, the
certification must be signed by an
 authorized representative and must state
 the following:
 *****
   (ii) For wastes with treatment
 standards expressed as technologies in
 §268.40 (described in  §268.42) of this
 part, the certification must be signed by
 an authorized representative and must
 state the following:
 *****
   (iii) For wastes with treatment
 standards expressed as concentrations
 in the waste pursuant to § 268.40, if
 compliance with the treatment
 standards in subpart D of this part is
 based in part or in whole on the
 analytical detection limit alternative
 specified in §268.43(c), the certification
 also must state the following:
 *****
  (c) * * *
  (1) Have copies of the notice and
certifications specified in paragraph (a)
of this section.
  (2) Test the waste, or an extract of the
waste or treatment residue developed
 using test method 1311 (the Toxicity
 Characteristic Leaching Procedure),
 described in "Test Methods for
 Evaluating Solid Waste, Physical/
 Chemical Methods," EPA Publication
 SW-846 as incorporated by reference in
 § 260.11 of this chapter), to assure that
 the wastes or treatment residues are in
 compliance with the applicable
 treatment standards set forth in subpart
 D of this part. Such testing must be
 performed according to the frequency
 specified in the facility's waste analysis
 plan as required by § 264.13 or § 265.13
 of this chapter.
 *****
  8. Section 268.9 is amended by
 revising paragraph (a), and paragraph
 (d)(l)(ii) to read as follows:

§ 268.9  Special rules regarding wastes that
exhibit a characteristic.
  (a) The initial generator of a solid
waste must determine each EPA
Hazardous Waste Number (waste code)
applicable to the waste in order to

-------
 43694       Federal Register / Vol. 60, No. 162  /  Tuesday,  August 22, 1995  / Proposed Rules
 determine the applicable treatment
 standards under subpart D of this part.
 For purposes of part 268, the waste will
 carry the waste code for any applicable
 listed waste under 40 CFR part 261,
 subpart D. In addition, where the waste
 exhibits a characteristic, the waste will
 carry one or more of the characteristic
 waste codes under 40 CFR part 261,
 subpart C, except when the treatment
 standard for the listed waste operates in
 lieu of the treatment standard for the
 characteristic waste, as specified in
 paragraph (b) of this section. If the
 generator determines that their waste
 displays a hazardous characteristic (and
 is not D001 nonwastewaters treated by
 CMBST, RORGS, or POLYM of § 268.42,
 Table 1),  the generator must determine
 the underlying hazardous constituents
 (as defined in § 268.2), in the
 characteristic wastes.
 *****
   (d) * *  *
   (1) * * *
   (ii) A description of the waste as
 initially generated, including the
 applicable EPA hazardous waste
 code(s), treatability group (s), and
 underlying hazardous constituents (as
 defined in § 268.2(i)), unless the waste
 will be monitored for all underlying
 hazardous constituents,  in which case
 no constituents need be  specified on the
 notification.
Subpart C—Prohibitions on Land
Disposal

§§268.31,268.32,268.33, 268.34, 268.35 and
268.36  [Removed and Revised]
  9. In Subpart C, §§268.31, 268.32,
268.33, 268.34, 268.35, and 268.36 are
removed and reserved, and § 268.30 is
revised to read as follows:
 § 268.30 Waste specific prohibitions-
 wood preserving wastes, and characteristic
 wastes that fail the toxicity characteristic.
   (a) Effective November 20, 1995, the
 wastes specified in 40 CFR 261 as EPA
 Hazardous Waste numbers D004-D011
 (as measured by the Toxicity
 Characteristic Leaching Procedure),
 F032, F034, and F035, are prohibited
 from land disposal.
   (b) Effective August 22, 1997, soil and
 debris contaminated with F032, F034,
 F035; and radioactive wastes mixed
 with EPA Hazardous waste numbers
 D004-D011 (as measured by the
 Toxicity Characteristic Leaching
 Procedure) are prohibited from land
 disposal.
   (c) Between November 20, 1995 and
 August 22, 1997, hazardous wastes
 F032, F034, F035; radioactive wastes
 mixed with EPA Hazardous waste
 numbers F032, F034, F035, and soil and
 debris contaminated with these wastes,
 may be disposed in a landfill or surface
 impoundment only if such unit is in
 compliance with the requirements
 specified in § 268.5(h)(2) of this Part.
  (d) The requirements of paragraphs
 (a), and (b) of this section do not apply
 if:                              V 3
  (1) The wastes meet the applicable
 treatment standards specified in Subpart
 D of this part;
  (2) Persons have been granted an
 exemption from a prohibition pursuant
 to a petition under § 268.6, with respect
 to those wastes and  units covered by the
 petition;
  (3) The wastes meet the applicable
 alternate treatment standards
 established pursuant to a petition
granted under § 268.44; or
  (4) Persons have been granted an
extension to the effective date of a
prohibition pursuant to § 268.5, with
 respect to these wastes covered by the
 extension.
   (e) To determine whether a hazardous
 waste identified in this section exceeds
 the applicable treatment standards
 specified in § 268.40, the initial
 generator must test a sample of the
 waste extract or the entire waste,
 depending on whether the treatment
 standards are expressed as
 concentrations in the waste extract or
 the waste, or the generator may use
 knowledge of the waste. If the waste
 contains constituents (including
 underlying hazardous constituents in
 characteristic wastes that have been
 diluted to remove the characteristic) in
 excess of the applicable Universal
 Treatment Standard  levels of § 268.48 of
 this Part, the waste is prohibited from
 land disposal, and all requirements of
 part 268 are applicable, except as
 otherwise specified.

 Subpart D—Treatment Standards

   10. Section 268.40 is amended by
 revising paragraph (e), and in the Table
 of Treatment Standards adding in alpha-
 numerical order entries for F032, F033,
 and F034, and revising the entries for
 D001  High TOG Subcategory, D003
 Explosives, D004 through D011, and
 F039 to read as follows:

 § 268.40 Applicability of Treatment
 Standards.
 *****
  (e) For characteristic wastes subject to
 treatment standards in the  following
 table "Treatment Standards for
 Hazardous Wastes," all underlying
 hazardous constituents (as defined in
 § 268.2(i)) must meet Universal
Treatment Standards, found in § 268.48,
Table UTS, prior to land disposal.
                                 TREATMENT STANDARDS FOR HAZARDOUS WASTES
                                                      Regulated Hazardous Constituent
                                                                                       Wastewaters   Nonwastewaters
Waste Code
Waste description and treatment/
regulatory subcategory 1 _
' Common Name
Concentration in
CAS 2 No. mg/l 3; or tech-
nology code 4
Concentration in
mg/kg 5 unless
noted as "mg/l
TCLP" or tech-
nology code
D001
                      High TOC Ignitable Subcategory  NA
                       based on 40 CFR 261.2(a)(1)—
                       Greater than or  equal to 10%
                       total organic carbon (Note: this
                       subcategory    consists    of
                       nonwastewaters only)
                                           NA  NA
                                                              RORGS; or
                                                                CMBST; or
                                                                POLYM.
D003

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              Federal Register / Vol. 60, No.  162  / Tuesday, August 22.  1995  / Proposed  Rules         43695

                             TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
     Waste Code
                                                           Regulated Hazardous Constituent
                                                                                               Wastewaters    Nonwastewaters
Waste description and treatment/
    regulatory subcategory1
                                                            Common Name
                                                                                  CAS2 No.
                            Concentration in
            Concentration in   mg/kg 5 unless
            mg/l3; or tech-    noted as "mg/l
             nology code 4     TCLP" or tech-
                              nology code
                       Explosives Subcategory based on  NA
                         §261.23(a)(6), (7), and (8)
                                                                  NA   DEACT and      DEACT and
                                                                         meet § 268.48    meet § 268.48
                                                                         standards        standards.
D004


D005


D006
Wastes  that exhibit,  or  are  ex-   Arsenic ...
  pected to  exhibit,  the  char-
  acteristic of toxicity for arsenic
Wastes  that exhibit,  or  are  ex-   Barium ....
  pected to  exhibit,  the  char-
  acteristic of toxicity for barium
Wastes  that exhibit,  or  are  ex-   Cadmium
  pected to  exhibit,  the  char-
  acteristic  of  toxicity for  cad-
  mium
7440-38-2  1.4  .



7440-39-3  1.2  .



7440-43-9  0.69
5.0 mg/l TCLP.


7.6 mg/l TCLP.


0.19 mg/l TCLP.
D007
D008
Wastes that  exhibit, or are ex-
  pected  to  exhibit,  the  char-
  acteristic of toxicity  for  chro-
  mium
Wastes that  exhibit, or are ex-
  pected  to  exhibit,  the  char-
  acteristic of toxicity for lead
                                                       Chromium (Total)
                                                                                   7440-47-3  2.77
                                                        Lead 	   7439-92-1   0.69
                             0.86 mg/l TCLP.



                             0.37 mg/l TCLP.
D009
 D010


 D011
                        Nonwastewaters  that exhibit,  or  Mercury
                          are expected  to  exhibit,  the
                          characteristic of toxicity for mer-
                          cury; and contain less than 260
                          mg/kg total mercury. (Low Mer-
                          cury Subcategory)
                        All D009 wastewaters	  Mercury
                                                                                   7439-97-6  NA  	   0.20 mg/l TCLP.
                                                            7439-97-6  0.15
 Wastes that exhibit,  or  are  ex-   Selenium
   pected  to  exhibit,  the  char-
   acteristic of toxicity for selenium
 Wastes that exhibit,  or  are  ex-   Silver  	
   pected  to  exhibit,  the  char-
   acteristic of toxicity for silver
                                                                                   7782-49-2  0.82 	  0.16 mg/l TCLP.
 7440-22-^   0.43  	  0.30 mg/l TCLP.

-------
F032
 F034
   F035
                                                       r\i v?x>i «v  *•••	
                                                       Chromium (Total)
wlstewaters  process residuals,  Pentachlorodibenzofurans ..
WapreserS^^           and  Tetrachtorodibenzofurans ...
  spent formulations  from wood  Arsenic
  preserving   processes   gen-  r.hmm,,,
  erated at  plants that currently
  use  or  have  previously  used
  chlorophenolic formulations (ex-
  cept  potentially cross-contami-
  nated wastes that have had the
  FO32  waste  code  deleted  in
  accordance   with  section  40
  CFR 261.35  and  where the
  generator does not resume  or
   initiate  use  of  chlorophenolic
   formulations). This listing does
   not  include  K001 bottom sedi-
   ment sludge from the treatment
   of wastewater from wood pre-
   serving processes that use cre-
   osote and/or pentachlorophenol

 Wastewaters.  process  residuals,   Acenaphthene 	

   5TSSJ2pa J£  £££=;•
   preserving    processes   gen-
   erated at plants that  use creo-
   sote  formulations. This listing
   does not include KOOI  bottom
    sediment sludge from the treat-
    ment of  wastewater from wood
    preserving  processes that  use
                                       NA  0.000063 	   0.001
                                       NA  0.000063 	   0.001
                                        -2  1 4   	   5-° "^TCLP-
                                        %  277'	   0.86 mg/l TCLP.
                           creosote
                           pentachlorophenol
and/or
                                                         Benzo(a)pyrene
                                                         Chrysene	
                                                         2,4-Dimethylphenol
                                                         Fluorene
                                                         Hexachlorodibenzofurans
                                                         Hexachlorodibenzo-p-

                                                           dioxins'
                                                         Naphthalene
Pentachlorodibenzo-p-
  dioxins.
Pentachlorophenol 	
Phenanthrene	
Phenol 	
Pyrene 	
Tetrachlorodibenzo-p-
  dioxins.
2,3,4,6-Tetrachlorophenol
2,4,6-Trichlorophenol	
Arsenic 	
Chromium (Total) 	
Acenaphthene 	
Anthracene  	
                                                           83-32-9   0.059  	  3.4
                                                                2-7   0.059  	  3.4
                                                                     0.059  	  3.4
                                                                  _   0.061  	  3.4
                                                          _  .1-9   0.059  	  3.4
                                                          105-67-9   0.036  	  14
                                                           86-73-7   0.059  	  3.4
                                                                NA   0.000063 	  0.001
                                                                NA   0.000063 	  0.001

                                                           91-20-3  0.059 	  5.6

                                                                NA  0.000063 	  0.001

                                                            87-86-5  0.089 	   7.4
                                                            85-01-8  0.059 	   5.6
                                                           108-95-2  0.039 	   6.2
                                                           129-00-0  0.067 	  8.2
                                                                 NA  0.000063 	  0.001
Wastewaters, process residuals,
  oreservative   drippage,   and
  sp^formulationrfrom  wood   Benz(a)anthracene
  Preserving   processes   gen-   Benzo(a)pyrene	
  erated at  plants that use inor-   Chrysene	•
  ganic preservatives containing   2,4-Dimethylphenol
  arsenic  or chromium. This list-   ^ene  	
  ing does not include KOOI bot-   Naphthalene
  torn sediment sludge from the
  treatment  of wastewater from
  wood preserving processes that
  use      creosote      and/or
  pentachlorophenol
  58-90-2
  88-06-2
7440-38-2
744CM7-3
  83-32-9
 120-12-7
                                                                                                0.030 	  7.4
                                                                                                0.035 	  7.4
                                                                                                -, 4     	  5.0 mg/l TCLP.
                                                                                                2'j7 "...	  0.86 mg/l TCLP.
                                                                                                0.059  	  3.4
                                                                                            1-9
                                                                                            f-9
                                                                                        86-73-7
                                               0.059
                                               0.059
                                               0.061
                                               0.059
                                               0.036
                                               0.059
                                               0.059
                                                                                          3.4
                                                                                          3.4
                                                                                          3.4
                                                                                          3.4
                                                                                          14
                                                                                          3.4
                                                                                          5.6
                                                           Pentachlorophenol  	
                                                           Phenanthrene	
                                                           Phenol  	
                                                           Pyrene  	
                                                           2,3,4,6-Tetrachlorophenol
                                      85-01-8
                                     108-95-2
                                     129-00-0
                                      58-90-2
                                      88-06-2
                                                                          0.089  	  7.4
                                                                          0.059
                                                                          0.039
                                                                          0.067
                                                                          0.030
                                                                          0.035
                                                         5.6
                                                         6.2
                                                         8.2
                                                         7.4
                                                         7.4
         Arsenic
         Chromium (Total)
                                                                                      7440-47-3
                                                                                                  ! 4    	  5.0 mg/l TCLP.
                                                                                                  2j7  	  0.86 mg/l TCLP.

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              Federal Register  / Vol. 60, No.  162  /  Tuesday, August 22,  1995  /  Proposed Rules
                                                                                        43697
                            TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
     Waste Code
Waste description and treatment/
    regulatory subcategory1
                                                       Regulated Hazardous Constituent
                                                         Common Name
                                                       CAS 2 No.
                                                                   Wastewaters    Nonwastewaters
                                                    Concentration in
                                    Concentration in    mg/kg5 unless
                                     mg/l3; or tech-    noted as "mg/l
                                     nology code 4    TCLP" or tech-
                                                      nology code
F039
Leachate  (liquids that have per-
  colated  through land disposed
  wastes) resulting from the dis-
  posal of more than  one  re-
  stricted waste classified as haz-
  ardous under subpart D of this
  part.  (Leachate resulting from
  the disposal of one or more of
  the  following EPA Hazardous
  Wastes and no other Hazard-
  ous  Wastes retains  its  EPA
  Hazardous  Waste  Number(s):
  F020, F021, F022, F026, F027,
  and/or F028)
Universal Treatment Stand-
  ards in § 268.48 apply,
  with the exceptions of
  flouride, vanadium, and
  zinc
NA  Universal Treat-
      ment Stand-
      ards in
      §268.48
      apply, with the
      exceptions of
      vanadium and
      zinc
Universal Treat-
  ment Stand-
  ards in
  §268.48
  apply, with the
  exceptions of
  vanadium and
  zinc.
  11. Section 268.42(a)(3) is amended
by adding "POLYM" in alphabetical
order to Table 1 to read as follows:
                 § 268.42  Treatment standards expressed
                 as specified technologies.
                   (a)
                                                                                 (3) * * *
                TABLE 1 .—TECHNOLOGY CODES AND DESCRIPTION OF TECHNOLOGY-BASED STANDARDS
    Technology code
                               Description of technology-based standards
POLYM	   Formation  of complex high-molecular weight solids through polymerization of  monomers in  high-TOC  D001
                          nonwastewaters.
  12. Section 268.44 is amended by
revising the introductory text of
paragraph (o), the title of the table, and
                 the "see also" column of the table to
                 read as follows:

                 § 268.44  Variance from a treatment
                 standard.
                              (o) The following facilities are
                           excluded from the treatment standards
                           under § 268.40 and are subject to the
                           following constituent concentrations:
                  TABLE 2.—WASTES EXCLUDED FROM THE TREATMENT STANDARDS UNDER §268.40
Facility name
and address
* * *
Waste code
.
See also
§268.40
§268.40
Regulated haz-
ardous constitu-
ent
*
Wastewaters
Concentrations
(mg/l)
•
Notes
•
Nonwastewaters
Concentrations
(mg/kg)
• -
Notes
*

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43698       Federal Register  /  Vol. 60, No.  162  /  Tuesday, August 22,  1995  /  Proposed Rules
Appendix I, Appendix II, Appendix III,
Appendix VII, Appendix VIII,
Appendix IX and Appendix X to Part
268 [Removed and Reserved]
  13. Appendix I, Appendix II,
Appendix III, Appendix VII, Appendix
VIII, Appendix IX, and Appendix X to
Part 268 are removed and reserved, and
Appendix VI to Part 268 is amended by
revising the introductory text to read as
follows:

Appendix VI to Part 268—
Recommended Technologies to Achieve
Deactivation of Characteristics in
Section 268.40
  The treatment standard for many
subcategories of D001, D002, and D003
wastes as well as for K044, K045, and K047
wastes is listed in § 268.40 as "Deactivation
and meet UTS." EPA has determined that
many technologies, when used alone or in
combination, can achieve the deactivation
portion of the treatment standard.
Characteristic wastes that also contain
underlying hazardous constituents (see
§ 268.2) must be treated not only by a
"deactivating" technology to remove the
characteristic, but also to achieve the
universal treatment standards (UTS) for
underlying hazardous constituents. The
following appendix presents a partial list of
technologies, utilizing the five letter
technology codes established in 40 CFR
268.42 Table I, that may be useful in meeting
the treatment standard. Use of these specific
technologies is not mandatory and does not
preclude direct reuse, recovery, and/or the
use of other pretreatment technologies,
provided deactivation is achieved and, if
applicable, underlying hazardous
constituents are treated to achieve the UTS.
                   PART 271—REQUIREMENTS FOR
                   AUTHORIZATION OF STATE
                   HAZARDOUS WASTE PROGRAMS

                     14. The authority citation for part 271
                   continues to read as follows:
                     Authority: 42 U.S.C. 6905, 6912(a) and
                   6926.

                   Subpart A—Requirements for Final
                   Authorization

                     15. Section 271.1(j) is amended by
                   adding the following entries to Table 1
                   in chronological order by date of
                   publication in the Federal Register, and
                   by adding the following entries to Table
                   2 in chronological order by effective
                   date in the Federal Register, to read as
                   follows:

                   § 271.1  Purpose and scope.
           TABLE 1 .—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
            Promulgation date
  Title of Regulation
 Federal Register ref-
      erence
                                                                                              Effective date
 [Insert date of publication of final rule in the
  Federal Register (FR)].
Land Disposal Restric-
  tions Phase IV.
[Insert FR page num-
  bers].
[Insert date of 90 days from date of publica-
  tion of final rule].
                TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984
              Effective date
        Self-implementing provision
                                                                                  RCRA citation
                                        Federal Register ref-
                                              erence
 [Insert date 90 days from date of publication  Prohibition on  land disposal  of newly listed  3004(g)(4) (C) and
   of final rule].                              and identified wastes.                      3004 (m).
 [Insert date 2 years from date of publication of  Prohibition  on land  disposal of radioactive  3004(m)  	
   final rule].                               waste mixed with the newly listed or identi-
                                          fied wastes, including soil and debris.
                                           	  3004(g)(4)(C) and
                                                                                 3004(m).
                                                            [Insert date of publica-
                                                              tion of final rule] 59
                                                              FR [Insert page
                                                              numbers].
                                                                Do.
                                                               Do.
   16. Section 271.28 is added to read as
 follows:

 § 271.28  Streamlined authorization
 procedures.
   (a) The procedures contained in this
 section may be used by a State when
 revising its program by applying for
 authorization for the following rules, or
 parts of rules:
   (1) The following changes
 promulgated by the Land Disposal
 Restrictions Phase Two rule (59 FR
 47980, September 19,1994) if a State is
 authorized for Land Disposal
 Restrictions rules up to the Third Third
 (55 FR 22520, June 1, 1990):
   (i) New Table in § 268.40; and
   (ii) New § 268.48.
   (2) The following changes proposed
 by the Land Disposal Restrictions Phase
 Three rule (proposed at 60 FR 11702,
                    May 2,1995) if a State is authorized for
                    Land Disposal Restrictions rules up to
                    the Third Third (55 FR 22520, June 1,
                    1990):
                      (i) Amendments to §§ 266.20(b),
                    268.2, 268.7, 268.39, the Table to
                    268.40, 268.48; and
                      (ii) Removal of §§ 268.8, 268.10-12.
                      (3) All provided regulatory provisions
                    of the proposed Land Disposal
                    Restrictions Phase Four rule ([insert
                    date of publication of final rule] FR

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              Federal  Register / Vol. 60,  No. 162 / Tuesday, August  22, 1995  / Proposed Rules       43699
[Insert FR page number]), except
amended § 268.1, if a State is authorized
for Land Disposal Restrictions rules up
to the Third Third (55 FR 22520, June
1,1990).
  (h) An application for a revision of a
State's program for the provisions stated
in paragraph (a) of this section shall
consist of:
  (1) A certification from the State that
its laws provide authority that is
equivalent to and no less stringent than
the provisions specified in paragraph
(a), and which includes references to the
specific statutes, administrative
regulations and where appropriate,
judicial decisions. State statutes and
regulations cited in the State
certification shall be fully effective at
the time the certification is signed; and
   (2) Copies of all applicable State
statutes and regulations.
   (c) Within 30 days of receipt by EPA
of a State's application for final
authorization to implement a rule
specified in paragraph (a) of this
section, if the Administrator determines
that the application is not complete, the
Administrator shall notify the State that
the application is incomplete. This
notice shall include a concise statement
of the deficiencies which form the basis
for this determination.
  (d) For purposes of this section an
incomplete application is one where:
  (1) Copies of applicable statutes or
regulations were not included;
  (2) The statutes or regulations relied
on by the State to implement the
program revisions are not yet in effect;
  (3) The State is not authorized to
implement the prerequisite RCRA rules
as specified in paragraph (a) of this
section; or
  (4) In the certification, the citations to
the specific statutes, administrative
regulations and where appropriate,
judicial decisions are not included or
incomplete.
  (e) Within 60 days after receipt of a
complete final application from a State
for final authorization to implement a
rule or rules specified in paragraph (a)
of this section, absent information in the
possession of EPA, the Administrator
shall publish  an immediate final notice
of the decision to grant final
authorization as follows:
  (1) In the Federal Register;
  (2) In enough of the largest
newspapers in the State to attract
Statewide attention; and
  (3) By mailing to persons on the State
agency mailing list and to any other
persons whom the Agency has reason to
believe are interested.
  (f) The public notice under paragraph
(e) of this section shall summarize the
State program revision and provide for
an opportunity to comment for a period
of 30 days.
  (g) Approval of State program
revisions under this section shall
become effective 60 days after the date
of publication in the Federal Register in
accordance with paragraph (e) of this
section, unless a significant adverse
comment pertaining to the State
program revision discussed in the notice
is received by the end of the comment
period. If a significant adverse comment
is received, the Administrator shall so
notify the State and shall, within 60
days after the date of publication,
publish in the Federal Register either:
  (1) A withdrawal of the immediate
final decision; or
  (2) A notice containing a response to
comments and either affirming that the
immediate final decision takes effect or
reversing the decision.
[FR Doc. 95-20623 Filed 8-21-95; 8:45 am]
BILLING CODE 6560-«M>

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