-87-O16
Wednesday
Juflv 8, 1S87
Part V
Environmenlal
Protection
40 CFR Part 260 «t al.
Land Disposal Restrictions lor Certain
"Calif oraia List" Hazardous Wastes and
Modifications to the Framework; Bnal
.Bute ' • .. • ' - 1""' ••" .•-•'•
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25760 Federal Register / Vol.'52; No. 130 / Wednesday, July- 8. 1987 _/JRulesjndRegulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,261,262,264,265,
268,270, and 271
[SWH-FRL-3219-1]
Land Disposal Restrictions for Certain
"California List" Hazardous Wastes
and Modifications to the Framework
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: The Environmental Protection
Agency is today promulgating
regulations restricting land disposal of
certain "California list" wastes: liquid
hazardous wastes containing
polychlorinated biphenyls (PCBs) above
specified concentrations; and hazardous
wastes containing halogenated organic
compounds (HOCs) above specified
concentrations. In addition, today's final
rule codifies the statutory land disposal
prohibitions on certain California list
corrosive wastes. This action also
establishes methods for determining
compliance with the prohibitions and
modifies portions of the land disposal
restrictions framework which was
promulgated on November 7,1986 (51FR
40572).
EPA is taking this action in response
to the Resource Conservation and
Recovery Act (RCRA), as amended by
the Hazardous and Solid Waste
Amendments of 1984 (HSWA), which
requires EPA to restrict the land
disposal of hazardous wastes containing
the California list constituents above
specified concentrations. Today's rule
does not establish regulations for the
California list wastes containing metals
or free cyanides beyond requirements
set forth in the statute. EPA may
establish more stringent requirements
for these wastes in a separate
rulemaking.
Today's rule, however, does address
the Agency's approach to determining
compliance with the statutory
prohibitions on the metal-bearing and
free cyanide containing wastes.
EFFECTIVE DATE: This final rule is
effective July 8,1987.
ADDRESSES: The official record for this
rulcmaking is identified as Docket
Number LDR-4 and is located in the
EPA RCRA Docket Room (sub-
basement) 401M Street, SW.,.
Washington, DC 20460. The docket is
open from 9:00 to 4:00 Monday through
Friday, except for public holidays. To
review docket materials, the public must
make an appointment by calling (202)
475-9327. The public may copy a
maximum of 50 pages from any
regulatory docket at no cost. Additional
copies cost $.20 per page.
FOR FURTHER INFORMATION CONTACT:
For general information contact the
RCRA Hotline, Office of Solid Waste
(WH-562), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, DC 20460, (800) 424-S346
(toll-free) or (202) 382-3000 locally.
For information on specific aspects of
this final rule contact: Gary A. Jonesi or
Jacqueline W. Sales, Office of Solid
Waste (WH-562B), U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20460, (202) 382-4770.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Background
A. Summary of Hazardous and Solid Waste
Amendments of 1984
1. Scheduled Wastes and Newly Listed
Wastes
2. Solvents and Dioxins
3. California List
B. Summary of Proposed Rule
1. Prohibition Levels
2. Applicability
3. Treatment Standards and Effective Dates
4. Modifications to the Land Disposal
Restrictions Regulatory Framework
C. Summary of Today's Final Rule
1. Applicability
2. Testing Requirements
3. Halogenated Organic Compounds
(HOCs)
4. Treatment Standards and Effective Dates
5. Prohibition on Dilution and Evaporation
6. Permit Modifications and Changes
During Interim Status
D. Rationale for Immediate Effective Date
II. Scope and Applicability
' A. RCRA Section 3004(d) Requirements
1. Definition of California List Constituents
2. Physical Form Requirement
3. Hazardous Waste Requirement
4. Concentration Levels Prohibited from
Land Disposal
B. Determination of When California List
Waste are Restricted
1. Rationale for Changing from Proposed
Point of Disposal Approach
2. Final Approach
3. Ramifications of the Final Approach
III. Detailed Discussion of Today's Final Rule
A. Free Cyanides and Metals
1. Definition of Free Cyanides and
California List Metals
2. Physical Form Requirement
3. Hazardous Waste Requirement
4. Concentration Levels Prohibited from
Land Disposal
B. Corrosives
1. Final Approach
2. Determination Not to Promulgate
Treatment Standards
C. Polychlorinated Biphenyls (PCBs)
1. Final Approach
2. Existing Regulation of PCBs
3. Relationship Between HSWA and
Existing Regulations
4. Treatment Standards
5. Prohibition Effective Date
D. Halogenated Organic Compounds
(HOCs)
1. Final Approach ...
2. Relationship to California List
Prohibition on PCBs
3. Treatment Standards ,
4. Prohibition Effective Dates
E. Treatment Standards
1. HOC Containing Wastes
2. PCB Containing Wastes
F. Capacity Determinations and Effective
Dates
1. HOC-Containing Wastes
2. PCB-Containing Wastes
G. Examples Illustrating Integration of
Today's Final Rule With Other Land
Disposal Restrictions Rules
H. Comparative Risk and Available
Treatment Alternatives
IV. Modifications.to the Land Disposal
Restrictions Framework
A. General Waste Analysis (§ 264.13 and
§265.13)
B. Purpose, Scope and Applicability of Part
268 (§268.1)
C. Definitions Applicable to This Part
(§268.2)
D. Dilution Prohibition (§ 268.3)
E. Treatment Surface Impoundment
' Exemption: Evaporation Prohibition
(§ 268.4)
F. Case-By-Case Extensions (§ 268.5)
G. "No Migration" Petitions to Allow
Continued Land Disposal (§ 268.6)
H. Waste Analysis and Recordkeeping-
(§ 268.7)
I. Waste Specific Prohibitions—California
List Wastes (§ 268.32)
J. Treatment Standards Expressed as-
Specified Technologies (§ 268.42)
K. Prohibitions on Storage of Restricted
Wastes (§ 268.50)
L. Minor Modifications of Permits and
Changes During Interim Status (.§ 270.42
and § 270.72)
1. Minor Modifications of Permits (§ 270.42)
2. Changes During Interim Status: Removal
of Reconstruction Limits (§ 270.72)
V. Effects of the Land Disposal Restrictions
Program on Other Environmental
Programs
VI. State Authority
A. Applicability of Rules in Authorized
States
B. Effect on State Authorizations
C. State Implementation
VII. Regulatory Requirements •
A. Regulatory Impact Analysis ••
1. Cost and Economic Impact Methodology
2. Costs and Economic Impacts
B, Regulatory Flexibility Analysis
C. Review of Supporting Documents.
I. Background
A. Summary of Hazardous and Solid
Waste Amendments of 1984' .
The Hazardous and Solid Waste
Amendments of 1984 (HSWA), enacted
on November 8,1984, prohibit the
continued land disposal of hazardous
wastes beyond specified dates unless
the Administrator determines, based on
a case-specific petition, that there will
be-"no migration" of hazardous
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Federal Register / Vol. 52, No. 130 ,/ Wednesday, July 8, 1987 :/ Rules and Begulatioiis 25761
. constituents from the disposal unitor
injecti on zone for as long as the wastes
remain hazardous. Wastes treated -in
accordance -with the "treatment
standards set by ERApursuant to RCRA
section 3004(m).are not subject to the
prohibitions and may be land disposed.
The land disposal prohibitions are
effective immediately upon
promulgation -.unless the Agency-sets
another effective date based,ontthe
earliest-date that adequate alternative
treatment, recovery, or disposal
cap aci ty which is protective of human
health and the .environment wall i>e
available. The relevant statutory
deadlines areas follows:
1. Scheduled Wastes and Newly Listed
Wastes
: qnMay28,19ff6f5lFR'l93003,EPA
promulgated a schedule for making land
disposal restrictions decisions for .all
hazardous wastes listed or identified by
characteristic as of November B, 1984,
excluding solvent and dioxin wastes
and the iCalifoi-nia list wastes which are
subject to a statutory/schedule. Jf JEPA
fails to set treatment .standards .or grant
a "no migration" petition for any of the
scheduled wastes -by 'May 8,1990, all
such wastes will toe prohibited from
land 'disposal. {Hazardous wastes
containing Califomia List constituents
are prohibited from land disposal at
concentrations which exceed the
statutory levels-5
For any hazardous waste identified -or
listed after November 18,1984, EPA is
required to make a land disposal
restrictiQn determination withinB
months -of the date of identification or
listing. However, there is no automatic
prohibition 'on land disposal if EPA
misses a 'deadline lor any newly listed
or identified waste. .......
2. Solvents and Uioxins
OnNovember7,1986,-EPA
promulgated a final Tule that •established
a framework for implementing the
congressionally mandated land disposal
prohibitions (51 FR 40572). The rule
established 'procedures for establishing
treatment standards, for .granting
nationwide variances from .statutory
effective dates, lor-granting .extensions
of effective dates-on a 'case-by-case
basis, for-evaluating petitions allowing
variances from the treatment standard,
and forjevaluatmg petitions
d emonstra ting that
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25762 Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rulesand Regulations
Toxic Substances Control Act (TSCA).
The Agency proposed to establish a
two-year nationwide variance for these
wastes. Incineration in accordance with
existing RCRA regulations was
proposed as the treatment standard for
most HOCs. However, based on a lack
of incineration capacity, the Agency
proposed a two-year nationwide
variance from the prohibition effective
date for these HOC wastes. The Agency
also proposed a performance based
treatment standard for corrosives
wastes having a pH less than or equal to
two (2.0). The Agency did not propose
required treatment standards for the
remaining California list wastes;
however, applicable technologies
generally capable of meeting the
statutory prohibition levels were
discussed in the proposal.
4. Modifications to the Land Disposal
Restrictions Regulatory Framework
EPA also proposed to modify portions
of the land disposal restrictions
framework established in the November
7,1986 final rule. These proposed
changes would apply to all wastes
subject to the land disposal restrictions.
Among them was a proposal to
strengthen the dilution prohibition by
amending § 268.3 to prohibit dilution as
a means of achieving the prohibition
levels or as a means of circumventing
the effective date of a land disposal
prohibition. The Agency also proposed a
prohibition on evaporation of hazardous
constituents for purposes of obtaining
an exemption under § 268.4 which
provision allows otherwise prohibited
wastes to be treated in surface
impoundments without the wastes first
being treated to the section 3004(m)
standards.
The Agency also proposed to amend
Part 270 to provide more flexibility in
handling restricted wastes by allowing
permitted facilities to use the minor
modification process to change their
operations and treat or store restricted
wastes in tanks or containers, subject to
certain enumerated conditions. The
Agency further proposed that the so-
called reconstruction ban in § 270.72(e)
not apply to interim status facilities
adding treatment or storage capacity
(also in tanks or containers) to comply
with the land disposal restrictions.
C. Summary of Today's Final Rule
1. Applicability
Today the Agency is promulgating
land disposal prohibitions and effective
dates for liquid hazardous wastes
containing PCBs at concentrations
greater than or equal to 50 ppm
(California list PCBs) and other liquid
and nonliquid hazardous wastes
containing HOCs in total concentration
greater than or equal to 1,000 mg/kg
(California list HOCs). In addition, EPA
is establishing treatment standards
expressed as specified technologies for
these PCS and HOC wastes (except for
dilute HOC wastewaters). EPA is also
codifying the statutory prohibition on
land disposal of liquid hazardous
wastes with a pH less than or equal to
two (2.0) (California list corrosives).
Today's final rule does not establish
prohibition levels, treatment standards,
or effective dates for the California list
liquid hazardous wastes containing
metals or free cyanides. Rather, EPA is
publishing a notice of data availability
and request for comment which outlines
the Agency's findings with respect to
establishing more stringent prohibition
levels. Since a final decision as to more
stringent land disposal prohibitions for
these wastes will be contained in a
separate notice, most comments on
metals and free cyanide issues received
in response to the December 11,1986
proposal will be addressed in that final
rule. The California list metals and free
cyanides are only addressed in today's
final rule for purposes of explaining the
Agency's approach to demonstrating
compliance with the statutory
prohibitions_which automatically
become effective on July 8,1987, and for
purposes of determining if the statutory
prohibition date shall be immediately
effective or whether national capacity
variances shall be granted.
The California list PCB and HOC
wastes that are not subject to a national
capacity variance are prohibited from
land disposal unless the wastes comply
with the applicable treatment standards
(including potential alternative
standards granted pursuant to
§ 268.42(b)), a "no migration" petition
has been granted by the Administrator
pursuant to § 268.6, a case-by-case
capacity variance has been granted
pursuant to § 268.5, or the wastes are
treated in an impoundment which is
exempt from land disposal prohibitions
under § 268.4.
The California list corrosives, metal-
bearing wastes, and free cyanide wastes
are prohibited from land disposal on
July 8,1987, unless a "no migration"
petition has been granted by the
Administrator under § 268.6, or the
Administrator grants a case-by-case
capacity variance under § 268.5. In
complying with these prohibitions, the
regulatory framework promulgated on
November 7,1986 (51 FR 40572) is
applicable. Unless otherwise specified
in today's rule, the Part 268 (e.g., § 268.7
tracking, notification and certification)
and related RCRA Subtitle C
requirements (e.g., § 264.13 and § 265.13
waste analysis requirements) are
applicable to all of the California list
wastes, including the metal and free
cyanide containing wastes.
Where treatment standards and
prohibitions effective dates are
promulgated for California list waste
constituents that are also covered under
the November 7,1986 solvents and
dioxins final rule, the constituent-
specific treatment standards and
effective dates promulgated on
November 7,1986 apply. For example,
HOC-containing wastes that are also
covered by the F001 or F002 spent
solvent listings are prohibited from land
disposal according to the effective date
specified on November 7,1986 and must
be treated to the levels specified in that
final rule (or meet those levels as
generated). They need not be
incinerated in order to reach such levels.
(This example assumes that the waste
does not exceed the California list
prohibitions levels for any constituent
but HOGs. See section III. G. below.)
2. Testing Requirements
Today's rule requires that the Paint
Filter Liquids Test (PFLT) be used to
determine whether a waste, including a
free cyanide or metal-bearing waste, is
considered to be a liquid or nonliquid
waste for purposes of the California list
land disposal restrictions.-The
procedure is method 9095 in EPA
Publication Mo. SW-846, "Test Methods
for Evaluating Solid Waste."
The Agency proposed to determine
whether a waste is a liquid, and thus
potentially subject to the California list
land disposal restrictions, at the point of
disposal. However, today's final rule
departs from the proposal and clarifies
EPA's position that wastes (both
California list wastes and other wastes
restricted under RCRA section 3004) are
considered to be prohibited at the point
of generation, as described in more
detail in the "Scope and Applicability"
section of today's preamble.
To determine whether a, waste meets
the specified prohibition levels, the
Agency is departing from the proposed
rule which stated that an extract
generated using the Toxicity
Characteristic Leaching Procedure
(TCLP) would be tested. Today's final
rule requires a total constituent analysis
when testing liquid wastes containing
PCBs or liquid or nonliquid wastes
containing other HOCs. This approach
requires that the entire waste sample be
analyzed for the constituents of concern.
Today's rule also states that when
testing liquid hazardous wastes to
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federal ^Register ,/ Vol. 52, No. 130 / Wednesday.July S, ,1987 / Uules ani Begulaiions 25763
- IM™ ""' '"- -
Devaluate whether they have a p"H less
than or'equal to itwo (2iDJ, the existing
me'thodfor-determMng-the
characteristic of corrosiv'ity in
•§ 26122(.a'}(l^is required.
In determining compliance with the
statutory prohibition levels for metals
and free cyanides, EPA will be
evaluating whether the filtrate generated
from,ihB EaintFilter Liquids Test
contains 4he prohibiteds'constituerits in
concentrations .exceeding the specified
levels.'.Theiitnralisense raf ithe statutory
language "liquidrhazardous waste,. •:
including freeliquids associated with
any-solid OT sludge" lis thatthe free
cyanide and metal containing waste
bans lapplies when the true aqueous
portions of the .wastes contain
concentrations ^exceeding the statutory
levels. Further, jtbae .HOC wastes .are
prohibited w&en "loSaLtJOiicenlrationfs')"
exceed the -statutory levels. The absence
of any inference to total concentrations
in the metal and -jcyarMe -waste
provisions strongly suggests Ja -difference
in regulatory approach. EEAithus1
disagrees witli those commenters who
claimed that a total constituent analysis
of the jnetal and cyanide wastes is
mandated.
Consistent with-the framework
established on .November 7,. 3:986,
generators .may determine -whether their
wastes are.restrictedlbasedion
knowledge of .the waste pursuant -to
•§268.7,
3.5ialogena;te3 Organic •Compounds
(HOCsl
The Agency'is pEomuTgating the
definition oTHOCs.as proposed [i.e,,^s
a compound containing a carbon-
halogen tbondj, tut Is.modifying .the,
proposed limitation «on fhose JIOCs
subject ;to the California list restrictions.
Only fhoseTIDjCs .fhai.are .listed on a
new Appendix;iirtoPart268jare
included within ithe regulatory .
definitioh. In lim'itiug the universe sol
H'O'Cs subject to today'a .'final rule, the
Agency is clanfying that polymeric
materials such as pc3yvinyl .chlorides
(PVGs) are not HO.Cs within the scope
of the HOC land disposal restrictions
because they are not listed on Appendix
III. .
4. Treatment Standards and fiffective
Dates
a. HO'Cs. iPursuarit.to today'-s^nal
rule, allliquid and nonliqu'id'hazardous
wastes containing HOCs"in total
concentration greater'than or lequal to
1,000 mg/kg -except dilute HOC
wasiewatersfi.e.,'HOC-water mixtures
containing primarily "water 'and 'which
contain less thanlQ;OOOmg/-l'HOEs)
must'^be 'iric'ineratedln .accordance with
existing SCRA regulations. How.ever,
EPA has determined Ithat there'is a •
nationwide lack of such Incineration
capacity and, therefore, is .promulgating
a 2-year variance Irom,these treatment
standards. .HOC wastewaters jieed not
be incinerated tout they must be treated
to the l,000:mg/l prohibition level.
Because the Agency is unable to
determine that there is insufficient
ttreatmenttcapacity for these" --'..'
wastewaters, they are not subject to the
2-year variance. -Such nwastewaters ,are
prohibited as of July!8; 1987, unless
those wastewaters are also F001-=F005
spent solvent w,astewatersigranteda2-
year variance an the November 7,1986
filial rule. HOC wastewaters regulated
as hazardous because "they contain such
listed solvent hazardous wastes remain
exempt from the treatment jequirements
until November 8,1'988.
b.PCBs. Liquid hazardous wastes
containing PCBs at concentrations
gEeaterithan or equal ,to 'SOippm .must be
treated in accordance iwith existing
TSCA thermal treatment regulations at
40 CERJPari 761. EPAproposed to grant
a2-yieaT"variance from the July 6, ±SB7
prohibition effective date for these.
wastes due to a perceived lack iof ;
incineration:capacity.However, today's
final rule does Jiotigrantsuch a variance.
' Although the ^treatment standards
applicable to flie California list-PCB'and
HOC -wastes are sexpressed as specified
technologies which must he used,
alternative treatment methods ;(e.g.,
chemical -dechlofination of PCBsj may
also tfi utilized provided ihe
Administrator finds that a petitioner's
method can achieve a measure of
performance equivalent to the method
specified by EPA and .certain other
requirements under •§ 268.42 are .met.
5. Prohibition on Dilution and
Evaporation . -
As -proposed, today;,s!rule strengthens
the exasting prohibition on dilution ;of
restricted wastes -by amending § ,268.3 lo
include ;a prohibition on kdilutiDn as a
means raf tavoiding the land disposal
restrictions. Thus, dilution of :wastes to
concentrations'below theapplicaMe
levels is prohibited, as as dilution "to
circumvent the effective datejof a
pro'hibitionion landdisposal. Today's
finalrule also prohibits evaporation-of
hazardous conslituents;as the principal
means iof treatment lor purposes tof
obtaining an exemption^under '•%. 268.4,
which provision allows treatment of
. ofherwise prohibited wastes in [Surface
impoundments. •
6. Permit Modifications and Changes
During Tmterfm Status ;_
Asproposed, today's final rule allows
permitted.facili'ties to use ithe .minor
modification process,, '.under certain
conditions, to obtain approval to -change
their Jacilit'iEis to .treat or store restricted
wastes in tainks or .containers as
.necessary .to comply with the land
disposal restrictions. Also, today's final
roile^allows interim status facilities ,td
expanditheii' pperatiorrs-bymQre,,than;50
percent, in hirms -of capital '
expendituneii, to treat JOT'stora Testricted
wastes in taia'ks or containers-as
necessary to: comply with-the land
disposalTesMctions. :
D,GatiojiaIe/QrJmme.diate Effective
Bate - • [ • . . " ' : ,'•-. .'•
Today's rate is effective on July 8, '•
1987. Abseni; any regulatory action by
EPA, the California list land disposal
restrictions in section 3004[d) ta"ke effect
automatically on }uly .8,1987; thus, this
is the latest date for EPA to promulgate;
regulations that will prevent >the ...... .,
"hammer" iri section 3004;(dJ from
falling. ,S:ectibn;3004.(h3 of.'RGRA
provides,that:r,egulatiions.prQmulgated
under 'sections ,3.00|S(di), i(«3, i(f), ;ors{g) take
effect immB£liate'ly.MoxeovBr, secliion
3004(m) pr.o\;ides .that rregulations setting
treatment standards must faave the same
effective .date as the 'applicaMe
regulation promulgated under'sections
3004(d),'(ej,i|;F3,'or (gJ.'ThBrefore, since
the'statute ciiearly provides that fee
regulations ttnplementing section 3004'(dJ
go into effect on July 8,1987, EPA finds
that good ca;ase .exists .under RCRA :
section •301015)7(3) to provide for an
immediate e;Ffectivedate..Eorihe same
reasiohs,, EPAJinds .that good cause
exists under.3.U.S.C.sectionS53(d)(33 to .,
waive the .ie.guirement thatsregulations •
be published, tatleastSO days before
they Become.effective.
In addition,.EPA 3s promulgating :railes
establishing an administrative
"frameworkjfiDr implementing the
prohibitions and interpreting,'certain,
statutory *eKms,(suchvas "liquid", VV,
"halogenated organic^compound", etc.). ::;.
These'ru'les;&rea necessary adjunct to !.-• V.'
^the prohibitions which take effect _'•'-}.
immediatelyfey operation of law,-and-so:-:,j
it would %e •impractical tor the Agency. .'>5;'
to delay their'effectiveness.''Good 'cause''"'?
thus -exists to roaike them effective ft-.J
immediately 1 'hi the alternative, many xfffe.Vi
these provisions could be viewed as . :;*::;
interpretive irules., and.so may".take' .,.Vj»
effect immediately. : : .^^
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25764^ federal Register / Vol. 52, No. 130 / Wednesday. July 8, 1987 / Rules and Regulations
II. Scope and Applicability
A. RCRA Section 3004(d) Requirements
The RCRA section 3004(d) provisions
prohibit the land disposal of hazardous
wastes containing California list
constituents above specified
concentrations. With the exception of
HOCs, the restricted wastes must be
liquids. In order to be subject to the
section 3004(d) provisions, a given waste
must meet each of the four criteria
discussed in this section: (1) The waste
must contain a constituent specified in
the California list provisions or have a
pH less than or equal to two (2.0) (see
section 3004(d)); (2) the physical form of
the waste must be a liquid (except for
HOCs); (3) the waste containing the
California list constituent must be listed
or identified as hazardous under RCRA
section 3001 (as implemented in 40 CFR
Part 281); and (4) the waste must contain
a concentration of one or more
California list constituents at or above
the levels specified in section 3004(d).
1. Definition of California List
Constituents
The Agency proposed to define
cyanides as any substance that can be
shown as having a resonance structure
containing a carbon-nitrogen triple
bond. There were numerous comments
as to the proposed definition of
prohibited cyanides and EPA has
modified its approach as a result to
apply more clearly to the free cyanides
in the waste.
The California list metals are easily
defined with reference to the periodic
table of elements. This requirement
applies both to individual constituents
and to the relevant metal portion of any
compounds containing California list
metals.
The Agency proposed that wastes •
having a pH less than or equal to two
(2.0) are to be determined using the
method specified for determining the
characteristic of corrosivity at 40 CFR
2G1.22(a)(l). No commenters addressed
this issue; therefore, EPA is
promulgating this definition as proposed
in order to maintain consistency with
the existing definition.
The proposed definition of PCBs is
consistent with the existing definition in
the PCD regulations promulgated under
the Toxic Substances Control Act
(TSCA). Although one commenter
suggested an alternative definition, the
Agency does not believe that it is
consistent with congressional intent.
Therefore, the proposed definition is
being promulgated in today's final rule.
EPA proposed to define the universe
of prohibited HOCs as any compound
that contains a carbon-halogen bond
and is listed as a hazardous constituent
in 40 CFR Part 261, Appendix VIII. The
comments generally supported this
approach; however, concern was
expressed over the open-ended nature of
Appendix VIII and the availability of
test methods for all constituents on
Appendix VIII. In response to these
comments, the Agency has slightly
modified its definition of HOCs for
purposes of today's final rule.
More detailed definitions of corrosive
wastes, and wastes containing cyanides,
PCBs, or HOCs are provided later in the
preamble sections addressing those
constituents.
2. Physical Form Requirement
Except for HOCs (which are
prohibited from land disposal in both
liquid and nonliquid form), RCRA
section 3004(d) prohibits the land
disposal of California list wastes only if
such wastes exist in liquid form.1 For
purposes of determining whether a given
waste is a liquid, the Agency proposed
to require use of the Paint Filter Liquids
Test (Method 9095 in EPA Publication
SW-846). On April 30,1985 (50 FR
18370), EPA promulgated a final rule
requiring use of the Paint Filter Liquids
Test in determining whether a waste
sample contains free liquids. The Paint
Filter Liquids Test is described in detail
in both the April 30,1985 Federal
Register notice and in the background
document for the December 11,1986
proposed rule. Basically, the method
consists of placing a predetermined
amount of the waste in a paint filter. If
any portion of the waste passes through
the filter within five minutes, the waste
is deemed to contain free liquids. For
purposes of the California list proposal,
it would also be considered a liquid
waste.
Commenters unanimously supported
use of the test; therefore, today's final
rule requires use of the Paint Filter
Liquids Test to determine whether
wastes, including the metal-bearing and
cyanide wastes subject to the automatic
statutory prohibitions, are liquids for
purposes of the California list
prohibitions. EPA is clarifying that once
a waste is determined to be a liquid, the
entire waste is prohibited (provided the !
concentration of California list
constituents in the filtrate, or, for PCBs
1 EPA will address the solid phase of many of the
California list wastes at later dates in accordance
with the schedule finalized on May 28,1986 (51 FR
19300). Listed wastes containing metals in a solid
matrix will be addressed pursuant to the various
time frames in the final schedule and nonliquid
wastes identified by characteristic will be
' addressed no later than May 8,1990, in accordance
with the provisions in RCRA section 3004(g)(4) and
the final schedule.
and HOCs, the entire waste, exceeds the
applicable levels), not just the liquid
portion. The Paint Filter Liquids Test
thus determines whether wastes are
liquids for purposes of the California list
prohibitions, but not what portion of the
waste is prohibited.
3. Hazardous Waste Requirement
RCRA section 3004(d)(2) states that
the California list land disposal
prohibition "applies to the following
hazardous wastes listed or identified
under section 3001," This section covers
any wastes which are either listed as
hazardous under 40 CFR Part 261 or
exhibit one or more of the
characteristics of hazardous waste
identified in Part 261 (i.e. ignitability,
corrosivity, reactivity, or EP toxicity),
and which also contain a California list
constituent. Since PCBs are not
currently regulated as hazardous under
RCRA, they would have to be mixed
with or contained in a RCRA hazardous
waste or otherwise be contained in a
waste that exhibits a characteristic in
order to be subject to the California list
prohibitions.
4. Concentration Levels Prohibited From
Land Disposal
The California list prohibitions in
RCRA section 3004(d) establish certain
concentration levels above which there
is a strong statutory presumption against
land disposal. After the effective date of
the prohibitions, the only circumstances
in which such wastes may be land
disposed in concentrations above the
levels specified in section 3004(d) are
those cases: [a) For the California list
metal and free cyanide containing
wastes and corrosive wastes, where the
waste has been treated and rendered
nonliquid; (b) for the California list PCB
wastes, where the waste has been
treated by the specified technologies or
is subject to a variance from the
treatment requirements of § 268.42(b); or
(c) for any of these wastes where a
petition has been granted pursuant to
the §268.6 "no migration" standards
adopted on November 7,1986 (51 FR
40640). . .
a. Codifying the statutory prohibition
levels. HSWA specifies allowable:
concentration levels for each of the
California list constituents; however, the
statute and legislative history give EPA
both the authority and flexibility to
establish more stringent concentration
levels. Although EPA is codifying the
statutory prohibition levels for the
California list corrosives and the
California list wastes containing HOCs
and PCBs, hazardous wastes that are
.corrosive or contain these constituents
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Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rules and;JRegulations /> 2B785
(except for PCBs, which are riot •
._ currently regulated as hazardous wastes
under RCRA unless they are, otherwise ;.
contained in hazardous wastes) will be:
reevaluated according to the Agency's
final schedule for promulgating land
disposal restrictions (51 FR 19300).
. The California list metal and cyanide :
wastes are being addressed in a
separate final rule because the Agency
currently is compiling and evaluating
data which may indicate that more
stringent prohibition levels are ""-.
necessary to protect human health and
the environment. A separate notice of
data availability and request for - '
comments will outline EPA's basis for
lowering the prohibition levels and
establishing treatment standards. As
will be discussed more fully in that
notice, the Agency is considering
promulgating prohibitions on the
California list metal and cyanide wastes
at levels 100 times existing drinking
water standards.-Similarly, treatment
standards that would be promulgated in
the next several months'fconcurrent
with such lower levels) will serve as an
interim measure until EPA reevaluates
these wastes according to the May 28,
1986 final schedule. -
^Determination of whether wastes ..'•.--
exceed the concentration levels. Having
codified the PCB, HOC, and corrosives
statutory prohibition levels, EPA must
specify a method for determining
whether a waste'as generated equals or
exceeds these levels. Using the Paint
Filter Liquids Test to determine whether
or not a waste is a liquid results in a
filtrate (the liquid that comes through
the filter) and, in many cases, a residue
that is left behind. The California list
constituents may be contained in the
filtrate, entrained,in the matrix of the
solid residue left on the filter, or may be
partitioned between the two phases.
Because of this possible partitioning, the
Agency considered several approaches
as to which part or parts of the wastes
should be analyzed in order to
determine if the concentration of . •• ,
California list constituents is greater
than or equal to the statutory prohibition
levels. " - , -- "•-•*, •-.-:•
The Agency received numerous7 '
comments on this issue, many of which
were critical of requiring use of the
Toxicity Characteristic Leaching
Procedure (TCLP) in determining the
applicable concentration level. Among •'•
the criticisms were comments that the
TCLP was inappropriate for use on- : •.
HOCs in light of statutory language ,
prohibiting HOCs in•..".total-
concentration", and comments that .the
PCB regulations under TSGA require • '•
what-is iii effect a total .constituent
analysis/For these and other reasons .:'
discussed later in today^s preamble,
EPA is requiring that a total constituent
analysis be performed on the liquid
hazardous wastes containing PCBs as ;
well as the nonliquid hazardous wastes
containing HOCs. ,.
For the liquid hazardous wastes
containing free cyanides or the specified
metals, EPA is requiring that only the
•filtrate generated from the Paint Filter
Liquids Test be tested in order to
determine the applicable statutory '
'concentration levels. Thus, the Agency
reads section 3004(d).as applying only
when the. liquid portion of a waste
(which includes the free liquids which
partition in the Paint Filter Liquids Test)
contains concentrations of the specified
metals and free cyanides in excess of
the statutory levels. When testing the
relevant portions of these wastes, EPA .
is recommending use of the applicable
methods in "Test Methods for
Evaluating Solid Waste: Physical/
Chemical Methods", EPA Publication .
No. SW-846, 3d ed., November, 1986.
As in the November 7,1986, final rule,
generators may also determine whether
their wastes are-restricted using . ..
knowledge of the waste. However, a .
. correction notice published in the June 4,
1987, Federal Register (52 FR 21010)
clarifies that in such cases the generator
must maintain all supporting data used
to make such a,determination on-site in ;
the generator's files. • •
B. Determination of When California
List Wastes Are Restricted .
1. Rationale for Changing from Proposed
Point of Disposal Approach" , .
In the proposed rule, EPA stated that
California list wastes are determined to
be liquids at the point of disposal/While
noting that this approach deviates from -
the November 7,1986 solvents and ,
dioxiris rule (51 FR 40620) which
requires that wastes are(determined to ''
be restricted at the point'of generation,
EPA stated that the proposed approach
is consistent with congressional
concerns about the" land disposal of the
California list constituents in their liquid
or mobile form. Except for the HOG
wastes, which are prohibited in both
liquid and nonliquid form, the statutory
prohibitions apply only to liquid ' . :
hazardous wastes. Therefore, EPA
proposed to allow liquid California list
wastes to be treated (e.g., by, •
solidification) at any point, so as to ""
render the waste a nonliquid, and
subsequently eligible for land disposal..
EPA continues to believe that - :' : •
Congress' primary go'al in enacting the
California list prohibitions .was to " I.-.-
eliminate the land disposal of highly ,. - ;• ..
toxic liquid hazardous wastes as a
starting point; however, as the Agency .
noted in a recent notice "of data ;
availability and request for comment (52'
FR 22356, June111,1987), the Agency ',
agrees with the commehter who stated
that determining whether these wastes
are restricted at the point of disposal is •
not what Congress intended. The , ~
legislative his t ory: regarding dilution
indicates that Congress intended
hazardous wastes; including the ._:-
California list wastes, to be restricted at
the point of generation. (See e.g., H.R.
Rep. No. 198, ifart I, 98th Cong., 1st Sess.
34-35 (1983).) ;;;; ' "•-'•' :V : '
Furthermore, a point-of disposal
approach is iniBonsistent with the 1
Agency's stated concerns regarding'the
dilution of California list wastes '.
because the amended dilution language -
in § 268.3 only,applies to restricted ;.
wastes! If a waste is hot considered to'-
be restricted until the point ,of disposal,
then, by definition, it is riot subject to
any of the land disposal restriction •
regulations prior to.that time, including
the dilution prohibition. This is clearly
not what Congress or EPA intended. A ";•••
point of dispOEial approach likewise •..,-.-
underminesf the congressional directive ;
that where the. Agency specifies .section .,
30Q4(m) pretreatment standards, wastes".
may be land disposed only after being
pretreated in a.ccord with those ,
standards (i.e., by a specified method or
to a specified level).
The Agency [recognizes that it can be
argued that the California list statutory .
language is jurisdictiorial, i.e., that
hazardous wastes which do riot fall
within the scope of the California list
language in seiption 30Q4(d) are not
prohibited. One cpmmenter made a ;'..
similar argument that because wastes
are only prohibited,by statute when land
disposed, any determination of their
regulatory; status .must be made at the ,.
point of disposaL.EPA does not view the
section 3004(d) language as ;
jurisdic.tional (pa?t the point of
generation) bepause such a reading
renders the section 3004(m) standards
mandated for imch.wastes, as well as
the dilutionpriihibition, virtually __ ...-,
meaningless.. (:• •• '..; „' ;;;.-••"•-. . ~,': -•-."
However, the question of whether the
section 3004(d) language is jurisdictional
is essentially a!n academic one since the
Agency possesses independent '
authority under RCRA section 3004(g) to
require that thiesfe wastes be.pretreated
by specified methods or-to specified
levels.Jn essence, EPA could simply
prohibit land disposal of certain of the
section:3004(g]. wastes on an aeeelersted
timetable; iThisi reduces the debate to a .
matter of semantics (i.e;, characterizing •'.;;
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25766 Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rules and Regulations
the rule as a section 30Q4(dj or a section
3004{g) rale), and in such circumstances
the Agency has great latitude in
choosing the means by which to
proceed. See e,g., CMA v. MRDQ, 105 S.
Ct 1102,1111 (1985). For these reasons,
therefore, EPA finds unpersuasive the
notion that the California list statutory
language is a jurisdictional bar requiring
prohibition determinations to be made
only at the point of disposal.
2. Final Approach
Having determined not to use a point
of disposal approach, EPA is clarifying
in today's rule when wastes are
considered "prohibited," both for
purposes of the California list
restrictions and within the remainder of
the land disposal restrictions
framework.
Today's final rule indicates that
"initial generators" of hazardous wastes
must determine whether their wastes
are prohibited. In interpreting this
language to determine at what particular
point generators are to make this
determination, the Agency has
considered two principal options. These
are: (1) At the point of generation (see 51
FR at 40620 (Nov. 7,1986), 51 FR 44727
(Dec. 11,1988) (raising the issue)); or (2)
at the point of common aggregation
preceding centralized treatment (52 FR
22356 (June 11,1987)). In this last-
mentioned notice, EPA advanced as
reasons for interpreting the rules to use
a point of aggregation approach the
feasibility of sampling wastes in
enclosed systems such as pipes -or
process vessels, plus the fact that
aggregation in many cases is a
legitimate and necessary step in
centralized treatment processes.
Counmenters to the June 11,1987
notice pointed out, however, the severe
practical difficulties of determining a
precise point of legitimate aggregation.
Commenters also raised ihe issue that a
point of aggregation approach could
result in less treatment of concentrated
waste streams, or could in some cases
lead to impermissible dilution.
Upon reconsideration, EPA has
decided to adhere to the interpretation
from the November 7,1886 rules that
initial generators are to determine if
their hazardous wastes are prohibited at
the point of generation. 51ER 44620. In
the first place, the implementation
difficulties with a point of aggregation
approach are considerable, and could
only be solved on a case-by-case basis,
raising the possibility of uncertainty and
inconsistent determinations. The point
of generation is easier to demarcate,
and, indeed, EPA's rules on when a
waste is hazardous already use this test
See 1261.3 (b)(l) and (b)(33. The Agency
sees no compelling reason to deviate
from this long-standing regulatory
requirement.
Perhaps more important is the need to
avoid the possibility of compromising
applicable treatment standards. For
example, if a generator generates four
solvent-bearing wastestreams, one an
organic liquid containing greater than
10,000 ppm prohibited solvent, and the
other three containing less than 10,000
ppm solvents, it was the Agency's
intention (and existing rules require)
that the concentrated stream has to
meet the treatment standard based on
incineration (see § 268.41 (a) and
Appendix II to Part 268), and that, if
these streams axe aggregated, the
aggregated streams must meet the
treatment standards based on
incineration as well (see § 268.41(b); see
also 51 FR at 40623, both of which state
that where wastes are combined for
treatment, treatment residues must meet
the treatment standard for the common
constituents). These settled principles
could be confused toy a point of
aggregation approach.
The practical difficulties the Agency
saw with a point of generation approach
appear to be manageable. As far as the
difficulties of sampling enclosed
systems, EPA believes that in most
cases waste stream pipes are easily
entered by installing sample taps. This
should hot interfere with on-going
treatment processes. No claims of
difficulty installing such taps have been
made since implementation of the
solvent ban rule, which adopted a point
of generation approach. Generators also
can determine if wastes are prohibited
based on knowledge of their waste.
(§ ,268.7;(a)}. In extreme cases where
these means would severely disrupt
process or treatment operations, wastes
could be sampled when they exit closed,
systems.
The Agency also wished to ensure .
that any determination scheme not
interfere with, or discourage legitimate
centralized treatment. A point of
generation approach would not do so.
EPA reiterates that aggregation of waste
streams for centralized treatment is not
considered to be a foxm of
impermissible dilution (51 ER 40592,52
FR 22356); it is a form of mixing that
facilitates treatment. Artificial
aggregation points designed to avoid a
prohibition certainly would not be
considered legitimate, however, (The
Agency would also distinguish the case
where a waste not requiring treatment
or not aiding ia treatment is mixed. TMs
would be impermissible dilution, as it
would merely dilute hazardous
constituents into a larger volume of
wastes to lower constituent
concentrations. (51 FR 40592).)
EPA also repeats that California list
wastes for which there are no treatment
standards may be aggregated for
treatment (assuming no impermissible
dilution) and would no longer be
considered prohibited if they no longer
exceed the specified prohibition levels
or,are renderednonliquid. For example,
if a generator generated liquid lead-
bearing wastesteams of 1,000, .300, 40,
and 50 mg/I lead and aggregated them
for centralized treatment and the waste
streams before or after treatment
contained less than 500 mg/1 lead, the
waste currently would not lie prohibited.
Hazardous sludges generated from •
wastewater treatment likewise would
not be prohibited if they do not contain
free liquids; nor would such sludges'
currently foe prohibited if they contained
free liquids whose filtrate contained less
than 500 mg/1 lead. (Should EPA
promulgate treatment standards for
California-list lead-bearing wastes, then
the combined lead-tearing wastes in
this example would lave to meet that
treatment standard. (§ 268.41(b).J
Thus, should EPA ultimately adopt
treatment standards for California list
metal and free cyanide wastes, these
wastes would have to meet or be treated
to meet these .standards and not simply
be treated to reduce concentrations
below the prohibition levels or be
rendered nonliquid. Where teeatment
standards are expressed as specified
technologies, the Agency has stated in
the November ,7,1986 final rule that such
specified technologies must be
employed. See e.g., 51 FR 40628. For
example, in today's final rule, the
California list wastes containing PGBs
must be treated in accordance with the
standards specified in § 288.42 ;(Le.,
thermal destruction in incinerators ror
high efficiency boilers) and may not be
rendered nonliquid in order to avoid the
Part .268 requirements. EPA believes that
this approach reflects the intent/of
RCRA section 30D4(m) to require
treatment to a level or "by a method
specified in regulations." Allowing
solidification of such wastes in lieu of
the specified method(s) would
undermine the congressional directive in
section 30D4(ni) to require pretreatment
and would make EPA's establishment of
treatment standards meaningless.
Under these circumstances., EPA does
not see that a point of generation
approach would require alteration of
legitimate centralized treatment
practices, or force unwarranted batch
treatment. The Agency (Consequently
sees no reason to alter its existing
approach.
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Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rules and Regulations
3. Ramification? of the Final Approach
Determinations as to whether a waste
, is both a liquid and exceeds the ;
applicable concentrations of hazardous
constituents thus would be made at the
point of generation. The generator
notification and certification
requirements in § 268.7(a) likewise -
would apply at this point.
This point of generation principle also
has several ramifications in determining
how to treat prohibited wastes, and to '
what levels such wastes must be
treated. With respect,to those wastes for
•which the treatment standard is ;
specified as a method, the wastes would
be considered prohibited at the point of
.generation, with the further consequence
. that they would require treatment using
such methods. Likewise, Where EPA has
established performance levels as the -
treatment standard, wastes would have
to be treated until they meet that
standard. (See also the correction notice
published in the June 4,1987 Federal*.
Register.) Thus, prohibited solvent and
dioxin-containing wastes (i.e. solvent
and dioxin-containing wastes prohibited
at the point described above) would
have to be treated to the levels specified
in § 268.41. Prohibited solvent or dioxin-
containing wastes treated to the one
percent level specified in the
§ 268.30(a)(3) nationalcapacity variance
would continue to require treatment to
the specified levels. For example, if a
prohibited solvent still bottom is
incinerated and the incinerator ash
residue does not meet the treatment ;
standard but contains less.than one
percent total F001-F005 solvent
constituents', further treatment would be
required.
As explained in the June 11,1987
notice, however, there is one exception
to the principle that treatment residues
from prohibited wastes must continue to
be treated until they meet the treatment
standard. This is where treatment
results in a residue that belongs to a '•
different treatability group than the
initial waste and the Agency has
already determined that there is •'
inadequate nationwide capacity to treat
the wastes belonging to that group.
For example, if an incinerator was to
^ burn an F001-F005 spent solvent
containing greater than'or equal to one
percent total F001-F005 solvent
constituents arid generate a scrubber
water, this resulting scrubber water"
belongs to a different treatability group;
i.e. the wastewater treatability group. If
the scrubber water contains F001-F005
solvent constituents in concentrations
less than one percent but greater than
the applicable treatment standards,
further treatment of the scrubber Water
would not be,required:until November 8,
1988 because the Agency has already
determined that; there is inadequate
nationwide capacity to treat liquids :
containing less than one percent total
E001-F005 solvent constituents.
As stated in the June 11,1987 notice,
this distinction comes directly from the -
Agency's own estimates of available
treatment capacity. These estimates :
included capacity for further treatment
of solid (or slurry) solvent treatment
residues which did not meet the
treatment standards. No capacity was
allocated for wastewaters resulting from
treatment of these wastes.
The discussion above covers
situations where wastes are determined
by their initial generator to be presently
prohibited at the point of generation
(i.e., not subject to any variance). The
Agency is clarifying that where the !
waste initially generated is subject to a
national capacity or other variance, any
residue from beating the waste remains
- subject to the variance. This point
follows directly from the principle.
reiterated most recently in the Agency's
correction notice (52 FR 21010, June,4,
1987) that the initial generator of
, hazardous waste determines whether
his waste is presently prohibited from
land disposal (see § 268.30(a)(3), as
amended). ;
Thus, using F001-F005 solvent wastes
as example^, residues from treating
small quantity generator wastes (either
1-100 kg/month, or 100-1,000 kg/month),
CERGLA response action or RCRA .:.
corrective action wastes, bran initial
generator's solvent waste containing
less than one percent total F001-F005
solvent constituents, would remain :
exempt regardless of solvent ,
concentration in the residue (or ,
regardless of whether the residues met
the treatment standards) since the
waste's status has already been
determined by the initial generator. The
policy rationale for this is that any other
"•• result creates a disincentive for
treatment..52 FR 22357. .(This discussion
assumes that the treatment residues_
derive solely from treating exempted
wastes. If both exempt and regulated
wastes are commingled and treated, -
residues would not automatically be
exempt.) -•-.-", ' • -, ... : :
EPA adds several caveats. First,
although Wastes are considered to be
prohibited as early as the point of
generation, the California list , .
prohibitions also must necessarily apply
at the point of .disposal in cases where
, the waste is hot subject to any of the
above stated variances. See RCRA
sections 3004(d)-(q),'51 FR 40597
(November 7,1986), and 40 CFR268.7(c),
(land disposal facilities are ultimately
responsible ftir ensuring that Wastes not
meeting the treatment standards or .
prohibition levels, or not otherwise
exempt, are not land disposed). For ;
example, if a waste is initially a
nonliquid, but changes its physical form
and becomes a liquid (for instance,,in
.transit), the waste would still be .-••-•.
prohibited if itexceeds the specified •
California list concentration levels at — -
the point of disposal. (In this last ;- .
example, standards could apply to . -- ,
treatment facilities as well. See 6.g.,
§268.7(b).) j -.-".,; . ••• -'-••': : •''•'••
Second, if a1 non-hazardous waste is
treated arid tr]e resulting treatment
residue is a -hazardous waste! the new
hazardous wa;ste would be subject to "
any applicable prohibitions from that
point of generation. This is the initial
point at which a waste could become
subject to RC1RA Subtitle G regulation,
and therefore":to any of the prohibitions.
(Furthermore,1 there is no inconsistency
with the regulatory provisions discussed
above referring to initial generators,
because these: provisions apply to initial
generators of hazardous wastes.)
Finally, as noted in the November 7, :
1986, final rule, where a waste generated
before a land disposal prohibition /
effective date! is later removed from :
storage or disposal, it becomes subject
to the land disposal prohibitions at that
point (assuming that at the time of
removal the waste is ineligible for one of
several variances and does npt already «
meet the applicable treatment •
standards). Sl'FR 40577. Similarly, .'.•'..
residues generated from such wastes,
such as leachiite or contaminated
grduridwater containing F001-F005
solvent wastes disposed prior to - '
November 8, |986, would be viewed as •
newly generalted wastes. Their eligibility- -.-
for the national capacity variance (or
the statutory variance for certain • . ; •
CERGLA response action and RCRA'
corrective action wastes) would
consequently be determined denovo
upon removal; and not by reference to
the composition of the waste prior tp the
prohibition effective date. ' •
HI. Detailed Eiiscussion of Today's Final
• '' ' ' ' • '
A. Free Cyanides and Metals
Today's finai-rule does not establish
prohibition levels or treatment — •;
standai'ds for;ithe California list wastes
containing free cyanides or metals.
These determinations will be made in a;
separate ruleinaking. Today's rule,
however, does address the Agency's
approach to determining compliance
with the statutory prohibitions on the
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25768 Federal Register / Vol. 52. No.130/ Wednesday. July-8. 1987 / Rules and Rggul
metal-bearing and cyanide wastes
which are automatically effective prior
to the separate rulernaking.
1. Definition of Free Cyanides and
California List Metals
Hie Agency proposed to define the
universe of prohibited qyanide wastes
as any substance that can be shown as
having a resonance structure containing
a carbon-nitrogen triple bond. The
proposed definition would have
prohibited the land disposal of wastes
containing "total" cyanides above the
statutory concentration levels and
would have required the use of the
Toxici^y Characteristic Leaching
Procedure (TCLPJ to develop a waste
extract, which would have then been
tested for cyanide concentration levels.
The Agency recommended using
Method 9010 for Total Cyanide in Test
Methods for Evaluating Solid Wastes,
Physical Chemical Methods (EPA
Publication SW-846). This approach
was criticized by many commenters as
being contrary to the statutory language
prohibiting "free" cyanides. Many of
these commenters suggested that
Method 9010-Cyanides Amenable to
Chlorination would be more
appropriate. Other commenters
suggested that EPA adopt the weak
acidic dissociable test bam Standard
Methods for the Evaluation of Water
and Wastewater (16th Edition, 1985)
(Ref. 4 in Proposal). Commenters in
general did not .agree with the proposed
use of the TCLP to develop a waste
extract for further testing.
After evaluating the comments, EPA
agrees that the filtrate from the Paint
Filter Liquids Test is the portion of the
sample that should be analyzed for free
cyanides. The Agenqy is not requiring
the use of a particular test, but agrees
with commenters that the statutory
restriction in section 3004(d) is on "free"
cyanides. For analytical purposes, EPA
is recommending the use of the
Cyanides Amenable to Chlorination test
in MeShod 9010 (EPA Publication SW-
848) for determining "free" cyanide
concentrations. The Agency believes
this is among the more accurate existing
methods for measuring free cyanides, it
is widely used, and it was recommended
by most of the commenters to the
proposed rule.
For purposes of the RCRA section
3Q04(d) prohibition, the California list
metals are defined with reference to the
periodic table of elements. As discussed
in the "Scope and Applicability" section
of today's final rule, this requirement
applies both to individual constituents
and to the relevant metal portion of any
compounds containing such metals.
2. Physical Form Requirement
As discussed in 'the "Scope arid
Applicability" section of today's final
rule, RCRA section 30G4(d) prohibits
land disposal of the free cyanide and
metal wastes only in a liquid form. In
determining whether hazardous wastes
containing these prohibited constituents
are liquids, EPA is requiring use of the
Paint Filter Liquids Test. EPA believes
that the statutory language referring to
"liquid hazardous-wastes, including free
liquids associated with any solid or
sludge" prohibits only the true aqueous
portion of the waste plus the filtrate. Not
only is this the literal sense of the
section 30Q4(d) language, but the section
3004(c) liquids in landfill provision uses
almost identical language (prohibiting
disposal in landfills of certain "liquid
hazardous or free liquids contained in
hazardous waste"), and legislative
history to that provision stales that this
language applies to "liquid in the
conventional sense * * * and the free
flowing or liquid portion * * * that
readily separates." The legislative
history further states that the liquid
determination can permissibly be made
using the Paint Filter Liquids Test. S.
Rep. No. 284, 98th Cong., 1st Sess. 22
(1983).
3. Hazardous Waste Requirement
As with the other California list
wastes, the free cyanide and metal
wastes must be regulated as hazardous
under RCRA in order to be subject to the
section 3004(d) prohibitions. This
provision covers any wastes that are
either listed as hazardous under 40 CFR
Part 261 or exhibit one or more
characteristics of hazardous waste
identified in Part 261 {Le., ignitability,
corrosivity, reactivity, or EP toxicity),
and which also contain the specified
metals or cyanides.
4. Concentration Levels Prohibited From
Land Disposal
The Agency proposed to codify the
statutory prohibition levels for the
California list cyanide and metal
wastes; however EPA is not finalizing
these proposed levels in today's rule.
Instead, EPA is publishing a separate
notice of data availability and request
for comment requesting comment and
data on appropriate prohibition levels
and establishing treatment standards for
these wastes. Subject to the comments
received in response to that notice, EPA
will promulgate a final rule addressing
these issues.
Prior .to .promulgation of this separate
rule, statutory prohibitions in RCRA
section 3004[d) become automatically
effective. These concentrations are
those described in the section entitled
"Summary of Hazardous and Solid
Amendments of 1984" at the beginning
of today's preamble. As discussed
above, EPA interprets the statutory
prohibitions as applying when free
cyanide or metal concentrations in the
filtrate developed using the Paint Filter .
Liquids Test exceed the statutory
concentration levels.
B. Corrosives
1. Final Approach
A Definition of wastes with pHless
than or equal to 2.0. The Agency
proposed to adopt the statutory
definition for the liquid hazardous
wastes as wastes having a pH less than
or equal to two {2.0). No alternative
definitions were suggested by
commenters. The Agency is therefore
finalizing the definition as proposed.
The definition is the one currently used
in the existing corrosivity characteristic
at 40 CFR 261.22(a)(l).
B. Hazardous waste and physical
farm requirements. By definition, acidic
wastes are hazardous based on the
characteristic of corrosivity found in 40
CFR 261.11(aF)(l) when the pH is less or
equal to 2.0. If these wastes are treated
to a pH greater than two (2.0), they are
no longer characteristic hazardous
wastes and may lie land disposed in a
Subtitle D facility. Additionally, .section
3004(d)(2) specifies that the California.
list land disposal restrictions apply onl y
to liquid wastes (with the exception of
HOCs). Therefore, since the Agency is
not specifiying a technolohgy-based
treatment standard, corrosive wastes
may be neutralized to a pH greater than
2.0 or rendered nonliquid by chemical
fixation or other .treatment methods and
be .eligible for land disposal. If a wastes
is hazardous solely because of the
characteristic of corrosibity ,(pH > 2.0),
rendering it nonliquid also renders it
nonhazardous because the
characteristic of corrosivity based on
low pH only applies ,to> aqueous wastes*
c. pH levels prohibited. The Agency
proposed to codify the statutory
prohibition levels for these acific
wastes. To determine if the wastes
exceed the prohibition! level, the
Agency proposed to require testing using
the test method specified in 40 CFR
261.22{a)(l], Inadvertantly., EPA also
proposed (as part of the general
proposal to use the TCLP) that this test
method was to be applied to a leachate
generated by the TCLP, Use of the TCLP
is inappropriate for the corrosive
wastes, sinee it involves a pH
adjustment step and use of an acidic
extractant. EPA had intended that .the
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. . . - 4 . ..-. • : ;
Federal Register / Vol. 52. iNo. 130 / Wednesday. July 8. 1987 .^ Rules ana Regulations 25769
pH of a waste&e^eterminea*by testing
theTvas'tessample—-not .'a ileacha'te—•-to
see if it has thepropeiitiesan
§ 26i;22(a)fl). Thus, today's rule requires
thai 'the waste-sample te tested using
theiaethod specified to :§ 26i;22(a)(l) to
determine whether its pH is less thanaDr
equal'to'two-(2.0).
2* Determination .Not to promulgate
TreatmentStandards
The Agency {proposed-that .treatment
that'neutralizes acidic wastes to above
two ,(2;Q) are fiDAT,treatment, and
requested^ommentxOn'whetherth'isSype
of treatment should :be codified as a
specified,method,orperIonnanceTbased
standard. The majority of commenters
supported the proposed approach-and
recommened.that treatment be cofified
as a performance%ased standard.'They
preferred the performance-based
standard because it is consistent with
the hazardouw characteristic,-it
simplifies demonstration of-compliance,
and it places no limitation;on
technological'developments.
One commenter suggested thiSt this'approadh ;is
consistent with congressional Merit,
therefore, the Agency iisBdoptingSthe
TSCAreguMory ide'finition fas«discussed
above. | " •
b. Hazardous 'waste requirement
Since !*CBs -ar e Jio't listed 'as ihazardons
wastes Mnder1RCRA,;PCB-corita'ining
wastes 'are-on'ly subject jto the California
list prohibitions 'if'fcey aremixed iwith
or otherwise contained ;in -wastes which
Brelistedfas'hazardous unaer 40 CFR
Part 281, ar if fte mixture'exhibits'one'or
more-oT the'Characteristics of hazardous
waste identified in Part :261'(i;e.,
igriitability, corrosivity.Teactivity, and
EP toxicity). ;
Transforme]'S;often;contaih%oth'PCBs
and .hazardous! constituents'listed in 40
CFR'Paft 261, Appendix VIII.However,
if the ivaste ;ccfnta:iriing'these
constituents is not alis'ted or
characteristic hazardous waste, the
California tetiprohibition (does not
apply. For example,;some .transformers
contain Isomers^ofSetradhlorobenzene
and.trichlorobiBnzene. Althoijgh .several
x»f these isomers,'(e.g. 1,2,4;5-
tetrachlorobenizene and.1,2,,4-
trichlorobenzene) ;are listed as
Appendix.'VIIIthazardousconstituentg,
EPA has notilisted wastes,containing
these isomers as hazardous where the
source .of the -yraste is a .spent .dielectric
-fluid. Consequently, theseSCB-
containing spent [dielectric 'fluids -willibe ,
subject'to-the California list land
disposal prohibitions-only if they ;are
mixed with,a Hsted;hazardous waste or
if they exhibit a,characteristic
indentified in Part 261.
c. Prohibition levels. EPA is^codifying
the 50 pprnprctobition level specified ui
section.aOMtdKZXD) of KCRA. This
level is consistent with the
comprehensive rPGB.regulations existing
under the Toxi c Substances Control Act
(TSCA) and, alt this time, the Agency
does not have data suggesting'that a
differentleveliis necessary. Under
'today's final nile, liquid'hazardous
wastes corttaiiting PCBs at
concentrations greater than or equal to
SOppm are prehibited from land
disposal unlesu ihey.are;treated in
accordance .with •,§ 268.42, are ithe subject
of a successful "no-migration" petition
under S;268.6, :or are;granteda case^by-
case extension, or national capacity
variance. j
In determiniiiig whether a liquid
hazardous waste contains PCBs in
concentrations rgreater than or'equal to
50 ppm, EPA proposedTequiring testing
of a leach;extract'generated'using the
TGI35. Because ;fhe Agency [believes.ithat
Congress-adoptedtthe;50.ppm .
prdhibitionlevel to be consistent with
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2S770 Federal Register / Vol. 52. No. 130 / Wednesday, July 8, 1987 / Rules ^ RegiJation
existing regulations under TSCA, EPA
also believes that the test methods
required under TSCA are appropriate
for use in determining compliance with
the land disposal restrictions. The
methods specified in the TSCA
regulations at 40 CFR 761 do not test
leach extracts. Those methods require
testing of the total waste. In addition,
the statutory prohibition on PCB-
oontaining wastes is expressed in "ppm"
rather than "mg/1" as used for the other
California list liquid wastes, suggesting
that consideration of the solid fraction
in the PCB-containing waste is
appropriate. Therefore, today's final rule
requires that once a hazardous waste
containing PCBs is determined to be a
liquid, then the total waste (not an
extract or filtrate) must be analyzed for
purposes of determining compliance
with the California list land disposal
restrictions.
2. Existing Regulations of PCBs
Regulations promulgated pursuant to
TSCA currently address the land
disposal of PCB wastes which are not
mixed with RCRA hazardous wastes.
The TSCA requirements at 40 CFR Part
761 vary depending on the concentration
of PCBs in the waste and the physical
form in which the waste is disposed, i.e.,
in bulk liquid form, as a containerized
liquid, or as a nonliquid. Disposal of
PCBs at concentrations below 50 ppm is
not regulated under TSCA unless such
concentrations were created by diluting
a higher concentration of PCB or unless
they are used in specified ways, i.e., as a
sealant, coating, dust control agent,
pesticide carrier, or as a rust prevention
agent on pipes. Liquid PCBs at
concentrations greater than or equal to
50 ppm, but less than 500 ppm, may be
incinerated or burned in a high
efficiency boiler. They may also be land
disposed pursuant to the TSCA
regulations, but with certain limitations,
some of which are summarized in the
December 11,1986 proposed rule (51FR
44723). Liquid wastes containing PCBs at
concentrations greater than or equal to
500 ppm must be incinerated according
to TSCA regulations or disposed of by
any other approved alternate methods
(40 CFR 761.60(e)) that can achieve a
level of performance equivalent to the
technical standards set in 40 CFR 761.70,
Such liquid wastes containing PCBs at
concentrations greater than or equal to
500 ppm cannot be land disposed.
3. Relationship Between HSWA and
Existing Regulations
Several provisions in HSWA impose
restrictions on the land disposal of PCB
wastes \vhich are not contained in the
existing TSCA or RCRA regulations/The
TSCA regulations at 40 CFR 761.1(e)
clearly state that where there is an
inconsistency between TSCA and RCRA
standards, the more stringent
regulations govern. In addition, the
HSWA legislative history (H.R. Rep. No.
198, Part I, 98th Cong., 1st Sess. 56
(1983)) suggests that allowing the more
stringent provisions to govern is also
consistent with Congress' understanding
of the regulatory scheme. Today's final
rule integrates a number of the TSCA
requirements into the RCRA framework
in order to ensure that where there is an
inconsistency between TSCA and RCRA
standards the more stringent regulations
govern (see § 268.5, § 268.6, § 26.8.42, and
§ 268.50 in today's final rule and the
accompanying preamble discussions in
the section entitled "Modifications to
the Land Disposal Restrictions
Framework"). For a further discussion .of
the PCB land disposal requirements in
light of the RCRA section 3004(c) liquids
in. landfill prohibitions and the RCRA
section 3004(d) requirements, see the
December 11,1986 proposed rule (51 FR
44723).
4. Treatment Standards
EPA is establishing treatment
standards for liquid hazardous wastes
containing PCBs at concentrations
greater than or equal to 50 ppm. The
Agency proposed to require thermal
destruction (i.e., treatment in
incinerators or high efficiency boilers) of
such wastes pursuant to the operating
standards set forth in 40 CFR 761.60 and
761.70. None of the commenters.
challenged the appropriateness of these
proposed standards, and EPA is
promulgating the treatment standards as
proposed. Alternative treatment
methods (e.g., chemical dechlorination)
may be used where the Administrator
has determined that such methods
achieve a measure of performance
equivalent to that achievable by
methods EPA has specified, and where
certain other enumerated conditions are
satisfied. See § 268.42(b). See the section
in today's final rule entitled "Treatment
Standards", for a further discussion of
the treatment standards applicable to
the California list PCB-containing
wastes.
5. Prohibition Effective Date
The Agency proposed to grant a 2-
year nationwide variance from the July
8,1987 statutory effective date based on
a perceived lack of adequate thermal
treatment capacity for the California list
PCB wastes. Several commenters stated
that there is sufficient treatment
capacity for liquid halogenated wastes.
Although the commenters did not
provide quantitative data to support
these assertions, EPA has revised its
capacity estimates and determined that
there does not appear to be a
nationwide lack of adequate capacity to
treat liquid hazardous wastes containing
PCBs at concentrations greater than or
equal to 50 ppm. Thus, the proposed 2-
year variance is not being promulgated
in today's final rule. Rather, the
statutory effective date of July 8,1987 is
applicable to the California list PCB
wastes. To the extent that isolated
shortages of capacity occur, applicants
may apply for case-by-case extensions
pursuant to § 268.5. See the section in
today's final rule entitled "Capacity
Determinations and Effective Dates" for
a further discussion of the Agency's
basis for the approach.
D. Halogenated Organic Compounds
(HOCs)
1. Final Approach
a. Definition of halogenated organic
compounds (HOCs). HOCs are
compounds containing a carbon and a
halogen in the molecular formula.
Halogens include the five nonmetallic
elements in Group VIIA of the periodic
table: fluorine (F), chlorine (Cl), bromine
(Br), iodine (I), and astatine (At). For
purposes of the California list land
disposal prohibitions, the Agency
proposed a definition for HOCs that
would require a carbon-halogen bond.
The rationale for this proposed
definition was that compounds that lack
such a bond, but that have a halogen
attached to an atom such as nitrogen
(e.g., aniline hydrochloride), are not true "
HOCs. All the commenters who
addressed this issue agreed that a
carbon-halogen bond should be
required; therefore, today's final rule
promulgates the HOC definition as
proposed;
b. Hazardous waste requirement.
Wastes containing HOCs are only
subject to the California list prohibitions
if the waste is listed as hazardous under
40 CFR Part 261 or exhibits one or more
of the characteristics of hazardous
waste identified in Part 261. However,
the waste listing or characteristic need
not be related to the HOC content of the
hazardous waste for it to be covered.
c. Concentration levels prohibited.
The RCRA section 3004(d)(2)(E)
prohibition codified today applies only
to hazardous wastes containing HOCs
in total concentration greater than or
equal to 1,000 rag/kg. Although EPA is
codifying the statutory prohibition level
as proposed, the Agency will be
evaluating each hazardous waste
containing HOCs in accordance with the
final schedule for implementing the land
-------
disposal restrictions-{51 •FR19300). at
that time, prdh'ibitions on'land-disposal
and treatment standards'Will:be
established toithe extent necessary for
individual :H0Os'OT-groups of "related
. HOCs.
'In-determining^fhe concentration off
HOCs in a'hazardous waste, the Agency
recognized that the proposed 'carbon-
halogen defiriition presents a potential
problemlbecause it'would include 'a
number of polymerized'and-other
halogenated'compounds that are
generally considered nonhazardous due
to theirrelative immobility and 'lack of
toxicity. EPA stated in the proposal that
Congress did not indicate an intent to
. include withinthe^CaliforriiaJist
prohibitions every possible HOC such
as polymers that comprise-solid plastics
and vinyls. Instead, EPA-stated that
Congress wascconcerned with
constituents -that are mobile and/or
' potentially hazardous do human health
and the environmerit.'Thefefore, the
Agency proposed to:limit the HOGs
included under the Califorriia'list
prohibition to those HOGs which are
regulatedras hazardous'under40 GFR
Part -261 or listed .in Appendix VIII to
Part261.
Many commenters agreed with -the
Agency's proposed rationale for'limiting
the HOC prdfiibiiion; however, iseveral
suggested that the Agency-clarify that
polyvinyl chlorides ,(PVOs) are not
subjetft^o \theCaliforriia list
prohibitions. Although some
commenters supported !f he'reference to
Appendix Villas a means of 'limiting the
HOC prohibition, other'commenters
stated that testing for Appendix VIII
constituterits'is difficult
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25772 Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rules and Regulations
3. Treatment Standards
EPA is establishing incineration as the
treatment standard for all hazardous
wastes containing HOCs in total
concentration greater than or equal to
1,000 mg/1 except dilute HOC
wnstewaters (i.e., liquid hazardous
wastes that are primarily water and
contain HOCs in total concentration less
than 10,000 mg/1). As explained more
fully below, however, if an HOC-
conlaining waste already is subject to a
treatment standard for a specific HOC
(e.g., and F001 or F002 spent solvent, or
a prohibited dioxin- or PCB-containing
waste), the treatment standard
applicable to the more specific HOC
•waste would control. Thus, when all of
the treatment standards become
effective, the wastes need not be
incinerated to meet the solvent, dioxin,
and PCB treatment standards. (See the
section of today's final entitled
"Treatment Standards" for a further
discussion of the treatment requirements
applicable to the California list HOC-
containing wastes).
4. Prohibition Effective Dates
Due to a lack of incineration capacity,
the Agency proposed to grant a 2-year
nationwide variance from the July 8,
1987 statutory effective date for the
California list wastes requiring
incineration. EPA did not propose to
grant a nationwide variance for the
dilute HOC wastewaters. As a result,
these wastes would be prohibited from
land disposal as of July 8,1987. EPA
received mixed comments regarding
available treatment capacity for the
California list HOC wastes; however, no
quantitative data were submitted
suggesting that incineration capacity
was adequate. Therefore, the Agency is
promulgating the 2-year variances as
proposed. To the extent that new data
are developed by the Agency, revised
capacity determinations will be made,
some of which could result in the
revocation of existing nationwide
variances. (For a further discussion of
these issues, see the section in today's
final rule entitled "Capacity
Determinations and Effective Dates.")
£". Treatment Standards
Today's final rule promulgates
treatment standards for several of the
California list wastes. Unlike the
concentration-based treatment
standards established for the solvent-
and dioxin-containing wastes on
November 7,1986 (51FR 40572), today's
treatment standards are expressed as
specified technologies. These specified
technologies are applicable to the
California list wastes containing HOCs
(except for dilute HOC wastewaters)
and the California list wastes containing
PCBs. Today's final rule does not
establish treatment standards for the
California list wastes that contain
metals or free cyanides. Treatment
standards for these wastes are being
addressed in a separate final
rulemaking. Today's final rule also does
not establish treatment standards for the
California list corrosive wastes. As a
result, the statutory prohibitions on
liquid hazardous wastes containing
cyanides, metals, and those having a pH
less than or equal to two (2.0) govern the
degree to which such wastes must be
treated prior to land disposal.
1. HOC Containing Wastes
As discussed in the proposed rule (51
FR 44725), the treatment technologies
applicable to hazardous wastes
containing HOCs in total concentration
greater than or equal to the 1,000 mg/kg
statutory prohibition level are similar to
those technologies identified as the
basis for establishing BDAT for the
F001-F005 solvent wastes. (F001 and
F002 spent solvents are halogenated
organic compounds.) These technologies
include incineration, batch distillation,
thin film evaporation, fractionation,
biological degradation, activated carbon
adsorption, and steam stripping.
a. Dilute HOC wastewaters. Among
these technologies, EPA determined in
the November 7,1986 final rule that
wastewater treatment technolgies such
as biological treatment, activated
carbon adsorption, and steam stripping
should form the basis for concentration-
based treatment standards applicable to
the F001-F005 solvent wastewaters.
However, the Agency did not propose to
establish treatment standards for HOCs
not covered by the November 7,1986
final rule. The rationale for this
approach was that the wide variety of
contituents included within the term
"halogenated organic compounds", even
as limited in this rulemaking, makes it
impractical at this time for EPA to
develop wastewater treatment
standards expressed either as
concentration levels or as specified
technologies. Application of
technologies such as biological
treatment, activated carbon adsorption,
or steam stripping may be effective for
many HOC wastes; however, a
generalization that one or all of them
constitutes BDAT for such a wide
variety of compounds is not possible at
this time.
In the absence of data submitted by
the commenters, EPA is promulgating
the dilute HOC wastewater prohibition
as proposed. As a result, dilute HOC
wastewaters (i.e., wastes that are
primarily water and contain less than
10,000 mg/1 HOCs) must be treated to
concentrations below the 1,000 mg/1
statutory prohibition level prior to land
disposal. However, no particular
methods for achieving this level are
specified in today's final rule. As stated
in the proposal, EPA will reevaluate
each of the HOCs covered under the
California list prohibitions (except for
the solvent and dioxin-containing
wastes for which the Agency has
already established treatment standards
on November 7,1986) in accordance
with the schedule published in the
Federal Register on May 28,1986 (51 FR
19300).
b. Other HOC wastes. For the
California list HOC wastes that are not
dilute wastewaters as defined above,
EPA proposed to establish treatment
standards expressed as a specified
technology. The required method
specified in the proposal was
incineration in accordance with the
existing requirements of 40 CFR Part 264
Subpart O or 40 CFR Part 265 Subpart O.
One commenter stated that the
administrative record does not support
the Agency's selection of incineration as
BDAT for these non-wastewater
hazardous wastes containing HOCs in
total concentration greater than or equal
to 1,000 mg/kg. The same commenter
also stated that in establishing
incineration as BDAT the Agency must
demonstrate at least the same level of
treatment performance as that required
for permitting under 40 CFR Part 264
Subpart O. For example, the commenter
asserted that since EPA is promulgating
a generic rulemaking, it must
demonstrate 99.99% destruction and
removal efficiency (four 9s DRE) for all
HOCs the Agency includes within the
scope of the HOC treatment standard.
The Agency disagrees with the
commenter that the administrative
record does not support EPA's selection
of incineration as BDAT for the non-
wastewater HOC wastes subject to
today's final rule. In the preamble to the
proposed rule (51 FR 44725), the Agency
cited the November 7,1986 final rule as
support for a determination that
incineration represents BDAT for most
organic liquids as well as organic and
inorganic sludges and solids. Further
support for incineration as the basis for
BDAT is the fact that incineration is
presently a demonstrated and currently
used treatment method for most PCB
compounds. These halogenated organic
PCB compounds are very stable and
difficult to destroy. The background
documents for the November 7,1986
final rule contain data regarding the
incineration of hazardous wastes
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/.Vol. SVNo. '130
8, 1987 ,/
257Z3
containing :HTOCs '(chlorinated Bolvehts}.
The data-summarize the performance cif
10 incinerators fat nine facilities. :Of the
nine facilities, seven facilities
incinerated HOG wastes .'and all seven
showed a reduction iin the concentration
of HOCs in incinerator ash-sufficient to
satisfy 'the RCRA section 3004(m)
requirement that any treatment levels or
methods specified by EPA substantially
diminish thetoxicity ,of'the waste^so
that short-term ;and long-term 'threats to
human health .and 'the .'environment are
minimized.
The{requirement 'that hazardous waste
incinerators achieve 99.99%T3RE is
codified an the existing RCRA
regulations under "Part ;264'Subpart.O.
The requirement's also mandated !by
statute. RCRA section'3004fdJP)(B).'The
California list-final -rule does^not reopen
consideration'oTthe:permit standards. If
a facility demonstrates -that a restricted
waste
The Agency recently proposed -that
burriingWOC wastes in boilers
industrial furnaces in compliance with
proposed Part 266 standards would be
equally effective as';Subj>art'O
incineration and'suggested that such
methods could form the basis-for a
revised'determination of BDAT.'52 FR
16982>(May 6,1987). These standards
could provide for use of these
alternatives to indineration in treating
prohibited HOC wastes without,
requiring a case-specific demonstration
as to equivalency 'pursuant ;to
§268f42(b,). . ". •
c. Applicability of today's treatment
standards. Although EPA has
determined that incineration is an
appropriate 'treatment standard for the
broad categoryof wastes referred to as
HOCs, the Agency recognizes that the
California'list was intended as a starting
point in the land disposal restrictions
and so where the Agency has developed
waste-specific data it is desirable to
refine the treatment requirements
accordingly. Such waste-specific
requirements are'likely to be more
reliable, as the wastes-themselves are
better characterized.'Furthermore, ^as
discussed in the November 7,1986 final
rule, the Agency prefers'to establish ''-"•
concentration-based treatment
standards rather than-treatment
standards expressed as specified '
technologies because :EPA'believes that
this will provide thej-egulated
community with greater flexibilityin
meeting^treatment standards-and will
encourage the development df-more
efficient and innovative technologies.
Consistent with these principles, and
in response ;to a 'commenter's concern
over which treatment standards apply
where a waste contains several
constituents, the HOC treatment
standards promulgated in today's final
rule -are prily applicable to 'those HOCs
that'are not covered'by .other Agency
rulemakings under § 268.41, § 268.42, or
§ 268.43. The Agency has.provided in
§ 268.42 that treatment standards
established for wastes.containing
individuarCalifornia list constituents
will supersede todayJs itreatment
standards.'With respect to the
prohibition effective date, the waste-
specific determination that adequate
treatment capacity ;does or does not
exist'for the more s_pe.cific;type of HOC
waste would also be coritrolh'ng.
Therefore, §268.32 states that the
prohibition effective date established for
the more specific HOC waste-would
apply, not the prohibition effective date
established today for the generic HOC
wastes.
For example, a restricted waste ifi.e.. a
waste to which no variances apply)
containing an F001 or F002 halogenated
spent solvent constituent tsuch-as
trichloEoethylene—F001) 'is -subject to a
concentration-based treatment
standard. See Table CCWE, 51 :FR 40642,
November 7.1986)."Thus, such >a-waste
need only;be!tre^ted to meetlthe
applicable levels in'Table CCWE. 'The
Agency isaiot requiring ihat incmeration
be used to achieve this :level. However.
the waste must be treated to;these levels
effective Novembers, 1986 and'is not
entitled to the .2-year nationwide
cajjacity variance-applicable to'non-
solvent HOCs.
The Agency cautions, nowever, that
these principles stating that waste-
specific^determinations as to treatment
standards and-effective dates are
, controlling 'over more generic
determinations only>applies where the
wastes are a subset of ;HOCs:for which
treatment standards .and prohibition
effective-idates exist. :(The wastes
currently affected !by this overlap are
the prohibited solvent, dio'xin, and POB
wastes. Several additional examples of
the Agency's approach in such cases 'are
provided folio wing the section entitled
"Capacity Determinations and Effective
Dates" in today's -preamble;) Where 'a
hazardous waste'contains both HOCs .'
and non-HOC consfituents'fe^g., :
prdhibited levels of a'California list
metal in liquid form), the waste would
be prohibited from land-disposal until it
is in'compliance with the .treatment
standard forfaoth HOC and non/HOC
constituents ;[or,; until trea'faierit
standards iare,promulgated for the
California ilistjmetals, the waste also
meets the statutory .prohibition .levels ;or
has been ,ti:eated and rendered
honliquid). In .this case, unlike tlie .case
of the HOG/moreTSpecific-rHOG overlap,
there..is no necessary, relation between
treatment .cif the non-HOC constituent
and the HC>Cs, so.thatiHOGs couldigo
untreated ilf the treatment standards for
only the non-HOC constituents applied.
The generalprinciple here is'.that-where
different constituents-are [present Jn;ihe
same wastes i (as opposed to one
constituent appearing ion two lists, «ig.,
an F001-EOID2 solvent which;is-also an
HOC),ralhof .the constituents:in the
waste must:be:in:compiiance-wi{h,or;be
treated to comply with,.alltspecified
treatment standards (or prohibition
levels where aio Itreatmerit standards
have been.established). The same
principle would-apply in determining
prohibition effective^dates for wastes '
containing MOCs and-non-HOC
constituentfi. Unless the Agency :liad ,
specifically addressed this type-of waste
matrix'in (itsi capacity determinations,
the prohibition effective;date for each
constituteht. would be-applicable.2
IFor example, where,a'h'quid
hazardous waste.conta'ins'both
Californialist metafls.afaove'the
statutory prohibition levels andHOGsJin
total concentration.greater than or equal
to ld;000mg/l, the applicable prohibition
effective da^tes are July 8, J.987 for the
metal .portion xi'f the waste ,and July :8,
1989for .theHOCjportion. This leading
is not,only cpnsistent with,the Agency'.s
analysis .of available treatment capacity
(EPAJs finding that .there presently .does
not exist a nationwide^hoEtage.of
treatmentcaipacity for such metals),;but
it is also necessary to avoid situations
where the Agency wouldtbe;granting,a
national capacity variance for a .period
longer than 1 wo. years. This could -
happen, for instance, in the. case 's:Bubseq|uerit:detennination wnttld^have to
evince a clear.intentitosHpersederan.earlier
determination: otherwise.each'pcohibition effective'
date-would apply. "
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25774 Federal Register / Vol. 52, No. :MO/We(toesday.J^
established an effective date later than
November 8,1988 (assuming only for
purposes of this example that such a
variance was granted for the metal-
bearing wastes). Since national capacity
variances cannot exceed two years
(RCRA suction 3004(h)(2)), the variance
on the solvent portion of the waste
could not extend beyond November 8,
1988. For these reasons, today's final
rule states in § 268.32 that constituents
in a waste may become subject to
prohibitions different times.
2. PCB-Containing Wastes
The Agency proposed to establish
treatment standards expressed as
specified technologies for liquid
hazardous wastes containing PCBs in
concentrations greater than or equal to
50 ppms. The proposed methods were
thermal treatment pursuant to the
technical requirements in the TSCA
regulations at 40 CFR 761.60 (burning in
high efficiency boilers) or 40 CFR 761.70
(incineration). Commenters did not
challenge the appropriateness of the
well established TSCA treatment
specifications, therefore, EPA is
finalizing the treatment standards as
proposed.
The treatment standards promulgated
today in § 288.42(a) are consistent with
the TSCA regulations which require the
incineration of liquid wastes containing
PCBS at concentrations greater than or
equal to 500 ppm. Liquid hazardous
wastes containing PCBs at
concentrations greater than or equal to
SO ppm and less than 500 ppm may be
burned in either high efficiency boilers
or in incinerators. As with the
prohibited HOC weastes or any other
wastes subject to treatment standards
expressed as specified technologies,
alternative equivalent methods may be
used provided they are approved by the
Administrator according to the
standards and procedures specified in
§ 268.42(B).
Applications for approval of
alternative equivalent methods should
be submitted to the EPA Administrator;
however, where such applications
involve PCB-containing wastes copies
should also be sent to the Director,
Exposure Evaluation Division, Office of
Toxic Substances, and to the Chief,
Waste Treatment Branch, Office of Solid
Waste.
Regardless of whether the specified
methods in § 268.42(a) or alternative
equivalent methods approved under
§ 268.42(b) are employed, EPA is
clarifying that, since the PCB wastes
subject to today's prohibitions are
contained In RCRA hazardous wastes,
compliance with the applicable
provisions in 40 CFR Parts 264,265, and
266 is also required. The more stringent
technical operating requirements for
incineration in the TSCA regulations are
applicable; however, facilities treating
these liquid hazardous wastes
containing PCBs must also be in
compliance with existing RGRA interim
status or permit standards specified in
Part 264 and 265. In addition, any Part
266 regulations that may be promulgated
with respect to the burning of hazardous
wastes in boilers and industrial furnaces
will also apply. (See 52 FR16982, May 6,
1987.)
Liquid hazardous wastes may contain
both PCBs and other hazardous
constituents for which EPA has
established different treatment
standards or prohibition effective dates.
An example would be solvent wastes
and PCB wastes mixed in a single
matrix. In this circumstance, both sets of
treatment standards and effective dates
would apply. This is consistent with the
principle outlined above that where
different constituents are present in a
waste, all applicable treatment
standards and prohibition effective ,
dates must be. complied with.
F. Capacity Determinations and
Effective Dates
1. HOC-Containing Wastes
On December 11,1986, EPA proposed
that liquid hazardous wastes containing
halogenated organic compounds (HOCs)
in total concentrations greater than or .
equal to 1,000 mg/1 and less than 10,000
mg/1 HOCs ("dilute HOC wastewaters")
be prohibited effective July 8,1987. EPA
did not consider proposing a 2-year
nationwide variance for the dilute HOC
wastewaters, in part, because the
Agency believed it was legally
precluded from granting capacity
variances where treatment standards
are not specified. For all other California
list HOC wastes, EPA proposed
incineration as the required treatment
method and proposed to grant a 2-year
nationwide variance from the July 8,
1987 prohibition effective date due to a
lack of incineration capacity. For these .
wastes, EPA stated that incineration
capacity was already exhausted as a
result of the land disposal prohibitions
for solvent-containing hazardous
wastes.
Several commenters suggested that
there was available thermal treatment
capacity for liquid HOC wastes. Other
commenters questioned whether the
Agency was in fact legally precluded
from granting capacity variances where
it did not establish treatment standards.
Additional commenters noted that the
Agency had already found that there is
inadequate capacity to treat dilute
solvent wastewaters, which are a subset
of dilute HOC wastewaters, and noted.
the incongruity of not granting a
corresponding variance for the dilute
HOC wastewaters. The Agency has
reexamined these issues in light of the
comments received and in light of new
information. EPA's findings are set out
below.
a. Legal constraints on granting
national capacity variances. As stated
in the Agency's recent notice of data
availability and request for comment (52
FR 22356, June 11,1987), the threshold
issue here is whether the Agency is
barred as a matter of law from granting
capacity variances where it does not
specify treatment standards. Upon
reexamination, EPA believes there is no
absolute legal constraint. No commenter
to the June 11,1987 notice challenged
this conclusion. The statute itself
contemplates that such variances can be
granted. Section 3004(h)(2) indicates that
the Agency may grant a national
capacity variance in either of two cases:
(1) With respect to wastes prohibited
when the Agency promulgates
regulations pursuant to section 3004(d}-
(g); or (2) with respect to hazardous
wastes "subject to a prohibition" under
those same subsections. In this latter
case, the prohibition would take effect
by operation of law (i.e., the so-called
statutory hammer would fall), and no
treatment standards would ;be
established. Yet the statute states that
EPA remains authorized to grant
national capacity variances. The Agency
could grant case-by-case extensions of
the effective date under section
3004(h)(3) as well, since (h)(3) authorizes
extensions to an "effective date which
would otherwise apply" under
subsections (d)-(g) or subsection (h)(2).
These effective dates, as just explained,
can take effect whether or not the
Agency promulgates treatment
standards.
In addition, the statutory standard
that authorizes EPA to grant capacity
variances is no.t identical to the
language in section 3004(m) authorizing
EPA to establish waste treatment
standards. The Agency construes this to
mean that it need not consider precisely
identical factors. Section 3004(h) (2) '..;
requires the Agency's determination to
be based on availability of "adequate
alternative treatment, recovery, or
disposal capacity which protects human
health and the environment * * *". This
can either be broader or narrower,
under different circumstances, than
treatment satisfying the section 3004(m)
standards. 51 FR at 40600. The key point
here, however, is that the existence of
the different statutory standards for
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Federal Register /Vol. 52. No. 130 / Wednesday, July 8, 1987 /'Rules and ^Regulations '. 25775
granting capacity variances and , '
establishing treatment standards
confirms that the two determinations r
are not inextricably linked. • c '
b. Determination not to grant national
capacity variance for dilute HOC
wastewaters. Although the Agency's
rationale at proposal for not granting
national capacity variances for dilute
nonsolvent HOC wastewaters would ;nb
longer apply, the Agency does not
believe such a variance is warranted. .-
The Agency's estimates are that these
wastes are generated in low volumes,.. ;
and most of these wastes are believed to
contain less than the statutory HOC -
prohibition level. 52 FR 22358. No
commenter challenged this conclusion^ -
In addition, there is some available • ,
commercial capacity to treat these
wastes.,51 FR 40614.
Commeriters to the December 11,1986
proposed rule and the June 11,1987
notice did not document any shortage of
available treatment capacity; however,
several suggested that the Agency's ;
determination in the November 7,1986
. rule that there is inadequate treatment
capacity for certain dilute solvent
wastewaters (which are also HOCs) is
inconsistent with the proposed approach
not to grant a nationwide variance for _
the dilute HOC wastewaters. The two
rules are consistent. The dilute solvent
wastewaters granted a-national capacity
variance in the November 7,1986 rule
are not limited to wastes containing
1,000 mg/1 solventHOCs. Rather, many
of those wastes contain less than 1,000.
mg/1 solvent HOCs and, therefore, are
not subject to the capacity demands
imposed by the California list -.;.
prohibitions.
The Agency notes, however, that the
national capacity variance for F001-
F005 solveht-cbntaining wastewaters
would continue to apply even if the
solvent wastes also contain over 1,000 ;
mg/1 HOCs as long as the wastewater is
regulated as hazardous because of the
F00t-F005 solvent constituents. This is
because EPA has already addressed1
these specific types of HOC wastes on
November 7,1986 and has indicated in :~ "-
the California list proposal (51 FR 44725)
and earlier in today's preamble that .--•
such waste-specific determinations
supersede the California list
determinations. However, if the solvent-
HOC hazardous wastewater is not
regulated as hazardous by virtue of
being an FOOl^FOQS solvent, it does not
meet the definition of those wastes
addressed in the November 7,, 1986 rule
and, therefore, it is. subject to the . ..
prohibition effective date promulgated
for the dilute HOC wastewaters. As a
result, the hazardous waste would be
prohibited effective July 8,1987 despite
the fact it'might"contain constituents
identical to those specified in the FOOl-
F005listings. . -.'-•'- .-:--.:'••;; '
C.Determination to grant national , ,
capacity variance for HOC liquids
containing greater than 10,000 mg/1
HOCs aitd HtiC solids. As stated earlier
in this section to today's final rule, EPA
has specified incineration as the
required treatment-for all California list
HOC wastes except dilute HOC ~
wastewaters and determined that, due
in large part to the additional demand ,
placed on incinerators as a result of the
November 7,1986 solvent restrictions,
there is a nationwide lack of
incineration capacity. Several
commeriters suggested that incineration
capacity exists for the liquid HOC
wastes; however, quantitative data were
not submitted to support these
assertions. Other commenters agreed
with the Agency's capacity analysis as
discussed in the proposed rule (51 FR
44732). Based on EPA's data and public
comments, the Agency is granting the
proposed 2-year nationwide variances
from the'July 8,1987 prohibition
effective date for these categories of
California list HOC wastes.
As noted in the previous section
entitled "Treatment Standards," the
Agency prefers to establish . •
concentration-based treatment
standards rather than treatment
standards expressed as specified
technologies because cdncentratipn-
based standards provide the regulated ,
community with flexibility and are
believed to jencourage the development
of innovative new treatment processes
or more efficient operation,of existing
technologies. In addition, EPA intends to
revise treatment standards as new
technologies emerge or the Agency
obtains new data. For example, the ;
Agency's recent proposal (52 FR 16982,
May 6,1987) to regulate the burning of
hazardous wastes (including HOCs) in
boilers and industrial furnaces arid to
specify numerous operating .. -
requirements could form the basis for a •
revision of the HOC treatment standard.
In the absence of regulatory standards
specifying operation, of these devices,
the Agency is not yet coriifortable
including them as treatment methods,
and intends to first analyze comments to
the May 6,1987 proposal before
instituting any such action. Should EPA
revise the treatment standards as
mentioned above, or in other ways, a " '
'revised capacity determination will be
required.iri order to. justify the : .'.'..
continuance to today's national capacity
variances.
2. PCB-Coritainihg Wastes V V ,'
On Decerriber 11,1986, EPA proposed
treatment standards for the California .
Jist liquid hazardous wastes containing.
PCBs at coric'entfations greater than or
equal to 50 ppm. In proposing these
treatment standards (i.e., thermal
treatment in Accordance with existing
technical requirements set forth in:the
TSCA regulations at 40 CFRPart 761),
EPA also proposed to grant a 2-year
nationwide variance based pii a
perceived lack of such thermal .
treatment capacity. ; •
A reevaluation of existing data and
new volume and incineration capacity
data indicate; that there is riot a :":-
nationwide;s!!iortage of capacity to .--"'
manage the small volumes of these PCB^
wastes that are currently land disposed.
For the liquid wastes containing PCBs
at concentrations greater than of equal
to 500 ppm, the TSCA regulations in 40;
GFR Part 761 already require
incineration, Since none of these wastes
can permissably be land disposed
currently, the,California list prohibitions
do not add any incremental demand to a
capacity analysis. Therefore, the Agency
is not granting the proposed 2-year
nationwide capacity variance. As with '
the HOC wastes discussed-above, any
individual demonstrations of capacity
shorfalls may warrant a case-by-case
extension provided the requirements of
§ 268.5 are met
The primary impact of the California
list prohibitions on PCB-contaim'ng ^
wastes is on liquid wastes containing
PCBs at concentrations greater than or
equal to 50 ppm and less tHan 500 ppm.
, Such wastes could previously be land
disposed under the TSCA regulatioris
provided absorbents are added and
other requirements are met. Today's
final rule prohibits the land disposal of
such concentrations if contained in '
hazardous 'waste; however, Agency data
indicate that yery low volumes are \ :
currently being land disposed; In
addition, treatment capacity in high
efficiency boilers and alternative :
technologies |[e.g.:, chemical • ,
dechlorination) .appear to be adequate.
Therefore, additional demand for
treatment as ja result of the California
list prohibitioris appears minimal and
existing estimates of capacity supply do
not warrant granting .a nationwide
variance for these wastes. This
conclusionwlEis not disputed.by any
commenter to the June 11, notice.
3. Metals, Free Cyanides, and
Corrosives
TheAgencV
1986 final ruli
stated in the November 7,
(51 FR 44732) arid the June
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25776 Federal Register / Vol. 52. No. 130 / Wednesday, , July '
Rulations
11,1987 notice (52 FR 22359) that it does
not believe it is necessary to grant a
national capacity variance for the
California list metal, cyanide, and
corrosive wastes, given the relative ease
with which treatment can be conducted
and unregulated tank capacity can be
installed. Several commenters
challenged this conclusion. EPA is
currently reevaluating its assumption
that tank capacity and associated
treatment devices can be rapidly
installed; however, the Agency does not
believe it can currently justify granting
of national capacity variances given its
uncertainties about volumes of wastes
generated, existence of commercial
treatment capacity, plus the ability to
treat these California lists wastes to
render them nonliquid (ordinarily a
relatively unsophisticated treatment
process) and, therefore, no longer
prohibited. In addition, the fact that EPA
has only received two petitions to date
requesting case-by-case extensions for
California list wastes suggests that no
national shortages exist. To the extent
that there are isolated shortages in
capacity, case-by-case extensions may
be granted pursuant to the requirements
of § 268.5. Although today's final rule
does not grant a nationwide variance for
these wastes, the Agency is concerned
that certain large volume flows might
pose a capacity problem, and is
compiling and evaluating data relevant
to future capacity determinations.
G. Examples Illustrating Integration of
Today's Final Rule With Other Land
Disposal Restrictions Rules
The following examples are the
Agency's interpretation of the operation
of today's final rule. (These examples
assume that none of the exemptions in
§§ 268.4, 268.5, and 268.8 apply.)
1, Generator A generates a liquid
hazardous waste containing 2,000ppm
HOCs, some of which are F001
hazardous waste solvents. The waste
must meet the treatment standard for
the F001 solvent by November 8,1988.
The treatment standards and prohibition
effective dates for spent solvent wastes
control here because these solvents are
a subset of HOCs already addressed in
the November 7,1986 final rule. (See
§ 268.30(a)(3) which states that solvent
wastes containing less than 195 total
F001-F005 constituents as initially
generated are prohibited effective
Novewber 8,1988.51 FR 40641,52 FR
21012, 21017.)
2. Generator B generates a nonliquid
hazardous waste containing 12,000ppm
HOCs, over 10,000 ppm of which are
F001 solvents. For the same reasons as
the previous example, the waste must
meet the treatment standard forFOOl
solvents, but it need not be incinerated
to do so. The land disposal prohibition
for F001 wastes containing greater than
or equal to 1% total F001-F005 solvent
constituents is already in effect (since
November 8,1986). (This answer
assumes that the waste is not generated
by a small quantity generator, a
CERCLA response action, or RCRA
corrective action.)
3. Generator C, a small quantity
generator (SQG) of 100-1,000 kg per
month of hazardous waste, generates a
spent solvent waste containing 20,000
ppm ofFOOl solvents and 25,000ppm of
other HOCs. The treatment standard for
F001 solvents will apply as of November
8,1988 because the Agency has
determined that there is currently .
insufficient nationwide treatment
capacity for such spent solvent wastes
generated by SQGs. (See §268.3Q(a)(l) at
51 FR 40641.) As these SQG F001
solvents are a subset of HOCs already
addressed in the November 7,1986 final
rule, their treatment standards and
prohibition effective data will control.
4. Generator D, a large quantity
generator, generates a non-CERCLA
liquid hazardous waste containing 600
ppm PCBs and 11,000ppm hazardous
waste spent chlorinated solvents. The
waste must meet the treatment standard
for both solvents and PCBs, and must do
so by incineration. These prohibitions
are effective immediately. Solvents and
PCBs are considered to be different
constituents and, therefore, both sets of
treatment standards and prohibition
effective dates (November 8,1986 and
July 8,1987, respectively) apply. While
the earlier examples illustrate that the
HOC prohibitions are superseded by
prohibitions on more specific types of
HOCs, this is not the case here because
solvents are not a subset of PCBs or vice
versa.
5a. Generator Et a small quantity
generator (100-1,000 kg/mo), generates
the same waste as Generator D in the
previous example. Because EPA has not
found any shortage in nationwide PCB
treatment capacity, this waste would
have to be incinerated as of July 8,1987.
5b. Some facts as the previous
example, except the waste is not a
liquid. Only the treatment standards
and November 8,1986 prohibition
effective date for the solvent applies
because nonliquid PCB wastes are not
prohibited in today's, final rule.
6. Generator Fgenerates a liquid
hazardous waste containing 11,000 mg/1
HOCs and 600 mg/1 lead. The HOC
portion of the waste is not prohibited
until July 8,1989. The metal portion of
the waste is prohibited immediately.
Once the HOC prohibition becomes
effective, the. waste cannot be land
disposed until it has been incinerated.
The residue from incineration may be
land disposed if it is a nonliquid (e.g., an
ash) or, if still a liquid (e.g., a scrubber
water), it contains less than 500 ppm
lead (or more stringent levels that may
be specified). The general principle here
is that where a waste contains different
constituents that are not subsets, the
waste must meet the treatment
standards and prohibition effective
dates for each such constituent.
H. Comparative Risk and Available
Treatment Alternatives
As EPA recognized in establishing_a
framework for implementing the
statutorily mandated land disposal
restrictions, Congress did not intend that
risks to human health and the
environment be increased as a result of
such restrictions. To help prevent
situations in which regulations
restricting hazardous wastes from the
land disposal would encourage
treatment technologies posing greater
risks than those posed by direct land
disposal, EPA is conducting comparative
risk analyses. In the November 7i 1986
final rule (51 FR 40572), the Agency
conducted comparative risk
assessments for the first category of
wastes subject to the land disposal
restrictions, i.e., certain dioxin-
containing the solvent-containing
hazardous wastes.
The Agency has conducted
comparative risk assessments in
conjunction with establishing section
3004(m) treatment standards for several
of the California list wastes. The
methodology employed is similar but not
identical to that utilized in the
November 7,1986 solvents and dioxins
final rule. The RCRA Risk'Cost Analysis
(WET) Model continues to be the
primary tool for assessing comparative
risks; however, the WET Model has
been revised on the basis of detailed
case studies performed for the
November 7,1986 final rule and public
comments responding to the Agency's
approach in that rulemaking.
Results of the comparative risk
analysis are not being used to allow
continued land disposal of untreated
hazardous waste. Instead, treatment
technologies that are determined to pose
greater total risks than land disposal of
untreated wastes are excluded (i.e.,
considered ."unavailable") as a basis for
establishing the section 3004(m)
treatment standards. If the best or most
efficient treatment technology for a
waste is determined to be riskier than .
land disposal, the decision to classify it
as unavailable will have a direct impact
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Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rules and Regulations -'. 257?7
on the level or method established as
the section 3004(m) treatment standard.
The treatment standard, which must be
based on the capabilities of the best
demonstrated available treatment
technologies for a waste, is then-based
upon the capabilities of the best
demonstrated treatment technology that
does not pose greater risks than land
disposal. To the extent that the next •
best treatment technology performs less
efficiently than the best technology (in
terms of the fate of its residuals in the "
environment), the resulting section :
3004(m) treatment standard will be less
stringent.
As noted in the November 7,1986 final
rule, treatment technologies identified .;
as riskier than land disposal, and
therefore, classified as unavailable for
purposes of establishing standards, may
still be used by facilities in complying
with treatment standards expressed as
performance levels. Accordingly, EPA is
committed to developing sufficient
regulatory controls or prohibitions over
the design and operation of these
technologies to ensure that their use in
complying with the treatment standards
does not result in increased risks to
human health and the environment. The
analyses conducted in support of these
comparative risk, assessments will
provide a basis for developing such
controls or prohibitions, however,
additional supporting data will be
necessary. Where, as in today's final
rule, the section 3004(m) treatment.
standards are expressed as specific - -.':
methods which must be utilized, a
determination to classify a treatment,
alternative as unavailable will prohibit
the use of that technology in complying
with the applicable treatment standards.
The comparative risk analysis '
conducted for selected California list
wastes estimated the human health risks
of land disposal practices and treatment
alternatives for California list PCB and
HOC wastes. These assessments
produced estimates of two measures of
risk: the probability of harm to the f
maximum exposed individual (MET risk);
and the total number of cases of health
. effects (population risk). For a treatment
to be" considered unavailable with ,-.
respect to a certain waste stream: (1) It
had to be more risky than land disposal
along all points of the risk distribution;
(2) the treatment and land disposal risks
had to share the same medium and
constitutent of concern; and (3) the first
two conditions had to be met for both ---
the population and MEI risk
distributions for that waste stream. :
Results of the comparative risk
assessments indicate that the best
demonstrated treatment methods for the
PCB and HOC wastes are not clearly -
riskier than land disposal. Whenever :
treatment is less risky or it is uncertain
that a given treatment technology or
treatment train is clearly riskier than
land.disposal, as in today's final rule
concerning California list wastes, the
Agency will consider the treatment
available for determining treatment.
standards and will develop data to
support additional regulatory controls
that may be appropriate. All alternate
treatment technologies modeled in this
analysis were determined to be
: available alternatives to the land
disposal of HOC-containing California
list wastes. For all PCB-containing
California list wastes, incineration to:
99.9999 percent (six 9s) destruction and
removal efficiency (DRE) was
determined to be an available
alternative to disposal in a landfill.
IV. Modifications to the Land Disposal
Restrictions Framework
Today's final rule does two things.
First, it addresses the land disposal of
the second category of wastes scheduled
for prohibition under RCRA section
3004, i.e., the "California list" wastes. '
Second, it modifies portions of the land
disposal restrictions framework
promulgated on November 7,1986 (51FR
40572). Unless otherwise specified (e.g.
the unique waste analysis requirements .
codified in § 268.32), the modified
framework applies to both California list
wastes and all other restricted wastes. ,
This section in today's final rule
describes the substantive changes made
in the framework and briefly discusses
any unique requirements with respect to
Jhe California list wastes. -,
A. Genera] Waste Analysis (§264.13
and § 265.13) ' -/. , . , '
In the November 7,1986 filial rule (51
FR 40637^38), .the Agency amended the
general waste analysis provisions by -
requiring owners or operators to specify
in their written waste, analysis plans
certain procedures and schedules for :
meeting the requirements of the § 268.4
treatment in surface impoundments
exemption. In particular, , •
§ 264.1.3(b)(7)(iii) and § 265.13(b)(7)(iii)
require the waste analysis plan to
specify the procedures and schedules for
complying with the RGRA section
3005(j)(ll)(B) requirement to annually
remove hazardous residues for
subsequent management. In
implementing the hazardous residue
removal requirement, the Agency stated
that such residues need not be delisted.
Rather, EPA provided in § 268.4(a) (2)
that the removal requirement could be
satisfied if the residues which do not
meet the Subpart D treatment standards
are removed. The rationale for this
approach is that since wastes meeting
the treatment" standards may be land
disposed, such wastes should not be
subject to thelremoval requirement.
. Today's rule does not change the
basic thrust of this.approach. However^
many of the California list wastes are
, subject to prohibition levels which are
not expressed (at least as yet) as
treatment standards. Similar to wastes
that are treated to meet corresponding
treatment standards, California list
wastes treated to below the, prohibition
levels may be'land disposed. Today's
final rule revises § 268.4(a)(2) to provide
that where no treatment standards have
been established (e.g., for several of the
California list wastes), residues not
meeting the applicable prohibition levels
are subject to1 the annual removal
requirement. As a result, the waste
analysis requirements are also revised
accordingly. (Incidentally, such a -'=
residue could riot be rendered nonliquid
and then be placed back in an -
-impoundment,unless it also meets the
specified prohibition level because it • :
would become liquid again immediately
upon placement in the impoundment.)
B. Purpose, Scope and Applicability of -
Part 268 (§263.1) '-• v
In § 268.1 of the November 7,1986;
final rule (51 FR 40638), the Agency
stated that the Part 268 land disposal
restrictions apply :to generators, "
transporters, land owners of operators of
treatment; storage, or disposal facilities.
EPA also noted (51 FR 40577) that the
land disposal restrictions apply to both
interim status and permitted facilities.
Section 268U also contains certain ,
exemptions fiom the land disposal,;
prohibitions, .ftjnong these are , ,
exemptions for: (1) Wastes that are
subject to successful case-by-case
extensions pursuant to § 268.5; (2)
.wastes that are the subject of ,a
successful "no migration" petition
pursuant to § 268.6; (3) contaminated
soil and debris resulting from a response
action taken iinder section 104 or
section.106 of CERCLA or resulting from
a corrective action required under
RCRA; and (4) wastes-generated by
small quantity generators of less than .
100 kilograms of non-acute hazardous .;
'wastes per mqnth or less than 1
kilogram of acute hazardous waste per
month. These exemptions continue to
apply. '.;" .'--;-•
The Agency notes that it omitted to •
cross-reference an existing regulatory
exemption in iproposing the California
list rules. This is the exemption in 40
CFR 262.51 for a farmer disposing of
waste pesticides from his own use on
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25778 Federal Register / Vol. 52, No. 130 / Wednesday, July 8, 1987 / Rules and Regulations
his own farm in accordance with the ,
disposal instructions on the pesticide
label. There is no suggestion in RCRA or
the legislative history that this practice,
which can be similar to lawful
application of a pesticide product, was
intended to be subject to the land
disposal prohibitions. The Agency
discussed this omission in the June 11,
1987 notice of data availability and
received no adverse comment.
Therefore, today's final rule codifies this
exemption in § 288.1(dJ and revise
§ 282.51 accordingly.
EPA is not amending § 268.1 to
exempt lab packs, as requested by some
commenters. As the Agency stated in
the November 7,1988 final rule (51FR
40584), lab packs remain subject to the
land disposal restrictions because .
neither the legislative history nor the
statute indicate that lab packs can be
excluded from the land disposal
restrictions if they contain restricted
wastes in concentrations exceeding the
applicable treatment standards or
prohibition levels. In addition, liquid
wastes contained in lab packs must
comply with the Part 264 and Part 265
requirements regarding the placement of
containerized liquids in landfills.
C, Definitions Applicable to this Part
(§268.2)
As stated earlier in today's preamble.
EPA is defining the California list
constituents subject to the RCRA
section 3004(d) prohibitions on land
disposal. To avoid confusion in the
regulated community over which wastes
are subject to the section 3004(d)
prohibitions, the Agency has codified
several of these definitions in § 268.2. A
more detailed discussion of the basis for
these definitions appears in the earlier
preamble sections addressing each
constituent.
The Agency also notes that today's
rule slightly revises the language
defining the term "land disposal" to
correct an ambiguity in the November 7,
1986 version of the definition. As
revised, the definition clearly states that
"land disposal" is "placement in or on
the land and that such placement need
only be "for disposal purposes" when
placement occurs in the concrete vault
or bunlcer. See RCRA section 3004(k).
D. Dilution Prohibition (§268.3)
EPA proposed to amend the § 268.3
dilution prohibition promulgated on
November 7,1986 (51 FR 40639) to
Include dilution to avoid a prohibition in
Subpart C of Part 268 (e.g., dilution to
below the restrictions levels for the
California list wastes) and dilution to
circumvent the effective date of a
Subpart C prohibition on land disposal.
As proposed, these amendments to
§ 268.3 would apply to the entire land
disposal restrictions, program, and not
just to the California list wastes. For
example, a waste prohibited from land
disposal as of November 8,1986 because
it contains greater than or equal to 1%
total F001-F005 solvents could not be
diluted to create a solvent waste
containing less than 1% total F001-F005
solvent constituents in order to take
advantage of the November 8,1988
prohibition effective data applicable to
the latter group of solvent wastes.
Most of the commenters supported the
proposed amendments to the dilution
prohibition; however, several expressed
concern that solidification not be
eliminated as a means of treating
restricted hazardous wastes. They
stated that solidification is treatment,
not dilution, and should be allowed.
EPA is promulgating the amendments
to the dilution prohibition as proposed;
however, the Agency is clarifying that it
agrees with the commenters that
solidification—i.e., treatment that
renders the waste nonliquid—is
appropriate treatment in many cases.
Therefore, legitimate solidification
technologies are appropriate for use on
the California list metal-bearing wastes,
at least until treatment standards have
been established for such wastes.
In the November 7,1986 final rule (51
FR 40592), EPA noted that many
treatment methods require the addition
of reagents, but do not thereby
constitute dilution. Addition of these
reagents produces physical or chemical
changes and does not merely dilute the
hazardous constituents into a larger
volume of waste so as to lower the
constituent concentration. Where such
physical or chemical changes do not
occur, or where the hazardous
constituents (e.g.. metals) are not
otherwise immobilized, "solidification"
techniques may possibly be considered
dilution as a substitute for adequate
treatment within the meaning of the
§ 268.3 prohibition.
As a practical matter, even where
solidification techniques are not
considered dilution, the liquids in
landfills! prohibitions set forth in
§ 264.314 and § 265.314 remain
applicable. These provisions place
certain prohibitions on the use of
absorbents. (See, for example,
"Statutory Interpretative Guidance on
the Placement of Bulk Liquid Hazardous
Waste in Landfills," OSWER Policy
Directive #9487.00-2A, June 11,1986.)
EPA notes that once treatment
standards are promulgated for the liquid
metal-bearing wastes, solidification in
and of itself will no longer be a
permissible means of treatment to avoid
a prohibition. Solidification will either
have to achieve the treatment levels or,
where treatment standards have been
expressed as specified technologies,
those technologies must be utilized.
Where particular technologies have
been specified, any treatment methods
not specified in § 268.42 or approved
under § 268.42(b) are not allowed. Thus,
in today's final rule, the California list
wastes containing PCBs must be treated ,
using the specified thermal destruction
technologies (i.e,, incineration or
burning in high efficiency boilers).
The Agency also notes here that, as
stated earlier in today's preamble,
legitimate aggregation of waste streams
(e.g., wastewaters) to facilitate
centralized treatment is not considered
impermissible dilution. However,
artificial aggregation of wastes to avoid
a land disposal prohibition standard, or
mixing substances that do not either
themselves need to be treated or which
do not aid in treatment, would be
considered impermissible.
E. Treatment Surf ace Impoundment
Exemption: Evaporation Prohibition
(§268.4)
In addition to modifying the treatment
residue removal requirement as
described in section A of this unit in
today's preamble, EPA is also revising
§ 268.4 to prohibit, in certain
circumstances, the evaporation of
hazardous constituents for purposes of
obtaining an exemption allowing
treatment of prohibited in surface
impoundments. The Agency proposed
this limitation because of its belief that
only impoundments used to treat
restricted wastes to reduce their toxicity
or mobility, and not just to transfer
hazardous constituents and their
associated risks to other media (e.g.,
from the land to the air), should be
eligible for the § 268.4 exemption.
A majority of the commenters
supported the proposed prohibition, but
several suggested that de minimis or
other releases incident to treatment
should be allowed. One commenter
stated that EPA should focus on the
risks of evaporation in defining the
appropriate scope of the prohibition.
The Agency agrees with the comments
that de minimis evaporation incident to
properly operated and effective
treatment methods should be allowed in
the context of today's final rule. Today's
final rule thus states that evaporation of
hazardous constituents as the principal
means of treatment is not considered
permissible treatment for purposes of a
§ 268.4 exemption.
In finalizing the proposed prohibition,
EPA emphasizes that it is defining what
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Federal Register / Vol. 52, No. 130 /
constitutes permissible "treatment" for
purposes of section 268.4 and RCRA
section 3005(j)(ll). EPA agrees that
evaporation risks should be evaluated,
but not in the context of today's final
rule. The Agency is not determining in
this final rule whether evaporation from
such impoundments poses risks.
requiring control. This will be
determined in the context of rules
implementing RCRA section 3004(n).
Rather, EPA is stating that
impoundments which merely evaporate
hazardous constituents are not engaging
in an activity justifying receipt of
prohibited wastes. This reading of the
statute is a corollary to the prohibition
on dilution: both evaporation as
described above and dilution,do nothing
to remove, destroy, or immobilize
contaminants as contemplated by
RCRA. The thrust of the statutory
provision in section 3005{j)(lliis to grant
a limited exemption for impoundments
engaged in treatment which to some
extent meet the objectives of section
3004(m), namely which reduce levels of
toxicity or reduce the potential for ^
hazardous constituents to mi|rate from
the waste. Practices which do nothing
more than transfer hazardous.
constituents to other media faiHo
satisfy this objective. Put angtherway,,
since placement of restrictedjvastes in
' surface impoundments is considered •.
land disposal under RCRA section
3004(k) and $ 268.2, the Agency does not
believe that Congress intencwt to allow.
this exemption where impoundments are
essentially engaged in land disposal, i.e.,
placement on the land followed by. the
evaporation of hazardous constituents.
Therefore, today'sfinal rule prohibits
such evaporation as the "principal"
means of treatment for purples of a
§ 268.4 exemption. : ",
An example of'impermissible —
evaporation of hazardous constituents
as the "principal" means of treatment is
where the sole activity occurring in the
impoundment is the volatilizaftoa of
. organic compounds into theipMint air.
However, EPA recognizes thgt certain
treatment practices include evaporation
as a consequence of treatment (e.g.;
aggressive biological treatmggy oj,
involve emissions of hazardous 1
constituents incident to other treatment.
These practices are nonetheless
legitimate treatment under § 268.4
because they destroy or immobilize
hazardous constituents. (This is not to
say that "aggressive"' treating is
necessarily required in ordega comply
with $ 268.4.) ^
The Agency is also clarifying its intent
that evaporation of 'water or other
compounds not on the list of "
constituents" (in 40 CFR Part 261,
Appendix VIHJ is not addressed by
today's final rule. Therefore, a treatment
process involving the evaporation of
water as the principal means of
treatment is currently eligible for a
§ 268.4 exemption. For example,
dewatering liquid metal-bearing wastes:
to concentrate metals for recovery or
further tf eatmentis acceptable under
today's final rule. ,
F. Case-by-Case Extensions (& 268.5)
In § 268.5 of the November 7,1988
final rule (51 FR 40639), EPA established
procedures for obtaining case-by-case
extensions to a prohibition effective
date pursuant to the authority of RCRA
section 3004(h)(3). One requirement in
§ 268.5 for obtaining such extensions is
that the applicant demonstrate that he
has entered into a binding, contractual
commitment to construct or otherwise
provide treatment, recovery, or disposal
capacity that meets the applicable;
treatment standards. The rationale for
this requirement is that Congress
intended to encourage the development
of alternative capacity by
accommodating those making a good
faith effort to comply with the .
prohibitions by the effective date, but
who are unable to do so due to
circumatances beyond their control. (See
S. Rep. No, 284, 98th Cong., 1st Sess, 19
(1983).) The basic thrust of this approach
is not changed by today's final rule;
however, the Agency has recognized ..
that applicants cannot demonstrate a
binding contractual commitment to ,
provide capacity meeting treatment
standards where no treatment standards.
have been established (e.g., for several
of the California list wastes). Therefore,
EPA is revising § 268;5 to require that,
where no treatment standards have
been established, the capacity being
provided must meet the underlying
statutory standard of'being protective of
human health and the environment.
Two other modifications to. 1,268.5^ are
also being promulgated in today's final
rule, both of which deal with how
prohibited wastes subject to.-a case-by-
case extension may be managed during
the period of such an extension. Oa
November 7,1986, EPA stated that such
wastes may be placed in landfills or
surface impoundments provided certain
minimum technological requirements, are
met. Section 268>5(h)(2) references the
applicable minimum technological
requirements specified in Part 264 and
Part 265; however, f 265.221 does not
contain a reference to the RCRA section
3005(j)(l) provision stating thatexisting
interim status surface: impoundments
must be in compliance with the
minimum technological requirements
applicable; to new.impoundments by
November 8:, 1988. Although the Agency
has not codified this statutory
requirement! it remains applicable. la
order to clarify the regulated
community's! obligations, however,
today's final rule references the RCRA
section 3005 [j)(l) requirement in
§ 268.5(h}i(2);,
Another modification to §• 268.5(h}(2) .
is made in today's final rule with respect
to the disposal of California list PCB-
containing wastes that are subject to a
case-by-case extension. In order to
integrate the-TSCA and RCRA
requirements, a new paragraph (h)(2)(v)
is added which: states that a landfill
disposing of such PCB-containing
wastes during the period of an extension
must be in compliance with both the
TSCA regulations for chemical waste
landfills at 40 CFR 761.75 (PCB wastes at
50 ppm or greater may not be placed in
surface impcmndments under the. TSCA
regulations)" and the Part 264 and 265
requirements. This modification has
been made to ensure that the more
stringent of the two sets of requirements
apply.
G. "No-Migration"Petitions to Allow
Continued Land Disposal (§268.6):
In the November 7,1986, final rule (51
FR40640), EPA established procedures
for granting petitions allowing
prohibited wastes to be land disposed
where applicants can demonstrate, to a
reasonable, degree of certainty, that
there will be "no migration of hazardous
constituentajfrom the disposal unit or
injection zone for as long as the wastes
remain hazardous." RCRA sections 3004
(d), (e), and. [g).. Today's final rule does
not change the procedures established
in § 268.6; however, the exemption is
being limited by excluding certain PCB-
containing wastes from eligibility for
such exemptions.
Current T8GA regulations require that
liquid wastes containing PCBs at
concentrations greater than or equal to
500 ppm be incinerated according to; 40
CFR 761.70 standards. In order to avoid
the possibility of circumventing this
TSCA requii'ementi EPA is revising
§ 268.6 to: provide-that liquid hazardous
wastes containing PCBs at
concentrations greater than or equal to.
500 ppm are.not eligible for such "no
migration" e;xemptions. Although this
limitation was not specifically discussed
in the jpeceraber.il,, 1986 proposal, the
Agency did state (51 FR 44723) that
where there'is an inconsistency between
TSCA and RCRA standards, the more.
stringent requirements govern. Today's ;
modification to §: 268.6- simply codifies i
an existing. TSCA standard within the i
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25760 Federal Register / 'Vol. 52. No. 130 /
RCRA regulations in order to facilitate
compliance by the regulated community.
//. Waste Analysis and Recordkeeping
(§263.7)
In the November 7,1988, final rule C51
FR 40597), EPA acknowledged that the
ultimate responsibility is on land
disposal facilities to ensure that
prohibited wastes are not illegally
disposed. However, the Agency also
recognized that a testing and tracking
scheme is critical to implementation
and, as a result, imposed certain waste
analysis, notice and recordkeeping
requirements on generators and
treatment facilities, as well as land
disposal facilities. These requirements,
as specified in § 268,7 and set forth in
the Agency's recent correction notice (52
FR 21010, June 4,1987), are not
substantially modified in today's final
rule.
Generators remain responsible for
determining whether their wastes are
restricted from land disposal and may
continue to make this determination
based on knowledge of their waste,
testing, or both. A unique aspect of
today's final rule is that, when testing,
the Toxicity Characteristic Leaching
Procedure (TCLP) is not required for the
California list wastes. Rather than
testing an extract developed using the
TCLP (as is required for the solvents and
dioxins to determine if wastes meet the
applicable treatment standards),
§ 288,32 specifies the relevant portion of
the waste to test, i.e., the entire waste
and not a leach extract for HOCs, PCBs,
and corrosives. Other revisions to
§ 268.7 involve modifications and the
notice and certification provisions to
require reference to the applicable
prohibition levels where no treatment
standards are established. The
remainder of § 268.7 is unchanged.
/, Waste Specific Prohibitions-
California List Wastes (§268.32)
The primary focus of today's rule is on
codifying statutory land disposal
prohibitions, establishing effective
dates, and, for certain California list
wastes, promulgating treatment
standards. Today's final rule adds a new
§ 268.32 which contains the prohibitions
and effective dates. The unique waste
analysis requirements for these wastes
are also included in § 268.32.
Prohibitions and effective dates for
the California list metal and free
cyanide containing wastes are not
included in today's final rule. These
determinations will be made in a
separate rulemaking. In the interim, the
statutory prohibitions in RCRA section
3004(d)(2)(B) are applicable and today's
preamble discusses the Agency's
approach to determining compliance
with the statutory prohibitions. In
addition, § 268.32 (and § 268.42) are
revised to state that the California list
prohibitions, treatment standards, and
effective dates for HOCs are superseded
by more specific Agency determinations
regarding treatment standards and
prohibition effective dates (e.g., any
determinations already made for
solvent-containing and dioxin-
containing wastes on November 7,1986,
or any determinations to be made
according to the May 28,1986 schedule.
(51 FR 19300)).
The rationale for this approach is that
EPA has recognized (51 FR 44725) that it
is difficult to establish prohibitions and
treatment standards for the broad and
diverse categories of wastes specified
on the California list. In both the
December 11,1986 proposal (51 FR
44715) and today's final rule, EPA has
noted that Congress intended the
California list prohibitions to serve as a
starting point in carrying out the
congressional mandate to minimize land
disposal of hazardous waste. Therefore,
as the Agency develops data on
particular waste streams, it will
promulgate prohibitions, treatment
standards, and effective dates that will
supersede those promulgated today.
/. Treatment Standards Expressed as
Specified Technologies (§ 268.42)
Today's final rule establishes
treatment standards expressed as
specified technologies for the California
list wastes containing HOCs (except .
dilute HOC wastewaters) and those
containing PCBs. The technologies
specified in § 268.42(a) are thermal
treatment methods currently subject to
existing regulations and are discussed in
more detail in today's preamble section
entitled "Treatment Standards."
Because the PCB wastes subject to these
treatment standards are mixed with
RCRA hazardous wastes, the Agency is
reiterating in § 268.42(a)(l) that
compliance with both the TSCA and
RCRA standards is required in treating
such wastes. This will ensure that
today's treatment standards do not
result in reducing the stringency of
existing treatment requirements for PCB
wastes or RCRA hazardous wastes.
EPA is also clarifying two aspects of
§ 268.42(b). As promulgated on
November 7,1986 (51 FR 40642), this
provision allows the Administrator to
approve the use of alternative treatment
methods provided an applicant can
demonstrate that such alternatives can
achieve a measure of performance
equivalent to that achievable by
methods EPA has specified. A further
demonstration must be made that the
alternajive treatment method does not
pose an unreasonable risk to human
health or the environment.
One commenter suggested that such
equivalency petitions may only be
granted through rulemaking after notice
and public comment. The Agency does
not fully agree. Such a determination
could be made in such a way as not to
have general applicability and effect,
and so amount only to an individualized
variance. The Agency does not believe
that in such instances rulemaking
procedures necessarily are required. To
the extent, however, that Agency action
on an equivalency petition would have
general applicability and effect (for
example, indicating that a technology
constituted an equivalent technology for
classes of wastes and generators), then
rulemaking procedures would be
appropriate. The EPA would make this
determination when evaluating each
petition. The language in § 268.42(b)
therefore should not be read to require
use of rulemaking procedures in every
case.
The Agency is removing the language
in § 268.42(b) requiring petitioners to
demonstrate that their treatment method
does not pose an "unreasonable risk."
This standard is drawn from the Toxic
Substances Control Act-(TSCA) and is
inappropriate for a RCRA
determination. EPA is substituting the
RCRA standard which requires a
demonstration that the alternative
treatment method is "protective of
human health and the environment." To
the extent that the equivalency petition
is made with respect to PCB-contaming
wastes also regulated under TSCA, the
applicant would also have to satisfy the
"unreasonable risk" standard contained
in 40 CFR 761.60(e) as partof the
demonstration required independently
under the TSCA regulations. The .
-remainder of.the § 268.42(b) framework
continues to apply.
K. Prohibitions on Storage of Restricted
Wastes (§ 268.50)
Today's final rule does not modify the
framework for prohibiting storage of
restricted wastes; however, two --. ,
revisions are being made that are unique
to'the California list wastes. First, the
applicability provision in § 268.50(e) is ,
being modified to account for wastes for
which treatment standards are not
specified (e.g., several of the California
list wastes). As promulgated on
November 7,1986 (51 FR 40642), this
provision exempted from the storage
' prohibitions any wastes meeting the
applicable treatment standards, i.e.,
wastes that are not prohibited from land
disposal. Today's revisions to § 268.50(e)
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.. .. . •• .•-..•.- ;. - •
simply extend this principle to wastes
that are not prohibited from, land
disposal but for which treatment
standards are'notsp.ecified. ; -
Section 268.50 is also being revised to
incorporate an existing TSCA PCB
storage prohibition into the RCRA
regulations in order to integrate the .two
sets of requirements and facilitate
compliance by the regulated community.
Existing TSCA regulations at 40 CFR
761.65(a) require^ that wastes containing
PCBs at concentrations greater than or
equal to 50 ppm-be removed from
storage and' disposed within one year
from the date when they were first
placed into storage. The:RCRA
regulations in § 268:50, however, allow
storage of restricted wastes in tanks or
containers where such storage ia "solely
for the purpose of the accumulation of
such quantities of hazardous waste as
necessary to facilitate proper recovery,
treatment, or disposal.": Despite some
confusion: in the regulated community,
§ 268.50 does not establish a firm time
limit on allowable storage of restricted
wastes. Section 268.50 merely shifts the
burden of demonstrating compliance (or
lack thereof) when restricted wastes are
stored beyond one- year. Storage
violations,may occur within, one.year, or
storage may be allowable beyond one-
year, depending on the reasons for. such
storage. Absent a modification to
§ 268.50 for the California list PCB
wastes, the open-ended RCRA storage
prohibition could circumvent: the flat
one-year limit imposed by the TSCA
regulations. Therefore, today's final rule
revises § 268.50 to require that the
California list PCR wastes may only be
. stored in accordance with the & 268.50
requirements, but that such storage is
limited to one year. For the convenience
of the regulated community, today's rule
also revises § 268.50 to incorporate the
§• 761.65(bj provision requiring certain;
physical characteristics at such PCB
storage facilities (e.g., adequate roofing,
walls, and floors with curbing).
L. Minor'Modifications of Permits and
Changes During Interim Status (§270.42
and §270.72)
On December 11,, 1987, the Agency , -
proposed two amendments to the
requirements, iELPait 270 to giv&facililies
the ability to change their operations to
treat or store restricted wastes in tanks
OF containers as necessary to comply
with the Part 268 land disposal
restrictions. For permitted facilities it
was proposed that such changes could .
be approved through the minor
modification process, under certain
conditions. It was also proposed that
these expansions at interim status
facilities would not be subject to the
reconstruction ban. The following two
• sections discuss the comments received
on the proposed approach and a
description of the provisions contained
in today's final rule.
1. Minor Modifications of Permits
(§270:421
All comments received on the
proposed amendment to the minor :
permit modification regulations
supported the proposed approach,
Gommenters indicated that the use of
minor modifications would be essential •
to allow facilities to respond promptly
and effectively to the land disposal .
restrictions* The:Agency agrees with the
commenters and is promulgating;
§ 270.42fp) essentially as proposed.
Specifically, this provision will allow
permitted facilities to use the minor
modification process, in obtaining
approval to make:changeaas needed to
treat or store restricted wastes, iii tanks
.or containers in order to comply .with
Part 268 land disposal restrictions,
provided the permittee complies with
the following conditions: first, the owner
or operator must submit a complete •
major permit modification application
pursuant to §§ 124.5-and 270.411 second,
the applicant must demonstrate: that
changes in a unit to treat or- store
restricted wastes in tanks.or containers
are necessary to comply with the land
disposal restrictions of Part 268; and
third, the applicant must ensure that
such units comply with the applicable
Part 265 standards until the major
modification request is granted or until
Part 265; closure and post-closure
responsibilities are fulfilled. For
example, any tanks used ta treat or
store restricted wastes would be subject
to the tank system standards, of Part 265,
Subpart J, which include secondary
containment requirements, for new tanks;
(see 51 FK 25422, July 14,1986). The
authorization to continue in operation
with the changes terminates upon final
administrative disposition of the major
modification request or the termination
of the permit.
One commenter suggested that the
minor modification provision should be
expanded to include units other than
tanks arid containers. As stated in the
preamble to the proposal, EPA believes
that the addition of other treatment :
processes, such as incineration, is likely
to raise issues that would behest
addressed through the major
modification,process; However, the
Agency is exploring these issues as part
of an overall review of the permit
modification regulations. EPA recently
completed regulatory negotiations on
permit modifications, and expects to
issue a proposed rule in the next several
months; '-•[' ,-'.• , '
2. Changes During, Interim Status: .
Removal of Reconstruction Limits
(§270.72) 1 . •-'" '.';
The Agency proposed to allow interim
status facilities to modify their
operations to treat or store restricted
wastes in tanks or containers as-
necessary to comply with the land
disposal restrictions, without being
required to (Obtain a permit even if such
changes exceed the reconstruction
limits. Current regulations at § 272.72(e)
require owners or operators of interim
status facilities that may need to expand
the facility by more than 50:percent (in
terms of capiital investment).to defer
such changeis until a permit is issued.
Virtually all of the commenters • ::
supported the proposed approach to
waive the 50 percent reconstruction -: • •
limits for interim status facilities. They
further commented that delaying such
necessary changes to the facility until a
permit is issued could present
significantciperational difficulties at the-
facility. The Agency, therefore, is '-,'•.
amending §270.72(e) essentially as
proposed tot'allow owners or operators'
to modify interim status, facilities to
handle "wastes restricted from land
disposal without being subject to the 50,
percent capiital expenditure limit
Pursuant to today's final rule, interim
status facilities would be: required to file
a revised Part A application prior to
such changeis, Applicants must also
demonstrate that the-changes were
necessary to- comply with the land
disposal restrictions of Part 268.
Facilities.allibwed to expand their
operations by more than 50 percent
under today's final rule continue;to be
subject to the Part 265 standards. • " •
V. Effects olE the Land Disposal
Restrictions Program on Other
Environmental Programs
As an alternative to using BOAT
treatment, the regulated community
might dispose of restricted California list
wastes, using non-RCRA. disposal
options. Two options regulated under
the Marine ]?rotection, Research, and
Sanctuaries Act (MPRSA) (33 U.S.C.
1401) are ocean dumping and ocean-
based incineration. The;Agency
conducted an analysis of the. potential
shift in demand for these, options
resulting from the restrictions on land
disposal: of solvent, dioxin, and
California list wastes. The results: are
described in "Assessment of Impacts, of
Land Disposal Restrictions on Ocean
Dumping and Ocean Incineration of
Solvents, Dtoxins, and .California. List „
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25782 Federal Register /Vol. 52, No. 130
Wastes." (U.S. EPA, 1986). This
assessment was based on a
methodology to score and rank waste
streams for relative acceptability for
ocean disposal, based on technical
requirements, environmental,criteria,
and, to a limited extent, risk to human
health and the environment. This
analysis was supplemented with an
analysis of cost factors and capacity
constraints.
The scoring/ranking methodology was
based on technical requirements (e.g.,
physical form and heating value) and
MPRSA environmental criteria (e.g.,
constituent concentrations, toxicity,
solubility, density, and persistence of
the waste) associated with ocean
disposal of hazardous waste. The .
capacity analysis assumed that those
wastes least acceptable for ocean
disposal will be treated or disposed of
by land-based methods. The cost
analysis assumed that additional land-
based treatment capacity would be built
to treat waste streams for which the
costs of land-based treatment would be
less than the costs of ocean disposal
(including on-land transportation to a
port located on the East Coast).
The results of the cost/capacity
analysis indicated that, as a result of the
land disposal restrictions,
approximately 20.3 million gallons per
year of hazardous waste containing
HOCs, 15.1 million gallons per year of
liquid hazardous wastes containing
metals, and 8.2 million gallons per year
of liquid hazardous wastes containing
PCBs could create demands for ocean
dumping and ocean-based incineration.
Such demands result from capacity
shortfalls of land-based treatment (e.g.,
incineration and chemical precipitation)
and the relatively lower cost of ocean
dumping and ocean-based incineration,
taking into account the costs of
transportation on land. The cost/
capacity analysis did not take into
account technical requirements or
environmental criteria. ' '. . .
The Agency expanded the cost/
capacity analysis to evaluate the wastes
based on cost, capacity, technical
requirements and MPRSA
environmental criteria, and to a limited
extent, risk to human health and the
environment. The results of that
analysis indicated that ocean disposal
of some of these waste streams may
Incur risks to the marine environment.'
Clearly, potential risks will influence
whether or not ocean dumping permits,
for example, would be issued for the
affected waste streams. However, under
present statutory authorities, with the
exception of certain specified wastes^
EPA may not disapprove ocean dumping
of a hazardous waste for failure to
comply with one or more environmental
criteria. EPA must consider all statutory
factors under section 102(a) of the
MPRSA in its decision-making on permit
issuance, not just compliance with
environmental criteria. Consequently,
EPA will have to make case-by-case
decisions on whether such permits will
be issued for hazardous waste streams
prohibited from land disposal.
VI. 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, although authorized States have
primary enforcement responsibility. The
standards and requirements for
authorization are found in 40 CFR Part
271,
Prior to the Hazardous and Solid
Waste Amendments of 1984 (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 longer applied
in the authorized State, and EPA could
not issue permits that the State was
authorized to issue. When new, more
stringent, Federal requirements were
promulgated or enacted, the State was
obligated to enact equivalent authority
within specified time frames. New
Federal requirements did not take effect
in an authorized State until the State
adopted the requirements as State law.
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 non-authorized 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. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, HSWA
applies in authorized States in the
interim.
Today's rule is promulgated pursuant
to sections 3004(d) through (k), and (m),
of RCRA (42 U.S.C. 6924), provisions
added by HSWA. Therefore, it is being
added to Table 1 in 40 CFR 271;l(j)
which identifies the Federal program
requirements that are promulgated
pursuant to HSWA and take effect in all
States, regardless of their authorization
status. States may apply for either
interim or final authorization for the
HSWA provisions in Table 1, as
discussed in the following section. The
Agency is modifying Table 2 in § 271(j)
also to indicate that this rule pertains to
the self-implementing statutory
provision of the RCRA amendments.
B. Effect on State Authorizations
As noted above, EPA will implement
these regulations in authorized States
until States modify their programs to
adopt the regulations and the
modification is approved by EPA.
Because these rules are promulgated
pursuant to HSWA, a State submitting a
program modification may apply to
receive either 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 either
interim or final authorization are
described in 40 CFR 271.21. It should be
noted that all HSWA interim
authorizations will expire January 1,
1993 (s.ee § 271.24(c)).
Section 271.21 (e) (2) requires States
that have final authorization to modify
their programs to reflect Federal
program changes, and to subsequently
submit the modifications to EPA for
approval. The deadline by which the
State must modify its program to adopt
today's rule is July 1,1991 (July 1,1992, if
a State statutory change is necessary).
These deadlines can be extended in
certain cases (see § 271.21(e)(3)). Once
EPA approves the modification, the
State requirements become Subtitle C
RCRA requirements.
States with authorized RCRA
programs may have requirements
similar to those in today's rule. These ,
State regulations have not been
assessed against the Federal regulations
being promulgated today to determine
whether they meet the tests for
authorization. Thus, a State is not
authorized to implement these
requirements in lieu of EPA until the
State program modification is approved.
Of course, States with existing
standards may continue to administer
and enforce their standards are a matter
of State law. In implementing the
Federal program EPA will work with
States under cooperative agreements to
minimize duplication of efforts. In many
cases EPA 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
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I Rules and Regulations 25783
standards are not required to include
standards equivalent to these standards
in their application. However, the State
must modify its program by the
deadlines set forth in § 271.21(e). States
that submit official applications for final
authorization 12 months after the
effective date of these standards must
include standards equivalent to these
standards in their application. Section
271.3 sets forth the requirements a State
must meet when submitting its final
authorization application.
C. State Implementation
There are several unique aspects of
today's rule which affect State
implementation and impact State
actions on the regulated community:
1. Under 40 CFR Part 268, Subpart C,
EPA is promulgating nationwide land
disposal restrictions for all generators
and TSDFs of certain types of hazardous
waste. In order to retain authorization,
States must adopt the regulations under
this Subpart, since State requirements
cannot be less stringent than Federal
requirements.
2. Under § 268.32, the Agency may
grant a national capacity variance to the
prohibition effective date for up to two
years if it is found that there is
insufficient alternative treatment
capacity. Under § 268.5, case-by-case
extensions to the effective date 6f up to
one year (renewable for an additional
year) may be granted for specific" , ;
applicants lacking adequate capacity.
EPA Headquarters is solely
responsible for granting such '
extensions. It is clear that RCRA section
3004(h) (3) intends for the Administrator
to grant such extensions after consulting
the affected States, on the basis of
national concerns that only the
Administrator can evaluate. Therefore,
this aspect of the program cannot be
delegated to the States.
3. Under § 268.42(b) arid § 268.44, the
Agency may grant a waste-specific
variance from a treatment standard in
cases where it can be demonstrated that
' the physical or chemical properties of
the waste differs significantly from
wastes analyzed in developing the
treatment standard, and, the waste
. cannot be treated to specified levels or
by specified methods. '
The Agency is solely responsible for
granting such variances since the result
of such an action will be the
establishment of a new waste
treatability group. Wastes meeting the
criteria of this newly established waste
treatability group may also be eligible
for the variance. Thus, granting such a
variance could have national impacts.
Therefore this aspect of the program
cannot be delegated to the States.
4. Under § 268.6, EPA may grant
petitions of specific duration to allow
land disposal of certain hazardous
waste where applicants can
demonstrate that.there will be no
migration of hazardous constituents
from the disposal'unit or injection zone
for as long as the waste remains
hazardous.
States that have the authority to
impose land disposal prohibitions may
be authorized under RCRA section 3006.
to grant petitions for such exemptions.
Decisions on site-specific petitions do
not require the national perspective
required to grant extensions or
variances from the treatment standard.
The Agency expects few "no migration"
petitions, therefore, EPA is currently
requiring that these be handled at EPA
Headquarters, though the States may be
authorized to grant these petitions in the
future. Also, since the Agency has had
few opportunities to implement the
newly promulgated land disposal
restrictions, the Agency expects to gain
valuable experience and information
from review of "no migration" petitions
that may affect future land disposal
restrictions rulemakings. In accordance
with RCRA section 3004(i), EPA will
publish its determination that the "no
migration" demonstration has been
made in the Federal Register.
States are free to impose their own
land disposal prohibitions if they are
more stringent or .broader in scope than
Federal programs {RCRA section 3009
and 40 CFR 271.1(i)). Where States
impose such prohibitions, the broader or
more stringent.State ban governs and
EPA's action is without meaning in the
State. .
VII. Regulatory Requirements
A. Regulatory Impact Analysis
Executive Order 12291 requires EPA
to assess the effect of contemplated
Agency actions during the development
of regulations. Such ah assessment
consists of a quantification of the
potential benefits and costs of the rule,
as well as a description of any
beneficial or adverse effects that cannot
be quantified, in monetary terms.1 In
addition, Executive Order 12291 requires
that regulatory agencies prepare an
analysis of the regulatory impact of.
major rules! Major rules are defined as
those likely to result in:
1. An annual cost to the economy of
$100 million or more; or
2. A major increase in costs or prices
for consumers or individual industries,
or .
3. Significant adverse effects on-
competition, employment, investment,
innovation, or international trade.
The Agency has performed an
analysis of today's regulation to assess
the economic.effect of associated
compliance costs. Total costs of
restrictions on affected wastes are
expected to be $93.7 million per year.
Although the rule does not constitute a
major rule under Executive Order 12291,
EPA has nonetheless prepared a formal
regulatory impact analysis of today's
regulatory action in recognition of the
effect of the rule on a broad spectrum of
American industry. .
The remainder of this section
describes the analyses performed by
EPA in support of today's rule affecting
all California; list wastes identified in
section 3004(d)(2) of the Resource
Conservation and Recovery Act
(RCRA). ! ..'."•;":'.
1. Cost and Economic Impact
Methodology1 :
EPA has assessed the costs, benefits
and potential economic effects of this
rule and of major regulatory alternatives
to it. In the final rule, EPA has specified
treatment standards or concentration .
levels for each of the five waste groups
identified as part of the California list.
For the corrosive wastes, EPA is
codifying the statutory prohibition
specified in section 3004(d)(2) of RCRA.
For the PCB and most HOC wastes, EPA
has specified treatment standards as
described earlier in today's preamble. •
Finally, for the liquid hazardous wastes-
containing the specified metals and free
cyanides, EPA is deferring to the
statutory levels at this time.
In addition to assessing the regulation
itself, the Agency has examined major
regulatory alternatives to it. This
preamble presents results for the final
rule only. Each of the alternatives is
explored in detail in the Regulatory
Impact Analysis (RIA) that is available
for viewing in the docket. . - •
EPA establishes the total costs and ,
economic impacts of this rule in three
steps. First, EPA estimates the
population of wastes, facilities and
waste management practices that will
be affected. Next, it derives the total
social costs of the regulation by adding .
costs for individual facilities. Finally,..
EPA assesses economic impacts on
affected facili ties by comparing total
costs for individual facilities to standard
measures of facility financial vitality. ,
a. Affected population and practices.
The affected population is the total
number' of hazardous waste treatment;
storage and disposal facilities (TSDFs)
and generators land disposing of
California list wastes either directly at
the generation site or indirectly through
the purchase of commercial land
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25784 Federal Register / Vol. 52. No. 130 / Wednesday. July^S^lW/ Rules
disposal capacity. This group's waste
management practices are assessed to
identify baseline costs of managing
wastes and incremental cost increases
attributable to today's rale.
The number of facilities that land
dispose of affected wastes was
determined using the EPA's 1981
Regulatory Impact Analysis Mail
Survey.3 Waste quantities and
management costs for facilities
responding to the Mail Survey are
scaled up to represent the national
population by means of weighting
factors developed within the survey.
EPA estimates that 339 facilities
comprise the total national population of
commercial and noncommercial
facilities land disposing of California list
wastes on-site, excluding RCRA wastes
mixed with polychlorinated biphenyls
{PCBs). This estimate is based on 1981
survey data adjusted for intervening
regulatory requirements.
EPA estimates that an additional 2,162
plants generate more than 1,000
kilograms per month of wastes that are
sent off-site for management. The waste
is disposed of either by noncommercial
TSDFs (e.g,, those owned by the firm
generating the waste but at a different
location], or by a commercial TSDF.
Generators of less than 1,000
kilograms per month were not included
In the 1981 survey because they were
considered exempt at that time.
However, the 1984 amendments to the
Solid Waste Disposal Act directed EPA
to lower the exemption for small
quantity generators (SQGs) from 1,000 to
100 kilograms per month by March 31,
1988, »o SQGs generating between 100
and 1,000 kilograms of waste per month
for off-site disposal are also included in
the affected population. The Agency
estimates that these SQGs add 2,046
plants to the affected population. Plant-
and waste-specific data on this group
are derived from EPA's Small Quantity
Generator Survey.4
» EPA conducted the R1A Mall Survey of
hxxanjoui waste generators and TSDFs to
determine waste management practices in 1881.
F.icililics Ihat bandied less than 1,000 kilograms of
waste per month were not regulated in 1981 and
thus am not included in the data. For more
Information tee the "National Survey of Hazardous
Waste Generators »nd Treatment."Storage and
Disposal Facilities Regulated under RCRA in 1981."
Bcarastt the 1881 survoy was n statistical sample
and not a census, updating it with more current
inform!tioo available to the Agency from other
sources is difficult. Based on these sources,
however, EPA believes that this estimate may
overstate (he actual number of TSDFs now land
disposing of California list waste.
« Office of Solid Waste. "National Small Quantity
Hazardous Waste Generator Survey," February
1905.
Because PCBs are not themselves a
listed RCRA hazardous waste, data on
generators of PCBs mixed with
hazardous wastes regulated under
RCRA were not specifically gathered in
the RIA Mail Survey. However, recently
developed data on this group indicate
that there are approximately 63
generators of mixed PCB/RCRA
hazardous wastes.5
EPA's characterization of current
management practices for these groups
includes the cost of compliance with
regulations that have taken effect since
the 1981 survey was conducted. In
particular, EPA has adjusted waste
management practices reported to
reflect compliance with the provisions of
40 CFR Part 264. In making this
adjustment, the Agency assumes
facilities elect the least costly methods
of compliance. This adjustment defines
not only baseline management practices
and costs associated with them, but also
the number of waste streams in the
affected population. For example, for 16
facilities, the costs of land disposing
certain wastes are driven so high by
regulations predating this final rule that
other management modes are less
expensive. EPA assumes that these
facilities no longer land dispose these
wastes and that these wastes are
therefore no longer part of the
population of waste streams that may be
affected by any restrictions on land
disposal.
No aggregate models have been
developed for the population of
treatment, storage, and disposal
facilities and small quantity generators
examined in this analysis. Instead,
individual observations in the data
sources have been weighted to represent
the national population of wastes and
management practices. For generating
plants disposing of large quantities of
California list wastes off-site, model
plants representing average, maximum,
and minimum waste quantities were
developed to assess the range of
potential economic effects. For
generators of mixtures of PCBs and
RCRA hazardous wastes, economic
effects were assessed using model
plants representing typical waste
quantity and plant size characteristics.
b. Development of costs. Once the
waste quantity and the type and method
of treatment are known for .the affected
population, EPA estimates the costs of
compliance for individual facilities. The
analysis detailed in this section is based
on cost estimates for surveyed facilities
representing the affected population.
s Office of Solid Waste, "Characterization of
Mixed PCB/RCRA Hazardous "Wastes," February
1985.
EPA estimates baseline and compliance
waste management costs using •
engineering judgment. Wastes amenable
to similar types of treatment are grouped
to identify economies .of scale available
through co-treatment and disposal.
EPA developed baseline waste
management costs by adjusting 1981
waste management practices to reflect
compliance with regulatory
requirements predating restrictions on
land disposal. Costs for disposal in
surface impoundments assume
compliance with section 3005(j) of
RCRA, which requires surface
impoundments to fully retrofit with
double liners and leachate collection
systems between liners (subjects to
certain exemptions). This assumption
could lead to an overestimate of
baseline disposal costs and, thus, to an
underestimate of incremental costs for
surface impoundments exempted from
these requirements. Existing regulatory
requirements are also considered in
developing costs for disposal in landfills
and waste piles.
Facilities face several possible .options
if they may no longer land .dispose their
wastes. EPA applies the same rationale
in predicting facility choice .among these
options as it does in establishing the
affected population: facilities are
assumed to elect the least costly method
of complying with the requirements of
this rule. Costs of compliance1 are
derived by predicting the minimum-cost
method of compliance with land
disposal restrictions for each facility
and calculating the increment between
that and baseline disposal costs. ,Aa in
the analysis of baseline costs,
economies of scale in waste
management are considered.
Shipping costs for wastes sent off-site
for management are also considered. In
the development of baseline waste
management costs, the transportation
distance assumed for off-site waste
treatment and/or disposal is 100 miles.
Most plants now sending wastes off-site
do so for disposal. Although the likely
effect of restrictions will be to require
treatment before and in addition to
disposal, the Agency has not increased
the assumed transportation distance.
This implies that plants now sending
wastes off-site for disposal only can
also purchase treatment services from
the same commercial facilities. Even if
the assumption that average
transportation distances will not
increase does not accurately predict the
effects of this rule, EPA's examination of
the sensitivity of results to this
assumption revealed that-varying the
•assumption in travel distances, even by
as much as a factor of eight, has a
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130 / Wednesday, July^ 8,' 1987 / Rules and Regulations 25785
minimal effect on results. This is
because many plants that send wastes
off-site send small amounts, and
economies of scale, reflected in per-unit
prices of waste disposal at large
commercial facilities, outweigh even •
major increases in shipping costs.
EPA developed facility-specific
compliance costs in two components,
which are weighted and then summed to
estimate total national costs of the rule.
The first component of the total
compliance cost is incurred annually for
operation and maintenance of
alternative modes of waste treatment
and disposal. The second component of
the compliance cost is a capital cost,
which is an initial outlay incurred for
construction and depreciable assets.
Capital costs are restated as annual
values by adjusting them into equivalent
yearly payments using a capital
recovery factor based on a real cost of
capital of 7 percent. These annualized
capital costs are then added to yearly
O&M costs to derive an annual
• equivalent cost.
c. Economic impact analysis-?-i.
Noncommercial TSDFs andSQGs. EPA
assesses economic impacts on non-
commercial TSDFs and SQGs m several
steps. First, the Agency employs a
general screening analysis to compare
facility-specific incremental costs to
financial information about firms,
disaggregated by Standard Industrial
Classification (SIC) and number of
employees per facility. This comparison
generates two ratios, which EPA uses to
identify facilities likely to experience
adverse economic effects. The first is a
ratio of individual facility compliance
costs to costs of production. This ratio
represents the percent product price
increase for facility output that occurs if
the entire compliance cost—•
accompanied by facility profit—is.
passed through to customers in the form
of higher prices. A change exceeding
five percent is considered to imply a
substantial adverse economic effect on a
facility. The second is a coverage ratio
relating cash from operations to costs of
compliance. This ratio represents the
number of times that facility gross
. margin covers the regulatory compliance
cost if the facility fully absorbs the cost.
For this ratio, a value of less than 20 is
considered to represent a significant
adverse effect. The coverage ratio is the
more stringent of the two ratios, but
exceeding the critical level in either one
suggests that a facility is likely to be
significantly affected. These ratios
bound possible effects on individual
firms. This analysis considers only pre-
tax costs, because Census data are
stated in before-tax terms.
Once facilities experiencing adverse
economic effects are identified using the
two screening ratios, more detailed
financial analysis is performed.to verify
the results and to focus more closely on
, affected facilities. For this subset of
facilities, the coverage ratio is adjusted
to allow a portion of costs to be passed
through. Economic effects on individual
facilities are examined assuming that
product price increases of one and five
percent are possible. Those facilities for
which the coverage ratio is less than
two are considered likely to close.
ii. Commercial TSDFs. Commercial
TSDFs are here defined as those
facilities that accept fees in exchange
for management of wastes generated
elsewhere. For this group of facilities,
there exists no Census SIC from which
to draw financial information. Two SICs
that EPA might use as proxies, 4953 and
4959, do not distinguish between
financial data for hazardous waste
treatment firms and for firms managing
municipal and solid wastes.
Consequently, the analysis of economic
effects on commercial facilities is
qualitative. This analysis includes an
examination of the quantity of waste
each facility receives from the waste
group restricted by today's rule. EPA
also .examines the ability of each facility
to provide the additional treatment'
required once these restrictions are
promulgated, and thus to retain or
expand that portion of its business
generated by restricted wastes.
HI Generators of large quantities of
wastes. EPA's analysis of the economic
effects of this rule on generating plants
disposing of large quantities of affected
wastes off-site assumes that commercial
facilities can entirely pass on the costs
of compliance with this regulation in the
form of higher prices for waste
management services. Because of data
limitations in the RIA Mail Survey, EPA
has not developed plant-specific
characterizations of wastes, treatment
methods, and compliance costs for
generators, as it has for TSDFs. EPA's
analysis of the economic effects of
today's final rule on this group uses RIA
Mail Survey data to develop model
plants generating average, maximum,
and minimum waste quantities. This ;
allows EPA to assess the range of
possible effects on generating plants.
2. Costs and Economic Impacts :
Total costs of regulating California list
wastes do not qualify this rule as a
major rule under Executive Order 12291,
since the total annualized costs of
restricting land disposal of these wastes
are estimated at $93.7 million per year.
These costs are not adjusted for the
effect of taxation, which is merely a
transfer from one sector of the economy
to another. Costs are stated in 1986
dollars. [ . , .
Today's regulation will affect entities
in a variety of four-digit SICs, including
chemicals and allied products,
petroleum products, and metals .
industries. Two SIC sectprs, chemicals
and allied products {SIC 28) and primary
metals [SIC 33) together account for
approximately three-fourths of the after-
tax cost of complying with the land
disposal restrictions...".,.
Economic effects have been assessed
for both noncommercial and commercial
facilities. Noncommercial facilities are
those that generate and manage their
own wastes, as distinct from facilities
that accept fees in exchange for . .
managing and disposing of wastes
generated ;by others* Of 308 {weighted)
noncommercial facilities nationally,,39
(weighted) facilities may experience
financial distress because of this rule,
and six of these appear likely to close.
EPA estimates that 31 (weighted)
commercial facilities will incur
incremental costs as a result of the
restriction on4and disposal of California
list wastes. Fifty-eight percent of these - '---
commercial facilities offer a range of .
hazardous w^ste management services,:
including land-based disposal, storage, -
and treatment. The increased demand-
this rule, will create for highly priced
treatment services may actually
strengthen the financial position of these-
firms by allowing them to increase their
market shares. • On the other hand, for
the 16 percent of commercial facilities
; that offer solely, land-based
management of restricted wastes, the
increased emphasis on treatment prior
to land disposal may prove
economically disadvantageous. It was
not possible to characterize the
remaining 26 percent.of commercial
facilities based on services offered.
Turning to effects an generators, EPA
found that based on average waste
quantities, the SIC sectors generating
California list wastes include 2,162
(weighted) plants. Of these, 34
(weighted) plants may experience
significantfinancial distress ba,sed on
costs imposed by restrictions on land
disposal. This represents 1.6 percent of
all waste-generating plants that may
face increased waste management •,
prices. Based on further analysis, none
of the 34 distressed plants appear likely
to close. ;!;. , . .• ',
Total annualizied national costs for the
2,046 (weighted) small quantity
generators {SQGs) of California list
wastes are $4.5 million. Based on
engineering estimates of prices for off-
site waste management services, costs
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£5786 Federal Register / Vol. 52, No. 130 / Wednesday. July 8, 1987 /Rides and^Regulations
for SQGs generating the maximum of
1,000 kilograms per month of nothing but
hazardous wastes specified in the
California list would incur not more
than $13,200 annually in incremental
compliance costs. Economic ratios for
all plants in each 4-digit sector
represented in the SQG survey were
nxamined. In 102 (weighted) cases,
plants seemed likely to experience some
financial distress, and none of these
plants appear likely to close. Thus,
restricting land disposal of California
list wastes may have substantial
adverse economic effect on
approximately 5 percent of all
generators of small quantities of wastes.
Economic effects on generators of
mixed PCB/RCRA wastes are also not
expected to be significant; although,
because of data limitations, no plant-
specific analysis could be undertaken.
Further information on economic effects
on all groups mentioned above is
available in the regulatory impact
analysis (RIA) supporting this rule.
The following table summarizes the
economic impact information presented
above:
Typo of firm
Noncommercial........
Small Quantity Generators..
PCS Generators
Large Quantity Generators..
Commercial TSDFs '
Totals
No. of
firms
308
2.046
63
2,162
31
4,610
Signifi-
cantly
impact-
ed
39
102
0
34
175
1 Because of the assumption of full cost
pass-through by commercial TSDFs, no eco-
nomic effects are identified for this group.
3. Methodology Used in Assessing
Benefits and Cost-Effectiveness
The RIA performed by the Agency
evaluated the benefits of three
regulatory alternatives for restricting the
land disposal of California list wastes.
As with the discussion of cost and
economic impacts, this preamble only
presents results associated with the
final rule.
The benefits of today's final rule were
evaluated by considering the reduction
In human health risk that results from
treating California list wastes to below
statutory levels prior to land disposal
rather than managing by baseline land
disposal practices. Human health risk is
defined as the probability of injury,
disease, or death over a given time due
to responses to doses of disease causing
agents. Predicting human health risk
entails estimating quantitatively the
consequences of human exposure to
these agents. To estimate risks of
baseline and alternative technologies,
the analysis characterizes wastes,
technologies, releases, environmental
transport, and dose-response
relationships based on a number of
simplifying assumptions. These include:
—The steady-state management and
release of wastes—in other words, the
quantity of waste managed in the
baseline continues to be managed—
and subject to releases—ad infinitum;
—Exposure to contaminated media is
steady-state;
—The dose results from daily
consumption of surface and ground
water, inhalation of air, and ingestion
of contaminated fish over 70 years by
a 65 kg person;
—The dose-response relationship for
carcinogens is linear, without a
threshold; for noncarcinogens it is a
modified linear response;
—Risks are based on exposures to all
constituents in each waste .stream;
and
—Risks are not discounted.
The human health risk posed by a
waste management practice is a
function of complex interactions
between the toxicity of the chemical
constituents in the waste stream and the
extent of human exposure to these
chemicals (e.g., considering, among
other things, the hydrogeologic settings
at land disposal units and the fate and'
transport of chemical constituents of
wastes).
EPA estimates human health risk in
four steps. The first step is to estimate
the concentrations of each of the
hazardous constituents of the waste
stream in each of the three media (air,
surface water, ground water) into which
they may be released in the course of
waste management. These estimates
depend on the steady-state release rates
calculated for each technology, and on
environmental fate and transport. The
next step is to estimate the total human
intake, or dose, of each of the chemicals
through inhalation of air and ingestion
of ground water, surface water, and
contaminated fish. The Agency next
calculates the risk to an individuals
from the dose derived in the previous
step. EPA estimates the relationship of
dose to effect (using the "dose-
response" curve developed based on
toxicity data), and weights the effect
according to severity. Finally, EPA
estimates the population at risk by
multiplying the average individual risk
by the number of people in a given
environment, which is derived by a
Monte Carlo simulation involving 2,000
iterations.
In assessing the benefits .of the rule,
EPA limits the analysis to reductions in
human health effects attributed to a
reduction in exposure to the toxic
constituents in the wastes. Other
benefits, such as improvements in
environmental quality; are not
quantified. As a result, the benefits of
the land disposal restrictions for
California list wastes may be
underestimated. Furthermore, the
assessment may underestimate benefits
since the effects of the comparative risk
analysis were not included. Therefore,
negative benefits resulting from a
technology considered riskier than land
disposal (which would be designated
not available for purposes of
establishing treatment standards) were
included in the analysis. Although this
assessment does not estimate potential
increases in risk from, increased
transportation and handling of
California list wastes, an initial analysis
indicates that such increases are not
likely to be significant.
4. Benefits and Cost-Effectiveness
Based on this benefits analysis, the
final rule is estimated to result in a net
reduction in health risk equal to 2,298
weighted cases (e,g., cancer, fetal
toxicity, decreases in reproductive
capacity) over seventy years, which
represents a 71.1 percent reduction from
baseline practices. Of the total
reduction, 2,048 cases—or 89 percent of
the benefit—comes from changes to land
disposal technologies, such as disposal
in landfills, land farms, wastes piles,
and disposal impoundments. An
additional 10 percent reduction in risk'
comes from changes to land-based
storage practiced in surface
impoundments. Finally, approximately 1
percent of the total reduction comes
from changes in treatment practiced in
surface impoundments.
The analysis is in no sense time-
dependent. Benefits are expressed as
steady-state annual values. No attempt
has been made to compare the initial
year at which steady-state risk values
are reached across options or between
an option and the baseline. However, it
can be generally observed that the effect
of restricting land disposal is to reduce
risk in absolute terms while shifting it
forward temporally. This is because
ground water risks, the type likely to
predominate in the baseline, .tend to
occur a long time after waste is land
disposed of, because of the slowness of
constituent movement in this medium.
However, air and surface water risks—
while lower as a whole—are likely to
predominate in the post-regulation
scenario. Migration of wastes in these
-------
8. 1987 / Rules jmd Regulations , 25787
media is relatively rapid, and thus risks
are incurred sooner.
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601, whenever an agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a Regulatory
Flexibility Analysis that describes the
effect of the rule on small entities (i.e.,
small businesses, small organizations,
and small governmental jurisdictions).
This analysis is unnecessary if the
agency's administrator certifies that the
rule will not have a significant economic
effect on a substantial number of small
entities. '. '
EPA evaluated the economic effect of
the rule .on small entities, here defined
as co'ncerns employing fewer than 50
people. Because of data limitations, this
small business analysis excludes
generators of large quantities of
California list wastes. The small
business population here examined
therefore includes only two groups: all
noncommercial treatment, storage, and
disposal facilities employing fewer than
50 persons, and all small quantity
fenerators which are also small .'.-
usinesses.
One hundred and fifty-four (weighted)
TSDFs are small businesses. Of these, '•
six (weighted) exceed threshold values
on the cost of production ratio, a figure
that represents four percent of this small
business population. Of the total of 2,046
small quantity generators examined in
this analysis, the vast majority are also
small businesses. A total of five SQGs
(or less than one percent of all small
businesses) exceeded threshold values
on the cost of production ratios.
According to EPA's guidelines for
conducting Regulatory Flexibility
Analyses, if over 20 percent of the
population of small businesses is likely
to experience financial distress based
on the costs of a rule, then the Agency is
required to consider that the rule will
have a significant effect on a substantial
number of small entities and to perform
a formal Regulatory Flexibility
Analysis.6 EPA has examined the rule's
potential effects on small businesses as
required by the Regulatory Flexibility
Act and has concluded that today's final
rule will not have a significant economic
effect on a substantial number of small
entities. As a result of this finding, EPA .
has not prepared a formal Regulatory
Flexibility Analysis document in support
of this rule. More detailed information
on small business impacts is available
6 See U.S. EPA, "Guidelines for Compliance with
the Regulatory Flexibility Act," February 1982.
in technical background documents
prepared in support of this rulemaking.
C. Review of Supporting Documents
The primary source of information on
current land disposal practices and
industries affected by this rule is EPA's
National Survey of Hazardous Waste
Generators and Treatment, Storage, and
Disposal Facilities. Waste stream
characterization data and engineering
costs of waste management are based
on the 1981 RIA Mail Survey and on
reports by the Mitre Corporation,
"Composition of Hazardous Waste
Streams Currently Incinerated," (April
1983), and "The RCRA Risk-Cost
Analysis Model," (U.S. EPA, March
1984). The survey of small quantity
generators has been the major source of
data on this group. Data used to
characterize generators of mixed PCB/
RCRA hazardous wastes were taken
from an EPA study, "Characterization of
Mixed PCB/RCRA Hazardous Wastes,"
(February 1985). For financial and value
of shipment information for the general
screening analysis, 1982 Census data
were used, adjusted by 1983 Annual
Survey of Manufactures data. Producer
price indices were also used to restate
1983 dollars in 1986 terms.
List of Subjects in 40 CFR Parts 260,261,
262, 264, 265, 268, 270, and 271
; Administrative practice and '.:'"•
procedure, Confidential business
information, Environmental protection,
Hazardous materials, Hazardous
materials transportation, Hazardous
waste, Imports, Indian lands, Insurance,
Intergovernmental relations, Labeling,
Packaging and container, Penalties,
Recycling, Reporting and recordkeeping
requirements. Security measures, Surety
measures, Surety bonds, Waste
treatment and disposal, Water pollution
control, Water supply.
Dated: July 6, 1987.
Lee M. Thomas,
Administrator.
Therefore, for reasons set out in the
preamble, Chapter I of Title 40 is
amended as follows:
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
I. In Part 262:
1. The authority citation for Part 262
continues to read as follows:
Authority: Sees. 1006, 2002, 3002, 3003, 3004,
3005, and 3017, of the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976, as
amended-(42 U.S.C. 6906, 6912, 6922, 6923.
6924, 6925, and 6937). .
Subpart E— Special Conditions
"
,
2. Sectiqn 262.51 is revised to read as
follows: i ! .'
§262.51 Farmers
A farmer disposing of waste .
pesticides from his own use which are
hazardous wastes is not required to
comply with the standards in this part or
other standards in 40 CFR Parts 264, 265,
268, or.270 for those wastes provided he ,
triple rinses each emptied pesticide
container in accordance with
§ 261.7(b)(a:) and disposes of the
pesticide residues on his own farm ma
manner consistent, with the disposal ,
instructions on the pesticide label. -
PART 264— STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
II. In Par{ 264:
1. The authority citation for Part 264
continues to read as follows: '
Authority: Sees. 1006, 2002, 3004, and 3005
of the Solid \Vaste Disposal Act as amended
by the Resource Conservation and Recovery
Act of 1976, as amended {42 U.S.C. 6905, 6912
6924, and 6925).
Subpart B— General Facility Standards
2. In § 264.13* paragraph (b)(7)(iii) is
revised to read as follows: - •< -
§264.13 General waste analysis.
* '*- - • * ',•:;*•- , •• * ' '..--." (
(bj* * * !••" ' . "•'' - : •'•'•'".
' .
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23788 Federal Register / Vol. 52. No. 130 / Wednesday. July 8, 1987 / Rules and Regulations
Recovery Act of 1970, as amended {42 U.S.C.
0905,0912(a), 6924.0925, and 6835).
Subpart B—General Facility Standards
2, In § 265.13, paragraph (b)(7)(iii) is
revised to read as follows:
§265.13 General waste analysis.
(Hi) The annual removal of residues
which are not delisted under § 260.22 of
this chapter and do not exhibit a
characteristic of hazardous waste, and
which do not meet the treatment
standards of Part 268 Subpart D of this
chapter or, where no treatment
standards have been established, the
annual removal of residues which do not
meet the applicable prohibition levels in
Part IBS iubpirt C nr RCRA SBcHon
3004(d).
PART 268—LAND DISPOSAL
RESTRICTIONS
IV. In Part 268:
I. The authority citation for Part 268
continues to read as follows:
Authority: Sees. 1006,2002(a), 3001, and
3004 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
6905,6913(8), 6921, and 6924).
2. The Table of Contents is amended
by adding entries for § 268.32 and
Appendix HI to Part 268 to read >
follows:
las
Subpart C—Prohibitions on Land Disposal
§268.32 Waste specific prohibitions—
California list wastes.
Appendix HI to Part 268—List of Halogenaled
Organic Compounds Regulated Under
$208.32
Subpart A—General
3. In § 288.1, the word "or" after the
semi-colon in paragraph (c)(3) is
removed, the period ending paragraph
(c)(4) ia replaced with "; or" and
paragraph (c](5) is added to read as
follows:
| 268.1 Purpose, scope and applicability.
*****
(c) * * *
(5) Where a fanner is disposing of
waste pesticides in accordance with
§ 262.51.
4. In § 268.2, paragraph (a) is amended
by adding definitions for "Halogenated
organic compounds" and
"Polychlorinated biphenyls." in
alphabetical order and revising the
definition for "Land disposal" to read as
follows: .
§ 268.2 Definitions applicable to this part
fa) When used in this partlhe
following terms have the meanings given
below:
"Halogenated organic compounds" or
"HOCs" means those compounds having
a carbon-halogen bond which are listed
under Appendix HI to this Part.
* * * * * .
"Land disposal" means placement in
or on the land and includes, but is not
limited to, placement in a landfill,
surface impoundment, waste pile,
injection well, land treatment facility,
salt dome formation, salt bed formation,
underground mine or cave, or placement
in a concrete vault or bunker intended
for disposal purposes.
"Polychlorinated biphenyls" or
"PCBs" are halogenated organic
compounds defined in accordance with
40 CFR 761.3.
*****
5. Section 268.3 is revised to read as
follows:
§ 268.3 Dilution prohibited as a substitute
for treatment.
No generator, transporter, handler, or
owner or operator of a treatment,
storage, or disposal facility shall in any
way dilute a restricted waste or the
residual from treatment of a restricted
waste as a substitute for adequate
treatment to achieve compliance with
Subpart D of this part, to circumvent the
effective date of a prohibition in Subpart
C of this part, to otherwise avoid a
prohibition in Subpart C of this part, or
to circumvent a land disposal
prohibition imposed by RCRA section
3004.
6. In § 268.4, paragraph (a)(2) is
revised and paragraph (b) is added to
read as follows:
§ 268.4 Treatment surface impoundment
exemption.
(a) * * * _•
(2) The residues of the treatment are
analyzed, as specified in § 268.7 or
§ 268.32, to determine if they meet the
applicable treatment standards in
Subpart D of this part, or, where no
treatment standards have been
established for the waste, the applicable
prohibition levels specified in Subpart C
of this part or RCRA section 3004(d).
The sampling method, specified in the
waste analysis plan under § 264.13 or
§ 265.13, must be designed such that
representative samples of the sludge
and the supernatant are tested
separately rather than mixed to form
homogeneous samples. The treatment
residues [including any liquid waste)
that do not meet the treatment
standards promulgated under Subpart D
of this part, or the applicable prohibition
levels promulgated under Subpart C of
this part or imposed by statute (where
no treatment standards have been
established), or which are not delisted
under § 260.22 of this chapter and no
longer exhibit a characteristic of
hazardous waste, must be removed at
least annually. These residues may not
be placed in any other surface
impoundment for subsequent
management. Jf the volume of liquid
flowing through the impoundment or
series of impoundments annually is
greater than the volume of the
impoundment or impoundments, this
flow-through constitutes removal of the
supernatant for the purpose of this
requirement. The procedures and
schedule for the sampling of
impoundment contents, the analysis of
test data, and the annual removal of
residue which does not meet the Subpart
D treatment standards, or Subpart C or
RCRA section 3004(d) prohibition levels
where no treatment standards have
been established, must be specified in
the facility's waste analysis plan as
required under § 264.13 or § 265.13 of
this chapter.
*****
(b) Evaporation of hazardous
constituents as the principal means of
treatment is not considered to be
treatment for purposes of an exemption
under this section.
7. In § 268.5, paragraphs (a)(2), (h)(l),
and {h}(2)flii} are revised and paragraph
(h)(2)(v) is added to read as follows:
§268.5 Procedures for case-by-case
extensions to an effective date.
W***
(2) He has entered into a binding
contractual commitment to construct or
otherwise provide alternative treatment,
recovery (e.g., recycling), or disposal
capacity that meets the treatment
standards specified in Subpart D or,
where treatment standards have not
been specified, such treatment,
recovery, or disposal capacity is
protective of human health and the
environment
* * -* * *
(h)* * *
(1) The storage restrictions under
§ 268.50(a) do not apply; and
(2) * * *
(iii) The surface impoundment, if in
interim status, is in compliance with the
requirements of Subpart F of Part 265,
-------
j["^jgl^^ J.^^e5^d..-Regubgtion8 25289
§ 265.221 (a),;ec),,and;((i)lofthis.chapter,
and RGRA section 3005(0(1); or
* ' .*.. .-•* - * * • • - •
(v) The landfill, if disposing of
containerized liquid hazardous wastes
containing PGBs at-concentrations,
greater than or-equal to 50 ppm-but.less
than 500 ppm, is also in compliance with
the requirements of 40 CFR 761.75 and
Parts 264 and:265.
* * * * *
8. In § 268;6,paragraph.(fc)is added to -
read as follows:
§ 268.6 Petitions to allow land disposal of
a waste prohibited under Subpart C of.Part
268.
* * * *'•*.."- -. . '
(k) Liquidihazardaus wastes
containing polychlorinated.biphenyls at
concentrations greater than or equal to
500 ppm are not eligihle.ior an
exemption under this section.
•9. Section 268.7iis.amended by
revising paragraphs (a),introductory
text, {aa(l),introductory text, (a)(l)(iy,
(a)(2.),introductoiy:text,s{a)(2)(i)[(B),
, )(2)(ii), (h) introductory text, (b)(l)(ii),
(b)(2) introductory text, (b)(2)(f), and.fc)
to read as follo.ws:
§ 268.7 Waste analysis and recordkeeping.
(a) Except as specified in § 268.32'Of
this part, the generator must test his
waste or an extract developed .usingthe
test method describediin,Appendix;J;of
this part/or use knowledge of the waste,
to determine if the .waste.is.reatricted
fromiland-disposalunder this part.
(l),If a:generator .deternimesthat-he-is
managing a restricted waste,under this
part and the .waste.does not meet the
applicable .treatment standards,.or •
where the waste does not.compiy with
the.applicable.prohibitiQns.set forth in
§ 268.32.of this part or RGRA section
3004(d), with each;shipment ofwaste.the
generatprmustinotify the/treatment
facility in writing.of the. appropriate
treatment standards set forth in Subpart
D of this part and any applicable ~
prohibitions set forth;in.§ 268.32 of.fhis
part or RCRA.section,3.0Q4(d). .The notice
must include the following information:
* .* •'-*"',*' * ' .
(ii) The ,corresponding;treatment
standards and all applicable
prohibitions set forth:in;§,268.32'Qr
RCRA section.3004(d);
* ' •* : •* -..* •* .
(2) If aigenerator. determines thattheis
managing ajrestrictediwaste -under this
part, and determinesithattheiwaste;can
be'land.disposed without further
treatment, -with each shipment of waste
he mustisubmit, to the land disposal
facility.-a.notice'anSva certification
stating thatithe^waSte.meetsthe
applicable!treatment:standards:set:forth
in Subpart-D of .this,part and .the
applicable .prohibitions set-forthi'in
§ 268^2 of ithis part or JRORA section
3004fd).
(i)* .'•**
P) The correspondingitEeatment
standards and all-appplicable
prohibitions-set:forth:int§;268.32 or
RCRA section 3084fd);
* * *.-*.. ,.* ' -
(ii) The certification must be signed'by
an authorized representative and must
state ihe following:
1 certify under penalty of law that I
personally .have examined .and anrfaniiliar
with the waste through.analysis and testing
or through knowledge o"f the >waste,to support
this certification that.the waste complies with
the treatment-standards specified in 40 CER
Part 268 Subpart D and all applicable
prohibitions set forth in '40 CFR 268.32-or
RCRA section 3Q04{d).ri:helieve thatthe
information I submitted.is true, accurate and
complete.I.am:awaie-.that there are
significant penalties for submittingia false
certification, including therpossiblity of afflne
and imprisonment.
. * * * . *-.•'*
(b),For wastes with treatment
standards expressed-as concentrations
in:the waste extract (§ 268.41), the
owner or operator of the,treatment
facility must test the treatment residues
or an extract,of such residues developed
usingthe test method described in
Appendix'! of this,part;to assure'tHat the
treatment residues or extract meet the
applicable treatment standards/For
wastes-prohibited under § 268.32 of'this
part orRCRA section 3004(d),which are
not.subj.ect to any treatment standards
under'Subpart D of .this part, the owner
or operator of the teatmentjacility must
test the treatment residues .according to
the generator testing requirements -'
specifiedin § -268:32 to.assure that the
treatment residues comply .with .the
applicable prohibitions. Tor both
circumstances .described.abov.e, such
testing must.be .performed according .to
the frequency, specifiedin the.Iacility's
waste analysis plan.asrequked'by
§ 264.13 or § 265.13. Where the
treatment residues .do not comply with
the applicable treatment standards or
prohibitions, the treatment .facility must
comply,with the notice requirements
applicable to generators-in paragraph
(a)(a)rOf this aectionif the treatment
residues willbe .further-managed at a
different treatment facility.
.{!)* * *
(ii) The .corresponding ..treatment
standards and all applicable
prohibitions set.forth in'§268.32ror
RCRA section 30Q4(d);
(2) The treatment facility must subniit
a certification with each shipment of
. waste or tre atmenf residue of a
restricted '.waste to the 'land disposal
facility.statingthat the-waste, or
treatment rersidue has beentreated in
compliance wiith the applicable
performance standards^specifiedjn
Subpart D ;of this part :and the applicable
prohibitions set forth in § ;268;32..or
RCRA section 300a(d).
'(i) For wastes with treatment
standards expressed as concentrations
in the-waste extract or in the-waste
(§ 268.41 or | 268^43), or for wastes
prohibited under § 268.32 of this part or
RCRA^sectiein^004Ed) which.are'not
subject to any treatment standards
under Subpa,rtJD.af this-part,,the .
certification must be signed^by an
authorizedjjbpresentative and must
state .the ;fallowing:
'I:certify und.er.penalty of.law that I have
personally examined and am.familiar with
the treatment technology and operation of the
treatment process used to support this :'
certifican'on andthat,,hased on my,inquiry-of
those,individuals immediately .responsible for
obtaining this irifonnation, Ibelieve that the
treatment.prociess has been operated and
maintained properly so-as'to;comply:with the
performance levels specified in 40 CFR'Part
268 Subpart D andall -applicable prohibitions
set forth'in 40 CFR 268.32 or'RCRA section
3004(d3-without-dilution:of the prohibited
waste. I am aware that there are.significant
penalties for submitting ;a;faise icertification,
tacludingitherpossibility of fine and
imprisonment.!
(c)The'owaer or operator of any:land
disposal facility-disposmg-any waste
subjectto-restrictions under this part
must have records oMie notice and
certification sipecified inveither
paragraph (a) or ^B) of this section. The .
owner .or operator of. the land disposal
facility must test the -waste or an extract
of the waste or treatment residue
developed using the testmethod
flescribed in Appendix I'of thisjpart, or
using any methods required by
generators under § 268.32 of this part, to
assure that the wastes or treatment
residues; are -iia compliance with the
applicableitreatmeht standards set-forth
in Subpart D of this part and all
applicable prcihibifions set forth in
§ 268.32-of this part or^RCRA section
3004(d)., Such'testing must'be performed
according toilie frequency'specified in
the facilityls virasteanalysis.plan as
required by § 264.13 or J 265.13.
Subpart C—Prohibitions on Land
Disposal
10. InSubparttC, paragraph:(aj(4);is
added'toju26£ .30 to jeadias follows:
-------
25T9& Federal Register / Vol. 52. No. 130 / Wednesday,.July ^
§ 268.30 Waste specific prohibitions-
Solvent wastes.
(a)* * *
(4) The solvent waste is a residue
from treating a waste described in
paragraphs (a)(l), (a)(2), or (a)(3) of this
section; or the solvent waste is a residue
from treating a waste not described in
paragraphs (a)(l), (a)(2), or (a){3) of this
section provided such residue belongs to
a different treatability group than the
waste as initially generated and wastes
belonging to such a treatability group
are described in paragraph (a)(3) of this
section.
*****
11. In Subpart C, § 268.32 is added to
read as follows:
§ 268.32 Waste specific prohibitions-
Calif omla list wastes.
(a) Effective July 8,1987, the following
hazardous wastes are prohibited from -
land disposal (except in injection wells):
(1) Liquid hazardous wastes having a pH
less than or equal to two (2.0);
(2) Liquid hazardous wastes
containing polychlorinated biphenyls
(PCBs) at concentrations greater than or
equal to 50 ppm;
(3) Liquid hazardous wastes that are
primarily water and contain
halogenated organic compounds (HOCs)
in total concentration greater than or
equal to 1,000 mg/1 and less than 10,000
mg/1 HOCs.
(b)-(c) [Reserved]
(d) The requirements of paragraph (a)
of this section do not apply until
November 8,1988 where the wastes are
contaminated soil or debris resulting
from a response action taken under
section 104 or 106 of the Comprehensive
Environmental Response,
Compensation, and Liability Act or a
corrective action required under RCRA
Subtitle C. , , „ .
(e) Effective July 8,1989, the following
hazardous wastes are prohibited from
land disposal (subject to any regulations
that may be promulgated with respect to
disposal in injection wells):
(1) Liquid hazardous wastes that
contain HOCs in total concentration
greater than or equal to 1,000 mg/1 and
are not prohibited under paragraph
(a)(3) of this section; and
(2) Nonliquid hazardous wastes
containing HOCs in total concentration
greater than or equal to 1,000 mg/kg.
(f) Between July 8,1987 and July 8,
1989, the wastes described in
paragraphs (e)(l) and (e)(2) of this
section may be disposed of in a landnll
or surface impoundment only if the
facility is in compliance with the
requirements specified in § 268.5(h)(2).
(g) The requirements of paragraphs (a)
and (e) of this section do not apply if:
(1) 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 (except for liquid hazardous
wastes containing polychlorinated
biphenyls at concentrations greater than
or equal to 500 ppm which are not
eligible for such exemptions); or'
(2) Persons have been granted an
extension to the effective date of a
prohibition pursuant to § 268.5, with
respect to those wastes covered by the
extension; or
(3) The wastes meet the applicable
standards specified in Subpart D of this
part or, where treatment standards are
not specified, the wastes are in
compliance with the applicable
prohibitions set forth in this section or
RCRA section 3004(d).
(h) The prohibitions and'effective
dates specified in paragraphs (a)(3) and
(e) of this section do not apply where
the waste is subject to a Part 268
Subpart C prohibition and effective date
for a for a specified HOC (such as a
hazardous waste chlorinated solvent,
see e.g., § 268.30(a)).
(i) To determine whether or not a
waste is a liquid under paragraphs (a)
and (e) of this section and under RCRA
section 3004(d), the following test must
be used: Method 9095 (Paint Filter
Liquids Test) as described in "Test
Methods for Evaluating Solid Wastes,
Physical/Chemical Methods," EPA
Publication No. SW-846.
(j) Except as otherwise provided in
this paragraph, the waste analysis and
recordkeeping requirements of § 268.7
are applicable to wastes prohibited
under this Part or RCRA section 3004(d):
(1) The initial generator of a liquid
hazardous waste must test his waste
(not an extract or filtrate) in accordance
with the procedures specified in
§ 261.22(a)(l), or use knowledge of the
waste, to determine if the waste has a
pH less than or equal to two (2.0). If the
liquid waste has a pH less than or equal
to two (2.0), it. is restricted from land
disposal and all requirements of Part 268
are applicable, except as otherwise
specified in this section.
(2) The initial generator of either a
liquid hazardous waste containing
polychlorinated biphenyls (PCBs) or a
liquid or nonliquid hazardous waste
containing halogenated organic
compounds (HOCs) must test his waste
(not an extract or filtrate), or use
knowledge of the waste, to determine
whether the concentration levels in the
waste equal or exceed the prohibition
levels specified in this section. If the
concentration of PCBs or HOCs in the
waste is greater than or equal to the
prohibition levels specified in this
section, the waste is restricted from land ,
disposal and all requirements of Part 268
are applicable, except as otherwise
specified in this section.
Subpart D—Treatment Standards
12. Section 268.40 is revised to read as
follows:
§ 268.40 Applicability of treatment
standards.
(a) A restricted waste identified in
this subpart may be land disposed
without further treatment only if an
extract of the waste or of the treatment
residue of the waste developed using the
test method in Appendix I of this part
does not exceed the value shown in
Table CCWE of § 268.41 for any
hazardous constituent listed in the Table
CCWE for that waste.
(b) A restricted waste for which a
treatment technology is specified under
§ 268.42(a) may be land disposed after it
is treated using that specified
technology or an equivalent treatment
method approved by the Administrator
under the procedures set forth in
§ 268.42(b). '
13. In § 268.42, paragraph (a) is
amended by adding paragraphs (a)(l)
and (a)(2) and paragraph (b) is revised
to read as follows:
§ 268.42 Treatment standards expressed
as specified technologies.
(a) * * *
(1) Liquid hazardous wastes
containing polychlorinated biphenyls
(PCBs) at concentrations greater than or
equal to 50 ppm but less than 500 ppm
must be incinerated in accordance with
the technical requirements of 40 CFR
761.70 or burned in high efficiency
'boilers in accordance with the technical
requirements of 40 CFR 761.60. Liquid
hazardous wastes containing
polychlorinated biphenyls (PCBs) at
concentrations greater than or equal to
500 ppm must be incinerated in
accordance with the technical
requirements of 40 CFR 761.70. Thermal
treatment under this section must also
be in compliance with applicable
regulations in Parts 264, 265, and 266.
(2) Nonliquid hazardous wastes
containing halogenated organic
compounds (HOCs) in total
concentration greater than or equal to
1,00.0 mg/kg and liquid HOC-containing
wastes that are prohibited under
§ 268.32(e)(l) of this part must be
incinerated in accordance with the
requirements of Part 264 Subpart ,O or
Part 265 Subpart O. These treatment
standards do not apply where the waste
is subject to a Part 268 Subpart C
treatment standard for a specific HOC
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^^^feyyjuly ;8, 1987 // Rules arid .Regulations 25791
(such asta:hazardaus waste.dhlorinated
solvent 'for-which:a treatment-standard
is restabiished under § 268.'43;(a}).
i(b) Any.person.may submitan
application to the.Administrator
demonstrating that'an,alternative
treatment methodfcan achieve,a
measure,o'f performance equivalentito
that achievable by methods specifiedan
paragraph (a) of this section. The
applicant must;submit information
demonstrating;that his treatmeritmethod
is in compliance^ with federal, state, and
local requirements and is protective of
humanJiealth.and.the environment.,On
the basis df such'irifbrmation and any
other available iriformatibn, the
Administrator-may approve'the use of
the alternative treatment method if 'he
finds-that'.the alternative-treatment
method provides a measur'e.,of
performance equivalent to, that, achieved
by methods specified in?paragraphi (a) of
this section. Any approval must he
stated in writing and may contain such
provisions and-conditions.as the.
Administrator deems-appropriate. .The
person to whomsuch apprpvalls^issued
must comply with all limitations
contained in such a determination.
14. In £268.50, paragraphs :fa) . = n .
introductory text, and (e] are revised/
and paragraph (f) is added to.read as
follows: •
§ 268.50 Prohibitions on storage of
restricted wastes.
f a)-Except-as-provided-m-this-section,
the storage of hazardous wastes
restricted from land .disposal under
Subpart C of this part of RCRA section
3D04 is.prohibit.ed, unless the following
conditions are met:
* * * *• *
(e) The prbhibition'm paragraph (a) of
this section does not apply to hazardous
wastes that meet the treatment •
standards specified-under f§ '268:41,
268.42, and'268;43-orthe-treatnrerrt
standards-specified;under the variance
in § 268.44, or, where treatment
standards have not been specified, is in
OQmpliance'.with fhe applicable
prohibitions specified in § 268.32 or
RCRA-s;ection-3004.
[f] Liq.uid hazardous wastes
containing polychlorinated biphenyls
(PCBsJ at concentrations greater than or
equal to"50 ppm must be stored at a
facility that meets the requirements of
40 CFR 761.65(b) and must be removed
from storage and treated or disposed as
required by this part within one year of
the date when such wastes are first
placed into storage. The provisions of
.paragraph (c) of this section do not
apply to such PCB wastes prohibited
under § 268.32 of this part
15. After Subpart'E, - Appendix illiis
added to'Eart^S to read.as follaws:
AppfindixIII toPart.268— Listof
Halpgenated Organic .Compaunas
Regulated Under §^63.32
Sln.determining th8.concehtration:of;,HQGs
in a hazardous wasteffor.pugjoaes of the
§ 268.32 land disposalpEphibltiQn.rEPA^has
ddfined'theJIQCsithat must:he included in
the.calculation as.any eompounds.having a
carbori-halpgen.bond.which areJisted in this
AppenSix {see'§ 268:2). Appendix,!!! to 'Part
268 consists of the:following compounds:
Volatiles
Bromodichloromethane
Bromomethane
Carbon Tairaehlqride
Chlorohenzene
2-*CHloro-l,3-butadiene -
Chlorodibromoniethane
Chloroethane
2-Chloroethyl .vinyl^ether
Chloroform. .. . .
Chloromethane
3-Chlorpprqperte
l,2-Dibromo-3-chlorppropane
l,2TDibromomethane
Dibromomethane
Trans-l,4-Dichloro-2-butene .
DicKlorodifluoromethane . •
Ifl^Dichloroethane •
l,2tDicHIoiaethane:
1,1-Dichlorbethylene
Trans-lj2iQiGhioroethene
1,2-Dichloropropane .
,Trans-l,3-Drchlorqprqpene
cis^liSiDicliloropropene
iodomethane .
;Methylene chloride
•T,l7l;2-Tetrachloroethane
1,1,2,2-Tetrachloroethane
Tetrachloroethene ,
"Tribromomethane :
1,1,1-Trichloroethane
*iri;2-Triohteroethaffe
Trichloroethene
Trichloromonofluoromethane ,
i;2,"3-Trichloropropane
Vinyl chloride
JSemivalatiles : - - •
Bis[2-chloroethoxy)ethane
,Bis(2-chloroethyl)ether
.Bi^[2-chloroisQprQpyl) ether ;
p-Chloroaniline
Chlorobenzilate •
2-Ghloronaphthalene
.2-Chlorqphenol
3-Chloropropiomtrile1 -
m-Dichlorobenzene
o-Dichlorobenzene
p-Dichlorobenzene
3,3'-Dichl6robenzidine
2,4-Dichlorophenol
2,6-Dichlqrophenol
Hexachlorobenzene ,
Hexachlorqbutadiene
Hexachlorqcyclopentadiene
Hexachloroethane
Hexachlorqprqphene
Hexachlqrqpropene
4,4'-Methylenebis(2-chlqrqaniline)
Pentachlqrqbenzene
Pentachlorojelihane
Pentachloronitrobenzene
PentacHlorqpbendl
Prqnamide . ,j. '.'•,.'•
1,2,4,5-Tetrachlqrobenzene
2,3,4,6-Tetrachlqropkenol
l,2,4-Trichlor(Sbenzehe " -
2,4,S-Trichlorqphehol
2,4,6-Trichlqrciphenol
Tris[2.3-dibtq!jiqpTOpyl)phqsphate
Organachlorine'Pesticides -
Aldrin : ,! " ,
alpha-BHC ;l .
betaiBHC: .' \- .. '".
delta-BHC '; .
gamma-BHC .i; :
Chlqrdane r
DDD
DDE
DDT
Dieldrin -
Endq-sul'fan ! '[ -.• " ,•
Endosiilfan U |. ' '.' .':; :' :
Endrin | •'- ''.• •"•:",
Endrin aldehyde • " '
Heptachlqr 1
Heptachlqrtepoxide
Isodrin I . ,'".•.'- •
Kepone , ";
Methoxyclor | ' '•'-•"
Toxaphene ,; ' • .
Phenoxyaqetic Acid-Herbicides
2,4-Dichlorqphi3noxyacetic acid
iSilvex ' !
2,4,5-T . „ ;| • _ '
PCBs . •• \- . , '.--\ ; ' '
Aroclorl016 |
Arqclqrl221 ',-._. ,
Aroclor'1232 (-: '" • .
Aroclqri242 .]
Arqclqr-1248 ji ;'.'•.-•.'•• -
Aroclqrl254
PGBs hot:qthBrMse;"speci'fi8d '- .' '
Dioxins and Farans
Kexachl:qrodib(rnzo-p-dioxins
'Hexachlorodibtinzofuran ...... -
Pentachloroditenzq-p-dioxins '- '
Pentachlorodibijnzdfuran
Tetrachlorodibeinzo-p-dioxins
•Tetrachlorodibomzofuran
2,3,7,8-Tetrachlorodibenzo-p-dioxin
PART 270— EiPA ADR/3IM1STERED
PERMIT PROGRAMS: THE
HAZARDOUS WATSTE PERMIT
PROGRAM J
V. In Part 27;0:
1. The authority citation of Part 270
continues to read as follows: ;
Authority: Sees. 1006, 2002, 3005, 3007, 3019,
and 7004 of the ijolid Waste Disposal Act, as
amended by the.;Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
6905, 6912, 6925, 6927, 6939 and 6974).
-------
25792 Federal Register / Vol. 52, No. 130 / Wednesday, July 8. 1987
..... iiimiiirmMiMMiiiiiiM • • i mv ^L-aNi!»ii.iiiiiiiiiit[iiff»..••.' nmt^^im>assa^EssmLJjaMm^TsrmmM^\imi^^s^mf^^mss
Subpart D—Changes to Permits
2. In § 270.42, paragraphs (o)(l) and
(o)(2) are revised and paragraph (p) is
added to read as follows:
§ 270.42 Minor modifications of permits.
* * * * *
(o) * • •
(1) The hazardous waste has been
prohibited from one or more methods of
land disposal under Part 268 Subpart C
or RCRA section 3004;
(2) Treatment is in accordance with
§ 268.4 (if applicable), § 268.3, and:
(i) Treatment is in accordance with
applicable standards established under
§ 268.41, § 268.42, or § 268.44; or
(ii) Where no treatment standards
have been established, treatment
renders the waste no longer subject to
the applicable prohibitions set forth in
§ 268,32 or RCRA section 3004.
*****
(p) Allow permitted facilities to
change their operations to treat or store
hazardous wastes subject to land
disposal restrictions imposed by Part
2C8 or RCRA § 3004 provided such
treatment or storage occurs in
containers or tanks and the permittee:
(1) Requests a major permit
modification pursuant to § 124.5 and
§270.41;
(2) Demonstrates in the major permit
modification request that the treatment
or storage is necessary to comply with
the land disposal restrictions of Part 268
or RCRA section 3004; and
(3) Ensures that the treatment or
storage units comply with the applicable
Part 265 and part 268 standards pending
final administrative disposition of the
major modification request The
authorization to make changes
conferred in this paragraph shall
terminate upon final administrative
disposition of the permittee's major
modification request under § 270.41 or
termination of the permit under § 270.43.
Subpart G—Interim Status
3. In § 270.72(e), paragraph (e) is
revised to read as follows:
§ 270.72 Changes during interim status.
*****
(e) In no event shall changes be made
to an HWM facility during interim status
which amount to reconstruction of the
facility. Reconstruction occurs when the
capital investment in the changes to the
facility exceeds fifty percent of the
capital cost of a comparable entirely
new HWM facility. Changes prohibited
under this paragraph do not include
changes to treat or store in containers or
tanks hazardous wastes subject to land
disposal restrictions imposed by Part
268 or RCRA section 3004, provided that
such changes are made solely for the
purpose of complying with Part 268 or
RCRA section 3004.
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
VI. In Part 271:
1. The authority citation for Part 271
continues to read as follows:
Authority: Sees, 1006, 2002(a), and 3006 of
the Solid Waste Disposal Act as amended by
the Resource Conservation and Recovery Act
of 1976, as amended (42U.S.C. 6905, 6912(a),
and 6926).
Subpart A—Requirements for Final
Authorization
2. Section 271.1(j) is amended by
adding the following entry to Table 1 in
chronological order by date of
publication:
§ 271.1 Purpose and scope.
*****
QJ * * *
TABLE 1.-REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Data of promulgation
Title of regulation
Federal Register reference
Effective date
July 8,1987 Land disposal restrictions for California list wastes 52 j=R 25760 .
JulyB, 1987.
3. Section 271.1fj) is amended by in table 2 by adding the publication date and *e FR page number to read as
changing the sixth line from the bottom iuuu '
TABLE 2,-SELF-lMPLEMENTiNG PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Federal Register reference
Effective date
Self-implementing provision
RCRA citation
Ju!y 8i 1987 Land disposal restrictions for California list wastes........... 3004(d) ,- July 8, 1987, 52 FR 25760
[PR Doc. 87-15340 Filed 7-7-87; 8:45 am]
BILLING CODE 6540-50-M
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