Thursday
December 6, 1990
Part II
Environmental
Protection Agency
40 CFR Part 260, et at.
Wood Preserving; Identification and
Usting of Hazardous Waste; Final Rule
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1990 / Rules and Regulations
Federal Register / Vol. 55. No. 235 / Thursday. December 6.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR P*rt» 260,261,262,264,265,
270,271, and 302
IEPA/OSW-FR-81-OM/FRU-3856-71
RIN20SO-AC43
Identification and twins of Hazardous
Waste; Wood Preserving
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: The Environmental Protection
Agency is today amending its
regulations under the Resource
Conservation and Recovery Act (RCRA)
by listing as hazardous three categories
of wastes from wood preserving
operations that use chlorpphenolic,
creosote, and/or inorganic (arsenical
and chromium) preservatives. Today s
rule finalizes portions of a proposed rule
published by EPA on December 30.1988
(*\3 P'R *)32>B2l
The listings finalized today include
wastewaters, process residuals,
preservative drippage, and spent
preservatives from wood preserving
processes at facilities that use or have
previously used chlorophenolic
formulations, facilities that use creosote
formulations, and facilities that use
inorganic preservatives containing
arsenic or chromium. With respect to
wastes from surface protection
processes that use chlorophenolic
formulations (proposed waste F033).
EPA is deferring a final listing until more
information can be collected on which
to support a decision. These wastes
may. however, exhibit the Toxicity
Characteristic and consequently, may
already be regulated as hazardous
waste under subtitle C.
Today's rule includes permitting and
interim status standards for drip pads
used to assist in the collection of treated
wood drippage. These standards include
requirements for drip pad design and
operation, inspections, and closure.
Under today's rule, generators may be
eligible for a 90-day generator
exemption from permitting if their pads
meet all of the technical standards for
d"'8£ri&et of listing F032, F034. and
F035 will be to subject them to the
hazardous waste regulations of 40 CFR
parts 124.282 through 288.268. 270. and
271: the notification requirements of
section 3010 of RCRA; and the
notification requirements under
CERCLA section 103.
DATES: Today'* final rule will become
effective on June 6,1991. For compliance
deadlines, see section VEI of this
preamble. The information collection
requirements contained in the following
paragraphs have not been approved by
the Office of Management and Budget
(OMB) and are not effective until OMB
has approved them: § 261.35(b)(l). (b)(3),
(c); § 262.34(a)(2)(i). (a)(2)(ii);
5 264.571(a). (b): § 264.572(l), (k),
(mUlUi), (m)(l)(iv), (m)(3). (o);
Sisrsfa); § 264.574(c)(l)(i). (c)(l)(ii);
S 265.441(a); (b); § 265.443(g), (i),_Ik),
(m)(l)(i). (m)(l)(iv), (m)(3). (n);
§ 285.444(a); 5 265.445(c)(l)(i). (c)(l)(u);
§ 270.22(a), (b). (c). A Federal Register
Notice will be published in which the
effective dates for these regulations will
be established.
ADDRESSES:The official record for this
rulemaking is identified as Docket
Number F-00-WPWF-FFFFF and is
located in the EPA RCRA Docket, room
M2427.401M Street SW.. Washington,
DC 20460. The public must make an
appointment in order to review docket
materials by calling (202) 475-9327, for
the RCRA portion of the docket, or (202)
382-3046 for the CERCLA portion of the
docket. Both dockets are available for
inspection from 9 a.m. to 4 p.m., Monday
through Friday, excluding holidays. The
public may copy up to 100 pages from
the docket at no charge. Additional
copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT:
The RCRA/CERCLA Hotiine at (800)
424-9346 or, in the Washington, DC
area, at (202) 382-3000. For technical
information on the RCRA portion of the
rule contact Mr. Ed Freedman or Mr.
Edwin F. Abrams of the Office of Solid
Waste (OS-333) at (202) 382-4770. For
technical information on the CERCLA
portion of the rule, contact Mr. Daniel
Chellaraj, Response Standards and
Criteria Branch, Emergency Response
Division. Office of Emergency and
Remedial Response (OS-210) at (202)
382-2344. Both offices are located at the
U.S. Environmental Protection Agency,
401M Street SW., Washington, DC
20460.
SUPPtEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
1. Legal Authority ,
n. Background
m. Summary of the Regulation
A. Overview of the Proposed Rule
B. Overview of the Final Rule
C. Industry Overview
D. Wastes Included in Today 8 Listing
E. Basis for Listing
F. Applicability of RCRA Rules for Recy-
cled or Reclaimed Hazardous Waste
IV. Summary of Public Comments and Re-
,«ponaes
A. Statutory Framework for Regulation
B. Listing for Storage Yard Drippage
C. Technical Standards for Drip Pads
D. Basis for Listing and Toxic Designations
E. Listing Wastes from Surface Protection
Processes
F. Equipment Cleaning and Replacement
Standards
V. Interaction With Other Regulations
VI. State Authority
A. Applicability of Final Rule in Author-
ized States
B. Effect on State Authorization
1. HSWA provisions
2. Non-HSWA provisions
3. Special provisions for drip pad stand-
ards
VII. CERCLA Designation and Reportable
Quantities
VTJI. Regulatory Impact Analysis
A. Executive Order Requirements
B. Description of Baseline and Final Rule
C.' Costs and Economic Impacts
D. Benefits
K. Regulatory Flexibility Analysis
A. Approach
B. Results
X. Paperwork Reduction Act
XL Compliance Procedures and Deadlines
A. Notification
B. Generators and Transporters
C. Treatment Storage, and Disposal Facili-
ties in Unauthorized States.
1. Newly regulated facilities
2. Permitted and interim status facilities
D. Treatment. Storage, and Disposal Facili-
ties in Authorized States
List of Subiects
I. Legal Authority
These regulations are being
promulgated under the authority of
sections 2002(a) and 3001(b) and (e)ll) of
the Solid Waste Disposal Act, as
amended, 42 U.S.C. 6912(a) and 6921(b)
and (e)(l) (commonly referred to as
RCRA), and section 102(a) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA) 42 U.S.C. 9602(a).
n. Background
Pursuant to section 3001 of subtitle C
of the Resource Conservation and
Recovery Act (RCRA), this notice lists
as hazardous certain wastes generated
from wood preserving processes that
use either chlorophenolic, creosote, and/
or inorganic (arsenical and chromium)
preservatives. EPA proposed to list
these and other wastes generated at
wood preserving and surface protection
. facilities as hazardous in a notice
published in the Federal Register on
December 30,1988 (see 53 FR 53282).
Certain other wastes from wood
preserving are already regulated as
hazardous waste under RCRA. An
overview of past RCRA regulatory
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Federal Register / Vol. 55. No. 235 / Thursday. December 6. 1990 / Rules and Regulations SO451
actions taken by the Agency that affect
the wood preserving industry was
provided in the preamble to the
proposed listing (see 53 FR 53283).
Today's listing for wastes from wood
preserving processes that use or have
previously used pentachlorophenol
formulations (F032) partially fulfills the
requirements of section 3001{e)(l) of
RCRA, added by the Hazardous and
Solid Waste Amendments (HSWA) of
1984. This section requires EPA to list,
as appropriate, wastes containing
chlorinated dioxins or chlorinated
dibenzofurans, within certain specified
deadlines. . .
EPA proposed four listings pertaining
to wastes from wood preserving and
surface protection, including two listings.
for pentachlorophenol wastes, on
December 30,1988. Today's notice
promulgates three of the four listings,
including one of the listings for
chlorophenolic wastes, with some
modifications.
EPA notes that today's listings do not
in any way affect the present listing for
hazardous waste number K001, bottom
sediment sludge from the treatment of
wastewaters from wood preserving
processes that use creosote and/or
pentachlorophenol. K001 wastes are not
included in the listings being
promulgated today. Today's listings
supplement the existing K001 listing and
increase the quantity and numbers of
types of wastes from wood preserving
processes regulated under subtitle C of
RCRA.
Today, EPA is amending § 261.31 by
adding three broad categories of wastes
from wood preserving processes that
use organic and/or inorganic
preservatives to the list of wastes from
non-specific sources. These wastes
(which were described fully in the
preamble to the proposed rule, see 53 FR
53288-53291} include wastewaters,
process residuals, treated wood
drippage (i.e. drippage from treated
wood), and spent preservative. Table 1
lists the constituents of concern that
constitute the basis for listing the three
categories of wastes. These constituents
typically occur in the wastes at
concentrations that pose a threat to
human health and the environment if the
wastes are mismanaged. EPA has
described the data documenting the
hazards posed by these wastes in the
preamble to the proposed rule (see 53 FR
53284 and 53291-53308). Because these
wastes are capable of posing a threat to
human health and the environment
when improperly treated, stored,
transported, disposed, or otherwise
handled. EPA is listing them as
• hazardous; Consequently, as a result of
today's final rule, these wastes are
subject to the applicable requirements of
40 CFR parts 124. 260 through 266, 268,
270, and 271.
TABLE 1.—CONSTITUENTS OF CONCERN
CMoropiwnoto
Pentachlorophenol -..-.
PAH»
Bonzo (a) pyrene —««•——•••—-
Dfconz (a,h)arrthracene
Indeno (1 A3-c,d) pyrene
Naphthalene . — —
Dtoxtos and Furara
Tetrachtoroenzo-p-oToxins ...
Pentachlorodibenzo-p-dioxins .
Hexachlof odibenzo-p-clioxins ..
Heptachlorodibenzo-p-dtoxins.
Tetrachlorodibenzofurans
Pentachtorodibenzofurans
Hexachlorodfoenzofurans
Heptachtorodtoenzofurans —
Inorganic*
Afsertic «.......»«•«.«««"»••-"»•••••••
Chromium .,.«....«..—«•••«••—•••••»••
Lead.. -
F032
X
X
X
X
X
X
X
X
X
X
X
X
X.
X
X
F034V
X
X
X
X
X
X
X
X
F035
X
X
X
Netr. X indicates that constituents have been
found to be present at levels of regulatory concern
in individual listings.
m. Summary of the Regulation
A. Overview of the Proposed Rule
The notice published on December 30,
1988 proposed to add the following four
listings pertaining to wastes from wood
preserving and surface protection
processes to the list of wastes from non-
specific sources:
F032—Wastewaters, process residuals,
preservative drippage, and discarded spent
formulations from wood preserving
processes at facilities that currently use or
have previously used chlorophenolic
formulations (except wastes from
processes that have complied with the
cleaning or replacement procedures set
forth in S 261.35 and do not resume or
initiate use of chlorophenolic formulations).
This listing does not include K001. bottom
sediment sludge from the treatment of
wastewater from wood preserving
processes that use creosote and/or
pentachlorophenol.
F033—Wastewaters, process residuals,
protectant drippage. and discarded spent
formulations from wood surface protection
processes at facilities that currently use or
have previously used chlorophenolic
formulations (except wastes from
processes that have complied with the
cleaning or replacement procedures set
forth in i 28135 and do not resume or
initiate use of chlorophenolic formulations).
F034—Wastewaters, process residuals,
preservative drippage, and discarded spent
formulations from wood preserving
processes at facilities that currently use
creosote formulation*. This listing does not
include K001. bottom sediment sludge from
the treatment of wastewater from wood
preserving-processes that use creosote
and/or pentachlorophenol.
F035—Wastewaters, process residuals,
preservative drippage, and discarded spent
formulations from wood preserving
processes at facilities that currently use
inorganic preservatives containing arsenic
or chromium. This listing does not include
K001, bottom sediment sludge from the
treatment of wastewater from wood
preserving processes that use creosote
and/or pentachlorophenol.
All four of the listings were proposed to
be designated as toxic (T) hazardous
waste.
The scope of the proposed F032 listing
Included wastes from creosote and
inorganic processes that currently use or
previously-used chlorophenolic
formulations because these wastes may
be cross-contaminated with chlorinated
dioxins and/or dibenzofurans. Similarly,
the F033 listing covered wastes from
surface protection processes that
currently use or previously used
chlorophenolic formulations.
EPA included the cross-contaminated
wastes in the F032 and F033 listings
because we concluded that such cross-
contamination is likely to occur under
two circumstances:
(1) When creosote or inorganic
processes are located at a plant where
chlorophenolic preservatives are or
have been used; and
(2) When equipment used for a non-
chlorophenolic process has been
previously employed in a chlorophenolic
process.
EPA anticipated that some generators
might benefit from provisions for
demonstrating that the potential for
cross-contamination had been
eliminated through proper cleaning and/
or replacement of contaminated
equipment For example, surface
• protectors can change to protectants or
formulations that are not addressed by
the listings. With standards for proper
equipment cleaning and replacement,
EPA anticipated that the wastes
generated after changing protectants
could be removed from subtitle C
coverage, if they also did not exhibit any
of the characteristics of hazardous
waste. The proposal, therefore, included
standards for proper cleaning and
replacement of equipment
documentation of the cleaning and
replacement procedures, and
certification that the procedure used
followed a plan previously approved by
the Regional Administrator of State
Director.
Another important component of the
December 1988 proposed rule was the
technical standards for drip pads, which
assist in collection and containment of
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treated wood drippage. * , r-~-» • .
drippage is generated at two potats to
the wood preserving process: (1)
Immediately after the treated wood is
removed from the treating vessel (Le,
retort or tank) whtte itis held to an area
oftencaUed the "Idck-back" arealand{2}
durtag the time that the wood Is held to
storagVafteT treatment is complete,. At
con'creto drip pad, sometimes equipped
with sumps, is typically used. In
developing the proposed rule, KFA.
SereforTtodudedtaterim status and
permitting standards for dnp pads.
The proposed rule defined a drip pad
^incpropu acnrbedtimpenneable
base installed to assist collection of
drippage and accumulated precipitation.. .
in dripor kick-back areas at wood
preserving facilities or to treated wood
storage yards" (see 53 FR 53325). Under
the proposed rule, all drip pads were to
have associated collection systems or
sumps that conform to the 40 CFR parts
264 and 265 standards for tanks. The
standards for drip pads Included
technical requirements for containment,
a general operating requirement
designed to prevent tracking of
hazardous waste and hazardous waste
constituents off the drip pad, inspection
requirements, and closure requirements.
While EPA regulations generally require
that RCRA permits be obtained for all
hazardous waste management units, me
proposed rule provided an extension of
the existing 126234 exemption for
generators who store hazardous waste
to tanks or containers for no more man
90 days. Under this proposed exemption.
owners and operators of drip pads used
to handling treated wood drippage
would not have been required to obtain
RCRA permits for their drip pads
provided that they remove the waste
Lm ma pad at teas^ery QOdays and
comply with me 40 CFR part 285 interim
status standards for drip pads.
EPA proposed the F032 and F033
listings to response to the Hazardous
andSolId Waste Amendments (HSWA)
of 1984. HSWA required EPA to
consider listing dioxto and.faran-
containing wastes as hazardous and the
listings for F032 and F033 that were
JropoW described dioxto andfa«n-
containing wastes. Thus, appropriate
modifications to the part 271 list of
renditions implement*" *• Hazaj
v^awwui
Finally, the proposed rule included
provisions for designating the fojn-
s of waste streams as CE
hoas«bf««^«»«is
Jropwed itsportobto quantities for the
. '
wastes.
B. Overview of the Final Rule
Today's rule adds to the list of wastes
from non-specific sources three of the
four listings proposed on December 30,
1988. wiihsomemodification.These are:
FD32—Wastewaters, process residuals,
preservative drippage, and spent
formulations from wood preserving
processes generated at plants that
currently use or have previously used
chloropheaolic formulations (except
potentially cross-wntainiiHited wastes that
have had the F032 waste code deleted in
accordance with i 281.35 of this chapter
and where the generator does not resume
or initiate use of chlorophenolic
formulations). This listing does not include
K001. bottom sediment sludge from the
treatment of wastewater from wood
preserving processes mmt use creosote
and/or pentachlorophenol.
F034—Wastewaters. process residuals.
. preservative drippage, and spent
formulations from wood preserving
processes generated at plants that we
S2S formulations. This listing does not
include KOOl. bottom sediment oludge from
the treatment of wastewater from wood
preserving processes that use creosote
and/or pentachlorophenol.
F03&—Wastewater, process residuals.
preservative dripp«g«. and spent
formulations from wood preserving
processes generated at plants that use
inorganic preservatives containing arsenic
or chromium. This listing does not include
KOOl. bottom sediment sludge from the
treatment of wastewater from wood
preserving processes that use creosote
and/or pentachlorophenoL
These listings are the same as those
proposed for F032. F034. and F035 (for a
complete description of the wood
preserving processes affected by today a
Sating, see 53 FR 53287 et seq. EPA has
deleted the term "discarded" from the
listings, as it was used to reference to
•pent formulations. The reason for this -
change is that a spent material need not
actually be discarded to be a solid
waste. This change does not change the
scope of the listing to any way. Spent
formulations normally include drippage.
The listing language refers to drippage
separately, however, to order to be
clear. Throughout this preamble and
rule, the term "drippage" refers to
excess preservative that is kicked back
from the wood following treatment It
does not apply to precipitation that
drips from a stack of wood to the
storage yard when it falls from wood
that had ceased to drip on the process
area drip pad before being moved toihe
storage yard. As explained later fa mis
preamble and rule, drippage must cease
on the drip pad before the treated wood
can be moved to me storage yard, to
addition, the word "generated J««Jeen
added immediately before "at^plants to
each listing to furtber clarify that only
___
wastes generated at wood preserving
plants are included in today's final
listings. Finally, the term "plant" has
been substituted far "facility" because
the tern "facility" has a specific
meaning under 40 CFR 260.10. which is
not applicable here.
Today's rule does not include a final
listing for F033. wastewaters, process
residuals, protectant drippage, and spent
formulation from wood surface
protection processes at facilities that
use chlorophenolic formulations (for a
complete description of the surface
protection processes proposed to be
affected by the F033 listing, see 53 FR
53288). After considering the comments
received and evaluating the data which
provided the basis for the proposed F033
listing, EPA has concluded that it has
insufficient information at this time on
which to base a final listing decision for
F033. The Agency has, therefore,
decided to defer the F033 listing until
such time as further information
concerning waste quantities and waste
characterization can be collected and
evaluated. EPA will conduct a program
of site visits m order to collect
additional information and better
characterize the surface protection
industry and the waste generated by
surface protection processes. The
Agency will take action on the proposal
to list F033 when mis additional data
collection is complete. EPA encourages
commenters to submit data to the
Agency that may aid to analysis of the
F033 listing.
Today's rule makes several
modifications to the technical standards
proposed for drip pads, under new
subpart W of parts 284 and 265, to
account for issues raised by commenters
and to ensure that all drip pads at wood
preserving plants provide the same level
of protection, whether permitted under
part 264 or exempt from permitting
under the 90-day accumulator provisions
of § 28254 (the technical standards for
drip pads were included as subpart T in
the proposed rule). The specific
provisions of today's rule are discussed
to detail later in this preamble.
Finally. EPA has removed the
prescriptive technical standards for
equipment cleaning and replacement-
from the rule and replaced them with a
general provision that allows the F032
waste code to be deleted from F034 or
F035 wastes generated at plants that
previously used chlorophenolic
formulations. Thus, rather than carrying
two waste codes (e*, F032 and F034 or
F035), these wastes will carry only one
code (Fd34 or F03S). This provision is
available to generators who comply
with certain performance standards for
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Federal Register / Vol. 55. No. 235 / Thursday, .December 6. 1990 / Rules and Regulations
50453
equipment cleaning and replacement,
recordkeeping requirements, and
certification requirements, and
provided that the generator does not
resume or initiate use of chlorophenolic
preservatives.
EPA recognizes that today's rule
affects a large number of small
businesses, many of which may not
have previously been subject to
regulation under RCRA and are
therefore unfamiliar with Federal and
state programs for hazardous waste
management To assist the regulated
community with RCRA compliance, EPA
provides informational assistance
through its RCFA/CERCLA Hotline. The
regulated community can contact the
Hotline, toll free, at (800) 424-4396 (or, in
. the Washington, DC area at (202) 382-
3000) daily, exclusive of holidays and •
weekends, between the hours of 8 a.m.
and 4 p.m., Eastern Standard Or Daylight
Time. Hotline personnel are able to
answer questions regarding the
regulations and provide any written
materials requested. Additionally, EPA
staff (as listed at the opening of this
Notice) are available to answer
technical questions regarding the rule,
also between the hours of 8 a.m. and 4
p.m. daily.
The following sections discuss all of
the technical and administrative aspects
of today's final rule and describe
. changes that have been made to the
proposed rule in response to comments
received. EPA's response to certain
comments are-also presented in this
section because they constitute the
basis for changes made to the proposal.
Elsewhere in today's preamble (see
section TV), we provide EPA's response
to comments on six major topics
addressed by commenters. A
comprehensive summary of all
comments received and the Agency's
response to the significant comments is
provided as part of the public docket to
this rule and is available for inspection.
1. Requirements for Drip Pads
As in the proposed rule, today's rule
includes technical standards under 40
CFR parts 264 and 265 for drip pads
used to assist in the collection, storage,
or management (treatment prior to reuse
or recycling of preservatives) of treated
wood drippage. Because today's rule
explicitly prohibits moving treated wood
off of the drip pad until drippage has
ceased, EPA anticipates that owners
and operators will elect to construct drip
pads only in process orkick-back areas
(i.e., immediately adjacent to treatment '
tanks or cylinders). Drip pads may also
be constructed in long term storage .
yards, in accordance with the applicable
technical standards, if it is anticipated
that drippage from treated wood will be
generated in the storage yard.
EPA is aware that past releases of
drippage and other residuals associated
with routine practices in the wood
preserving industry have resulted in
considerable environmental
contamination at some sites. Before
building new drip pads, generators
should assess the extent of any existing
contamination and conduct appropriate
clean-up activities. Where such
contamination is significant, EPA
Regional or state authorities may require
clean up in the future under Federal or
state CERCLA authority. Additionally,
EPA Regional authorities may require
clean-up under RCRA section 7003, or, if
the facility is required to obtain a RCRA
permit in the future, under section
3004(urand/or section 3004(v) of RCRA.
EPA will be continuing to assess
whether other authorities might be
available to address this problem.
Should generators fail to clean up the
process area where past drippage has
accumulated prior to constructing a new
drip pad, drip pads will likely have to be
destroyed and excavated in the event
that clean-up is required. Generators
should also note that certain states have
enacted legislation requiring
certification that all environmental
contamination has been eliminated from
a property before real estate
transactions can be completed. For
these reasons, EPA urges generators to
take steps to assess the extent of
potential contamination at their plant
sites and to work with the appropriate
EPA Regional and/or state authorities to
ensure proper cleanup before building
new drip pads.
In response to comments on the
proposed rule, EPA has made changes to
the technical standards for drip pads:*' '
These changes are intended to address
issues concerning drip pad design and
requirements for impermeability,
identified by commenters. They provide
for equivalent levels of protection under
parts 264 and 265. The following
paragraphs discuss each of the sections
of subpart W (parts 264 and 265).
Section 284.570 (265.440)—
Applicability. The subpart W standards
are applicable to all drip pads that are
used to handle •hazardous waste from
wood preserving operations. This
section provides for exemptions from
the requirements for run-on and run-off
controls, as appropriate, for drip pads
that are enclosed in structures or
covered (and hence, protected from
precipitation in a manner that prevents
run-on and run-off). A drip pad,
according to the definition added to 40
CFR 280.10, is: "an engineered structure
consisting of a curbed, free-draining
base, constructed of non-earthen
materials and designed to convey
preservative kick-back or drippage from
treated wood, precipitation and surface
water run-on to associated collection
systems at wood preserving plants."
Today's rule distinguishes between
new and existing drip pads by defining
new drip pads as those constructed after
December 6,1990. and those for which
owners and operators have not yet
entered into binding financial or other
agreements for construction. Existing
drip pads are defined as those in use as
of today and those for which owners or
operators have entered into binding
financial or other agreements for
construction.
Section 264.571 (265.441)—Assessment
of Existing Drip Pad Integrity. EPA is
aware that there are some drip pads in
use that meet most of the standards for
design and operation but may not have
liners and leak detection systems. In
order to avoid unnecessary destruction
and excavation of these pads, today's
rule provides that such pads, if they are
capable of meeting all of the
requirements for new pads except those
for liners and leak detection systems,
may continue to operate without
upgrading for a period of up to 15 years
(depending on the age of the drip pad),
when alsa retrofitted with an
impermeable coating, sealant or other
material
The purpose of the requirements for
liners and leak detection systems
beneath drip pads is to provide
secondary containment beneath the pad
(which provides primary containment).
This secondary containment serves as
protection against leakage reaching the
soil beneath the pad, in the event of an
undetected leak. Commenters pointed
out that concrete, a common material
used in drip pad construction, is not
impermeable. Further, concrete is
subject to cracking and degradation
associated with heavy vehicular traffic
such as forkUfts. Such cracking may
occur underneath the top layer and
would not be detected during
inspections. However, EPA believes that
a properly installed and maintained
impermeable coating or cover on the
surface of the drip pad is a viable
temporary substitute for bottom liners
and leak detection systems.
To ensure that existing pads are
structurally sound and capable of
containing hazardous waste, subpart W
requires that owners and operators of
existing drip pads complete an
assessment of the integrity of their drip
pads with regard to the subpart W
standards. The assessment mart be
-------
complete on the effective date of today's
rule. The purpose of the assessment is to
have tba owner/operator document that
(1) the pad is capable of containing
drippage by preventing run-on and run-
off tat well as penetration through the
pad and (2) the pad meets all of toe
subpart W requirements except those
forUners and leak detection systems.
Owners and operators must maintain a
copy of the results of the assessment on
file at the facility. Additionally, the rule
requires that the written assessment be
reviewed and approved by an
independent qualified, registered
professional engineer. This assessment
must be reviewed and re-certified
annually until the drip pad is brought
into compliance with all of the
requirements of subpart W. Owners and
operators should be aware, however.
that such certification (and the other
certifications required in this
rulemaking) will in no way be deemed
to be compliance with the regulations. .
Section 2WLS71(c) (285.441(c)) allows
owners and operators to establish a
schedule forjupgradmg drip pads to
meet the refuirements for bottom liners
and leak detection systems based on the
age of the drip pad. Today's rule states
that all upgrades, repairs, or
modifications necessary to bring drip
pads of known and documented age into
compliance with all subpart W
requirements, including those for bottom
liners and leak detection systems, must
be completed no later than two years
after the effective date of this nde or by
the time the drip pad is IS years of age.
whichever is later. For drip pads of
unknown or undocumented age, the date
for completing all upgrades, repairs or
modifications will be set based on fee
as« of tiw wood preserving plant For
drip pads for which me age of the pad or
the age of the plant cannot be
documented, upgrades, repairs!ind
modifications must be completed witoin
eight years of the effective date of mis
rule. However, facilities mat are more
than seven years old must comply with
all design and operating standards by
the time the facility reaches 15 yf»nof
age oc no later than two years after the
effective date of this rule, whichever is
later. ,
EPA has selected IS yaars of age as
the limit for making repairs =ul
upgrades because information from tee
wood preserving industry indicates that
15 years to a somewhat conservative
eitoate of ateasonabk life-expectancy
for « wfmW»rilt drip pad. After 15 years.
drip pads aay begin to deteriorate
.fc&ficantry andoften oust be «gaced
or undergo «xtaosivciepait« in ower »
maintain containment integrity-
In developing today's rule, EPA
considered several options for
establishing a compliance period. For
example. EPA considered establishing a
fixed period of 15 years for all existing
drip pads. The provisions of today's rule
were selected because theyTiccount for
wide variability in the ages of existing
drip pads.l EPA intends that this
provision allow for reasonable
schedules to be established for dnp pad
modification and anticipates that most
will need to be completed in time
periods considerably shorter than 15
years.
• Today's rule anticipates three
different compliance circumstances for
existing drip pads:
1. Pads that are cracked and leaking.
or otherwise unfit for use must-be • -
removed from service on the effective
date of today's rule. Those that can be
repaired may be put back into service
after repairs are complete and upgraded
in accordance with the appropriate
schedule constraints, based on the age
of the pad. Those that operate after the
effective date and cannot or will not be
repaired must be closed hi accordance
- with § 26t574 (5 285.445) and all
applicable requirements of part 264/265
subpart G (Closure and Post-Closure).
2. Pads mat are not unfit for use and
far which the age can be documented
may remain in use after the integrity
assessment is complete. All upgrades
must be complete either by the time toe
pad is 15 years old or by two years after
the effective date of this rule, whichever
islater.
3. Pads that are not unfit for use for
which the age cannot be documented
may remain in use after the integrity
assessment is complete. All upgrades
must be complete within eight years
after the effective date of this rule.
However, if the wood preserving plant
(rather man the pad) is known to be
more than seven years old, all upgrades
must be completed by the time the
facility is 15 years old or by two years
after toe effective date of this rule.
During the period between the
effective date of today's rule and the
date when repairs and modifications
must be complete, owners aad operators
mutt re-evaluate the initial drip pad
assessment, make any neceasary
changes, and have the updated
assessment reviewed and certified by ai
independent, qualified registered
professional engineer annually. The
oori.tefofpewOTMiaT
•xMneron tfaettajr of inuiuulfifloB of meo
certified assessment must be maintained
at the facility and must include
documentation otjthe age of the drip pad
or. where drip pad age cannot be
definitively established, the information
that constitutes the basis for
establishing toe compliance schedule.
Also during this period, owners and
operators are subject to all provisions of
subpart W pertaining to -operating
practices, recordkeeping, inspections,
and closure, including the provisions for
repairing any conditions that have led or
could lead to leakage from toe pad. No
later than two years before the date that
all upgrades will be completed, owners
and operators must prepare a plan for
upgrading toe drip pad to meet all
design standards. This plan must be
certified by an independent, qualified
registered professional engineer and
must be submitted to toe Regional
Administrator or State Director. The
plan should provide sufficient detail to
allow toe Regional Administrator or
State Director to make a determination
that toe pad will meet all of toe
requirements of subpart W upon
completion. The plan must also include
information documenting toe age of the
drip pad or, where toe age cannot be
established, information constituting the
basis for establishing toe compliance
schedule.
EPA recognizes that, at some wood
preserving plants, new drip pads have
recently been built that may continue to
be protective of human health and toe
environment although they may not
have synthetic liners and leak detection
systems, beyond toe date established for
compliance with these requirements.
Consequently, today's rule allows for
owners and operators of such facilities
to petition the Regional Administrator
for a reasonable extension of toe
deadline for compliance with liner and
leak detection requirements. In deciding
whether to grant such extensions, the
Regional Administrator will be
concerned with whether toe drip pad is
in compliance with all of toe
requirements of S 284.571. except those
for liners and leak detection systems,
and that the pad design and operation
are protective of human health and the
environment
As stated previously, EPA has
developed toe requirements of § 284.571
(285.441) in order to ensure that all
existing drip pads in use after toe
effective date of toe nde are capable ot
containing any drippage, contaminated
precipitation, or other waste that may
fail on them and minimizing releases to
toe soil ground water or surface water.
The nde also aQows owners and
operators ample time to upgrade their
-------
Me. 336
. I9eceniber <6, M80 V Hules -anfl
SBC5
design and qaeralxng'isquiremeats^of
Subnsrt W«iwibantQier
wartetthatiaUs on tbeipad te^he
have iatcoxb(Oribena4m>unS<3ie
strength «mi-thinkae«» to^revant fefla»e
the
8treH«e»aaan«ediJ3raH2hiriie*, wood
movement, ormHiBracthrftiBd}.
The surface of dr$p pads jnust be
sealed, coated, tjr-covered with an
impermeafaieimataciaianah ihtitit •
preMentiae«;y Jsttkageio Aeumdari^ing
soil«8 tfae*«a«
collection •ystBO.
thissyntheticiineriwiiljBovade
secondary (omitfiin
padnsnotxeteased to
the environment,
EPA devjelqEedihe-revifleditaadBtrds
jp rf»nppn«o Jn jmnmnantBun' jinnno rr^p
regarding lue.ofoheienn 'Umpeo&eable"
hi th« juqpoged rate /^immnntAHt
elifivad lfaatiEPA«hould
Hpfinp
unjfy *«Qu]d ijfi mnrc
certain jf.the.nwanmgjfjhejtendaid.
BflfV|prtttinn HniBnp n •nnmprir ntanriar^
ferlmpgnnHHhilityJnr a-a»an»tarrf fnr
acceptablfiiparmfiabiluy), weliave
added technical eeguirements Jlhal.hetter
define acceptable flesign chaiacterifltios.
TTiese requirements are inlandedlo
ensure Ihat drip pads^rexajaUeoT
containing all .dxippqge and .relatefl
wastes and of nwiimizinj^the'Gkellhooil
of releases ifThazaiflous waste 'to the
soil orjround-waler under fee j> a3.
Today^Tane fcerefore requires a
contauuaem.3yBtem withthrae
comjnmedts:7t)The drip paSltsalf,
TOHtefl or-covered-wtth animpennedble
ludlBtldLJQtaleilk detection system,
nnd'"(55 B chemically ivulitantt synthstic
DiVttuiA^iner. 'ine LUtfleo *or coveceil orip
pad pruvulea piuuuiy "containment for
drippage -and -after hazarflous -waste.
The drip -pad -moat 'be stf art m ally -round
•vo'ftat-lt-can wiflartand'tlie guesses of
daSy atStivl ties. Because 'EPA -expects
that drip pads will crack -with -time-in
service, maibjwrl Wtmdudes a
requirement for inspecting drip pads
makingirepain m'fiie-evenftirat-a
conditioB^l-e., «Trat3cTjr rieteetlon-of
leakage)^ reuunuttefl iiat coiMHeaflto
recognizes, however, •flwl-aH-craclcs -are
natma
of the
believes "thsffluB Ihi eejcu
containment-wystem •win •ensure
"impermeability" and maketitearto
ownewand-opemlers-winlt'EPA expects •
hi HerntS'tjf flrip-pad -design.
•In-oiQeito Censure "Qiattiripjjads -are
awqunwnents-df-STfbpart W, today's iule
requires 'flraft-flrrp'puds'be exauuned and
evalugteflJoi -utmip'Hance -wrm "fire
stanSarfls -and ft at OTvnem and
operators -obtain a-cegQIiiiatlun attesting
. to compfiance 'from -an inflepgudtm I .
-qnalffied, legiatered proTeabluiiuT
engineer. This certification -mnst be
ifiCRAqsennlt.applioatifln if sucki an
theioilawing operatingqBractioe*:
'Braohs.iCBttBa'ion.'ortieletioi'irtiuu'tnat
— Onp
m- 'assouiaLed
-coHecfien systenwnrast be designed
ainl'opdatedi-to tsoltect diippage *OT
preclpitgti«iJ6i«tfa'B8 onto the pad.
— ^Drip pads must have run-on and-nm-
tfff wiritrol'to pieveiit'cuutuuiindtion
•Itection system as
=neoe8«aTy*>'preveflt wverflow onto
the'dnp'paa.'Go'Becticn'gyatems -must
design «te3
-------
50456 Federal Register / Vol. 55, No. 235 / Thursday. December 6. 1990 / Rules and Regulations
cleaning procedure must employ
detergents or techniques such as
steam cleaning as necessary to
remove accumulated residues;
permanent stains, however, need not
be removed. Owners and operators
are required to document the date and
time of each cleaning and record the
procedure used in the facility
operating log.
—Owners and operators are also
required to document past operating
and waste management practices in
the facility operating log. This
information will assist in determining
the potential extent and seventy of
contamination at the facility site.
—Treated wood must be held on drip
pads until drippage has ceased. The
owner or operator must maintain- -.
records documenting compliance with
this requirement.
This final requirement has been added
to the rule in order to ensure that only
minimal drippage occurs after the wood
is moved to the storage yard. EPA
believes that, in most cases, this
requirement will result in deminimis
levels of drippage hi storage yards,
making drip pads unnecessary in these
areas. If in the future, EPA receives
evidence mat significant drippage is
generated in storage yards despite this
requirement, the Agency may amend
today's rule to require drip pads in
storage yards.
Today's rule includes requirements
that drip pads (or portions of drip pads)
discovered to be leaking or in danger of
leaking be removed from service and
repaired or closed immediately. Upon
discovery of cracks or other conditions
that are causing or may cause leaks,
owners and operators are required to
close the affected area of the pad and
notify the Regional Administrator or
State Director within 24 hours of the
extent and nature of the damage. Within
10 working days of discovering damage,
the owner or operator must provide a
written notice to the Regional
Administrator or State Director, together
with a description of steps that will be
taken to repair the damage, and the
schedule for making repairs.
The Regional Administrator or State
Director will review the information
provided and make a determination
regarding whether the pad must be
taken out of service completely or
partially until repairs are complete. This
determination may or may not involve
an inspection of the drip pad by a
regional or atate inspector. The pad or
affected portion of the pad must remain
out of service throughout this period.
Once all repairs are complete, the owner
or operator must notify the Regional
Administrator or State Director and
provide a statement, signed by an
independent qualified, registered •
professional engineer, confirming that
repairs have been completed in
accordance with the plan provided. The
drip pad, or affected portion of the pad,
may be put back in service upon
completion of the repairs. These
procedures apply to all drip pads,
regardless of their permitting status,
throughout their active life. EPA
believes that they are necessary to
protect against contamination that could
pose a threat to human health or the
environment.
Owners and operators of drip pads
are also required to comply with all of
the general facility requirements of
subparts-C and D of part 264 {if-
obtaining a RCRA permit) and subparts
C and D of part 265, if operating under
the 90-day accumulator exemption. ,
Section 264.573 (265.444)—
Inspections. Subpart W requires owners
and operators to inspect drip pads
weekly during operation and after
storms to detect evidence of any
conditions that could lead to failure.
Owners and operators are required to
maintain records of all inspections and
to conduct inspections in accordance
with a written inspection plan, as
required by §§ 264.15 and 265.15.
Section 264.574 (265.445)—Closure.
Today's rule requires that, upon closure,
owners and operators remove or
decontaminate all drip'pad materials,
liners, equipment, wastes, and
contaminated soils. In the event that the
owner or operator finds that all
contaminated materials cannot be
decontaminated or removed,-the facility
must be closed as a hazardous waste
landfill and the owner or operator must
comply with the requirementsjbr post-
closure care specified at 40 CFR 264.310
and 265.310. The closure requirements
provide for post-closure care where
owners or operators are unable to
remove all contaminated soil. For
permitted units, the requirement to have
a permit continues throughout the post-
closure period.
2.90-Day Accumulator Exemption
Today's rule retains the proposed
exemption for drip pads under § 262.34.
Under this provision, generators of
wood preserving wastes are not
required to operate under interim status
or to obtain RCRA permits for their drip
• pads provided that
(1) All wastes are removed from the
pad and the associated collection
system at least once every 90 days,
(2) The drop pad meets all of the
technical design and operating
standards for drip pads included in
subpart W of part 265, and
(3) The generator complies with
certain recordkeeping requirements
related to documenting proper waste
removal from the drop pad.
"EPA intends for all drip pads in use to
meet the same technical standards and,
consequently, provide the same level of
protection to human health and the
environment, regardless of whether they
have a RCRA permit. To ensure that this
will be the case, today's rule requires
that drip pads operating under the part
265 interim status standards be
designed, operated, and maintained to
meet the same technical standards as
permitted drip pads (except during the
period allowed for existing drip pads to
come into compliance with the
requirements for liners and leak
detection systems, as discussed later in
this preamble). -
In addition to meeting the same
standards as permitted facilities, owners
and operators of drip pads operating
under the 90-day accumulator
exemption will be required to maintain
records documenting that their drip pads
and associated collection systems are
emptied of all wastes at least once every
90 days. The recordkeeping
requirements specify that owners and
operators maintain, as part of the
facility operating record, a description of
all procedures that will be followed to
ensure that all wastes are removed from
the drip pad and associated collection
system at least every 90 days. Owners
and operators must also document each
waste removal in the operating record
. by recording, at a minimum, the quantity
of waste removed, and the date and
time of removal.
If an owner or operator fails to comply
with the provisions of the 90-day
generator exemption, EPA may require
that they apply for and obtain a RCRA
. permit, and/or bring an enforcement
action under RCRA section 3008.
Additionally, section 7003 of RCRA
provides the Agency with authority to
bring suit where past or present
handling, treatment storage, disposal, or
transportation of a solid or hazardous
waste presents an imminent and
substantial endangerment to human
health or the environment
3. Equipment Cleaning and Replacement
As stated previously, the proposed
rule published on December 30.1988,
included standards for proper cleaning
and replacement of wood preserving
equipment that has been used in the
past for the application of
chlorophenolic preservatives. These
standards were intended to minimize
-------
3BB7
cneoaaie and
cnnstituants Apical jo-oroplifinciuc
-proceBseB.lBfhe preamble io ihe
-
nrae.
appropriate solvent, such that the -final
oanse shows no detectionJevels of
OHftaminants at or below the'lower
mefhod calibration Umit in Table 1 of
''
In
. EPApresanted.«>deecEiptianef(lfee
Tw.
commerlUjn1he need Jor judh st
and the appropriateness of the
standards proposed. fa response,
commentsrspcimtea out many technical
ie tfUuiflardslaee section
^constitute -an «ppropriate-«elventunly
Cm wateraoiubie contaminants.
TMtematively, generatoi««?bpfi
msir
jneaaratH^g and «urfaoe pioteotium
FVTF
extent of -crowcontaminatian ,wffl vary
considerably among faculties asaresult
of many «te-specffic var«bte6,'BPA*as
devetopadia-yiooos by which
generatoesawfaoipiewpuSlyusea
equipment mfter witching from
nenlachloropheaol to-another
preservative and who have not resumed
documentation .of "fee tileaningprocess
conflicted «ufl maintain iJris ^^^
documenteftion-as-part'df'aieiarnlty
w«
the in^nTTnnt*nn ppwitifid in ihe
premable te&epmposedxulejumti&ues
to hfiithe most xecent and accurate
infonnation^vailahle to£PA..Beaders
should note-that JEAias-continued-to
rely on ihe industry deficription
pKsented'in the December30,1888
pmpoaal .for Jthis^naljaile, although-all
of the iaformatien w .not reneatediare.
Preserved *«ofldproductkHi<«nd '
treatment cfaeim'cal. consumption-for .the
indufit^r^ace sumraarizBd in labk^. Ja
the proposaL 0985 data were jiEesentfid
(Mickiewmght, 19S7) to describe -the
industry. One commenter who
responded tolhepzoppsalpumded'the
most recent Igicktewright xqpnrt Jaee F-
88-WPWP-0012831, which summarizes
an industry survey lor 19B7. This,recent
data has'beenincoiparatea into Table 2
(Micklewfigfat, IBfflO-2
« Micldewri^rt. J.T,-iaB9,TffooflTre«ervalhm
TJMUfa.-^RESERUED WOOOyaOnUCTlflN MO> TBEATMEKT^HBMICAL CONSUMROTN.W
aetimated (hat an additional aOD.«oak-
£oaar.ttfctt««i0Ht ftMB).
One cammenlfiT ygho.rpBpnnaefl.toAe
SBSS£S££--r =ii—**-
of the 4ndurtrjr3»oausB non-ceiiJfiad
acknowledgeslhat additional tacTCties
-------
50458
federal Register / Vol. 55. No. 235 /Thursday. December 6, J990 / Rules and Regulations
may exist that are not accounted for in
the Micklewright surveys. These plants,
which are all non-pressure soak-
treatment plants (and are covered by
today's rule), constituted only
approximately three percent of the
industry in 1987. The Micklewright
surveys constitute the most recent and
most comprehensive body of descriptive
data available. Moreover, the
differences pointed out by commenters
have no bearing on EPA's decision to
list wood preserving wasted.
In 1987, three major product groups
accounted for 90 percent of the total
production of preserved wood in the
United States: (1) Lumber and timbers,
mostly preserved with inorganic
preservatives; (2) railroad crossties, .„
switch ties, and bridge ties, almost all
preserved with creosote; and (3) poles,
58 percent preserved with
pentachlorophenol, 22 percent with
creosote, and 20 percent with inorganic
preservatives. The remainder of 1987
production consisted of fence posts,
piling, plywood, and other products
(Micklewright, 1989).3
The distribution of preservative use
by the wood preserving industry is
summarizfcd in Table 3. This table also
has been revised to reflect the 1987
Micklewright data. Twelve percent of
the plants treated wood with more than
one preservative in 1987. Wastes
generated at these plants can be
contaminated with the constituents of
concern identified for all of the
preservatives used at the plant
The American Wood Preservers
Institute (AWPI) reported that 588 plants
produced treated wood in 1987.
Approximately 60 percent of these
plants are in the southeast and south
central portions of the United States and
account for 64 percent of 1987
production. Most plants that treat with
creosote and/or pentachlorophenol are
more than 25 years old; several
operating plants are more than 75 years
old.
TABLE 3.—DISTRIBUTION OF
PRESERVATIVE USE, 1987
Pltntt Treating With
Craoeote/lnorgtflics
Perfect*
tooro«nle
No. of
Plants
TABLE 3.—DISTRIBUTION OF
PRESERVATIVE USE, 1987—Continued
Plants Treating With
Creosote/pen tachlorophenol/lnorganics —
No. of
Plants
21
•583
55
17
21
is
21
429
• Report tubmltted by AWPI a* part of the AWPI
'•An additional 19 plants treated wood using
nonpressure processes.
Source: Regulatory Impact Analysis for the Final
Listing of Certain Wood Preserving Wastes.
D. Wastes Included in Today's Listing
In the preamble to the December 1988
proposed rule, EPA presented detailed
information describing the residuals
included in today's listings. This
information included descriptions of the
wastes, estimated annual waste
generation quantities, and information
concerning waste management practices
currently used by industry.4 EPA also
provided data describing the
composition of the wastes proposed for
listing (see 53 FR 53284-53291). This
information remains the most current
- and reliable available to EPA and,
although not repeated hi entirety here,
EPA continues to rely on the waste
characterization, waste generation, and
waste management information
"(pertaining to F032, F034, and F035)
provided in the preamble to the
proposed rule. Commenter data
pertaining to drippage rates have been
evaluated and are presented in the
Background Document for this rule. As
stated previously, EPA is reviewing the
information presented in the preamble
to the proposed rule pertaining to F033
wastes and will publish any revisions
necessary with the Agency's final
decision concerning the F033 listing.
E. Basis for Listing
In the preamble to the December 1988
proposed rule, EPA provided a detailed
discussion of the basis for listing F032,
F033, F034. and F035. and why F032 and
F033 wastes should be designated as
toxic (rather than as acute hazardous)
(see 53 FR 53291-53308). The discussion
4 EPA would like to clarify one point made in the
proposal There. EPA indicated that drippage and
drippage miduali include preservative that is
washed off treated wood by precipitation (S3 FR
S32S9). The Agency also suggested that storage area
rainwater might become subject to regulation when
it is disposed together with drippage covered by the
listing (53 FR 53288). Those statements were
premised upon a proposal that did not include the
final rule requirement that treated wood be held on
a drip pad until drippage ha* ceased. We clarity
that today's listings do not apply to precipitation
run-off from treated wood in storage yard* without
drip pad*, where the owner or operator ha*
complied with the no drippage TetjubemenL This is
consistent with (and factually supported by) the
general position not to apply the dorived from rule
to precipiUtioo run-off (see 40 CFR 2B1.3(c)(2) and
45 FR 33088 (May 18.1980)1
presented included quantitative data on
the concentrations of constituents of
concern found in the wastes, summaries
of the known health effects of the
constituents of concern, data describing
the relative persistence and mobility of .
the constituents of concern, and an
analysis of the relative hazards posed
by the wastes. In general, the
information presented in the preamble
to the proposed rule remains the most
current available to EPA and serves as
the basis for today's listings for F032,
F034, and F035.
While the proposed rule was in '
development, EPA had received the
results of a recent 1988 bioassay,
conducted by the National Toxicology
Program (NTP), which demonstrates the
carcinpgenicity of commercial grade
pentachlorophenol in mice. At the time
of publication of the proposal, EPA had
not completed its formal reviexv of the
study. While the results of the study
served as our basis for designating the
proposed F032 and F033 as toxic
hazardous waste, in our analysis of the
relative hazards posed by the
constituents of concern in proposed F032
and F033, we continued to rely on
previous data and treated
pentachlorophenol as a systemic
toxicant rather than as a potential
carcinogen (Class Bx carcinogen). EPA
has now completed its review of the
NTP bioassay, has designated
pentachlorophenol as a Class Bz
carcinogen, and calculated an oral dose
slope factor of 1.2 X10E-1 mg/kg/day
and a Risk Specific Dose (RSD) of 8.3 X
10E-6 mg/kg/day in drinking water at a
10-6 risk level, assuming a 70 kg man
ingesting 2 liters of water per day. The
RSD translates to a concentration of 2.7
X10E-4 parts per million in drinking
water. Table 4 is a revised version of
Table 11 from the preamble to the
proposed rule, reflecting the new RSD
for pentachlorophenol. Table 4 is part of
a set of tables, which appeared in the
preamble to the proposed rule, that EPA
used to demonstrate the relative hazards
posed by the four waste streams
proposed for listing (see 53 FR 53295-
53300). The tables for F034 and F035
wastes (Tables 13 and 14 in the
preamble to the proposed rule) are not
repeated here. Table 12 in the proposal
pertained to wastes from surface
protection process that use
pentachlorophenol preservatives
(proposed RCRA waste F033) and is not
pertinent to today's listing. EPA
continues to rely on Tables 13 and 14
from the preamble to the proposed rule
for purposes of the final listing for F034
and F035 wastes.
-------
_ — . —
Hazardous constituent
.,
DAM-V/B \anftVAmtW ^^uMMMMMMtHo
gQnZ(a/BnuWWiiD •«•«•«••••• •*"•""
n ^rrrn /irt nuMi rfcfl nt
B6nzowpyw^»*»™"1
Dibenz(a,h)antt¥mcene
Indmod A3*d)pywn«
Pantachtorophenoi
Arwwiic „,,„,., .....HUT— •-
AlVBIIK* ••««•»••••• "
/^Vi/fwnium n ••••
WftlUHPHJIit"*"
nibenzo-p-Oioxins4:
nn/Ttf>fi •> ••
KOwiJi/g ***** '••*
HxCDDs ~- ••
i ir/*onn I--H —
npi/Lfuo HM*« ™—
Dibenzolurans •: -
DnCDFB .,..;.. ,r —
ruwtsr o •••
Uvrnfe ,T-
flXwlslo «—«««•"• :
HnCDFft ; .
"
Average
waste
concentra-
tion
detected1
(ppm)
900
500
200
70
20,000
2,000
3^000
3X10-'
1X10-'
2
30
2X10-*
0.5
41
_
Health-
based water
concentra-
tion limits
(ppm)
1.0x10-'
2.0x10-*
7.0x10-'
2.0X10-'
2.7X10-*
0.05
0.05
22X10-"
4.4 X 10-"
2.2X10-*
22X10"'
22X10-"
6.1X10-?
22X10-'
2.3X10-'
Basis1
-^— — ^—
RSCKB,)
RSDIB,)
RSDfB,)
RSCKQ
RSCHB,)
MCt
UTM
MOL
RSCKB,)
D6n/Q l
RSD(B,)
RSCKBi)
RSCKBi)
RSCKB,)
Bon/o \
RSCKB.)
0on/Q-\
RSLHBt)
RSCKB,)
Estimated
DA 100
3X10-'
1x10-'
0.02
0.3
2X10-4
5X10-'
0.03
0.44
1
nWng
e.'DA
000
0.9
0.5
02
0.07
20
2
3
3X10-'
1X10-*
0.002
0.03
2X10-'
5X10~4
3X10-'
0.044
• ' "
Well (pom)
DA 10,000
0.09
0.05
0.02
0.007
2
0.2
0.03
3X10-'
1x10-'
2X10-4
0.003
2X10-*
5X10-'
.3X10-'
4X10-
• r
Calculated
based limit
DA 100
900.000
25,000
2,800,000
350
740,000
400
600
136,000
23,000
9,091,000
13,640.000
909,000
619,700
13,640,000
1,818,000
•Cone, to
ratios4 DA
1000
90,000
2,500
280,000
35
74,000
40
60
13,600
2,300
910,000
1.364,000
90,900
81,970
1,364.000
181.000
Heatth-OA
10,000
9,000
250
28,000
3.5
7.400
4
6
1.360
227
91,000
136,400
9,090
8,200
136,400
18,180
ra5-^«Si«R£5
i, as are the classes of RSDs. Class
limit column, tor all three dilution/attenuation (DA)
congeners has
.
0.5 . »'"«'«*'
HK> the 123.7.8- conpener lioa •" ?-ii-i «• »~r —~ r~
^^^ to cakSate healttvoased concentration bmrts.
i, December 30,1988.
Tabte 4 of today's preamble and
Tables 13 and 14 in the preamble to the
proposed rule (see 53 FR 53299-53300)
summarize the Agency's analysis of the
hazards posed by the constituents of
concern present in F032, F034. and F035
wastes. In thto analysis, EPA examined
hypothetical ground water
concentrations for the constituents ol
concern assuming three dilution and
attenuation factors: 100,1.000. and
10,000. These three levels encompass a
broad range of dilution/attenuation
factors (DA). .The drinking water well
concentrations calculated for dilution/
attenuation levels of 100,1,000, and
10,000 assume that the concentration of
each constituent of concern in the well
water are 1 percent, 0.1 percent, and 0.01
percent respectively, of their
concentrations in the waste. The tables
show that, in the vast majority of cases,
the constituents of concern, including
pentachlorophenol are likely to appear
m ground water at concentrations that
exceed the health-based levels of
concern by one to four orders of
magnitude using the extremely liberal
dilution and attenuation factor of 10,000.
Thus, even if the Agency did not
evaluate the hazard conservatively,
these wastes clearly would contain
concentrations of constituents of
exposure levels. EPA also believes that
the constituents of concern pose a
serious threat to the environment via
potential releases to surface water, as
discussed in section Vm of this
preamble. EPA notes that the change
from the RfD used hi the proposed rule
for pentachlorophenol to the RSD used
in Today's Table 4 (and based on the
NTP1988 study, does not affect this
conclusion.
After considering all of the factors of
40 CFR 261.11(a)(3), based on the
information presented in the preamble
to the proposed rule, and the
information presented here, because
these wastes contain high
concentrations of highly toxic
constituents that are mobile and
persistent and are unlikely to degrade in
the environment before reaching
receptors, and because past
mismanagement of these wastes has
already resulted in serious
environmental damage and risk to
human health, EPA is adding F032. F034,
and F035 to the list of hazardous wastes
from non-specific sources.
F. Applicability of RCRA Rules for
Recycled or Reclaimed Hazardous
Waste
In the preamble to the proposed rule,
EPA recognized that certain wastes from
wood preserving and surface protection,
• —»_i-i_ j_:—~~»t jjje reclaimed
rng the manner in which process
residuals are reclaimed in wood
preserving and surface protection
processes indicates that the materials
are not typically reused directly and
that recycling does not take place in a^
closed-loop system, as defined in EPA's
existing regulations. Hence, EPA
concluded that most on-site recycling at
wood preserving and surface protection
plants would not be excluded from
regulation under the existing rules (see
40 CFR 261.2(e)(l)(i) and 261.4(a)(8)(i)) or
under the exclusion proposed on
January 8,1988 (see 53 FR 519).
Numerous commenters who
responded to the proposed rule stated
that waste recycling and reuse practices
at wood preserving and surface
protection plants should be excluded
from the Definition of Solid Waste. We
respond to those comments below. Our
response indicates why drippage and
wastewaters captured on pads,
reclaimed and returned to the wood
preserving process is a solid waste
under the current rules and why those
rules are legally valid. This discussion
also deals with how the recent DC
Circuit opinions in API v. EPA, 906 F. 2d
729 (DC Cir. 1990) and American Mining
Congress v. EPA, 907 F. 2d 1179 (DC Cir.
1990) [AMC H] bear on this
determination.
Under the Agency's current rules,
spent materials that must be reclaimed
are defined as solid wastes (see 40 CFR
261.2(c)(3)). Drippage and wastewaters
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SG46Q
Fsxkcal Register y VoL ^56. Mo. 235 / ^narsday. December 6T1890 / Rules and Regulations
that escape from the process and are •'•
unfit fnr ma anfll ihev can be — -
decontaminated by filtering or other
moami are type* of spent material, and
the purification step i» a type of
reclamation (see 5 261.1(c) (1] and (4)).
The Jtules recognize that aoma types of
on-iiUs reclamation are so integrally
related to a facility'* production activity
•• to be properly viewed as an aspect of
that process, and so do not involve any
aspect of discarding. Such closed-loop
processes are characterized by tank
storage through point of reclamation and
hard pipe (or comparable) connection
between tanks (see § 2SL4(a)(8)). Drip
pad* used in the wood preserving
Industry do not meet the terms of this
exclusion, .given that they are not closed
devices like tanks, and given that pads
at existing facilities have been
characterized by leakage and other
releases to the environment
Commenters did not contend that, as
a factual matter, their operations met
the terms of this exclusion. (Of course,
EPA would evaluate auch a factual
argument in a specific context Tamer
than in this rulemaking. The point
addressed above is whether the normal
drip pad/reclamation operation, as the
Agency understands it, fits within the
terms of the existing closed-loop
exclusion). • ' •
Rather, they maintained that fee
Agency lacks jurisdiction -over such
activities as a matter of law based on
the DC Circuit's opinion In American
MMng Congress -v. EPA, 624 F.2d 1177
(DC Or.ieeTJIAMCTJ. They read this
opinion to state that if a material is
recycled lather than being literally
thrown away, ft is not "discarded" (see
RCRA i 1004) and hence cannot be a
solid waste. EPA has never accepted
this argument, and the argument was •'
rejected by the DC Circuit fa AW and
AMC/Ti cited above, fa those opinionB,
the court mada dear tkat simply
because a material may be destined foe
some type of recycling does not prevent
EPA from classifying it as "discarded" •
and bence a solid waste {see 007 F2d .
1188 and S06 F.2d 740-741). Only those
materials that*re~ "destined for
jmmediats reuse in another phase of fee
industry's ongoing production process*
and tfaafhai* not yet become part of
the waste disposal problem"* *» -:
outsl3*4!ae Agency's Jurisdiction {987 • ••
Fid tlM, qaoting AMCI, emphasis
orlginaTO/Ibs Agency also retains • •
flexibility in interpreting whemnateriaM
are "discarded'* under this standard.'- •
The Astnnys*** no Jurisdictions! J
defect 4a«s?r8ss«rtTuWs as applied to
drfrp*fe-««Iw«stewa»8» fathe wood •«
prasWftof fcxJastcy thrfftre deeSned for
•.«oovery and returned to fee wood
preserving process. Drippage-and
wastewaters escaping from the process
• and falling on the ground or into some
capture device can be viewed as a
discarding both because the process
need no longer foe viewed as ctuilluuiius,
and more importantly, because such
escape from the process can be "part of
the waste disposal problem." Certainly
this operation has caused past
environmental harm because of releases
of drippage into the environment from
improperly designed and maintained
pads (see AMC U, 907 F-2d 1187}—threat
of release from management use
sufficient to accord EPA flexibility to
determine that a material is
"discarded"). The Agency concludes,
therefore, that the current regulations do-
not impennissibly classify drippage and
wastewaters destined for reclamation as
a solid waste when the capture and
conveyance mechanisms do not meet
the terms of the current closed-loop
exclusion in the regulations.
Two further points should be made,
however. First, there is a case-by-case
variance hi the current regulations that
could apply to particular wood
preserving facilities. This provision
(5 260.31bj) allows a Regional
Administrator (or authorized State
Director) to determine that a particular
reclamation operation is an essential
part of the production process based on
a weighing of a number of criteria,
including how carefully the material is
handled before itis reclaimed. Wood
preserving plants with well-designed
and •well-maintained drip padi that are
collecting drippage for reclamation and
return to the wood preserving process
may qualify for a case-by-case exclusion
under this provision (pending a factual. -
determination by the deciaionraaker).
.In addition, while the current rales
remain in place, the Agency retains
some flexibility in evaluation whether
materials destined for reprocessing/,
recycling are discarded, and how
environmental considerationa (such as
whether the operation is potentially
"part of the waste disposal problem")
plays apart in this determination.
Today's discussion is not intended to
, foreclose any such exercise of
flexibility. The Agency is addressing a
number of broad issues concerning the
definition of solid -waste m a aeries of
foams outside the scope of tlris
ruieBoakfag. For example, the Agency te
sponsoring a serieurfmeetings with •
range of interested groups to consider
whether It may be appropriatste revise
the solid waste definition. The Agency
may cenflioerpT*Bshing'aB advanced "
•notice of proposed rolemaking as an
outgrowth of this process.
The wastes from use of reclaimed
drippage are oncfe again drippage (or
•spent preservative) and subject to the
listing, unless and until they are
-reclaimed again. Additionally, spent
preservative or drippage that is not
contained in the system (Le^ that which
is spilled or otherwise removed from the
drip pad) is not reclaimed and is
therefore hazardous waste.
EPA has previously promulgated
regulations for recyclable materials that
are used in a manner constituting
disposal (see 40 CFR 266.20 through
266.23) and standards for hazardous
waste burned for energy recovery (see
40 CFR 266.30 through 266.35).
Generators should note that to the
extent that the wastes listed today are
recycled in ways that constitute
disposal or are burned for energy
recovery in boilers or industrial furnaces
that are exempt from regulation under
subpart O part 264, the appropriate
standards of part 266 apply.
In addition to comments asserting that
spent preservative should be exempt
from the Definition of Solid Waste,
commenters also noted that products
(i.e., treated wood) made from reclaimed
spent preservative should be excluded
from the Definition of Solid Waste. EPA
agrees with these commenters. Pursuant
to 40 CFR 281.4(c)(2)(i), reclaimed spent
preservative will cease to be a solid
waste when it is reclaimed (te., upon
reinsertion in the process—to a work or
storage tank that delivers formulation to
the treatment cylinder or tank). The
Agency acknowledges, however, that
the applicable regulatory provisions
could be interpreted'Snch mat the
reclaimed preservative and-the wood
products treated with reclaimed spent
preservative would be subject to
regulation under subtifle C because
wood products are often used in a
manner constituting disposal (i.e. used
in a manner that involves placement on
the land). Under such an interpretation,
wood products that are treated with
reclaimed spent preservative and are
subsequently placed on the land would
be waste-derived products subject to
regulation under 40 CFR part 266.
Regulating reclaimed spent
preservative and products made with
reclaimed spent preservative was not
and is not EPA's intent To avoid such
erroneous interpretation of fee rules,
today's rule adds en exclusion from the
Definition of Solid Waste under 5 261.4
for reclaimed spent wood preserving
•< . solutions. This action'prevents any
• interpretation that products made from
reclaimed speul piesui vative are'subject
-------
Federal Register / Vol. 55, No* 235 / Thursday/December 6. 1990 / Rules and Regulations 50461
to regulation under subtitle C as a result
of today's new listing.
Regulatory Integration Under RCRA
The largest number of comments
received by the Agency concerning the
proposed rule pertained to the statutory
framework for regulation. These
commentere expressed the belief that
RCRA is an inappropriate statute for .
regulating all or most of the wood
preserving wastes included in today's
1 listing. The majority of comments
received on this subject stated that the
industry should be regulated using a
multi-statute approach pursuant to
section 1006(b)(l) of RCRA, which states
that the Administrator shall integrate
the provisions of RCRA and avoid
duplication with certain other
environmental statutes to the maximum
extent practicable, provided that such
integration can be done in a manner
consistent with the goals and policies of
RCRA and those other statutes.
The multi-statute approach proposed
by a large number of commenters would
utilize the Clean Water Act(CWA) to
regulate process wastewaters and
stormwaters. Specifically, the control of
procesrwastewaters under National
Pollutant Discharge Elimination System
(NPDES) Effluent Guidelines (issued
under section 402(a) of the Clean Water
Act) and the control of run-off under
stormwater discharge permits, under
. section 402(p) of the Clean Water Act,
were urged. These commenters also
proposed regulation of drippage under
the Federal Insecticide. Fungicide, and
Rodenticide Act (FIFRA). Commenters
suggested that this be accomplished by
voluntary FIFRA pesticide label changes
to require the use of drip pads and
process changes to reduce the amount of
drippage. Process residuals were
generally accepted by commenters as
appropriate for listing under RCRA.
Commenters favoring the ^multi-statute
approach cited section 1006(b)(l) of
RCRA which requires the Agency to
"avoid duplication, to the maximum
extent practicable," by integrating
RCRA regulation with regulation under
certain other environmental statutes
administered by EPA.
While there may be aspects of
regulatory programs under statutes
other than RCRA that are available to
regulate wood preservative pesticides
and associated wastes, the Agency
disagrees with commenters who assert
that section 1006 of RCRA requires EPA
to use other statutes preferentially to
RCRA. Furthermore, section 1006{b)(l}
states mat "such integration shall be
effected only to the extent that it can be
done in a manner consistent with the
goakand policies expressed inJRCRAJ
and the other acts referred to in this
subsection."
IV. Summary of Public Comments and
Responses
A Statutory Framework for Regulation
Thus, as EPA has previously stated,
section 1006(b) does not mandate that
where EPA's statutory authorities
provide overlapping jurisdiction over
certain activities, the Agency must
promulgate regulations under a statute
other than RCRA. Nor is EPA required
to give preference to another statue.
Rather, it is within the Administrator's
discretion to decide which regulatory
program or programs are best suited to
regulate the activities, considering the
goals and policies of the various
statutes. See 45 FR 33154,33172-73,
33218-19 (1980); 55 FR 22520, 22653
(1990}. In short, section 1006(b) requires-
EPA to consider whether and what type
of regulatory integration is appropriate,
but does not in any way dictate a
particular result. EPA favors integrating
cross-media regulations to promote
efficiency and streamlined regulation
when consistent with protecting health
and the environment. - .
If, as a number of commenters
suggested, Congress intended either
FIFRA or the CWA to be the exclusive
statutory basis for regulating several
aspects of the wood preserving industry,
the relevant statutes would have so
stated. Where Congress has meant to
impose limits on RCRA jurisdiction, it
has done so clearly. For example, the
. definition of "solid waste" under RCRA
section 1004(27) excludes "solid or
dissolved materials hi irrigation return
flows or industrial discharges which are
point sources subject to permits under
section 402 of the Federal Water
Pollution Control Act"
No provision of RCRA^the .CWA, or
FIFRA so limits EPA's authority to
regulate wood preserving wastes under
RCRA. The only relevant provision of
any of these statutes points in the
opposite direction of the commenters'
arguments. Section 19(h) of FIFRA states
that "[n]othing in this section shall
diminish the authorities or requirements
of the Solid Waste Disposal Act"
Congress added this subsection when it
amended FIFRA in 1988, one year after
the wood preserving industry began
advocating its multi-statute approach.
Clean Water Act
EPA has considered whether, as
•- suggested by many commenters,
drippage in the facility storage yards
•- and wastewaters should be regulated
, under the CWA, rather than RCRA. EPA
notes first that to the extent process -
.... water or storm water is discharged to
" waters of the United States, an
individual NPDES permit is required (the
timing of the stormwater permit
requirement is discussed below).
However, not all drippage is discharged
to surface waters, and EPA believes it is
important to implement a
comprehensive regulatory resolution,
rather than address drippage in a
piecemeal fashion. For example,
drippage that seeps to groundwater that
has no hydrological connection to
surface water is not currently regulated
under the Clean Water Act Thus,
neither stormwater permits nor a
revision to the Effluent Guideline could
address ground water protection. As is
discussed in the preamble to the
proposed listing (see 53 FR 53323) and
the Background Document to the
proposed listing, groundwater
contamination has been a serious
"problem at many wood preserving
facilities.
The Agency rejects the suggestion that
regulation of storage yard drippage and
wastewaters be deferred into some
future planned Effluent Guideline -
rulemaking. It is not the Agency's
current plan to revise the Effluent
Guideline and standard for the Timber
Products Processing industry category
(the guidelines category that includes
wood preserving). The Clean Water
agenda for effluent guideline
rulemakings is set under section 304(m)
of that Act which requires a biannual
plan for review and revision of existing
effluent guidelines and promulgation of
new effluent guidelines. The Agency
reads that provision as directing it to set
priorities for the promulgation of new
guidelines, and has established criteria
which assess the presence and quantity
of toxic and nonconventional pollutants
in discharges to waters of the United
States, the utility of national guidelines
• covering categories of dischargers under
consideration, and the presence of
specific legislative or judicial mandates
to issue guidelines for particular
categories (see generally 55 FR 80,82).
The first such 304(m) plan was
announced on January 2,1990 and
announced an Agency intention to
engage in six rulemakings for "new"
industry categories and three
"revisions." The projected promulgation
dates for these rulemakings range from
1992 to 1995, reflecting the reality that
effluent guideline rulemakings are, of
necessity, complex regulatory projects
which require extensive data gathering
and analysis. The next scheduled 304(m)
plan will be announced in January 1992,
using the criteria outlined above. While
Timber Products are among the industry
categories under consideration, even a
. .decision to undertake rulemaking in
• 1992 would not result in a regulation in •
less than 3 to S yean after that date. In
contrast, the listing under RCRA
-------
50362 Fedora! Register / Vol. 55. No. 235 / Thursday, December 6. 1990 / Rules and Regulations
addrossei the entire problem and is
accomplished today without further
delay. In any case, the industry
concedes that the process of
establishing a guideline Is similar to
establishment of land disposal
restriction standards (LDRs). Yet, the
industry fails to note that LDRs apply to
land disposal, not surface water
discharge.
Similarly, the Agency's rulemaking
activities addressed to regulation of
stormwater under the CWA would not
adequately resolve at this time the
issues raised by this listing. As set out
above, the requirements of the Clean
Water Act would reach only a portion of
drippage. Furthermore, the current rule
addressing atormwater, signed by the
Administrator on October 31,1990 .(and
expected to be published hi the Federal
Register by November 15,1990), is
designed only to establish permit
application requirements. The rule
establishes that applications for
industrial permits must be received
between 12 to 16 months after
promulgation of the final rule. Urns, it
could be years before stormwater
permits ore Issued.
Finally, the commenters contend that
listing wood preserving wastewaters as
hazardous under RCRA is
unprecedented and vrQl seriously limit
or eliminate the wood preserving
industry's ability to discharge
wastewatera to municipal sewage
treatment systems. This argument is
unfounded. EPA. has listed under RCRA
wastewaters from many industries;
these vrastewaten are routinely
discharged to municipal systems
following prerreatment Moreover, any
possible difficulty In discharging to
municipal systems would not serve as
an adequate basis to support a decision
not to list the vrastewaten. See
Hazardous Watte Treatment Council v.
EPA, 961 FJtf 270 {DC Or. 1988). {EPA
was not permitted to consider atigmatic
consequences of listing recycled oil in
deciding whether to tiat it as a
hazardous waste under RCRA).
Federal Insecticide, Fungicide, and
Rodentidde Act"
In reviewing the multi-statute
proposal of AWPI and other industry
commenters. EPA considered a wide
variety of individual issues; however,
the Agency focused on three major
categories: applicability, enforceabiliry,
and timeliness. EPA believes that any
regulatory .system for addressing the .
drippage/spill problems «t wood
treatmentfaciu ties mustbe generally ._..
applicable to afl jhdlttkw, readily .
enforceable and.tolj^at«f tie kfetory ,,{.
of significant pollutionprobkias at tite*e •.
facilities, capable of being implemented
in the near future. In each of these areas,
the Agency has determined that, in this
situation, a more comprehensive.
efficient, and effective system could be
developed under RCRA than under
FIFRA.
In its comments in supporfbf a multi-
starute approach, AWPI also proposes
that drippage and spills from wood
treatment processes be regulated under
the Federal Insecticide, Fungicide, and
Rodentidde Act (FIFRA), 7 U.S.C. 136 et
sea., through labeling provisions for
pressure treatment wood preservative
pesticides. Specifically, AWPI proposes
that
all production process area drippage * * * be
regulated under FIFRA along with any other
production proems areas which might result
in spills, leak*, and dript of preservative '
and/or kick-back material. The areas to be
regulated under FIFRA include the process
area drip pad, pesticide unloading area,
pesticide storage and handling arean, -°"^ the
pesticide application area • • • along with
associated process units and equipment
(AWPI Comments at 38}.
While EPA agrees that labeling under
FIFRA is one mechanism that could be
used to regulate certain wood treatment
drippage and spills, the Agency does not
agree that it is the best or only
approach.
The label provisions proposed by
AWPI would not (and do not appear to
be intended to) cover all wood
treatment products and/or faculties. For
example, the most obvious groups not
addressed are nonpressure treatment
products and facilities. Also, because
labeling is a part of the registration
process, the label provisions proposed
by AWPI would not directly affect use
of unregistered wood treatment
pesticides (often prepared on site by
combining several chemicals acquired"-
as unregistered chemicals and therefore
not labeled pursuant to FTFRA). It is the
Agency's understanding that both
nonpressure treatment and unregistered
pesticides are currently being used at
some wood treatment faculties. Even
assuming that the bulk of the registrants
could come to some voluntary '
agreement with EPA on label provisions,
anything less than 100% participation
and/or continued use of unregistered or
non-pressure treatment products would
necessitate EPA taking affirmative
action under FIFRA or RCRA (645.,
rulemaklng or cancellation actions) to
impose comparable protect! y« maasure*.
Use of RCRA would abo provide the •
Agency with mote comprehensive and
readily available enforcement pcwgra
thanoBeofFffEA.Thistsbecauwof >
tha greatai uuiirixM1 and typeqf • •- .•.
enforcem«nt«ctiottEevau»ble.Tiiider •-.
RCRA, the generally larger penalties,
and the greater number of RCRA
enforcement officials in the field. For
example, under RCRA section 7002, any
citizen may bring a civil action against
any person who is alleged to be in
violation of a RCRA regulation or
permit. There is no comparable citizen
suit provision under FIFRA. Moreover,
the penalty provisions for Federal
enforcement actions are substantially
higher under RCRA, m RCRA civil
enforcement actions, a penalty of up to
$25,000 per day of noncompuance for
each violation may be assessed. For a
knowing violation, a person IB subject to
a criminal fine of up to $50,000 for each
day of violation, as well as a prison term
of as long as two to five years,
depending on the circumstances (see
RCRA section 3008). Under FTFRA. in
contrast, the maximum civfl penalty for
a commercial applicator is $5,000 per
violation. For a knowing violation, the
maximum criminal fine is $5,000 and the
maximum prison term is one year
(FIFRA section 14).
In addition, because the problems to
be addressed relate to use of wood
treatment pesticides, rather than the
sale or distribution of pesticides, RCRA
currently provides the more direct
mechanism for inspection of user
faculties, the cornerstone of an effective
enforcement program. Under FIFRA,
enforcement against wood treaters for
label violations would generally be
available only after inspections uncover
misuse; however, because FIFRA does
not contain an explicit provision
authorizing neutral inspections of user
facilities, inspection of such a facility
must be by consent, or to the extent
allowed under FIFRA section fl(b),
pursuant to a warrant By the time either
could be obtained, considerable
environmental damage could have
occurred. Under RCRA section 3007(8),
consent or a warrant is not needed to
inspect a facility. All of these factors
indicate that the enforcement
mechanisms available under RCRA are
more appropriately applicable to the
situation being addressed than those
currently available under FIFRA These
same factors also increase the likelihood
that violators would be caught and
punished.
Finally, under the AWPI approach, it
could be several years before aD wood
treatment products/facilities would be
regulated. As indicated above, any
products/facilities not regulated through
voluntary adoption of label provisions
agreed upon by EPA and the registrants
would have to be addressed by other
actions underFffRAand/orRCRA. Any
of these Mnvokmtary-acttonfl oouM tak*
-------
Federal Register / Vol. 55, No. 235 / Thursday. December 6. 1990 / Rules and Regulations 50463
months (if not years) and considerable
resources to implement, with no
guarantee that the outcomes would be -
comparable to those voluntarily adopted
for registered, pressure treatment
products/facilities.11 Moreover, given the
expense and technical complexity of
-installing the recycling systems included
in the AWPI label proposal the
hardship "variance procedures" also
proposed by AWPI (AWPI Comments at
39) could mean that a significant number
of wood treatment facilities would not
be in compliance for an extended period
of time. If label provisions under FIFRA
were the only mechanism used by the
Agency to control the drippage and
spills of wood preservatives at these
noncomplying faculties, these situations
would essentially be unregulated.
In summary, EPA has carefully
considered the proposal included in the
comments of AWPI and other industry
commenters, and has concluded that,
while label provisions under FIFRA may
be able to address some of the pollution
problems identified at wood treatment
facilities, they are not the most
appropriate means of reaching all wood
treatment products and facilities in one
action, at one time. Conversely, the
mechanisms available under RCRA
provide a more comprehensive, efficient,
and effective approach to addressing the
whole range of problems in a single
regulatory action.
Conclusion • . - . .
In general, the commenters' proposed
multi-statute approach would-rely on •
future regulation which EPA believes
would not provide the tame protective
standards available under RCRA-Given
the extent of contamination at many
wood preserving facilities and the
serious risks to health and the
environment posed by the wastes listed
today, EPA believes that letting any less
protective standards would be
unjustified. Moreover, the Agency
cannot justify deferring to regulation
under other statutes on the basis of
requirements that do not yet exist This
is especially true because EPA cannot
guarantee that it will adopt a particular
regulatory approach in the future, even
if it intended to today. Consistent with
its obligations under the Administrative
Procedure Act the Agency must analyze
public comments on a proposed rule and
change the rule as appropriate.
• For example, the most straightforward approach
to the regulation of imregiateredpeaticidet under .
FIFRA appeal* to be promulgation of • rule under
ITFRA lection 3(«J..whi«igive* the Agency . .
authority to limit the Me of «n unregUtered
peiliad«.I*ft|Dtatlen.~ ' 'to the extent-^ •
Docoiiinr tn prnvtnt nr*—""™*""*"* «"•"• —
on [human bealtkandj tht environment."
Section 1004(5) of RCRA states that all
solid wastes capable of causing a
substantial present or potential hazard •
to human health and the environment if
mismanaged are subject to regulation as
hazardous wastes. The damage
incidents presented in the record to the
proposed rule, supplemented by case
studies and other analyses developed as
part of the evaluation of benefits
resulting from,today's regulation (see
section IX of this preamble), document
the fact that wood preserving wastes
pose a substantial present or potential
threat to human health and the
environment when mismanaged.
Consequently, after careful
consideration of comments received,
EPA has concluded that listing only
process residuals under RCRA and
relying on other statutes to regulate
other wastes, as suggested by
commenters, has serious shortcomings
and would not provide the level of
protection equivalent to that afforded by
listing all of the wastes covered by the
F032, F034, and F035 under RCRA,
particularly with respect to hazardous
waste releases to ground water. EPA
notes, however, that this final RCRA
rule does not preclude promulgation of
requirements applicable to wood
preserving plants in the future under
CWA or FIFRA. In fact the Agency
believes that today's action will help,
not hinder, any future efforts to further
integrate environmental regulation of
the wood preserving industry.
B. Listing for Storage Yard Drippage
• . Many of the commenters who
responded to the proposed rule
addressed the listing for treated wood
drippage. These commenters made three
important points: (1) That most drippage
from treated wood occurs in the kick-
back area immediately following
removal of the treated wood from the
treatment vessel (2) that drippage in the
storage yard is minimal and (3) that
EPA had failed to demonstrate that
treated wood drippage generated in
storage yards poses a significant hazard
to human health and the environment
Commenters also noted that changes in
wood pressure treating processes can be
made, such as the application of a final
vacuum step, to reduce the amount of
drippage generated.
EPA agrees with commenters that
current operating practices in the
industry are such mat most drippage
from treated wood is generated in kick-
back areas immediately following
. removal of wood from the treatment
tank or cylinder. Site visits conducted
by EPA indicate that treated wood is
.often held on a lack-back area drip pad
for a period of 24 to 48 hours to ensure
that most of the drippage generated is
collected. Site visits and information
from commenters also confirm that
process modifications designed to
minimize drippage, such as the
application of a final vacuum step, are
also being used increasingly. EPA
encourages generators to continue to
develop and implement such changes in
order to minimize the amount of
drippage generated.
EPA disagrees with commenters,
however, with respect to the evidence
that uncontrolled drippage in treated
wood storage yards does not pose a
hazard to human health and the
environment. Case studies evaluated by
the Agency hi support of today's listing
indicate that storage yards are one of
several potential sources of soil and
surface water contamination at wood
preserving sites. Many RCRA Facility
Assessment reports that have been
developed by EPA's Regional Offices for
purposes of implementing corrective
action at wood preserving sites identify ,
treated wood storage yards as a
significant source of contamination and
designate them solid waste management
units targeted for corrective action.
Although at many sites, contamination
is ubiquitous and cannot be directly
attributed to a single source, such as the
storage yard, information reviewed by
EPA indicates clearly that uncontrolled
disposal of drippage in treated wood
storage yards has been a significant
contributor to environmental .
contamination at wood preserving sites.
For this reason, today's rule requires
that treated wood drippage be contained
on a drip pad that meets the Subpart W
standards. EPA believes that holding
treated wood on a process or kick-back
area drip pad until drippage has ceased,
as required by Subpart W, will minimize
or eliminate the need to construct large
drip pads in treated wood storage yards.
EPA believes that generators of F032,
F034, and F035 will take steps to
minimize drippage (for example, by
implementing wood treatment process
modifications and/or by holding wood
under cover until completely dry after
treatment) to avoid possible
enforcement consequences such as
criminal or civil penalties, facility-wide
corrective action, and/or liability claims
related to damages that may occur from
disposal of drippage on the land. EPA
notes also that today's rule of course,
does not in any way preclude owners
and operators from installing drip pads
in treated wood storage yards to protect
against possible inadvertent disposal of
drippage on the land.
-------
50464 Federal Register / Vol. 55, No. 235 / Thursday. December 6. 1990 / Rules and Regulations
C, Technical Standards for Drip Pads
EPA received many comments
regarding aspects of the subpart W
standards lor drip pads. Commeniers
addressed issues related to drip pad
construction, operating practices,
inspection requirements, and closure
requirements. Commenters concerns
and EPA's responses to these issues are
summarized in the following
discussions.
1. Drip Pad Construction
Ten commenters expressed concerns
related to the requirement that drip pads
be impermeable. Five of these stated
that concrete has a tendency to crack
and therefore makes a poor material for
drip pads. One suggested that drip pads •
" be constructed of stainless steel with
welded seams. Two suggested that roofs
be used instead of pads to prevent
runoff. Commenters also suggested that
the subpart W standards for drip.pad
design are too lenient, should be more
like those for other hazardous waste
management units, and should include
requirements for double liners and leak
detection and collection.
EPA agrees with the commenters'
suggestions regarding the need to be
more specific in defining impermeability
and using roofs or enclosures to control
surface water run-on and runoff. The
purpose of the subpart W standards is to
ensure that drip pads are designed to
contain all hazardous waste that may
come into contact with them. EPA used
the term "impermeable" in the proposed
rule as a performance standard for the
ability of a drip pad to provide complete
containment, recognizing that there are
many ways in which containment may
be achieved. We agree with commenters
that the standards can be made more
specific with respect to those aspects of
drip pad design that contribute to
"impermeability" and believe that
making such changes to the rule will
enhance its enforceability and give the .
regulated community a dear
understanding of what EPA considers an
effective drip pad design. Consequently,
today's final rule includes requirements
that drip pad surfaces be sealed, coated,
or covered with an impermeable
materiel to ensure impermeabflrty and
that drip pads "be equipped with a leak
detection system underlaid wfth a
chemically-resistant liner. Commercially
available «poxy or polym-ethane
sealant* of coatings, or synthetic covers
may b« used to meet the standard for
sealing ox coating drip pad surfaces..
Addltiooally.-waere appropriate mnd •
possible, special steps should belaken
to seal drip pad joints, for exaapte, by- -.
installing chemically-resistant water
stops.
Provisions have been added to
address drip pad strength and thickness
that require drip pads to be capable of
preventing failure doe to physical
contact, climatic conditions, the stress of
installation, and the stress of daily
operations to further ensure the ability
of drip pads to contain hazardous waste.
Finally, in deference to commenters'
suggestion, today's rule adds provisions
for exempting drip pads from
requirements for run-on and runoff
controls, as appropriate, where the pads
are enclosed in a structure and covered
such that neither runoff nor run-on are
generated.
As stated previously, today's rule
requires a containment system with'
three components: {!] The drip pad
itself, coated or covered with an
impermeable material, (2) a teak
detection system, and (3) a chemically
resistant, synthetic bottom liner. The
coated or covered drip pad provides
primary containment for drippage and
other hazardous waste. The drip pad
must be •structurally sound so that it -can
withstand the stresses of dafly
activities. Because EPA expects that
drip pads will crack with time in service,
subpart W includes a requirement for
inspecting drip pads once every 7 days
and procedures for making repairs m the
event -that a condition (i.e., a crack or
detection of leakage) is recognized that
could lead to a release of hazardoos
waste.
EPA also recognizes, however, that all
cracks are not necessarily visible Srom
the surface of the pad. or-may not be
recognized as significant at the time of
inspection. Consequently, we have
included the requirement for leak
detection systems. These systems-will
allow owners and operators to know
when drip pads are leaking, although no
significant cracks bare been identified.
Furthermore, the synthetic liner under
the leak detection system will ensure
that such leakage is not released to the
environment EPA beBeves mat this
three-component containment system
wiH ensure "impermeability" and make
clear to owners and operators what EPA
expects in terms of drip pad design.
The rule does not dictate that drip
pads be constructed of concrete,
contrary-to ooanneaters' assertions.
Rather, subpart W states that drip pads
must be constructed of non-earthon
materials and that they be maintained •
free of cracks, gaps, corrosion, orofcer
deterioration tint could cause waste to
leakfrom the pad. Today's rule
•pecfficattystates that wood and BOB-
stractnrally supported asphalt cannot be
used to construct drip pads because
these materials do not provide the
structural support neeessary to prevent
cracking and maintain impermeability.
2. Operating Practices
Commenters addressed two aspects of
the subpart W requirements for
operating practices: The requirement to
minimize tracking of hazardous waste
from drip pads and the need for
establishing a holding time for wood
after treatment and before moving to the
storage yard.
Six commenters were concerned with
the requirements for preventing tracking
of hazardous waste from drip pads.
These commenters contended that the
requirement constitutes a requirement
for dedicated equipment Four stated
that no tracking requirement should be
included in the rule. Two contended that
use of dedicated equipment is not
standard practice and is not achievable
in some segments of the industry.
For the reasons stated in the proposal,
EPA remains concerned about potential
contamination of the soil and surface
water in the vicinity of drip pads that
could result from tracking of waste and
waste constitutents off drip pads by
equipment and/or personnel.
Consequently, today's rule retains a
requirement that tracking of hazardous
waste or waste constituents from the
drip pad be minimized. EPA agrees that
methods for effectively preventing such
migration of contaminants will vary
depending on plant configuration and
other factors. The requirement is
therefore stated in terms of a
performance standard. EPA believes
that many owners and operators will
choose to dedicate equipment to the pad
in order to comply with this standard.
Other techniques, such as procedures
for washing all equipment before
leaving the pad are also acceptable.
With regard to treated wood holding
times, two commenters suggested that
EPA establish a standard that treated
wood be held under cover for a
minimum of 24 hours at a temperature of
at least 45 degrees. Commenters noted ,
that the effectiveness of air-drying
treated wood would vary depending on
climate and other conditions, but stated
that such a requirement would serve to
minimize or eliminate storage yard
drippage.
EPA agrees that holding wood on the
process area drip pad after treatment
will help to minima* drippage ia storage
yards. A specific numeric standard for
holding time could not be established,
however, because the time required to
dry wood after treatment varies based
on many site-specific conditions.
-------
SMB5
*"* «•«
EPA«grees feat provisions
nade to dose-drip pads asland
.nrate where aUwntammatwn-
. today's irae
proposedTUte. fee three dilution and
attenuation factors-used in fee analyses
were intended-to encompass abroad
range t>f possibiiiBBS. They were not
until
3. faBrrecGonTtequiremente
Seven «oBUBeatei« were ooncerwd
about inspection aequiremente. toe
weeldy inspection
re
pad fl«e5 wist r*»e the drip pad
the
closure of land
ss*on ._
iwcter BwritoTtag.
LI
ferdeo
particular arvironmental conditionsor
range of environmental conditions. The
tables demonstrate that to fee extent
feat fee three'dilution and attenuation
factors represent a range of possible
an no
tot be specified
monflily,*&*
- valent to round -water
feat fee tables mcorrecny assume mat
fee constituents «f -concern wiHimffrate
to groand water m fee same -retetrre
concenteafions feat appear in fee
EPAoeneves feat these commenters
have alsoTmsmterpretedfeeintentoT
Tables 11 through 14 in the preamble to
fee proposed nne. The analyses
presented in these tables iniio-way
represent an attempt by EPA to model
or mafeematicalry simulate actual
transport of hazardous constituents from
fee wastes «fto fee ground water or »
-»- = aeirt. While EPA has. in
method, owners
fee inte*«*»*te» tl «a»^«**.*^
pra-btet. fc?™^^*-*^
• - + m ^ .^^^M^>«voWlB% 4n ^nr*
variety «f ^ramd water transport
models and Aefr applreabufty to
ruteraaldngdBctowns. «me u? feese
models«ewe»«»e basts ferfte tobies
reqnind.
-------
50466
Federal Register / Vol. 55. No. 235 / Thursday. December 6, 1990 / Rules and Regulations
assertions that the underlying •
assumptions are inappropriate or
Incorrect are not relevant The tables"
represent neither oily waste transport
nor any other specific form of transport
in the environment Nor do they attempt
to relate ground water quality beneath a
facility to ground water quality in a
drinking water well. They also do not
account for the many chemical and
physical processes (degradation and
mobility) that might affect the relative .
concentrations actually occurring in the
environment Instead, the analyses
shown In the tables were conducted
simply to show that hi a wide range of
circumstances, representing a wide •
range of assumptions that might be
used, the constituents of concern may
migrate to ground water and reach
drinking water wells in concentrations
that exceed established acceptable
human exposure levels. Moreover, some
degree of uncertainty as to the levels of
constituents that reach ground water or
environmental receptors is not grounds
for deciding not to list these hazardous
wastes (see RCRA sections 1002,1003
andl(XH(d),(e)and(g)).
The tables did not stand alone as
EPA's basis for proposing to list F032,
F033, F034, and F035. The hypothetical
ground water concentrations shown are
supported by numerical data in the
rulemaklng record showing that the
constituents of concern are capable of
migrating in the environment persisting
in ground water, and reaching drinking
water wells. Improper management of
these wastes by wood preservers has
repeatedly resulted hi substantial
present or potential harm to human
health and the environment (see RCRA
section 1004(5)). As stated previously,
the dilution and attenuation factors and
the resulting hypothetical ground water
concentrations were not selected to
represent any particular environmental
conditions or range of environmental
conditions. Any comparison to actual
ground water concentrations measured
in the environment at wood preserving
or surface protection facilities is
therefore inappropriate. Actual ground
water measurements do, however,
support EPA's conclusion that the
constituents of concern are capable of
posing a threat to human health and the
environment
Damage cases described in the
preamble to the proposed rule (see 53 FR
53323) demonstrate that the constituents
of concern in the wastes proposed for
listing are sufficiently mobile and
persistent for past mismanagement to
have resulted in contamination of
ground water, surface water, and soils.
Commenters contended that the damage
cases are irrelevant to the listing
because they reflect practices that are
no longer in use. EPA agrees that waste
management practices in the industry
have changed. The damage cases
remain relevant, however, not because
they demonstrate that the wastes are
mismanaged, but because they show
that upon release to the environment
the constituents of concern in F032,
F034, and F035 are sufficiently mobile
and persistent to reach human receptors
(see RCRA section 1004(5)).
As discussed in the proposal, wastes
associated with pentachlorophenol have
been listed by EPA as acutely hazardous
in the past Pentachlorophenol wastes
were designated as acutely hazardous
wastes in 1985 based on toxicity data
for hexachlorodibenzodioxin {HxCDD)
provided by a bioassay conducted by
the National Cancer Institute (NCI) in
1983. Existing T listings (F020-F023,
F025-F028) considered acutely
hazardous as a basis for the existing
listing, however, such characteristic is
not the basis, nor should it be, for
determining the status of F032 and F033
in today's rulemaking.
Since 1983, additional data have been
generated in a study performed by the
National Toxicology Program (NTP),
which was published in 1938. This new
information regarding the toxicity of
commercial pentachlorophenol products
contaminated with HxCDD may affect
the Agency's basis for designating F021
and F027 as acutely hazardous wastes.
Any changes in previous listings would
be the subject of a separate rulemaking.
More important to today's rulemaking is
the significance the NTP data has for the
status of F032. Today's final rule.
therefore, designates F032 as toxic
rather than acutely hazardous based on
the Agency's most current data-(NTPt-
1988) rather than precedence set by
previous listings.
The most significant aspects of the
NTP study results were discussed La the
proposal. Several commenters
expressed concern regarding the NTP
study data which indicated that HxCDD
is not a good predictor of the risk
associated with pentachlorophenol
wastes.
Although HxCDD is far more
carcinogenic than pentachlorophenol,
the tumor activity in the B3C3F1 mice
used in the NTP study indicate that the
HxCDD is not of the same magnitude
when HxCDD and pentachlorophenol
are together in the relative
concentrations existing in the 1988 NTP
study scenario. It should be noted that
the NCI 1983 HxCDD study was
previously used to serve as surrogate
data to indicate the relative toxicity of
pentachlorophenol wastes. Now that the
pentachlorophenol data are available, it
is more appropriate to use the NTP 1988
data as the primary source, thereby
referring to the HxCDD study as
supporting evidence of toxicity for that
constituent of concern.
Nine commenters expressed their
opposition to the Agency's proposal to
list pentachlorophenol wood preserving
wastes as toxic rather than acutely
hazardous. A number of commenters
stated that since pentachlorophenol '
wastes contain dioxins and other
carcinogens, they should be listed as
acutely hazardous waste in all cases.
The Agency disagrees with this logic.
Previous listing activity on EPA's part
does not itself constitute a basis for new
listings. Because EPA has new data that
•show the threat of dioxins is variable
and not absolute, the Agency believes
that F032 waste warrants the
designation of toxic. EPA notes that
several commenters agreed with the
toxic designation.
One commenter was concerned that
the mixture of various carcinogens
results in an even more potent waste
that would be a "super" acutely
hazardous waste; that the sum of the
parts is greater than the parts
themselves. Another commenter
believes that not enough is known about
the synergtatic effects of the various
contaminants in the waste to conclude
that the toxic listing is appropriate. EPA
is in agreement with this, in part There
are very little data available for use hi
determining the interactive effect of the
contaminants. In assessing the various
sets of data, it is clear that HxCDD
contributes to liver tumor formation.
However, the studies with
pentachlorophenol (NTP, 1988) reveal
the formation of not only h'ver tumors
but also adrenal medulla
pheochromocytomas an'd malignant
pheochromocytomas and/or
hemangiosarcomas and hemangiomas in
one or both sexes of mice using two .
different preparation of
pentachlorophenol. The presence of
HxCDD in the pentachlorophenol
preparations may play a role in the
tumor response, but obviously, other
ingredients in the preparations
(including pentachlorophenol) are
significantly influencing the tumor
response. In any case, the fact that data
accurately and completely describing
any synergistic or antagonistic effects
are not available does not constitute a
basis for designating F032 as acutely
hazardous.
The basis for listing
pentachlorophenol wastes as acutely
hazardous in the past was because of
-------
ftefaeri Jtegater / Vol. 55, Na 235 / Ifaa-sdiy, December 6. 1890 / Rulee rod RegdaSqra 5MS7
concentrations and the selection of
IIxCDD as an indicator ofhazard due to
its BMi"CT"* caKufejaaac potency ^aine.
Insight af the HTFStudyTeBiflte, EPA
can no tongernseHxCDD asa
reasonafase jnnogate to indicate the
kadcityflf rentarfiioropbeaol,.*8 stated
BKs yrrtdmy vacuev lor
ahenai prodaots «och as
kg/dayl-1. *ad technical grade
(sngj
.
wtiehoie wflbJa tae«*age of walaei
associated vratfa O*BT wastes Ifeted as
toxic. lie peatacfakwophenol tested in
the NI3P atady I*«B wBtraJnatedwitn
uds which
specifically identified to the proposal .
TTie potency vafae deterajaed from Ihe
NTP «tndy accounted for the oflrer
coatammaois simply because &e
substances tested in the assay were
pentacfaloropfaenci nauduUu that were
oontaanaBtedivfihixim concentrations
of these camtitaeats.
One Eonmenter asked EPA to clarify
the statement feat tfae
pentacMoruphenol product* tested ia
theNIfatody
radrihtt
than JEPA tad
F021 and«E7." Ike comnenterfeft tint
this stateiBertiEBptied&atthe
catdnogeofe potency watoe for HMCDD
was beig £aafned wtik the potency
•uapud «o Fttn a*d IWT where
HboCDO » pnsEat in fte pom Tspge. fa
all eases. R>n and 8S27«Bwn& at PBS2,
distinction fasten Made <• not between
SKrioom waste fatingB and the
between data 6oa the MCItS83i«epart
and more current data generated by Ae
NTP1988nepoil.
PIT f iifl i»«'"""itenctted the
language ptowded ia «0 CFR part 26LU
Wote,
as Acute HazBTdouB Waste.* states
that wastes waicn are — * * capable of
liiiiTfii ••til cwidilnlUng to
illness." sfandd be firtei «s acate
applies to flie proposed SstiofB. As
stated prevtoosiyai ABB section and
diSDBSsedsK fcagni lathe proposal, 1be
canjaogenic potency »**"« far the
constituents** conoerndesignated is
the FOttlartiBgiB weflwsthiBliiei
of potency salam of oaisr tone i
The Agency ^o^daseteexawidaB
hazardom.»^ Ds
existing j«yilaH«m« are a^*"]tint* to
regulate wastes designated as toxic, that
F032,TD34, andP035 do not quaHry as
acutely hazardous, and That Ihe
additional regulation is thereTore
unnecessary.
EPA also notes that the significance of
designating B waste as acute hazardous ,.
" is now greatfy dfanmiBhed, If necessary
at ufi> EPA BdoptBu BUCn B dealguatiuii
in the original uiuxiii listings* iixe
desigrartion tarried witii it special
tor the wastest
in partiodar. wore vtrlngeHt 'standards
for tanlcs and eoateiBer8,»o tend
disposal wMtmfl « special waste
howevec. ware proposed before tae 1964
ameadeaeBts to RCRA and adopted eafly
HIODulS Jlii^r .tOC 199v SIDaSKb&EBIB • •
became law and before EPA faHy
understaed fee itopticntioos of those
ameadateatt, particularly tae
pretreatment requireiaeate so.pa«ed
patsuant to the land disposal
restricQoas prqgram. ike jninimuiB
technological raijuiienientfl lor aiaay
types of malta, and Ihe omnibus
permRSng autiiDrlry, aH of which
provide the same types of controls the
Agency envisioned in the initial diorfeo
listing Tide.
EPAfearowfoly exercising the
authority jjiimdedliy 'file 2989
amendmente and finds (hat these'
authorities piuflde the types uf i;unli uts
%e ^jfuviueo if airy vf these
wastes were fisted as ai^ute
(eaea aesmmag feet fce tacts ^anamed
such a listing). TVas. eeoh « fiflting dw!»
not result m aaaeriar CBvironnemal
protection.
The Agency ajfaojecanred cirwamnmii
.a^^*^p^^ai«ifa^ *waa>^P^^Ht ^sauaf* <^™ ,iaai^ *^ ^
suuauaiy iepuat uiBMflgd to Q»A by
VuleanMatetiais Onapaajy. As is atated
clearly SB the pzotnaed Taie. EPA ha*
levatwad the NTP tefKHt fiooad Aijas
oaoctadad that * taa iasBKcaanl
ion xt 'BSS IDDE. &• liulih it to
Tae Agency aas. tbenfaro, decided to
drier taa «BS Mstsng asftfl aach tisae as
hatter sEffoaaatioB concenms waste
^
quantises and
___j__c__
4-lnHa.mn imlioa
m order to collect artdltionil fa
and better«4>aiaOeuBe the •mface
pi sHcOoa arfkiiAij aad ftowrrtci
EPA, mis summary report was provided
processes
on
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50468
Federal Register,/ Vol. 55. No. 235 / Thursday, December 6. 1990 / Rules and Regulations
completing this additional data
collection,
F. Equipment Cleaning and
Replacement Standards
EPA received many comments
concerning the equipment cleaning and
replacement standards that were
included in the proposed rule.
Representatives from industry
contended that the standards were
impractical, technically infeasible. and
cumbersome. Others noted potential
Jnterpretational problems and
anticipated implementation difficulties.
Commenters disagreed on the
appropriate level of specificity for the
equipment cleaning standards with
respect to the type of solvent to be used
for cleaning and the appropriate test to ,.
determine the effectiveness of cleaning.
They also disagreed on the potential
benefits to be derived from the
standards and many challenged the
need for such provisions in the listing.
Today's listing for F032 includes
similar provisions for cross-
contaminated waste (i.e., wastes
generated from equipment previously
used wiuYchlorophenolic formulations)
as were included in the proposed rule.
EPA has detained this aspect of the rule
because it results in isolating all wood
preserving wastes that are potentially
contaminated with the constituents of
concern in F032 in one listing. Hence.
wastes that are generated from
processes that use creosote and/or
inorganic preservatives at wood
preserving plants that previously used
chlorophenolic formulations and wastes
generated by creosote or inorganic
processes located at plants where
chlorophenolic preservatives are also
used will be F032 waste, as well as F034
orF035.
The most important benefit provided
by the equipment cleaning and
replacement standards was that they
allowed a mechanism by which
operators of wood surface protection
processes that previously used
chlorophenolic formulations but have
switched to other formulations not
addressed by the listing could have their
wastes removed from subtitle C control
(provided that they also did not exhibit
one of the characteristics of hazardous
waste and that use of a chlorophenolic
formulation was not resumed). Because
today's listings do not include F033 -
wastei (le., those generated by surface
protection processes), this benefit is no
longer of any consequence.
EPA believes, however, that
provisions for equipment cleaning and
replacement to allow the deletion of the
F032 waste code from cross- . .
contaminated creosote or.inorganic
wastes are still of potential benefit to
many generators. Consequently, today's
rule retains substantially similar
equipment cleaning and replacement
standards and the provision for deleting
the F032 waste code (see § 261.35).
Under the rule, generators'who have
cleaned or replaced or who plan to
clean or replace equipment previously
used for pentachlorophenol processes
may comply with a self-implementing
process for reclassifying their cross-
contaminated F032 waste as F034 or
F035. Generators choosing to reclassify
are required to clean or replace
equipment in accordance with a written
plan, as specified hi the proposed rule,
and to maintain records and
certifications.to.document-that the.
cleaning and replacement activities are
conducted in accordance with the plan
and that use of chlorophenolic
preservatives is not resumed. Today's
rule is different from the proposed rule
in that the cleaning and replacement
plan and documentation of cleaning and
replacement activities need not be
submitted to the Regional Administrator
for review and approval as a condition
for deleting the F032 code. Today's rule
allows generators to conduct cleaning
and replacement collect appropriate
records, certify that cleaning and
replacement has been conducted in
accordance with a written plan, and
delete the F032 code.
Although some commenters asserted
that EPA should develop specific
technical standards for cleaning
equipment, we have maintained the
general performance standards that
were included hi the proposed rule. EPA
believes that appropriate and effective
cleaning procedures should be selected
on the basis of many site-specific
factors, including the type and size of
the equipment to be cleaned, the
construction materials of the equipment,
the extent of the contamination, the type
of solvent used in the wood preserving
process, and other factors.
Consequently, the standards must
provide sufficient flexibility to
accommodate the wide range of
appropriate cleaning techniques. While
EPA acknowledges that very specific
standards facilitate enforcement and
relieve the owner/operator of the
burden of making engineering judgments
or seeking professional advice, we
believe that to rely on very specific
standards in this case may hamper the
effectiveness of equipment cleaning
and/or impose unnecessary or .
impractical burdens on generators.
V. Interaction With Other Regulations
A. Toxicity Characteristic
•»,
As stated previously, hi developing
today's listing rule, EPA evaluated the
potential for other environmental
regulations to provide protection to
human health and the environment from
the hazards posed by wastes from wood
preserving as an alternative to listing
under RCRA. As part of this analysis,
EPA considered relying on the Toxicity
Characteristic (see 55 FR11798 and 40
,CFR 261.24} to capture wood preserving
wastes. Commenters responding to the
December 1988 proposed rule suggested
that the rules for hazardous waste
characteristics would provide adequate
coverage and that, consequently, new
listings-are unnecessary.
EPA has decided, however, that the
Toxicity Characteristic (TC) will not
provide the same level of protection for
wood preserving wastes as is provided
by listing for several reasons. Most
importantly, the Toxicity Characteristic
does not address several of the
hazardous constituents of concern in
wood preserving wastes, including
chlorinated dibenzodioxins and
dibenzofurans and benzo(a)pyrene.
Moreover, because most F032 and F034
wastes are oily waste and the current
Toxicity Characteristic Leaching
Procedure is limited in its ability to
accurately characterize wastes having
oily matrices, reliance on the Toxicity
Characteristic as an alternative to listing
is not appropriate in this case. That is, a
given waste could have high levels of
toxic constitutents but, due to the oily
nature of the waste, the Toxicity
Characteristic constituents, as measured
by the Toxicity Characteristic Leaching
Procedure, might not exceed the
regulated levels.
Listings provide several other
advantages also. For example, listed
wastes can only be removed from
subtitle C control through the delisting
process which involves a thorough
review of waste analysis data and
waste management practices and a
formal public notice and comment
procedure. Characteristic wastes are no
longer hazardous when they cease to
exhibit the characteristic (in this case
the Toxicity Characteristic). This
difference is especially important in this
case because several of the constituents
of concern hi wood preserving wastes
are not considered by the Toxicity
Characteristic and will be found in
residues derived from treatment,
storage, or disposal of the listed wastes.
Thus, listing continues to account for the
fate of toxic constituents in residue* not
specifically listed and hehn ensure
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Renter / Vol. 55. No. 235 / Thur8day. December 6. 1990 / Rules and Regulations
50469
proper handling of such residues as
well. This is consistent with RCRA's
cradle to grave mandate (see API v.
EPA, 906 F.2d 729,741-42, DC Cir. 1990).
Furthermore, enforcement of the listings
has proven to be more straightforward
than enforcement of the rules for
hazardous waste characteristics.
Some of the Extraction Procedure (EP)
toxic metals and several of the new
constituents added to the TC rule are
likely to be found in the wastes listed
today. Some of the wastes listed today
may fail the EP or the TC and, therefore,
may already be regulated as
characteristic hazardous wastes. Until
today's rule becomes effective in a
generator's State, as discussed below,
these wastes must be designated as
characteristic wastes. After the rule
becomes effective, the wastes must be
designated as listed wastes rather than
as characteristic wastes for purposes of
complying with the land disposal
restrictions rules. Wastes that were
already hazardous by virtue of
exhibiting any of the characteristics of
hazardous waste, including the TC, may
still have to be treated to meet
standards promulgated for characteristic
wastes after the effective date of this
listing. Generators of drippage that
exhibits the Toxicity Characteristic
should note that the subpart W
standards for drip pads may be applied
to units used in management of such
drippage prior to the effective date of
today's rule in their State.
B. Land Disposal Restrictions
HSWA mandated that the Agency
promulgate land disposal prohibition
determinations under a specific
schedule for wastes identified and listed
prior to the enactment of HSWA (RCRA
section 3004(d). 3004(e). and 3004(g)(4).
42 U.S.C. 8924 (d). (e) and (g)(4)). If the
Agency failed to promulgate land
disposal restrictions by the dates
specified in section 3004(g)(4), the
wastes are absolutely prohibited from
land disposal after May 8,1990 (or in
some cases November 8,1986, or July 8.
1987). HSWA also requires the Agency
to make a land disposal prohibition
determination for any hazardous waste
that is newly identified or listed in 40
CFR 261 after November 8,1984, within
six months of the date the new listing is
promulgated (RCRA section 3004(g)(4),
42 U.S.C. 6924(g)(4)). However, the
statute does not provide for automatic
restriction or prohibition of the land
disposal of such wastes if EPA fails to
meet this deadline.
Although some of the wastes covered
by today'* notice are being listed in part
because of thepresence of hazardous
constituents al Jewels similar to those
found in K001, they are newly listed
wastes, and therefore, the treatment
standards for K001 do not apply to
today's newly listed wastes. The
Agency has not yet completed -
treatability and capacity analyses for
these newly listed wastesTFor this
reason, the Agency will address land
disposal restrictions for the wastes
listed today at a later date. It should be
noted that because the statute does not
provide for automatic restriction or
prohibition of land disposal for newly
identified wastes until such restrictions
are promulgated, land disposal of these
wastes will not be restricted or
prohibited until the Agency promulgates
land disposal restrictions (unless the
wastes exhibit one of the restricted
hazardous characteristics or are subject
to other land disposal restrictions such
as the prohibition on disposing of liquids
in landfills). Wastes that exhibit the
newly promulgated Toxicity
Characteristic are considered newly
identified as hazardous and are not
covered by the LDR, unless also EP
Toxic (see the Third Third Land
Disposal Restrictions Rule, June 1,1990,
55 FR 22520).
Wastes that exhibit the Extraction
Procedure (EP) Toxicity Characteristic
were evaluated as part of the Third
Third land disposal prohibition
determination, arid treatment standards
were promulgated for these wastes on
May 8,1990 (see 55 FR 22520). Most
wastes generated from the use of
inorganic wood preservatives (identified
as F035 in today's rule) are expected to .
exhibit the EP characteristic for arsenic
and chromium and thus are already
subject to the land disposal restrictions
standards which include reporting,
recordkeeping, and tracking
requirements, dilution and storage
prohibitions, and treatment standards,
for arsenic and chromium (see 55 FR
22659). These wastes also may be
subject to certain California List
treatment standards (see 55 FR 22674).
VL State Authority
A. Applicability of Final Rule in
Authorized States
Under section 3006 of RCRA, EPA
may authorize qualified states to
administer and enforce the RCRA.
program within the state (see 40 CFR
part 271 for the standards and
requirements for authorization).
Following authorization, EPA retains
enforcement authority under sections
3008,7003, and 3013 of RCRA, although
authorized states have primary
enforcement responsibility.
Prior to enactment of the Hazardous
and Solid Waste Amendments (HSWA)
of 1984, a State with final authorization
administered its hazardous waste
program entirely, in lieu of the federal
program. The federal requirements no
longer applied in the authorized State,
and EPA could not issue permits for any
facilities in a State that was authorized
to issue permits. 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, HSWA amended RCRA to
add section 3006(g) (42 U.S.C. 6926(g)).
Under section 3006(g), new requirements
and prohibitions imposed by HSWA
take effect-in authorized States at the
same time that they take effect in
nonauthorized States. EPA is directed to
implement those requirements and
prohibitions in an authorized State,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements are implemented by EPA
in authorized States in the interim.
Certain portions of today's rule are
being promulgated pursuant to RCRA
section 3001(e)(l), a provision added by
HSWA. These portions include the
listing of F032. Therefore, the Agency is
adding the requirements to Table 1 in
§ 271.1Q), which identifies the Federal
program requirements that are
promulgated pursuant to HSWA and
that take effect in all States, regardless
of their authorization status. States may
apply for either interim or final
authorization for the HSWA provisions
identified in Table 1, as discussed in the
following section of this preamble. The
remaining portions of today's rule, in
particular the listing of F034 and F035
and the addition of a test method to
appendix ffl of part 261, are being
promulgated pursuant to pre-HSWA
authority. These provisions, therefore,
will become effective only in those
States without final authorization, and
will become effective in States with
final authorization once the State has
amended its regulations and the
amended regulations are authorized by
EPA.
B. Effect on State Authorization
As noted above, EPA will implement
certain portions of today's rule in
authorized States until they modify their
programs to adopt these rules and the
modifications are approved by EPA.
Pursuant to section 3001 (e) of RCRA. a
provision added by HSWA. EPA is
-------
Jto&tsr J -Vol. 55. Mo. 235 / Thursday. December 6, M90 / Rules and Regulations
adding!B32 to the Utt of hazardous
wastes fiam nonspecific sources. Taut,,
those Jtaadaras wffl take-effect In afl
Stales .(authorized Jffld jma-aitthorizedj
on (he elective date. Certain other
portions of today's xule are necessary to
effectively ImptemeBt the previously
mentionedHSWApBMasions.:m
particular, me permitting and interim -
status drip paditendards Jsubpart W)
are necessary to provide .regulatory
standards applicable toTO32 drippage
listed today pursuant to HSWA
authortty.'UndertheT'aderal rules, (he
regulatory Jtatus of the pads Ibut not the
coDection system) is somewhat nncjear
fthejcoflecticm-system would be.subject
to hazardous waste tar* requirements).-
Because these units 4o not appear to
have any applicable standards under the
base RCRA program, bnttarae
regulatory standards to connection wim,
and as necessary to Implement, a
HSWA fisting, EPA considers these
standards to be HSWA requirements
under section»06(g) when used fa
connection Trim the T&SZ fating. Tens,
these provisions-wfllBiso be effective nn
the effective •date and adnrinistered by
EPApurssant to RCRA section •SOOCtg)
and 40 CFR *M.lffH25 free discussion of
proposed! ZSS.llcH-iHUQ m-paragrapha
bflkrw3.The «ddifien-of W34 and FOSSto
the IfcUrf hazardous wastes from non-
spedffc emHces and the addition of fte
teat method-to appendix HI flf part 281
aw mot Immediately effective in
authorized Stales «moe *e *e*P&***?'*a.
are net topose* parmjaHt to ore HSWA.
staniatds fbr^rip pads associated w«i
become eSeoflve in authorized States
when F034 «»d TO» beoeme hazMdow
vrfanx the SUte te Mthorizei for €M drip
pad«landard«. However, -ihoridwK*
waste* be designated as «xbfti»Bg the
Toxidty QwracteitafiB, wfaicfa wa«
prom«lgated«nderHSWA aatiwrtty aad
such wastasoay be mana8ea
pads meeting Ae«ubpartW*tandaR*§.
1. HSWA Provisions ' .
As aotsd above. EPA -irilliiHmlEJBant
the addition c£ltoaz-tD&BH»tt>f
source* te «ttiorfaed States tBotfi *e
States modify their programs to adopt '
these rules and the .modification is _
approvedtyEPA.'BecaHBe portions of
pws»ulg«tedi»r«>afit-to
B4ui«—-Jr eguiwaleattoEPA'a. The
procedures and schedmle for State
program aodificationsior aitiier iaterim
or final authorization are descrifead in 40
CFR 271^1. Jt afaould be noted that all
HSWA interim autbarizatioBti wifl
expire January 1.1993 (sea.40 CFR
40 CFR 271^1(eX2) requfeeo that
States with final authorization vuifit
modify their programs to reflect Federal
program changes, and they must
subsequently submit the aodificatioas
to EPA for approval. The deadline for
State prqgcam modifications for this rule
is July 1,1992 {or July 1.1993. if a State
statutory change is seeded}. These
deadlines can he extended in certain
cases (40 GFR271^Ke}{3j). Once EPA
approves the modification, (he State
requirements become RCRA'subtitleC
requirements. States wim authorized
RCRA programs .may already have
requirements similar to (hose in today's
rule. These State regulations have not
been assessed against (he Federal
regulations being promulgated today to
determine whether they meet me tests
for authorization. Thus, a State is not
authorized to implement these
requirements in lieu of EPA until (he
State program modification as approved.
Of course. States with existing
standards may continue to administer
and enforce their standards as a matter
of State law. In addition, because some
of (he wastes delisted today are likely
already to be hazardous under
authorized state law fl.e., through
implementation of the EPJ.'States may,
of course, continue to regulate such
wastes as part of the authorized
program. In many cases, EPA wffl be
able to defer to the States in their
program implementation efforts, rather
than take separate actions under
Federal authority.
States mat submit then- official
applications for final authorization lean
than 12 mosms after me effective date
of these standards are not required to
incfade standards equivalent to these
standards in their application. However,
the State must modify its program by the
deadline setiorthin 5 Z71.21(e). States
that submit official applications for final
authorization IZoontks after the
effective date of 4bese standards mast
include atandesds esjmvaient to these
standards in their sajpteataon. The
process andaciodideiarfinalState
authorization " " "'"
Waste Amendments of 1S84. These
portions iaclude the addition of £034
and E035 to the list of wastes from oon-
specific sources; the permitting and
iaterim standards for drip pads that
handle F034 and F635 wastes, and the
addition of test mtfmods to 40 CFR part
261 appendix HL These
w& be applicable only in i—.
that do not tone final authorization, fa
authorized States, these requirements
will not be applicable until fee States
revise fteir programs to adopt
equivalent Eequirememts under State
law, unless the wastes are designated as
hazardous due to theToxidty
Characteristic, which wo*ld allow an
owner or operator to comply wffh the
drip pad standards administered under
Federal law.
-40 CFR 2>1.21{elt2) requires that
States that have final authorization must
modify feeir programs to reflect Federal
program changes and must subsequently
submit die «odffications to EPA for
approval. The deadline by which the
States must modify meirprograms to
adopt this regulation will be July 1,1992
(or July 1.1993 if a State statutory
Change is needed), in accordance wim
40 CFR 271.21(e). These deadlines can
be extended in certain cases 1*0 CFR
271.21{eH3)). Once EPA approves the
modification, the State requirements
become subtitle C RCRA requirements.
States with authorized RCRA
programs may already have
requirements similar to those finalized
in today's rate. These State zegulatioBS
have not been assessed against the
Federal regulations being finalized
today to determine whether they meet
the tests for authorization. Thus, States
are «ot authorized to carry out meir
regulations as RCRA requirements until
State program modifications are
submitted to EPA and approved. Of
course. States with existing standards
may continue to administer and enforce
their standards as a. matter «f State law.
In addition, because some of the wastes
listed today are likely already to be
hazardous under authorized state law
(i.e., through implemeatatiea of the EPj,
States may. ef course, caotiaue to
regulate such wastes as part of the
authorized program.
States Shat submit their official
2. Non-HSWA Provisions
Other p«rti«s««f .todejw'aiuae «re mot
effective in authorised Siatea ainee ihe
QUUisnMB««M^ BO^i ,«*U^B •**+* •••••!• i mm i -— --
than 12 months after the effective date
of these «laBdaids are notTeqnired to
include -standards •aqmvafant to 1he«e
standards in thefa-e«dica1ioa.Howevec,
States must modify thea-fBOgramsby
the deadMaes aet farthin 4OCFR
tes feat Bacbmit official
pmas«t)tefl««a*«fdwsii«id Solid
mo
ths after UK effective dotef«f
-------
Federal Register / Vol. 55. No. 235 / Thursday. December 6. 1990 / Rules and Regulations 5M71
standards must include standards
equivalent to these standards in their
applications. 40 CFR 271.3 sets forth the
requirements that States must meet
when submitting final authorization
applications.
It should be noted that authorized
States are only required to modify their
programs when EPA promulgates
Federal standards that are more
stringent or broader in scope than
existing Federal standards. Section 3009
of RCRA allows States to impose
standards more stringent than those in
the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal
program, States are not required to
modify their programs. See 40 CFR
271.1(i). Some of the standards
promulgated today are less stringent-
than or reduce the scope of the existing,
Federal requirements. Those provisions
appear in 40 CFR 262.34(a)(2). (As noted
above, EPA does not believe that drip
pads were regulated units prior to
today's rule and thus, such standards
are more stringent requirements for drip
pads.) Therefore, authorized States are
not required to modify their programs to
adopt requirements equivalent or
substantially equivalent to the
provisions listed above.
3. Special Provisions for Drip Pad
Standards
Under 40 CFR 264.1(f)(3), EPA may
issue permits in authorized States if the
treatment storage, or disposal unit is
subject to requirements of HSWA and
the State has not yet received
authorization for the particular HSWA
requirements. EPA will therefore issue
permits for drip pads that are subject to
permitting (i.e., do not qualify for the
§ 262.34 accumulation provision or other
permit exemption) and are managing
F032 (or Toxicity Characteristic) wastes
in authorized States. The standards for
drip pads in 40 CFR part 264 subpart W
will be used for these permits.
For F034 and F035 wastes, EPA will
implement the standards for permitting
drip pads in unauthorized States
pursuant to 40 CFR 284.1(b). For F034
and F035 wastes in authorized States,
the standards will generally apply when
the State modifies its program in
accordance with 40 CFR 271.21(e).
However, should wastes that meet the
listing descriptions of F034 and F035
exhibit the toxicity characteristic, a
HSWA requirement, then these TC
wastes can be managed in aubpart W
drip pads which would be implemented
by EPA (under 40 CFR 264.1(f)(3), as
described above) until the States modify
their programs. • '"••'
Furthermore, for wastes that meet the
listing descriptions of F034 and F035 that
also exhibit the EP characteristic under
authorized state law, EPA has authority
to issue a permit under 40 CFR
264.1(f)(2). This authority is available in
authorized States if the subject
regulated unit was not regulated under
RCRA at the time of the State's
authorization and if the standards for
permitting the unit were promulgated
after the State received final
authorization. EPA may therefore, under
40 CFR 264.1(f)(2), issue permits for drip
pads that are subject to permitting (i.e.,
do not qualify for the § 262.34
accumulation provision or other permit
exemption) and are managing these EP
wastes in authorized States. However,
wherever possible the Agency expects
to defer such permitting .actions until
authorized states are able to adopt the
new listings and process these
permitting actions. Of course, facilities
that have handled or are handling EP
toxic wastes in units that are not
subpart W drip pads have pre-existing
permit and interim status requirements
which continue to apply under State
law.
VII. CERCLA Designation and
Reportable Quantities
All hazardous wastes listed pursuant
to 40 CFR 261.31 through 261.33, as well
as any solid waste that meets one or
more of the characteristics of a RCRA
hazardous waste (as defined at 40 CFR
261.21 through 261.24), are hazardous
substances as defined at section 101(14)
of the Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (CERCLA), as amended.
Therefore, the wastes listed as
hazardous in today's notice will, on the
effective date of today's rule,
automatically become hazardous--
substances under section 101(14) of
CERCLA by virtue of then- listing under
RCRA. The CERCLA hazardous
substances are listed in Table 302.4 at 40
CFR 302.4 along with their reportable
quantities (RQs). CERCLA section 103(a)
requires that persons in charge of
vessels or facilities from which a
hazardous substance has been released
in a quantify that is equal to or greater
than its RQ immediately notify the
National Response Center (NRC) of the
release at (800) 424-8602 or at (202) 426-
2675. In addition, section 304 of the
Superfund Amendments and
Reauthorize tion Act of 1988 (SARA)
requires the owner of operator of a
facility to report the release of a
CERCLA hazardous substance or an
extremely hazardous substance to toe
appropriate state emergency response'
commission (SERC) and to the local
emergency planning committee (LEPC)
when the amount released equals or
exceeds the RQ for the substance or one
pound where no RQ has been set.
The release of a hazardous waste to '
the environment must be reported when
the amount released equals or exceeds •
the RQ for the waste, unless the
concentrations of the constituents of the
waste are known (48 FR 23566, May 25,
1983). If the concentrations of the
constituents of the waste are known,
then the mixture rule may be applied.
According to the "mixture rule"
developed in connection with the Clean
Water Act section 311 regulations and
also used for notification under
CERCLA and SARA (50 FR 13463, April
4,1985), the release of mixtures and
solutions containing hazardous waste
would need to be reported to the NRC, .
and to the appropriate LEPC and SERC,
when the RQ of any of its component
hazardous substances is equalled or
exceeded. The mixture rule provides
that "[discharges of mixtures and
solutions are subject to these regulations
only where a component hazardous
substance of the mixture or solution is
discharged in a quantify equal to or
greater than its RQ" (44 FR 50767,
August 29,1979). RQs of different
hazardous substances are not additive
under the mixture rule, so that spilling a
mixture containing half an RQ of one
hazardous substance and half an RQ of
another hazardous substance does not
require a report.
On December 30,1988, the Agency
proposed RQs of one pound for each of
today's wastes; later, EPA issued a
supplemental correction notice (54 FR
7214, February 17,1989) providing
updated RQs for the constituents of the
wastes. (EPA did not alter the proposed
RQs for any of today's wastes.) Under
section 102(b) of CERCLA, all hazardous
wastes newly designated under RCRA
will have a statutorily imposed RQ of
one pound unless and until adjusted by
regulation under CERCLA. In order to
coordinate the RCRA and CERCLA
rulemakings with respect to new waste
listings, the Agency today is adding
wastes F032, F034, and F035 to 40 CFR
302.4, the codified list of CERCLA
hazardous substances, and adjusting
their final RQs to one pound.
VIE. Regulatory Impact Analysis
A. Executive Order Requirements
Executive Order 12291 requires EPA
to conduct a Regulatory Impact Analysis
(RIA) for all rules that meet the
definition of a "major rule." A major
rule is one likely to result in (1) an - ••
annual impact on the economy of $100 *
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50472 Federal Raster / Vol. 55. No. 235 / Thursday. December 6. 1990 j Rules and Regulations
million or more, (2) a major increase in
costs or juices for-consumers, individual
mdiuiries, Federal, State, or local
government-agencies, or geographic
regions, or {3} significant impacts on
competition, unemployment investment
productivity, Innovation, or the ability of
United States-based enterprises to
compete in domestic or-export markets.
Although EPA has determined that the
final rule will not be a major rule, the
Agency was concerned about the
potential,for significant impacts on the
wood-preserving industry. Accordingly.
the Agency prepared an RIA to measure
the costs and benefits of regulatory
options •considered during development
of the final rule and to assess tradeoffs
among these options. The RIA Is in the
public docket for this ruSemaking.
B. Description-of Baseline and Final
Rule
EPA considered * wide range of
regulatory alternatives during the
development c£ the final rale,
Altematires were considered for
resolving three key policy issues: Waste
management in lie process area, waste
management in the storage yard, and
permitting requirements, from these
alternative*, EPA selected four
regulatory ^ptims for detailed analysis
and determined an appropriate jae-
regniatory basding from which to
analyze the incremental costs and
benefits of each regulatory option. Ike
costs and benefits of the regulatory
options are discussed in detail in tfae
RIA. This preamble presents results only
for the pre-regulatory baseline and the
final rule.
BatciiDK The baseline defines the
current condition of wood preserving
facilities, their waste management
practices, and their compliance with
other requirements under RCEA or other
statutes relevant to the wood preserving
listing ruJe-Evideacefrnm comparison
of the MkJdewjJghl list of wood
preserving Tarfl'****, discussed in
section HLC, with data from EPA'-S
Hazardous Waste Data Mangement
System JHWDMS) suggested that
despite the fact that many wood
preserving wastes are characteristically
hazardous {under the Extraction
Procedure orEP1*], many wood
preserving facilities have not notified •
EPA that they generate a hazardous
waste. This indicates that raany
facilities are not in full compliance with
• At«btCMlte*d*4
HWnMI. tfctJEP WM £• test fcr dctaralrf* *•
existing regulation*. For this analysis,
current waste management practices
and actual compliance with -existing
regulations were «sed as baseline
conditions; full compliance with existing
RCRA requirements was not assumed in
the baseline, _
Final rule: Under the final rule,
drippage hi the process area,
wastewaters, process residuals, and
discarded spent formulation are listed
as hazardous waste and must be
managed according to subtitle C
regulations. AH facilities mast bofld «
pad in the process area conforming to
subpart W standards. Faculties are also
required to take aay measurer,
necessary to prevent drippage in areas
not covered by ihe drip pad. Facilities
that already have a drip pad and that
obtain annual certification from a
professional engineer as to the integrity
of the pad may delay reptacemeixt of the
pad for up to IS years according to a
specified replacement schedule.
Facilities accumulating waste far less
than 90 days are »ot required to obtain a
RCRA permit.
C. Costs and Economic Impacts
l. Methodology
a. Overview. The cost and economic
impact analysis involved estimating the
costs of the final rule to wood
preserving facilities and fhen
determining the number of facilities
likely to close because they would be
unable to pay those costs out of current
profits.
Costs of compliance were determined
using a two-step process. First 18 model
facilities were developed to represent
the 583 actual facilities. Second, average
incremental compliance costs were
estimated for each model for aH
activities required under the final rule.
Facility closures were .projected in the
baseline and due to the rule using a
three step process. First, the profitability
of facilities in (he short-run was
determined based on average revenues
and •abort-run operating costs- Next,
baseline closures were estimated by
• determining the number of facilities in
each model that would be unable to pay
long-run operating costs out of abort-run
profits. Finally, the number of closures
due to the role was estimated by
detennisinj the number of -facilities
• unable to pay compliance costs out of
profits remaining after payment of abort-
run and long-run operating costs.
The costa P"^ pnmn*ffnic impacts of
tine* bttn wp}«a«Hiy4«Toxk«j t2i«i«ct«nbfc
the rule were estimated under two
nccnnrior (1) fltrumifg
protocol and s*»o
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50473
Federal Register / Vol. 55, No. 235 /Thursday. December 6, 1990 / Rules and Regulations
was uncertain of the exact response of
facilities to the regulation. For example,
although a drip pad in the process area
is required, EPA did not know exactly
how large a pad facilities would build.
To account for this uncertainty, EPA
estimated lower and upper bound costs
to cover the range of possible
compliance responses.
All costs were estimated as the
present value of the initial and recurring
pre-tax costs incurred by facilities over
an assumed 20-year operating life. The
present value cost was then annualized
over 20 years to arrive at equal annual
payments. The annualized cost
represents the annual compliance cost
to facilities that smooth out anticipated
compliance costs with some form of
financing over a 20-year period. An eight
percent real rate of interest was used as
both the discount and annualization
rates.
d. Baseline operating costs. Among
the critical inputs for the cost and
economic impact analysis were the
average operating costs for each model.
These costs were estimated for each
model by identifying all of the
production inputs and process activities
used at wood preserving facilities and
estimating the costs associated with
these inputs and activities. All costs
were estimated on a pre-tax basis.
Costs were divided into direct and
indirect operating costs. Direct operating
costs were defined as those costs that
facilities must pay to remain in business
in the short run, such as expenditures
for raw materials, labor, utilities,
maintenance and repair, property taxes,
insurance, and current environmental
compliance practices. Indirect operating
costs were defined as the sustaining
capital needed to replace capital
equipment, such as treatment cylinders,
buildings, and equipment Facilities
must pay both direct and indirect .costs
to remain in business in the long run.
Many wood preserving facilities
already undertake some environmental
compliance activities, such as complying
with 40 CFR part 262 hazardous waste
generator requirements; operating as an
interim status hazardous waste
management facility under 40 CFR part
265- obtaining a RCRA treatment
storage, or disposal (TSD) permit under
40 CFR part 264; and/or installing a drip
pad in the process and/or storage areas.
The cost of these activities was included
in the baseline as a direct operating cost
ofthemodelfacilities. .
Facilities that currently have interim
status or a permit to operate as a ^
hazardous waste TSDFmay also be
undergoing corrective action, Corrective
action was "*
estimates from the RIA for the proposed
subpart S corrective action rule.7 The
cost of soil and ground-water
remediation at wood preserving
facilities requiring corrective action was
estimated based on cleanup costs at
seven wood preserving facilities
undergoing cleanuplinder CERCLA. The
cost of corrective action was treated in
the baseline in the same manner as an
indirect operating cost
The percentage of facilities that are
currently generators and/or TSDFs was
determined form EPA's Hazardous
Waste Data Management System
(HWDMS). The percentage of facilities
that have some form of drip pad in the
process and/or storage area was
determined from a 1987 survey of wood
preservers conducted by the American
Wood Preserving Institute-(AWPI)-
submitted as part of the comments to the
proposed rule (F-88-WPWP-00128A).
e. Facility closures and national costs.
To estimate the number of facility.
closures, the Agency developed an
economic model that estimated the
profitability of wood preserving
facilities before and after compliance
with the listing rule. Based on the
number of closures, EPA also estimated
losses of production and fobs. The
economic model provided the Agency
with greater resolution in predicting
facility closures man the methodology
used for the analysis of the proposed
rule. This methodology differed from
that used for the proposed rule in that it
allowed the Agency to predict impacts
on a percentage of facilities within a
model rather than on the entire model
only.
Facility closures were determined
using a three step process. First a
supply curve was estimated for each
model to represent the range of pre-
regulatory short-run operating costs of
facilities within the model The supply
curves were estimated based on the
assumption that short-run operating
costs are less than or equal to revenues
for all facilities represented by each
model. Second, long-run operating costs
were added to short-run operating costs
and total costs were compared to
revenues. With the addition of long-run
operating costs, total costs for some
marginal facilities were pushed above
revenues, and the faculties were
projected to close. These facilities were
considered to be non-viable in die long
run even without the new regulations
and then- closure was not considered an
'U.S. Environmental Protection Agency (USEPA).
Jane 25,1990. Regulatory Impact An«Jy*to *"*»•
PnrioMd Ratemikmi OB ComcBv* Action tor Solid
WMteM««g«m«rt Unite. W«hlnjton.DC: Office
of Solid Wute.
impact of the rule. Finally, compliance
costs were added to total operating
costs; if this pushed total costs above
revenues, Jhen a percentage of facilities
were projected to close due to the'rule.
Under the first cost pass-through
scenario, it was assumed that no
compliance costs would be passed on to
consumers through price increases. For
this scenario, costs and economic
impacts were estimated jointly, i.e., the
results were presented as both costs
paid by facilities remaining open and
the number of facilities that close.
Second order effects, such as jobs lost
and production lost, were also
estimated.
It may be somewhat unrealistic to
assume that facilities would be unable
to recoup any of the compliance costs by
raising prices, as assumed in the first
cost pass-through scenario above. To
the extent that prices were raised,
additional facilities would likely find it
profitable to remain in business. The
Agency accordingly considered hi the
second cost pass-through scenario the
effect of assuming full cost pass-through,
whereby facilities raise prices to cover
all compliance costs. Under such an
assumption, there would be no closures
of wood preserving facilities as a result
of the rule; however, national costs
would be higher because compliance
costs would be paid by more facilities.
(Scenario 2, which assumes no facility
closures, could also be used to represent
impacts on facilities that pay
compliance costs out of savings or land
sales rather than current profits.) In the
event of full cost pass-through there may
be some impacts on the purchasers of
treated wood products due to the higher
prices for these products. However,
assessing such impacts was beyond the
scope of this analysis.
2. Results
Of the initial population of
approximately 580 wood preserving
facilities, about .150 facilities, or almost
25 percent were projected to close in
the baseline due to indirect costs and
the cost of existing corrective action
requirements. The nearly 440 faculties
remaining open represent the population
of facilities potentially impacted by the
regulation.
Under .the assumption that facilities
would not be able to pass compliance
costs on to consumers in the form of .
higher prices, the rule was estimated to
close less than 20 facilities. At the
remaining 420 facilities, total national
costs were estimated «t between «11
million and $14 million per year, in 1990
dollan.-The majority of the cost-was for
• drip pad construction. Small inorganic
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Fxtotal Register j Vol. 55, No- 235 / Thursday. Peoember fi. 1990 / Rules and Regulations
fadlitte* were estimated to tocur a
larger share of the oorapliaace costs -and
closures than any other category of
facility, approximately $4.5 million and
15 closures. This was doe to the fact that
most wood preserving facilities are of
this type and fitat these facilities nave
the lowest profit margins of any type of
wood lucjeiviiie facility. Production of
treatedinmber and timber was
estimated to decrease by three percent,
while utility pole production was
estimated to decrease by six percent
(from closure of one large PCP facility).
Railroad tie production was not
estimated to change because no
creosote facilities were projected to
close. Approximately 250 jobs were
projected to be tost
Under the assumption that facilities -
can pau on all compliance costs
through lugher prices, the rule was also
estimated to cost between $11 million
and (14 million per year. No facilities
were projected to close under this
scenario. The-costs are the same under
the two cost pass-through scenarios
because the compliance cost to the
facilities projected to close were small.
3. Limitations
Some Important limitations of the
analysis tend'to underestimate.
overestimate, or create uncertainty in
the results of the costs and economic
impacts of (he rule. The following
factors tend to underestimate the costs
and economic impacts:
* As discussed In section HLC.'EPA
did nothave sufficient information on
non-pressure treaters to include them In ,
the analysis. However, one commenter
assorted that there are approximately
100 non-pressure treaters in the
Northwest If these facilities generate
more than 100 kg of hazardous waste
per month, they would be subject to
RCRA regulation and could be impacted
by this rule.
• When closing their existing drip
pads, faculties could be required to
clean up contamination underlying the
pads. Since the cost of this clean-up was
not mcraded in the cost analysis,
estimates of costs and impacts are Ekely
to be understated.
* The method of annuaBziBg costs
assumes that faculties have unlimited
access to borrowing at a real rale of
interest trfC percent for 20 years. To tire
degree ftat tins type of borrowing is not
available, annual costs and/or closures
would beWgner.
• FadHtiea may treed to halt ,
prodnctira€wing<»n8iructhm of anew
drip pai or iepafr of an existing drip
pad. fat*datien, {acuities feat are
unabhiocoaihTictaASp pad before Ifae
effective date of m* rfe may need 1»
baft production for a longer period -of
time until they are able to comply with
the rule. The cost of this lost production
was not included in the analysis.
The following factor* tend to
overestimate the cost-and economic
impacts: ~
• Ifwas assumed that all facilities
with -existing pads would seed to
replace them immediately with new
pads meeting subpart W standards. To
the •degree that facilities with existing
pads are able to annually certify that the
pad wul not cause releases, they wiH be
able to delay replacement of die pad.
Thus, this assumption leads to an
overestimate of the true costs and
impacts of die rule.
• in the analysis, it was assumed mat
all jobs and production of treated wood
products -would be lost at closing
facilities. To the degree that fob* and
production -are tranferred to other
facilities, this assumption leads to an
overestimate of the true economic
impacts.
• Under the BobpartW requirements,
if facilities bund a roof over thear drip
pad, they may build a •mailer sump mat
is not designed to contain a 25-year/**-
honr storm event To the degree that this
option represents a cost savings to
facilities, me costs and economic
impacts have been overestimated.
The following factors tend to create
uncertainly that could over- or
underestimate the cost and economic
impacts:
• The corrective action costs
estimated for the baseline were based
on examination ef seven Snperfuad sites
that are not necessarily representative
of the universe of active wood
preserving facilities. Also, -the number of
facilities assumed to incur corrective
action costs in the baseline wan based—
on estimate* in the R1A for the proposed
subpart S corrective action rule.
Estimates fran the •ootrective action RIA
may, however not be representative of
wood preserring facilities. Theae
assumptions oouid lead to an over- or
underestimate of the number of facilities
protected to dose in the baseline and,
therefore, me number «f facilities
remaining open to incur the coat of the
rule.
• Several potential coats were not
included in the baseline operating costs,
such as costs for surface impoundment
closure, wastewater treatment, aad
management of KOC3. wastes. Had these
costs been included, more faciilitiBS
would have closed in the baseline
leaving fewer facilities open to pay the
costs of cmnpuance. in turn leading to
lower coeis amdnnnparis
However. fad&aecTemaniingape&after
baseline closures would have appeared
financially weaker, with lower profits,
due to the additional baseline costs,
leading to higher impacts due to the rule.
D. Benefits
EPA analyzed the benefits of this rule
using modeling, case studies, and
screening analyses. The modeling
analysis estimated risks posed to human
health and the environment from
drippage wastes using a multi-media
exposure and risk estimation model. The
case studies provide evidence of
contamination at actual wood
preserving facilities, complementing the
modeling results. In addition, EPA
conducted two benefits screening
analyses on potential resource damage
and food chain bioacounulation. These
• analyses 'are summarized briefly below;
complete documentation is provided In
the RIA.
1. Modeling
a. Methodology. EPA used a
computerized multi-media ^exposure and
risk estimation model (the MMSOILS
model) to simulate human health and
environmental impacts from wood
preserving drippage in the baseline (pre-
regulatory case) and then again under
the final rale. The Agency used
MMSOILS to simulate releases of
contaminants from wood preserving
fofjjjiMta and resulting ooncentratioas in
ground water and surface water.
The ground-water pathway examines
leaching of pdfataats from
contaminated soils by infiltrating
rainwater. EPA used the predicted
pollutant concentrations in ground
water as a basis for estimating cancer ,
and non-cancer ciska to humans drinking
the contaminated water. The surface
water pathway Biimri'ftfuB concentrations
of contaminants in streams Jts a testat of
(!) discharge of contaminated ground
water into the stream and (2) erosion of
contaminated soils which are then
carried to the stream over the land
surface. EPA examined two types of
effects associated with contaminated
surface water human health risk from
consumption of contaminated fish and
stream water, and adverse effects «n
aquatic ufe.
(1) Selection ana" characterization of
sample facilities. Modeling was
conducted for a random sample of 55
actual wood preserving faculties. The
sample was stratified by preservative
type and was comprised of 44 faculties
usinginoTganics, five -using creosote,
and sue using POP. To extrapolate the
modeling results from me sample to the
national population of wood preserving
faculties, a weighting system was
developed. The weights reflect the
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Federal Register / Vol. 55, No. 235 / Thursday. December 6. 1990 / Roles and Regulations 50475
frequency of occurrence of preservative
types in Che population compared to the
frequency within the sample.
Running the MMSOILS model
required a wide variety of data inputs
for each of the 55 sample facilities.
Facility-specific information relating to
climate, soil characteristics, and
hydrogeology was obtained from a
variety of sources, including the U.S.
Department of Agriculture Soil
Conservation Service (county soil
surveys); the U.S. Geological Survey
(topographic maps, water supply papers,
computerized stream reach data); well
logs kept by state departments
responsible for ground-water
management; documents used hi the
Superfund program; the on-line
"Graphical Exposure Modeling System"
or GEMS; and the scientific literature.-
. U.S. Geological Survey topographic
maps provided site-specific information
on the location of private drinking water
wells within one mile downgradient of
the site. Information on the distance to
the nearest public well and the number
pf people served was obtained from U.S.
Geological Survey topographic maps
and the on-line Federal Reporting Data
System (FRDS).
(2) Facility size and waste
characterization. Information on facility
size and the amount of drippage
generated by each sample facility were
unavailable. EPA estimated the surface
area of each facility by assuming that
there is a direct correlation between
facility size and wood production rate;
wood production rates were calculated
as described above in section
Vffl.C.l.b(3). EPA then calculated an
annual drippage volume for each sample
facility by multiplying the production
rates by an estimated drippage rate per
volume of treated wood. A limited
amount of data on drippage rates per
volume of treated wood were provided
by commenters to the proposed wood
preserving rule, which EPA used as a
basis for estimating an average rate for
each preservative type.
Pollutant concentrations in drippage
were assumed to be the same across all
facilities using each preservative type.
Data on the chemical composition of
inorganic, creosote, and PGP drippage
were reported in the background
document supporting the proposed rule.
(3) Constituents of concern. The
Agency selected a subset of the
constituents in the background
document for risk modeling, referred to
as constituents of concern (COCs). Only
those constituents withEPA-approved
toxicological parameters were
.considered. From the list of constituents
with EPA-approved values, the Agency
identified those with the highest
potential for posing risk to humans or
aquatic life based on their
concentrations in drippage, mobility in
the environment, and toxicity. The
COCs selected for modeling were:
arsenic, hexavalent chromium, and
copper for inorganic facilities;
acenaphthene, benzo(a)pyrene,
. fluoranthene, and naphthalene for
creosote facilities; and naphthalene,
pentachlorophenoi, polychlorinated
dibenzo-p-dioxins (referred to in this
section as "dioxins"), and
polychlorinated dibenzofurans (referred
to in this section as "furans") for PCP
facilities.
To assess human health risks from
exposure to these contaminants hi
ground water, EPA used cancer
potencies for carcinogenic COCs and
reference doses (RfDs) for non-
carcinogenic COCs. Cancer potencies
and RfDs were taken from two sources:
the Integrated Risk Information System
or IRIS, and Health Effects Assessment
(HEA) Summary Tables. The only
exceptions were for pentachlorophenoi
(PCP), dioxins, and furans. The cancer
potency for PCP was recently verified
by the Agency; the cancer potencies for
dioxins and furans were derived using
procedures recommended by EPA's Risk
Assessment Forum.8
To assess human health and
environmental risk from exposure to
contaminated surface water, EPA
generally used Ambient Water Quality
Criteria (AWQC) from EPA's Office of
Water Regulations and Standards
"Quality Criteria for Water" (May 1988).
AWQCs for the protection of human
health are the concentrations in surface
water that would pose a cancer risk of
10~*, or doses above the RfD, for humans
that both drink the surface water and
ingest fish living in the stream. AWQCa
for aquatic life are the concentrations in
surface water considered by EPA to be
protective of aquatic life.
(4) Estimation of baseline and post-
regulatory risk. For each facility,
MMSOILS provided the annual
concentration of each COC in ground
water over a 300-year time frame, and
the concentration of each COC in the
nearest stream. For the ground-water
pathway. EPA calculated risks to the
most exposed individual at each site
(i.e., to an individual exposed at the
actual nearest well) and population risk
(i.e., the number of cancer cases
expected in the population and number
of people at risk for non-cancer effects]
* Interim Preofdurm for E*timatutg Risk*
Auociated with Bxpotaa* to Mixture* of
Chlorinated Dibenxo-p-Dioxina and
-Dibentofurara fCODs and CDF*I and 1009
across all wells at each site. To measure
potential adverse effects on aquatic
organisms in nearby streams, EPA'
calculated the ratio of the annual
concentration of each pollutant in the
stream to the AWQC for the protection
of aquatic life. Human health risks from
1 exposure to contaminated surface water
were calculated in a similar fashion,
using AWQC for the protection of
human health.
To simulate the benefits of the rule,
EPA focused on faculties already in
existence on the effective date of the
wood preserving listing. To determine
how long each facility had been in
operation prior to the rule, the Agency
calculated the average current age of
wood preserving facilities, by
preservative type, based on information
provided by the American Wood
Preserving Institute and the Society of
American Wood Preservers, Inc. To be
consistent with the cost and economic
impacts analyses, EPA assumed that all
facilities would be in operation for an
additional 20 years after the effective
date of the rule. EPA modeled risks for a
period equal to the current average age
of the facility plus an additional 300
years.
To simulate risks hi the baseline, EPA
assumed for modeling purposes that the
drippage is uniformly distributed across
the process and storage areas. An
average drippage rate for both the
process and storage areas was
developed for each preservative type
based on Limited data provided by
commenters to the proposed wood
preserving rule. EPA multiplied the
average drippage rates derived from
commenter data by 10 to account for
uncertainty in the data and the
likelihood that actual drippage rates
would be higher than indicated by the
available data.
EPA also assumed that drip pads
currently in place at wood preserving
facilities do not effectively prevent
contaminants from being released to or
from soil. Examination of one of the
wood preserving case study sites
indicates that even where drip pads
have been installed, cracking in the pad
or inadequate benns may result in
significant soil and ground water
contamination. (See the discussion of
case study #4 in chapter 8 and appendix
F of the RIA background document)
Consistent with the cost analysis, EPA
assumed that 31 percent of the TSDFs
would trigger corrective action in the
baseline. Human health and
environmental risks for facilities that
trigger corrective action in the baseline
were assumed to be negligible.
-------
_*—•«———.-^-——
EPA assumed that all facilities would
install drip pads on the effective date of
the rule. Thus, the facilities were
assumed to operate without pads for a
period of time equal to their current age
knd then for 20 years with the pads in
place. Becuase MMSOILS does not have
ads that
Place. JOccuaoo ivjuwow**"' —- —-——
the capability to simulate drip pads that
cover only a portion of the facility. EPA
assumed that the drip pads would coyer
both the process area and storage yard.
EPA assumed that the pads are 100
percent effective in preventing both
Srippage and rainwater from entering
SB soU throughout the entire facility and
that they remain 100 percent effective
throughout the remainder of the
modeling period. For facilities with
significant existing storage yard
contamination, or that allow • •
preservatives to drip to storage yard
soils In the future, this assumption
overestimates the effectiveness of the
rule.
b. Results—(!) Baseline risk/hazard.
The results indicated that In the
baseline, exposure to contaminated
ground water poses 300-year average
individual risks exceeding 10"* at about
23 percent of wood preserving facilities.
About 5.3j)ercent of facilities had risks
in excess of 10-'. All of the facilities that
pose cancer risk via ground water were
inorganic plants, for which the cancer-
causing pollutant is arsenic. Faculties
using only creosote or PCP preservatives
posed no ground-water risk within the
modeling period because the
contaminants of concern move very
slowly in the subsurface environment
The Agency estimated that across all
facilities, exposure to contaminated
ground water could lead to 300 cancer
cases over 300 years in the baseline.
virtually all of which (298 cases) would
be attributable to arsenic exposure at
public water supply wells near inorganic
facilities.
The predominance of arsenic-related
risk at public wells raised two issues.
?£t arsenic is a Safe Drinking Water
Act pollutant monitored by public water
supply systems; presumably, municipal
water supply systems would treat •
Sc-cVntaminated drinking water to
Suce levels belowthe MCL. It watao
noteworthy that arsenic poses a lifetime
Sk S 3X10- at iU MCL of W mg/k
nearly all the baseline population nsk
and most of the MEI risk is *>?**___,
arsenic concentrations below the MCL.
Second, pollutant concentrations were
.imulated at the top of *e aquifer,
where concentrations are highest This
is a conservative assumption for au
drinking water wells, but is particularly
conservativB for public water supply
systems which tend to draw ground
water from deep within the aquifer,
where pollutant concentrations are
likely to be lower.
Soil erosion from PCP plants is of
concern for its potential adverae effects
on aquatic life in nearby streams. The
model results indicated that in the
baseline, erosion of soils contaminated
with dioxins and furans led to surface
water concentrations that threaten
aquatic life at 83 percent of the PCP
plants. Predicted concentrations of
dioxins in streams near PCP plants were
also high enough to threaten human
health if people drink the water or eat
the fish; simulated risks to
hypothetically exposed individuals
exceeded IQ-'at 83 percent of the PCP
plants and 10'* at one-third of the PCP
facilities. Contaminated surface water,
was also potentially of concern for
human health at the inorganic and
creosote facilities, but the simulated
risks to hypothetically exposed
individuals rarely exceeded 10 '.The
Agency did not examine whether people
actually use these streams as a drinking
water supply or for fishing. Most of the
affected streams are too small to
support public water systems,
suggesting that few people are likely to
be exposed on a continuing basis via the
drinking water route; however,
consumption of contaminated fish could
still threaten human health.
(2) Risk/hazard reduction due to the
rule. EPA estimates that requiring drip
pads (and the associated inspection and
response requirements) will eliminate
all of the risk from on-going operations
at the affected wood preserving
facilities that meet the new pad
standards. The pads should prevent
releases to ground water or surface
water. If there is failure of She pads, the
leak detection arid response provisions,
along-with the closure provisions,
should assure that there is no release
from on-going operations at new pads.
The modeling done for this rule did
show that there are facilities where past
contamination poses cancer risks above
10-4. If those facilities are reviewed in a
permit context or in the context of
remediation under CERCLA. EPA policy
(as articulated in the proposedW^A
corrective action regulation and the NCP
for CERCLA) will be to seek to reduce
the risk at such sites.
In deciding in this regulation that
compliance with the drip pad standards
could be accomplished with a provision
similar to the 90-day generator
requirements for tanks, EPA is making u
decision regarding what procedure is
appropriate for addressing waste it is
dedding to list in this regulation. It is
not implying that it finds risks from past
contamination at these facilities to be
acceptable.
c. Limitations, There is considerable
uncertainty in tBe modeling results. The
following factors tend to bias the
Agency's results in the direction of
understating risks from wood preserving •
facilities:
• Contaminant sources other than
drippage (e.g., routine preservative
spills, on-site disposal of process
residuals) were not considered.
• The ground-water modeling was
limited to a time frame of 300 years and
a distance of one mile. An extended
.time horizon and additional well
distance could have resulted in some
additional risk. For example, a longer
modeling period would eventually have
resulted in constituent breakthrough at
wells down-gradient from PGP and -
creosote facilities.
• Only pollutants with EPA-approved
risk values (human health or aquatic)
were simulated. This could
underestimate risk for creosote and PCP
plants, as the preservative solutions
contain many potentially high-risk
pollutants for which EPA has not yet
derived dose-response information.
• Population growth over time was
not considered when calculating the
number of cancer cases. If larger
populations are exposed, then a greater
number of cases would be predicted.
• Health risks through several
potential pathways of exposure,
including inhalation of contaminated
participate matter, incidental ingestion
of contaminated soils, and dermal
contact with contaminated soils were
not examined.
The following factors tend to bias the
Agency's results in the direction of
overstating risks from wood preserving
facilities:
• Very little information on dnppage
rates was available; conservative
assumptions for drippage rates (10 times
the values provided by commenters)
could overstate risks.
• Assuming that drip pads currently
in place are totally ineffective, while
those installed in response to the rule
are 100 percent effective over the
duration of the modeling period, tends to
overstate the benefits of the regulation.
• Pollutant concentrations in ground
water were modeled at the top of the
aquifer, where pollutant concentrations
are highest This overstates baseline
risks, particularly for facilities with
public drinking water wells.
• The potential for decline in the
population utilizing ground water was
not considered: if fewer persons are
exposed, then the number of cancer
cases would be lower than predicted
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Federal Register / Vol. 55. No. 23S / Thursday, December 6, 1990 / Rules and Regulations 50477
Some of the major factors that
contribute to uncertainty in risk results
are as follows:
« The algorithms used in MMSOILS to
represent different environmental
transport mechanisms are simple
models that can only approximate the
detailed heterogeneity and complex •
environmental influences affecting die
fate and transport of chemicals at
specific sites.
* MMSOILS, like most currently
available fate and transport models.
does not simulate contaminant flow
through fractures or discrete zones of
high permeability. This type of flow
could act to channel contaminants
toward, or away from, exposure points.
potentially resulting in significantly
higher or lower risks than estimated.
• EPA did not attempt to simulate ••••
two-phase flow. This is a potentially
significant source of uncertainty for
creosote and POP facilities, which apply
preservatives to wood hi oil-based
solutions.
• The analysis was based on limited
information on pollutant concentrations
in drippage, process and storage area
sizes, and annual drippage volumes
• EPA assumed that drippage is
uniformly distributed across the process
and storage areas, as very little
information was available to quantify
the difference in drippatje rates between
these two areas. Assuming thai dnppagp
is concentrated m the process area
could potentially have resulted in higher
risk than estimated.
2. Case Studies
a. Purpose of the case studies. There
is strong evidence that significant
environmental contamination has •
resulted from both routine operation*
and waste mismanagement at wood
preserving facilities. For example, as of
June 1990,54 wood preserving fatalities
had been listed on the Superfund
.National Priorities List (NPL), while
RCRA corrective action measures had
been mandated for numerous other
facilities. At many facilities where
Superfund Remedial investigations/
Feasibility Studies (RI/FSs) and RCRA
Facility Assessments (RFAs) have been
performed, extensive groundwater and
soil contamination has been found.
Although many of these site* involve
contamination resulting from
management practices that are no longer
permitted under current regulations.
such as the use of nnlined surface
impoundments, environmental
contamination can also be attributed to
routine operating practices that would ..
be affected by the listing of wood
preserving wastes. These practices
include allowing freshly treated wood to
drip preservatives onto the soil and the
on-site disposal of process residuals.
The Agency developed seven case
studies to document examples of
contamination resulting from operating
practices addressed by the listing rule.
The case studies also serve to provide
"real world" evidenceTb complement
the modeling analysis performed for the
listing. Complete versions of the case
studies are included in appendix G of
theRIA.
b. Selection of the case studies. EPA
selected seven case studies afterr
screening the available information on
contamination at wood preserving
facilities. This information included the
case studies from the public docket for
the proposed rule; Superfund RODs, fact
sheets, and RI/FSs; and RCRA RFAs.
EPA focused its research efforts on-
'hose facilities where evidence of
contamination was substantially
documented and where contamination
could be directly attributable to wastes
and management practices addressed by
the listing. Facilities were not nsed as
case studies if contamination resulted
primarily from surface impoundment
releases, or if such contamination could
not be distinguished from other types of
contamination.
Of the seven case studies selected,
four were based on information from R!/
FS*. two were based on RCRA RFA
data, and one wag developed using a
Superfund Endangerment Assessment
c. Results of the case study analysis.
Soil contamination with wood
preservatives was detected in the
process and drip track areas at all seven
case study facility sites, and was above
health-based levels at five of them. Of
the five sites showing soil contamination
above healdi-based levels, derivatives
of creosote and PCP were the primary
contaminants at three sites and -•
inorganic constituents from CCA were
the primary contaminants at the other
two sites. At the sixth site, no soil
samples were taken, but the RFA noted
that creosote stains could be seen hi soil
samples as deep as 33 feet At the'
seventh site, contamination was found,
but at concentrations below health-
based levels.
Ground water underlying or
downgradient of die process area and
drip track area was contaminated above
health-based levels in all seven case
studies. Three of the cases involved
inorganic contaminant* from CCA and
four involved contamination from
creosote and/or PCP.
Soil and ground-water contamination
in the drip track area is most likely the
result of excessive drippage of ••
preservative* from freshly treated wood.
For example, at several of the case
study facilities, soil samples were taken
directly under the drip track and
contamination can, therefore, be -
unambiguously attributed to drippage.
At another case study facility, soil
samples were taken in a natural
drainage area where storm water •runoff
is believed to have carried
contamination from the drip track.
The exact cause of some of the soil
contamination in process areas is not
clear. Contamination in the work tank
area at most of the facilities, for
example, likely resulted from a
combination of factors including product
spills, leaking tanks, and poor
housekeeping practices. These practices
are not covered by the listing. They are,
however, covered by other EPA
.regulations. To the extent that
. contamination results from releases of a
CERCLA hazardous substance hi excess
of the Reportable Quantity, the facility
must notify EPA and the State, and
could be liable for cleanup under •
CERCLA section 107. Such
contamination may also result from
substances deemed to be RCRA
hazardous waste, either as a
characteristic waste under the toxicity
characteristic, or as a U or P waste; such
as U051 (creosote), or another listed
waste.- Release of these materials could
constitute land disposal of a RCRA
hazardous waste which would require
interim status of a part B permit and,
therefore, subject the facility to RCRA
corrective action requirements.
Soil contamination was also found in
the storage yard at case study facilities,
but less frequently and at lower levels
than in the process area. Soil
contamination above health-based
levels was found at two sites and
creosote stains were observed at one
other facility. Ground "water •underlying
the storage area was contaminated
above health-based levels at three sites.
Detailed descriptions of the production
process at case study facilities were
usually not provided in the RI/FS,
therefore, the observed storage yard
contamination could not be linked to
specific management practices. Storage
yard contamination could have resulted
from continuing drippage in the storage
yard, precipitation runoff carrying
excess preservative from the treated
wood, or from management of other
wastes in the storage yard.
Off-site contamination was found at
one case study site. At this site, surface
water runoff contaminated with
preservative from the drip track and
storage areas Conned ponds on an area
entirely off-site: Soil samples taken from
this area revealed high levels of
chromium and arsenic. Groand-water
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Federal Register / Vol. 55. No, 235 / Thursday. December 6. 1990 / Rules and Regulations
monitoring in this area also revealed
high levels of contamination. Because
this ponding area was downgradient of
the rest of the faculty, some of the
ground-water contamination may have
resulted from other parts of the facility
upgradient of this area.
The primary benefit of the rule will be,
to eliminate contamination from
drippage of excess preservative in the
drip track area, a significant source of
contamination at the case study wood
preserving facilities. Because
contamination from the drip track can
migrate through ground water,
contamination of other areas both on-
site and off-site will also be curtailed.
d. Limitations of the case study
analysis. The seven case studies ,
provide substantial evidence that soil
and ground-water contamination can
result from routine operational ,
practices. There are, however, ^
limitations on the degree to which these
findings can be generalized to the
universe of wood preserving facilities.
First, the analysis is based on only
seven facilities, two of which are closed
and are, therefore, not on the list of 583
active wood preserving faciltiies.
Second, theseven case study sites were
spedficallylelected because they were
contaminated and detailed data were
available. Hence, they are more likely to
represent the'most severely
contamination facilities rather than the
typical facility. In addition, the quality
and quantity of data contained in
available documents varied greatly. In
some cases, documents explicitly
identified sources of contamination.
while in other cases, the source of
contamination was inferred from the
location of the samples and information
on ground-water flow.
3. Resource Damage Screening Analysis
The impact of ground-water
contamination can be measured in terms
of the loss of ground water as a
resource, as well as the threat posed to
human health. EPA performed a
screening analysis of the 55 sample
wood preserving facilities discussed in
section VIILD.l.a to determine whether
resource damage is potentially of
concern at wood preserving sites. For
this analysis, resource damage was
considered to occur whenever ground
water is rendered unfit for use as a
drinking water supply (i-e., when •
contaminant concentrations in ground
water exceed Maximum Contaminant
Levels (MCLs) or taste and odor
thresholds). EPA'« basic approach was
to identify facilities at which estimated
constituent concentrations in ground •
water at the downgradient facility -:
boundary were above-these thresholds.
EPA estimated that over a 300-year
time frame, pollutant concentrations hi
ground water at the downgradient
facility boundary would exceed
resource damage thresholds at 68
percent of wood preserving facilities (70
percent of the inorganic facilities, 60
percent of the creosote facilities, and 67
percent of the PCP facilities). The
magnitude of the resource damage at
each site would depend on several
factors that were not considered in this
simple screening approach, such as the
extent of plume growth over time, the
number of people whose water supply
would be affected, the proximity of the
site to alternate drinking water supplies,
and the cost of utilizing those supplies.
However, the analysis does indicate
that, .when the resource value of ground
water is considered, the number of
facilities with potentially significant
environmental contamination can be
higher than indicated based on human
health risks alone. The analysis also
indicates that compliance with the rule
would reduce but not eliminate ground-
water contamination and resource
damage.
4. Food Chain Contamination Screening
Analysis
a. Methodology. EPA conducted a
screening analysis of potential human
health risks from exposure through the
food chain to contaminants released to
soil from wood preserving drippage. The
Agency used'the MMSOILS model to
simulate releases of contaminants to soil
at 4 of the 55 sample wood preserving
facilities (see section VIILD.l.a.),
resulting concentrations in crops grown
in contaminated soils and in food
products derived from cattle consuming
the crops, and potential health risks to
humans ingesting the crops and food
products. Human health risks from
incidental ingestion of soil and dermal
contact with soil were examined as
well. The results were used to identify
which exposure pathways are
potentially of concern under the
assumption that wood preserving
operations cease 20 years after the
effective date of the rule and the land is
converted to food and feed production.
The Agency selected two inorganic
and two PCP facilities for the screening
analysis; each pair of facilities includes
a "typical" and a "worst-case" facility
(based on average soil concentration of
constituents) to represent "typical" and
.. "worst-case" potential human health
risks. The Agency used the same
information on facility size and drippage
rates as those used for the ground-water
and surface water risk modeling (see
- section VIILD.l.a.). Facility-specific
information relating to feed (Le..
pasture) and food (i.e., vegetable)
production and factors affecting the
deposition of contaminated soil
particulates was obtained from a variety
of sources, including the U.S.
Department of Agriculture (county soil
surveys); the on-line GEMS: and die
scientific .literature. Information on the
typical consumption rates of crops and
food products by humans and/or cattle
was obtained from EPA documents on
exposure assessment and the scientific
literature.
From the set of constituents of
concern-(COCs) developed for ground-
water risk modeling (see section
VnLD.l.a.), the Agency selected only
those constituents that are known to
translocate in food and feed crops. The
COCs selected for food chain modeling
were arsenic and hexavalent chromium'
for the inorganic facilities; and
pentachlorophenol, polychlorinated
dibenzc-p-dioxins (referred to in this
section as "dioxins"), and
polychlorinated dibenzofurans (referred
to in this section as "furans") for the
PCP faculties. To evaluate the mobility
of COCs in the food chain pathways, the
Agency used transfer factors obtained
from the scientific literature. To assess
human health risks from exposure to
these contaminants in soil and the food
chain, EPA used the same cancer
potencies for carcinogenic COCs and
reference doses for non-carcinogenic
COCs as those used for ground-water
risk modeling.
b. Results. The modeling results
indicated that several of the food chain
pathways analyzed are potentially of
concern (i.e., may present high MEI risk)
under the hypothetical scenario where
wood preserving sites are converted to
food production. At both the typical and
worst-case inorganic facilities, the
greatest potential for cancer risk is
through exposure to arsenic in
vegetables; potential exposure to
chromium, a non-carcinogen, in any of
the food chain and soil pathways is
limited and would not result in chronic
health effects. At the typical PCP
faculty, the greatest potential for cancer
risk is through exposure to dioxins in
vegetables and to furans in beef and
milk. At the worst-case PCP facility, the
greatest potential for cancer risk is
through exposure to both dioxins and
furans in vegetables, beef, and milk. At
the worst-case PCP facility, potential
exposure to pentachlorophenol in
" vegetables is significant and would
result in chronic (i.e., non-cancer) health
effects. The analysis-also indicated that
the final rule, by requiring process «rea
. drip pads and preventing further soil
contamination, would reduce the
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federal Register 7 VoL 55. No. 23S / Thursday. December 6. 1990 / Rules and Regulation 5M73
potential for adverse health effects
caused by ingestion of contaminated
foods. .
c. Limitations. The food chain
pathway and soil exposure modeling
was undertaken as a screening analysis
and. therefore, the Agency made many
amplifying assumptions. The most
important of these assumptions include
the following: ' . ,
• The potential health risks
correspond to a hypothetical maximum
exposed individual (MEI) who lives in a
nearby farm household (i.e., a
subsistence fanner) and whose diet
consists, hi part, of foods which are
grown directly on the former wood
preserving site and food products
derived from cattle grazing at the site.
• Constituent levels in soil and feed
that would cause plant or animal
mortality, thereby eliminating the
possibility of human exposure to the
foods, were not considered.
• Neither chemical decay hi soils nor
erosion of soils from the site were
considered.
• Potential institutional restrictions
prohibiting food production on former
wood preserving sites were ignored.
Other limitations of the MMSOILS
model are identified hi section
VUI.D.1.C.
5. Summary of Benefits
The primary focus of the wood
preserving listing rule is to prevent
drippage in the process area from being
released to the surrounding
environment. The results of the benefits
modeling analysis unambiguously
indicate that uncontrolled drippage at
wood preserving facilities poses a risk
to human health and the environment
via transport through the soil to the
ground water and surface water. These
results are substantiated by "real
world" evidence from case studies of
actual facilities which indicates that
uncontrolled drippage hi the process
area has resulted in contamination of
soil and ground water. EPA's actions to
require drip pads in the process area at
wood preserving facilities will prevent
such contamination from occurring to
the future. .
IX. Regulatory Flexibility Analyse
A. Approach
The Regulatory Flexibility Act (5
U.S.C. 601 efseg.) requires that
whenever an agency publishes a notice
of rulemaking, it must prepare a
Regulatory Flexibility Analysis (RFA)
that describes the effect of the rule on
small entities (Le., small businesses.
small organizations, and small.
governmental jurisdictions). An RFA is
unnecessary, however, if the Agency's
administrator certifies that the rule will
not have a significant economic effect
on a substantial number of small
entities.
EPA examined the final rule s
potential effects on small entities as
required by the Regulatory Flexibility
Act Two measures, based on EPA
guidelines for conducting an RFA, were
used to determine whether the rule
would have a "significant economic
effect" on small entities. The first
measure was the ratio of compliance
cost to cost of production (the "COP
ratio"). A COP ratio exceeding five
percent was assumed to represent a
significant impact because it indicated
that facilities would need to raise then-
prices by more than five percent,"
assuming costs could be passed through
to customers, hi order to maintain the
same level of profits. The second
measure was the potential number of
facility closures, estimated assuming no
costs could be passed through to
customers. The methodology used to
estimate the costs of production,
compliance costs, and potential closures
is discussed hi section Vm.C.l.
A "substantial number" of small
entities was assumed to be 20 percent or
more of the population of small
'businesses, small organizations, or small
government jurisdictions within the
universe of facilities affected by the .
rule. The only entities found to be
affected by the final rule were small
businesses; no small organizations or
small government jurisdictions would
likely be affected. "Small" businesses
were defined based on the volume of
production. This production-based
definition varied by preservative type
and geographic region. Production
volume was used to define a small
business instead of the number of
employees (which was used to the
Economic Impact Analysis conducted^
for the proposed rule) because the ratio
of labor to final output varies widely
among wood preserving operations; two
firms with the same number of
employees may have significantly
different production volumes, revenues,
and profits.
B. Results
The cost and economic impact model
calculated average COP ratios for
facilities in each model. The average
COP ratio did not exceed five percent
for any of the models representing small
facilities. The model with the highest
average COP ratio had a COP ratio of . .
1.8 percent The average COP ratio for
most models was below one percent
The percent of small facilities projected
to close was also very low. Closures of
small facilities were projected only for
inorganic facilities, with four percent of .
these faculties estimated to close.
EPA has concluded that today's final
rule will not have a significant effect on
a substantial number of small entities.'
As a result of this finding, EPA has not
prepared a formal RFA hi support of the
rule. More detailed information on small
business impacts is available in the RIA
for this rule.
X. Paperwork Reduction Act
The information collection
requirements hi this rule will be
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seg.These requirements are not
effective until OMB approves them and
a technical amendment to that effect is
published hi the Federal Register.
Public reporting burden for this
collection of information is estimated to
average 230 hours per facility per year,
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch, PM-
223, U.S. Environmental Protection
Agency. 401M St., SW.. Washington. DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget Washington,
DC 20503, marked "Attention: Desk
Officer for EPA."
XL Compliance Procedures and
Deadlines
This section is intended to assist the
regulated community hi understanding
their regulatory obligations for managing
today's listed wastes. As discussed in
section VI of this preamble, the F032
listing is promulgated pursuant to
HSWA and is therefore effective in all
states. The F034 and F035 listings are
promulgated pursuant to pre-HSW A
authority and will take effect only hi
unauthorized States; the effective date
in-authorized States for these two
listings will be established when each
State adopts the rule. The compliance
discussion hi this section first discusses
notification requirements for all
facilities, then generator and
transportation requirements hi all
States, arid finally the requirements-for
treatment, storage and disposal facilities
in authorized and hi unauthorized
States, where some of the rule will not
-------
235 / Thursday. December 6. 1990 / Rales and Regulations
take effect until States adopt the aon-
HSWA listings.
A. Notification
Pursuant to RCRA section 3010. the
Administrator may require all persons
who handle hazardous wastes to notify
EPA of their hazardous waste
management activities within 90 days
after the waste* are identified or listed
as hazardous. This requirement may be
applied even to those generators,
transporters, and TSDFs who have
previously notified EPA with respect to
the management of other hazardous
wastes. _ , ,
In ihe December 30.1988, Federal
Registar notice. EPA proposed to waive
the notification requirement for persons
who manage F032. F034, or F03S wastes
and have already (1) notified the Agency-
that they manage other hazardous
wastes and (2) received an EPA
identification number under RCRA
section 3010. EPA has decided to waive
the notification requirement for these
persons as proposed. The Agency
believes that a notification requirement
for persona already identified within the
hazardous waste management universe
is unnecessary.
EPA is nrt waiving the notification
requirement for handlers of F032, F034.
or F035 that have not notified the
Agency that they manage hazardous
wastes under RCRA section 3O10. Thus.
by March 6,1931, mil generators.
transporters, and owners or operators of
treatment, storage, and disposal
facilities who are managing F032
hazardous waste must notify EPA.
Similarly, by March 6.1991, all
generators, transporters, and owners or
operators of treatment, storage, and
disposal facilities who are managing
F034 and F035 hazardous waste in an
unauthorized State must notify EPA.
This is done by completing a section
3010 notification form and sending it to
the appropriate EPA Regional Office.
(See EPA Form 8700-12. dated 7/90. See
55 FR31389. August 2,1990 for* copy of
the form. Notification instructions are
8et forth in 45 ER12748.)
Persons In authorized Slates that are
handling FD34 andF035 wastes subject
to today's final rule are not required to
notify EPA of such activity. Notification
wUl be required of these facilities after
the State receives authorization or
otherwise amends Its program to
regulate these wastes or require such
notification. EPA has concluded that it
is appropriate to waive the notification
requirement at this time in authorized
Stalest because (1) the universe of newly
regulated activities wfll be identified
when State regulations are revised, as
they mustl)e for the Stales to retain
authorization; and (2) RCRA
identification numbers provided to
notifiers in authorized State* are
obtained by the State from EPA. so in
this way EPA is informed of the
notification that authorized States
receive. ~
B. Generators and Transporters
Generators of F032 wastes in
authorized States and generators of any
of the wastes listed today in
unauthorized States will be subject to
the generator requirements set forth in
40 CFR part 282. These requirements
include standards for hazardous waste
determination (40 CFR 262.11),
compliance with the manifest (40 CFR
28230 to 28233), pretransport
procedures (40 CFR 26230 to 262.34),
generator accumulation (40 CFR 262.34).
recordkeeping and reporting (40 CFR
262.40 to 262.44). and import/export
procedures (40 CFR 262.50 to 262.60).
Persons who transport these wastes will
be required to obtain an EPA
identification number by submitting
Form 8700-12 as described above and
will be subject to the transporter
requirements set forth in 40 CFR part
Until the authorized State adopts
today's FQ34 and F035 listings, these
wastes are not considered to be
hazardous (unless they are hazardous
due to other listings or characteristics
under the State program or the Federal
HSWA program). Therefore, generators,
transporters, and treatment, storage, and
disposal facilities managing wastes that
are hazardous solely due to fine F034 and
F035 listing are not subject to today's
rule until the Slate adopts the rule. .
EPA expects that most generators of
today's wood preserving wastes will
choose to manage these wastes in units
that are not subject to the permitting
requirements of parts 284 to 270. The
following discussion identifies the most
likely compliance options that will be
followed by generators of wood
preserving wastes.
EPA anticipates that most generators
will use drip pads and comply with the
90 day accumulation provision in
§ 282.34(aK2) of today's rule. This
provision requires the drip pad to
comply with the management standards
of part 285. subpart W. as well as other
specific standards of part 285. The
generators' drip pad units that are used
to treat or store F032. F034. and F035 are
not subject to RCRA permitting provided
the specific conditions of 5 262.34(a)(2)
are met - _ ". .
Similarly, F032. F034. F035. or Toxuaty
Characteristic wastes may be treated or
stored -by generators in tanks cr
containers for 90 days or lens under the
generator accumulation provisions of 40
CFR 28234. (Small quantity generators
have more than 90 days for
accumulation. See § 28234) These tank
and container accumulation units are
not subject to permitting, but must
comply with specified part 265
standards.
in addition, because some of the
wastes listed today are wastewaters,
they may be managed in tanks that are
part of wastewater treatment systems.
Drip pads are not tanks nor are they
ancillary equipment to tanks. Under 40
CFR 264.1(g)(6) and 2B5.1(c)(10), tanks
and tank systems that meet the
definition of wastewater treatment unit
in 40 CFR 280.10 are not subject to the
permitting and interim status
requirements of 40 CFR parts 264 and
265. The wastewater treatment unit
definition includes devices that (1) are
part of a wastewater treatment facility
that is subject to section 402 or 307(b) of
the Clean Water Act (2) treat or store
an influent wastewater that is a
hazardous waste, or that generate and
accumulate a wastewater treatment
sludge that is a hazardous waste, or that
treat or store a wastewater treatment
sludge which is a hazardous waste; and
(3) meet the definition of tank or tank
system in 40 CFR 260.10 (see 53 FR
34079). Therefore, all tanks and tank
systems that meet the wastewater
treatment unit definition, and in which
the newly listed wastes are generated,
accumulated, treated, or stored, are
exempt from the regulatory
requiremente of 40 CFR parts 284 and
265. Because the definition of tank
system includes all connected ancillary
equipment as defined in 40 CFR 260.10,
which includes piping, fittings, flanges,
valves, and pumps, any such equipment
that is part of an exempt wastewater
treatment unit in which the newly listed
wastes are generated, accumulated,
treated, or stored is also excluded from
the requirements of parts 284 and 285.
(See S3 FR 34079 for further discussion
of the scope of the exemption.) The
listed sludges, once removed from the
excluded units in which they are
generated, are subject to all applicable
RCRA subtitle C regulations. Wastes left
in inactive units also are subject to
RCRA subtitle C.
C. Treatment, Storage, and Disposal
Facilities in Unauthorized States
There are three types of treatment,
storage, and disposal facilities (TSDFs)
in unauthorized Slates which may be
affected by today's role: (1) Facilities
which are subject to RCRA permit
requirements for the first time as a result
of today's rale, (2) facilities which are
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50481
/ Vn». 55. No. 235 / Thursday. Dece^sr 6. 1990 / Rules and Regulations
already operating under interim status,
and (3) facilities that have been issued a
KCRA permit .
Permitted and interim status facilities
can also be affected by today's rule in
two distinct ways: (1) The facility may
already be managing wastes that are
hazardous under the existing EP or TC
rules and which also are wastes newly
listed under today's rule (and thus the
waste would have a new waste code), or
(2) the facility may be managing a solid
waste which is newly subject to
regulation as a result of today s listing.
Of course, generators that qualify for
the accumulation provisions of 5 262.34
are not considered to be TSDFs with
respect to wastes managed under that
provision and are not subject to
permitting for those activities; The •
following sections describe the
compliance obligations for facilities that
have units subject to permitting due to
today's listings.
1. Newly Regulated Facilities
Newly regulated facilities (i.e.,
facilities at which the only hazardous
wastes that are treated, stored, or
disposed are wastes newly regulated by
today'* final rule) must qualify for
interim status by the effective date of
the rule in order to continue managing
wastes listed by today's rule prior to
receiving a permit. To obtain interim
status, an eligible facility must submit a
section 3010 notification form to EPA by
March 6,1991 and submit a part A
permit application to EPA by June 6,
1391. (See 270.70(a).) Interim status
facilities are subject to regulation under
40 CFR part 265 (including the drip pad
Btandards in subpart W) until a permit is
issued by EPA or an authorized state. To
retain interim status, a newly-regulated
land disposal facility must submit a
RCRA permit application within one
ypar after the effective date of the rule
and certify that the facility is in
compliance with all applicable ground
water monitoring and financial
responsibility requirementsjseeRCRA
section 3005(e)(3) and 40 CFR 270.73(d)).
2. Permitted and Interim Status Faculties
Facilities which have been managing
EP or TC wastes which now also meet
the listing description for the wastes
listed today must notify EPA of the
waste code changes for these wastes.
Permitted facilities must submit permit
modifications to EPA as required under
40 CFR 270.42 that reflect the new waste
codes. Interim status facilities must
submit revised part A permit
applications in accordance with 40 U-K
270.72. These facilities must continue to
comply with the applicable federal
standards for hazardous waste
management .
Permitted and interim status facilities
which manage a solid waste that is
newly defined as hazardous waste as a
result of today's rule must also submit
Class 1 permit modification requests or
part A permit application revisions to
EPA." Facilities must manage these
wastes in accordance with 40 CFR part
265 or 40 CFR part 264 until permit
modification or issuance, depending on
whether the waste is managed hi a
newly regulated or previously regulated
For permitted facilities, the Class 1
modification must be submitted to EPA
by June 6,1991, and should include a
revised part A form clearly indicating all
activities that are newly regulated as a
result of today's listings, and any other-
description that will clarify which units
at the facility are managing the new .
wastes. Also as part of the § 270.42(g)
procedure for identifying newly listed
wastes at permitted facilities, the
permittee must notify the public within
90 days of the Class 1 submittal to the
A subsequent Class 2 or 3 permit
modification (if necessary) must be
submitted 180 days after the effective
date of today's listings, and it is at this
time that detailed part B information
must be submitted. If a new land
disposal unit is newly-regulated due to
today's rule, the permittee must certify
that the facility is in compliance with aU
applicable ground water monitoring and
financial responsibility requirements
within one year after the effective date
of the rule (see 40 CFR 270.42(g)(l)(v)).
D. Treatment, Storage, and Disposal
Facilities in Authorized States
There are also three types of faculties
located in authorized states which are
affected by today's rule; already
permitted facilities managing F032
wastes, facilities operating under
interim status managing F032 wastes,
and facilities newly subject to RCRA
permit requirement under today's rule
because they manage F032 wastes. As in
unauthorized states, some of the
permitted and interim stahw facilities
have been managing EP or TC wastes
that meet today's listing descriptions.
For facilities which have been
managing EP wastes under an
authorized State program which are also
F032 wastes, the facility will need to
change the waste code (and possibly
also change the unit type, if a drip pad is
used) assigned to its wastes. Permitted
facilities must submit permit
modifications to EPA reflecting the new
waste codes (and unit types, if
applicable). Because EPA must
implement this rule until the state is
authorized to do so, the permittee must
comply with Federal permit modification
procedures under 40 CFR 270.42 rather
than state permit modification
procedures. However, because the
permit undergoing modification is most
likely a joint EPA-State RCRA permit, a
copy of the modification request should
also be submitted to the authorized
State. Similarly, interim status facilities
managing F032 wastes must submit a
revised part A permit application to EPA
pursuant to 40 CFR 270.72, with a copy
to state permitting authorities. Although
these facilities must make appropriate
waste code (and unit type, if applicable)
modifications to reflect the new listing,
the wastes are already regulated as EP
wastes under the authorized state
" program. Accordingly, such wastes may
not be subject to any new management
requirements as a result of this rule if
they are managed in tanks, land
disposal units, or other units described
in 40 CFR parts 264/265, subparts I
through Q.
Some permitted and interim status
facilities in authorized states will be
managing F032 wastes which are
hazardous as a result of the toxicity
characteristic, which became effective
on September 25,1990, but were not
regulated as EP wastes under the
authorized state program. See.
discussion of relationship between
EPTC and revised TC at 55 FR11847-
11849 (March 29,1990). Since no state is
authorized for TC wastes, facilities
managing TC wastes which are also
hazardous as F032 under today's rule
must comply with EPA procedures for
permit modifications or interim status
changes in order to continue
management of these wastes after the
effective date of today's rule.
Some permitted and interim status
facilities hi authorized States may be
managing F032 wastes which will
become hazardous as a result of today's
rule, rather than the TC or EP. These
facilities must also submit permit
modifications or part A permit
application revisions to EPA. However,
because these wastes were previously
unregulated under RCRA. they also
were not regulated under the authorized
state program. As a result, if these
xvastes are in a previously unregulated
unit, they will be subject to the self-
implementing Federal standards for
hazardous waste management at 40 CFR
part 265 until permit issuance (for
interim status faculties) or modification
(for permitted facilities). After permit
issuance or modification, the Federa!
permitting standards at 40 CFR part 264
will apply to these wastes (or the state
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Federal Register / VoL 55. No. 235 / Thursday. December 6. 1990 / Rules and Regulations
5MB2
a^a^aVsWMM
permitting standards if the permit is
ultimately issued or modified by a state
authorized for F032). However, if the
wattes are at * permuted facility in a
unit that is already regulated by the
State, that unit will continue to comply
with the applicable permit conditions
based on 40 CFR part 294 (or State
equivalent} standards.
Facilities in authorized States which
are newly subject to RCRA permit
requirements as a result of today's rule
for F032 must obtain an EPA
identification number and submit their
part A permit application and section
3010 notification to EPA in order to
obtain Interim status {see 40 CPR
270,70). Such facilities are subject to
regulation under 40 CFR part 285 until a
permit is issued by EPA or a State
authorized for F032.
List of Subjects
40 CFR Part 2SO
Administrative practice and
procedure, Confidential business
information, Hazardous materials,
Recycling, Reporting and recordkeeping.
Waste treatment or disposal
40CFRPai±£81
Hazardous materials. Waste
treatment and disposal, Recycling.
40 CFR Part 282
Administrative practice and
procedure, Hazardous materials.
Reporting andrecordkeeping.
40CFRPart284
Hazardous materials, Packaging and
OTntamers,Kep(ntag requirements,
Security measures, Surety bonds, Waste
treatment and disposal.
40 CFR Part 285
Air pollution control, Hazardous
materials, Packaging and containers.
Reporting requirements. Security
measures, Surety bonds, Waste
treatment and disposal. Water supply.
40CFRPait27O
Administrative practice and
procedures, Air pollution control.
Hazardous materials, Reporting
requirements, Waste treatment and
disposal. Water pollution control, Water
supply, Confidential business
information.
40CFRPart271
Administrative practice and
procedures, Confidential business
information. Hazardous materials
transportation. Hazardous waste, Indian
l8Jads,IntergoveniHientaltetations,
Penalties, Reporting and recordkeeping
requirements, Water pollution control,
Water supply.
40CFRPait302
Air pollution control, Chemicals,
Hazardous materials transportation,
Hazardous substances, ~
Intergovernmental relations, Natural
resources, Nuclear materials. Pesticides
and pests, Radioactive material!!,
Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal, Water pollution
control.
Dated: November 16.1990.
VYUHasaK.Reilly.
Administrator.
For the reasons set out in the
preamble, 40 CFR parts 260,261,262,
261265,270,271, and 302 are amended
as follows:
PART 260-H AZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 280
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), 6921
through 6927.6930,6834,8935,6937,6938. and
. 6839.
' 2. Section 260.10 is amended by
adding the definition of "Drip Pad", in
alphabetical order, as follows:
5260.10 Definitions.
• *••**
Drip pad is an engineered structure
consisting of a curbed, free-draining
base, constructed of non-earthen
materials and designed to convey
preservative kick-back or drippage from
treated wood, precipitation, and surface
water run-on to an associated collection
system at wood preserving plants.
* « • • ,*
PART ^-IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261
continues to read as follows:
A»fanttj: 42 U.SXX 6805.6912(a). 6021.
6822,mnd683a
4. Section 261.4 is amended by adding
paragraph (aftO) to read as follows:
82614 Exclusions.
* * * « *
(a)* * *
(9) Spent wood preserving solutions
that have been used and are reclaimed
and reused for their original intended
purpose.
* • * • •
• 5. Section 26L31(a) is amended by
adding the following hazardous waste
listings in alphanumeric order to read as
follows:
$29,1.31 Hazardous wasUs ftomnon-
•fwcHIc •euros*.
(a) * * *
Industry and
EPA
hazardous
waste No.
Hazardous waste
Hazard
code
F032-
_ Wastewaters. process re- (T)
siduals. preservative
drippage, and spent for-
snUakons from wood
preserving processes
generated at plants that
currently use or have
previously used cbtoro-
phenooc formulatione
(except potentially
cross-contaminated
wastes that have had
the P032 waste code
deleted in accordance •
with 5261.35 of this
chapter and where the
gonorator does not
resume or initiate use of
crUorophenoUc formula-
tions). This listing does
not include K001
bottom sediment sludge
from the treatment of -.
wastewater torn wood
preserving processes
that use creosote and/
or pantacNorophenol.
_ Wanewalers. process re- (T)
siduals, preservative
dnpoage, and spent for-
mulations from wood
preserving processes
generated at plants net
nee .creosote femnUa-
• lions. This listing does
not Include K001
bottom sediment sludge
from the treatment of
wartswator irem wood
preserving processes
that use creosote and/
or pentachtorophenol.
FD3S WMlawaMm. process re- O)
F034-
tJrippage, and spent tor-
mulations ftom^ wood
preserving piocesses
generated at ptanti that
use inorganic preserva-
tives containing arsenic
or chromium. This listing
does not Include KOOi
bottt
tdimsnt sludge
from Sie treatment of
wastewater from wood
preserving processes
that use creosote and/
orpentachloroprienct.
6. Section 26135 is added to read as
follows:
$26135 Delation of Cwtafn Hazardous
Wawt* Cod** FtoRowtng Equipment
(a) Wastes from wood preserving
processes at plants mat do not resume
or initiate use of chlorophenolic
piesBivatlves wffl not meet the listing
definition of F032 once the generator has
-------
50483
met all of the requirements of
paragraphs 0>) and (c) of this section.
Thest wastes may, however, continue to
meet another hazardous waste listing
description or may exhibit one or more
of the hazardous waste characteristics.
fb] Generators must either clean or
replace all process equipment that may
have come into contact with
chlorophenolic formulations or
constituents thereof, including, but not
limited to, treatment cylinders, sumps,
•tanks, piping systems, dnp pads, fork
lifts, and trams, in a manner which
minimizes or eliminates the escape of
hazardous waste or waste constituents,
leachate, contaminated drippage, or
hazardous waste decomposition
products to the ground and surface
waters and to the atmosphere.
Generators must either:
(1) Prepare and sign a written
equipment cleaning or replacement plan
that describes the equipment to be
cleaned or replaced, how the equipment
will be cleaned or replaced, and the
appropriate solvent chosen to use in
cleaning and conduct cleaning and/or
replacement in accordance with the plan
by replacing the equipment and
managing the discarded equipment as
(2) Removing all visible residues from
process equipment; and rinsing process
equipment with an appropriate solvent
until dioxins and dibenzofurans are not
detected in the final solvent rinse at or
below the lower method calibration
limit (MCL) in Table 1 when testedI in
accordance with SW-848 Method 8290;
and managing all residues from the
cleaning process as F032 waste; or
(3) Document that previous equipment
cleaning or replacement was performed
in accordance with the requirements of
this section and occurred after a change
in preservative.
^•^•——
(c) The generator must maintain the
following records documenting the
cleaning and replacement as part of toe
facility's operating record:
(1) The name and address of the
facility; , .
(2) Formulations previously used and
the date on which their use ceased in
each process at the plant;
(3) Formulations currently used m
each process at the plant;
(4) The equipment cleaning or
replacement plan;
(51 The name and address of any
persons who conducted the cleaning and
(6) The dates on which cleaning and
replacement were accomplished;
(7) The dates of sampling and testing;
(8) A description of the sample
handling and preparation techniques,
including techniques used for extraction,
containerization, preservation, and
chahvof-custody of the samples;
(9) A description of the tests
performed, the date the tests were
performed, and the results of the tests;
(10) The name and model numbers of
the instruments) used in performing the
tests; . ,
(11) QA/QC documentation; and ._
(12) The following statement signed
by the generator or his authorized
representative:
I certify under penalty of law that all -
process equipment required to be cleaned or
replaced under 40 CFR 261.35 was cleaned or
replaced as represented in the equipment
cleaning and replacement plan and
accompanying documentation. I am aware
that there are significant penalties for
providing false information, including the
possibility of fine or imprisonment
7. Table 1 in appendix HI to part 261 is
amended to add the following
compound in alphabetical-order as...
follows:
Appendix VUI—Hazardous Constituents
_____———————^—
?'
Appendix ID—Chemical Analysis Test
Mothn/tn
Methods
TABLE 1.—ANALYSIS METHODS FOR
ORGANIC CHEMICALS CONTAINED IN
SW-846
Compound
Method
No*.
Benzo(k) fluorartthene...
6100^250,
8270,8310
8. Appendix VH to part 261 is
amended to add the following waste
streams in alphanumeric order as
•follows:-
Appendix VH—Basis for Listing
Hazardous Waste
EPA Hazardous constituents for which
hazardous ™—. fetwj
waste No. ,
• • -
F032 .. Benz(a)«nthracene. benaXajpyrene,
dttjenz(aji)-anthracene,
indeno(1A3-cd)pyrene. pentachtor-
ophenol. arsenic, chromium, Wra-,
penta-, hex*-, heptachlorodfoenzo-
p-oloxins, tetr«-, pent*-, hex*-, hep-
tBChtorodibenzofurans.
F034 Benz(a)anthi»cene,
benzoQOftuorantriene,
benzo(a)pyr«ne,
o1benz(a,h)anthracene,
ind«no<1.2,3enzo-p-dto
adding a new paragraph (a}{2) to read as
follows:
iwrr: u Section 262.34 is amended by §26234 Accumulation Urn*.
WASTE - > - redesignatingparagraphs(a)(2)through (a) • • *
10. The authority citation for part 262 , «4l M raw3) through (a)(5) and by (2j The waste is placed on dnp pads
continues to read a» follows: IUJ . and the generator complies with subpart
Authority: 42 USC. 6908,6812.6822.6823,
^HSLd 6937.
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50484 "Federal Register / Vol. 55,*No. 235 /; Thursday, December 6, 1990 /Rules and Regulations
W of 40 CFR part 285 and maintains the
following records at the facility:
(i) A description of procedures that
will be followed to ensure that all: -
wastes are removed from the drip pad
and associated collection system at
least once every 00 days; and
(ii) Documentation of each waste •
removal, including the quantity of waste
removed from the drip pad and the sump
or collection system and the date and
time of removal.
In addition, such a generator is
exempt from all the requirements La
Bubparts G and H of 40 CFR part 265,
except for § 285.111 and § 165.114.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF.
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
12. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905,6812(a). 6924, and
6925.
13.-14. Section 264.190 is amended by
revising the introductory text and by
adding paragraph (c) to read as follows:
§2*4.110 AppBcaMHy.
The requirements of this subpart
apply to owners and operators of
facilities that use tank systems for
storing or treating hazardous waste
except as otherwise provided in
paragraphs [a), (b), and (c) of this
section or in § 284.1 of this part.
• • • • •
(c) Tanks, sumps, and other such
collection devices or systems used in
conjunction with drip pads, as defined
in § 280.10 of this chapter and regulated '
under 40 CFR part 284 subpart W, must
meet the requirements of this subpart.
* • • • •
15. Part 284 is amended by adding
subpart W as follows:
SubpwtW-DripPads
264370 Applicability.
264,571 Assessment of existing drip pad
integrity. • •
254.572 Design and operating requirements.
284.573 Inspections.
281574 Closure.
284.575 Design and installation of new drip
pads.], .
Subpwrt W—Drip P»d»
§264^70 AppHeabMty.
(a) The requirements of this subpart
apply to owners and operators of
faculties that nse new or existing drip
pads to convey treated wood drippage
to an associated collection system.
Existing drip pads are those constructed
before December 6,1990 and those for
which the owner or operator has a
design and has entered into binding
financial or other agreements for
construction prior to December 8,1990.
All other drip pads are new drip pads.
(b) The owner or operator of any drip
pad that is inside or under a structure
that provides protection from
precipitation so that neither, run-off nor
run-on is generated is not subject to
regulation under S 264.572(e) or
S 284.572(f), as appropriate.
§264.571 Assessment of existing drip pad
Integrity.
(a) For each existing drip pad as
defined in § 264.570 of this subpart, the
owner or operator must evaluate the
drip pad and determine that it meets all
of the* requirements of this subpart,
except the requirements for liners and
leak detection systems of S 204.572(b).
No later than the effective date of this
rule, the owner or operator must obtain
and keep on file at the facility a written
assessment of the drip pad, reviewed
and certified by an independent,
qualified registered professional
engineer that attests to the results of the
evaluation. The assessment must be
reviewed, updated and re-certified
annually until all upgrades, repairs, or
modifications necessary to achieve
compliance with all of the standards of
§ 264.572 of mis subpart are complete.
The evaluation must document the
extent to which the drip pad meets each
of the design and operating standards of
§ 284.572 of this subpart, except the
standards for liners and leak detection
systems, specified in S 264.572{b) of this
subpart. and must document the age of
the drip pad to the extent possible, to
document compliance with paragraph.
(b) of this section. .
{b) The owner or operator must
develop a written plan for upgrading.
repairing, and modifying the drip pad to
meet the requirements of § 264.572(b) of
this subpart and submit the plan to the
Regional Administrator no later than 2
years before the date that all repairs,
upgrades,.and modifications will be
complete. This written plan must
describe all changes to be made to the
drip pad in sufficient detail to document
compliance with all the requirements of
% 264.572 of this subpart and must
document the age of the drip pad to the
extent possible. The plan must be
reviewed and certified by an
independent qualified, registered'
professional engineer. All upgrades,
repairs, and modifications must -be
completed in accordance with the .
following: •
(1) For existing drip pads of known
• and documentable age. all upgrades,
repairs, and modifications must be
completed within two years of the
effective date of. this rule, or when the
drip pad has reached 15 years of age,
whichever comes later.
' (2) For existing drip pads for which
-the age cannot be documented, within 8
years of the effective date of this rule,
but if the age of the facility is greater
than 7 years, all upgrades, repairs and
modifications must be completed by the
time the facility reaches 15 years of age
or by two years after the effective date
of this rule, whichever comes later.
(3) If the owner or operator believes
that the drip pad will continue to meet
all of the requirements of § 264.572 of
this subpart after the date upon which
all upgrades, repairs and modifications
must be completed as established under
paragraphs (b) (1) and (2) of this section,
the owner or operator may petition the
Regional Administrator for an extension
of the deadline as specified in paragraph
(b) (1) or (2) of this section. The Regional
Administrator will grant the petition for
extension based on a finding that the
drip pad meets all of the requirements of
S 264.572, except those for liners and
leak detection systems specified in
S 264.572(b), and that it will continue to
be protective of human health and the
environment
(c) Upon completion of all, repairs,
and modifications, the owner or
operator must submit to the Regional
Administrator or State Director, the as-
built drawings for the drip pad together
with a certification by an independent,
qualified registered professional
engineer attesting that the drip pad
conforms to the drawings.
(d) If the drip pad is found to be
leaking or unfit for use, the owner or
operator must comply with the
provisions of S 284.572(m) of this
subpart or close the drip pad in
accordance with S 264.574 of this
subpart
§264.572 Design and operating
(a) Drip pads must:
(1) Be constructed of non-earthen
materials, excluding wood and non-
structurally supported asphalt;
(2) Be sloped to free-drain treated
wood drippage, rain and other waters,
or solutions of drippage and water or
other wastes to the associated collection
system;
(3) Have a curb or berm around the
perimeter; ••
(4) Be impermeable, e.g., concrete
pads must be sealed, coated, or covered
with an impermeable material such that
the entire surface where drippage occurs
or may run across is capable of
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Fed«al Register / Vol. 55. No. 235 / Thursday. December 6, 1990 / Rules and Regulations 504S5
_^
containing such drippage and mixtures
of drippage and precipitation, materials,
or other wastes while being routed to an
associated collection system; and
(5) Be of sufficient structural strength
and thickness to prevent failure due to
physical contact, climatic conditions, the
stress of installation, and the stress of
daily operations, e.g., variable and
moving leads such as vehicle traffic,
movement of wood, etc.
Note: EPA will generally consider
applicable standards established by
professional organizations generally
recognized by the industry such as the
American Concrete Institute (Ad) or the
American Society of Testing Materials
(ASTM) in judging the structural integrity
requirement of this paragraph.
{b) A drip pad must have:
(1) A synthetic liner installed below
the drip pad that is designed,
constructed, and installed to prevent
leakage from the drip pad into the
adjacent subsurface soil or groundwater
or surface water at any time during the
active hie (including the closure period)
of the drip pad. The liner must be
constructed of materials that will
prevent waste from being absorbed into
the liner and to prevent releases into the
adjacent subsurface soil or ground
water or surface water during the active
life of the facility. The liner must be:
(i) Constructed of materials that have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(including static head and external
hydrogeologic forces), physical contact
with the waste or drip pad leakage to
which they are exposed, climatic
conditions, the stress of installation, and
the stress of daily operation (including
stresses from vehicular traffic on the
drip pad);
(ii) Placed upon a foundation or base
capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement
compression or uplift and
(iii) Installed to cover all surrounding
earth that could come in contact with
the waste or leakage; and
(2) A leakage detection system
immediately above the liner that is
designed, constructed, maintained and
operated to detect leakage from the drip
pad. The leakage detection system must
be:
(i) Constructed of materials that are:
(A) Chemically resistant to the waste
managed in the drip pad and the leakage
that might be generated; and
mi f\f M«£R*«iAnfr «fvonotll 'ami
kt«% •••IQ •»— O
(B) Of sufficient —
thickness to prevent
jtu «•••*•
apse under the
pressures exerted by overlaying
materials and by any equipment used at
the drip pad; and
(ii) Designed and operated to function
without clogging through the scheduled
closure of the drip pad.
(iii) Designed so that it will detect the
failure of the drip pad or the presence of
a release of hazardous waste or
accumulated liquid at the earliest
practicable time.
(c) Drip pads must be maintained such
that they remain free of cracks, gaps,
corrosion, or other deterioration that
could cause hazardous waste to be
released from the drip pad.
Note; See S 264.572(m) for remedial action
required if deterioration or leakage is
detected..., ...
(d) The drip pad and associated
collection system must be designed and
operated to convey, drain, and collect
liquid resulting from drippage or
precipitation in order to prevent run-off.
(e) Unless protected by a structure, as
described in § 264.570(b) of this subpart
the owner or operator must design,
construct, operate and maintain a run-on
control system capable of preventing
flow onto the drip pad during peak
discharge from at least a 24-hour, 25-
year storm, unless the system has
sufficient excess capacity to contain any
run-on that might enter the system, or
the drip pad is protected by a structure
or cover, as described in i 264.570{b) of
this subpart.
(f) Unless protected by a structure or
cover, as described in § 26&570(b) of
this subpart. the owner or operator must
design, construct, operate and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm.
(g) The drip pad must be evaluated to
determine that it meets the requirements
of paragraphs (a) through (f) of this
section and the owner or operator must
obtain a statement from an independent
qualified registered professional .
engineer certifying that the drip pad
design meets the requirements of this
section.
(h) Drippage and accumulated
precipitation must be removed from the
associated collection system as
necessary to prevent overflow onto the
drip pad.
(i) The drip pad surface must be
cleaned thoroughly at least once every
seven days such that accumulated-
residues of hazardous waste or other
materials are removed, using an -
appropriate and effective cleaning
technique, including but not limited to,
rinsing, washing with detergents or
other appropriate solvents, or steam .
cleaning. The owner or operator must
document the date and time of each
cleaning and the cleaning procedure
used in the facility's operating log.
(j) Drip pads must be operated and
maintained in a manner to minimize •
• tracking of hazardous waste or
hazardous waste constituents off the
drip pad as a result of activities by
personnel or equipment.
(k) After being removed from the
treatment vessel, treated wood from
pressure and non-pressure processes
must be held on the drip pad until
drippage has ceased. The owner or
operator must maintain records
sufficient to document that all treated
wood is held on the pad following
treatment hi accordance with this
requirement.
(1) Collection and holding units
associated with run-on and run-off
control systems must be emptied or
otherwise managed as soon as possible
after storms to maintain design capacity
of the system.
(m) Throughout the active life of the
drip pad and as specified in the permit
if the owner or operator detects a .
condition that could lead to or has
caused a release of hazardous waste.
the condition must be repaired within a
reasonably prompt period of time
following discovery, to accordance with
the following procedures:
(1) Upon detection of a condition that
has led or could lead to a release of
hazardous waste (e.g- upon detection of
leakage in the leak detection system),
the owner or operator must:
(i) Enter a record of the discovery in
the facility operating log;
(ii) Immediately remove the portion of
the drip pad affected by the condition
from service;
(iii) Determine what steps must be
taken to repair the drip pad and clean
up any leakage from below the drip pad,
and establish a schedule for
accomplishing the repairs;
(iv) Within 24 hours after discovery of
the condition, notify the Regional
Administrator of the condition and.
within 10 working days, provide written
notice to the Regional Administrator
with a description of the steps that will
be taken to repair the drip pad and
clean up any leakage, and the schedule
for accomplishing this work.
(2) The Regional Administrator will
review the information submitted, make
a determination regarding whether the
pad must be removed fr«m service
completely or partially until repairs and
clean up are complete, and notify the
owner or operator of the determination
and the underlying rationale in writing.
-------
*3) Upon completing all repairs and
cle'an up, the owner or operator-must
notify th&Regional Administrator to • ••
writing and provide a certification,
signed by an independent, qualified
registered professional engineer, that the
repairs and clean up have been •
completed according to the written plan
submitted to accordance with paragraph
fm)(3) of this section. ' -
fn) Should a permit be necessary, the
Regional Administrator will specify to
the permit all design and operating
practices that are necessary to ensure
that the requirements of this section are
satisfied. ,
fo) The owner or operator must
maintato, as part of the facility "• ;
operating log, documentation of past-
operating and waste handling practices.
This must include identification of
preservative formulations used to the •
past, a description of drippage
management practices, and a - '
description of treated wood storage and
handling practices.
f . •
(a) During construction or installation,
liners and cover systems^.,
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
imperfections (e*. holes, cracks,Jhin
spots, or foreign materials). Immediately
after construction or installation, liners
miutbeJnspected and certified as
meeting the requirements of 1 284.572 of
this iubpart by an independent -
quallfieAiegteteredprofessional. ,
engineer. The certification must be •
maintained at the facility as part of the
facility operating record. After •
installation liners and covers must be
inspected to ensure tight seams and
joints and the absence of tears, .
punctures, or blisters. • v~ • "'
(b) .While a drip pad is in operation, it
must be inspected weekly and after
storms to detect evidence of any of the
following: • ' "
(1) Deterioration, malfunctions or
improper operation of run-on and run-off
control systems; • .
(2) The presence of leakage to and
properfunctioning of leak detection
S) Deterioration or craddng ,0! *he
drip pad surface.
UXijLJ pau •****«»*»«" , .
Note See i 284.572(m) forremeaial action
required if deterioration or leakage is
detected. '•.
S2M374 dot***, -.'••''
(a) At closure, the owner or operator
mist remove or decontaminate afl waste
residues, contaminated containment* -
,yitemcomrKmenUQ)ad.Unef«,etoJ;
contaminated subsoils, and structures
and equipment contaminated with
waste and leakage, and managa thenvas
•hazardous waste. • -
'(b) If. after removing or
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils.
structures, and equipment as required to
paragraph (a) of this section, the owner
or operator finds that not all .
contaminated subsoils can be
practically removed or decontaminated,
he must close the facility and perform
post-closure care to accordance with
closure and post-closure care
requirements that apply to landfills
(5 284.310). For permitted unite,-the
requirement to have a permit continues-
throughout the post-closure period, fa
addition, for the purposes of closure,
post-closure, and financial
responsibility, such a drip pad is then
considered to be a landfill and the
owner or operator must meet all of the
requirements for landfills specified to
subparts G and H of this part
f c)(l) The owner or operator of an
existing drip pad, as defined in S 264^70
of this subpart, mat does not comply
with the liner requirements of
S 264.572fbHl) must ^
•(i) Include to the closureplan-for the
drip pad under 1264.112 both a planior
complying with paragraph (a] of this
section and a contingent plaBior-
complying with paragraph (b) of this
section to case not all contaminated'
subsoils can be practicably removed at
closure; and .' .
(ii) Prepare a contingent post-closure
plan under § 284.118 of this partior.
complying with paragraph fb) of this -
section to case not all contaminated
subsoils can be practicably removed at
closure. - - ••
42) The cost estimates calculated •
under 55 264.112 and 284.144 of this part
for closure and post-closure care of a
drip pad subject to mis Paragraph must
include the cost of complying with the
contingent closure plan and the '
contingent post-closure plan, but are not
required to include the cost of expected
closure under paragraph (a) of this
section, . •
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OFWVZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
526*576 DMlgnandlmtaftmonofmw
drippad*.
Owners and operators of drip pads
must ensure mat the pads are designed,
installed and operated to ascordance -
with aH of the^ppUtab^w^^enti^
of 55 264*72,284.573 and 281574 of this
subpart.
16. The authority citation for part 285
continues to read as follows:
Authority: 42 U.S.C. 6805.8912(8), 6924,
6925, an*6935. .
17.-1& Section 265.190 is amended by
revising the introductory text and by
adding paragraph (c) to read as follows:
§265.190 Applicability.
The requirements of this subpart
apply to owners and operators of
facilities that use tank systems for
storing or treating hazardous waste
except as otherwise provided to
paragraphs (a), (b), and (c) of this
section or to § 265.1 of this part.
. * * * *
(c) Tanks, sumps, and other collection
devices used to conjunction with drip
pads, as defined to S 280.10 of this
chapterand regulated under 40 CTR part
265 subpart W, must meet the
requirements of this subpart.
«•*,**
19. Part 285 is amended by adding
subpart W as follows:
Subpart W--DripP*i» :_
265.440. Applicability.
285.441 Assessment of existing drip pad
integrity.. , . , • .
265.442 Design and installation of new drip
pads.
265.443 ' Design and operating requirements.
265444 Inspections.
285445 Closure.
Subpart W-Orip Pads
S26&440 AppfcaMtty.
(a)The requirements of this subpart
apply to owners and operators of
faculties mat use new or existing drip
pads to convey treated wood drippage
• to an associated collection system.
Existing drip pads are those constructed
before December 6,1990, and those for
which the owner or operator has
generated a design and has entered into
binding financial or other agreements
for construction prior to December 4,
1990. All bther.drip pads are new drip
pads.
{b).The.pwner or operator of any drip
pad that is inside or under a structure
that provides protection from • •
precipitations that neither run-off nor
runron is generated isnot subject to
regulation under i 265.443(e) or
§ 285.443(f), as appropriate:
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Federal Renter / Vol. 55. No. 235 / Thursday. December 6. 1990 / Rules and Regulations
50487
§265.441 A»s«««m«nt of «dsting drip pad
Integrity.
(a] For each existing drip pad as
defined in § 285.440 of this subpart, the
owner or operator must evaluate the
drip pad and determine that it meets all
of the requirements of this subpart,
except the requirements for liners and
leak detection systems of 5 265.443(b}.
No later than the effective date of this
rule, the owner or operator must obtain
and keep on file at the facility a written
assessment of the drip pad, reviewed
and certified by an independent,
qualified registered professional
engineer that attests to the results of the
evaluation. The assessment must be
reviewed, updated and re-certified
annually until all upgrades, repairs, or
modifications necessary to achieve-
compliance with all of the standards of
| 265.443 of this subpart are complete.
The evaluation must justify and
document the extent to which the dnp
pad meets each of the design and
ooerating standards of § 265.443 of this
subpart, except the standards for liners
and leak detection systems, specified in
5 265.443(b) of this subpart, and must
document the age of the drip pad to the
extent possible, to document compliance
with paragraph (b) of this section.
(b) The owner or operator must
develop a written plan for upgrading,
repairing, and modifying the drip pad to
meet the requirements of § 265.443(b) of
this subpart and submit the plan to the
Regional Administrator no later than 2
years before the date that all repairs,
upgrades, and modifications will be
complete. This written plan must
describe all changes to be made to the
drip pad in sufficient detaU to document
compliance with all the requirements of
§ 265.443 of this subpart and must
document the age of the drip pad to the
extent possible. The plan must be
reviewed and certified by an
independent qualified, registered
professional engineer. All upgrades.
repairs, and modifications must be
completed in accordance with the
following:
(1) For existing drip pads of known
and documentable age, all upgrades,
repairs, and modifications must be
completed within two years of the ^
effective date of this rule, or when the
drip pad has reached 15 years of age,
whichever comes later.
(2) For existing drip pads for which
the age cannot be documented, within B
years of the effective date of this rule,
but if the age of the facility is greater
than 7 years, all upgrades, repairs and
modifications must be completed by the
time the facility reaches 15 years of age
or by two years after the effective date
of this rule, whichever comes later.
(3) If the owner or operator believes
that the drip pad will continue to meet
all of the requirements of § 265.443 of
this subpart after the date upon which
ell upgrades, repairs and modifications
must be completed as established under
paragraphs (b) (1) and (2) of this section.
the owner or operator may petition the
Regional Administrator for an extension
of the deadline as specified in paragraph
(b) (1) or (2) of this section. The Regional
Administrator will grant the petition for
extension based on a rinding that the
drip pad meets all of the requirements of
5 265.443, except those for liners and
leak detection systems specified in
5 265.443(b), and that it will continue to
ba protective of human health and the
environment. _ .
(c) Upon completion.o£aH,.repairs.
and modifications, the owner or
operator must submit to the Regional
Administrator or State Director, the as-
built drawings for the drip pad together
with a certification by an independent.
qualified registered professional
engineer attesting that the drip pad
conforms to the drawings.
(d) If .the drip pad is found to be
leaking or unfit for use. the owner or
operator must comply with the
provisions of § 265.443(m) of this
subpart or close the drip pad in
accordance with S 265.445 of this
subpart.
§ 265.442 Design and Installation of new
drtppads.
Owners and operators of new drip
pads must ensure that the pads are
designed, installed and operated in
accordance with all of the applicable
requirements of §5 265.443,265.444 and
285.445 of this subpart
$265.443 DMlgn and operating
.
(a) Drip pads must:
(1) Be constructed of non-earthen
materials, excluding wood and non-
structurally supported asphalt;
(2) Be sloped to free-drain treated
wood drippage. rain and other waters,
or solutions of drippage and water or
other wastes to the associated collection
system;
(3] Have a curb or berm around tne
perimeter
(4) Be impermeable, e.g., concrete
pads must be sealed, coated, or covered
with an impermeable material such that
the entire surface where drippage occurs
or may run across is capable of
containing such drippage and mixtures
of drippage and precipitation, materials
and other wastes, while being routed to
an associated collection system; and .
(5) Be of sufficient structural strength
and thickness to prevent failure due to.
physical contact, climatic conditions, the
stress of installation, and the stress of
daily operations, e.g., variable and
moving loads'such as vehicle traffic,
movement of wood, etc.
Note: 'EPA will generally consider
applicable standards established by
professional organizations generally
recognized by industry such as the American
Concrete Institute (ACI) and the American
Society of Testing Materials (ASTM) in
judging the structural integrity requirement of
this paragraph.
(b) A new drip pad or an existing drip
pad, after the deadline established in
§ 265.441{b) of this subpart, must have:
(!) A synthetic liner installed below
the drip pad that is designed,
constructed, and installed to prevent
.leakage from the drip pad into the
adjacent subsurface soil or groundwater.
or surface water at any time during the
active life (including the closure period)
of the drip pad. The liner must be
constructed of materials that will
prevent waste from being absorbed into
the liner and prevent releases into the
adjacent subsurface soil or ground
water or surface water during the active
life of the facility. The liner must be:
(i) Constructed of materials that have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(including static head and external
hydrogeologic forces), physical contact
with the waste or drip pad leakage to
which they are exposed, climatic
conditions, the stress of installation, and
the stress of daily operation (including
stresses from vehicular traffic on the
drip pad);
(ii) Placed upon a foundation or base
capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement,
compression or uplift; and
(iii) Installed to cover all surrounding
earth that could come in contact with
the waste or leakage; and
(2) A leakage detection system
immediately above the liner that is
designed, constructed, maintained and
operated to detect leakage from the drip
pad. The leakage detection system must
be:
(i) Constructed of materials that are:
(A) Chemically resistant to the waste
managed in the drip pad and the leakage
that might be generated; and
(B) Of sufficient strength and
thickness to prevent collapse under the
pressures exerted by overlaying
materials and by any equipment used at
the drip pad; and
(ii) Designed so that it will detect the
failure of the drip pad or the presence of
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Fadaral Register / VoL 55. No. 235 / Thursday. December 6. 1990 / Rules and Regulations
a release of hazardous waste or .
accumulated liquid at the earliest
practicable time.
(c) Drip pads must be maintained such
that they remain free of cracks, gaps.
corrosion, or other deterioration that
could cause hazardous waste to be
released from the drip pad.
Nol* Sea 1285.443{m) for remedial action
required if deterioration or leakage is
detected.
(d) The drip pad and associated
collection system must be designed and
operated to convey.-'drain, and collect
liquid resulting from drippage or
precipitation In order to prevent run-off.
(el Unless protected by a structure, as
described in § 285.440{b) of this subpart,
the owner or operator must design,
construct, operate and maintain a run-on
control system capable of preventing
How onto the drip pad during peak
discharge from at least a 24-hour, 25-
year storm unless the system has
sufficient excess capacity to contain any
run-on that might enter the system, or
the drip pad is protected by a structure
or cover, as described in § 2B5.440(b) of
this subpart
f 0 Unless protected by a structure or
cover, as described in S2B5.440(b) of
this subpart, the owner or operator must
design, construct, operate and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour. 25-year storm.
(c) The drip pad must be evaluated to
determine that it meets the requirements
of paragraphs (a) through (f) of this
section and the owner or operator must
obtain a statement from an independent.
qualified registered professional
engineer certifying that the drip pad
design meets the requirements of this
section.
(hi Drippage and accumulated
precipitation must be removed from the
associated collection system as
necessary to prevent overflow onto the
drip pad.
(I) The drip pad surface must be
cleaned thoroughly at least once every
seven days such that accumulated
residues of hazardous waste or other
materials are removed, using an
appropriate and effective deanmg
technique, including but not limited to.
rinsing, washing with detergents or
other appropriate solvents, or steam
cleaning. The owner or operator must
document the date and time of each
cleaning and the cleaning procedure
used in the facility's operating log.
f n Drip pads must be operated and
maintained in a manner to minimize
tracking of hazardous waste or
hazardous waste constituents off the
drip pad as a result of activities by
personnel or equipment
(k) After being removed from the
treatment vessel, treated wood from
pressure and non-pressure processes
must be held on the drip pad until
drippage has ceased. The owner or
operator must maintain records
sufficient to document that all treated
wood is held on the pad following
treatment in accordance with this
requirement
(1) Collection and holding units
associated with run-on and run-off
control systems must be emptied or
otherwise managed as soon as possible
after storms to maintain design capacity
of the system. ,
fm) Throughout the active life of the
drip pad, if the owner or operator
detects a condition that-could lead to or
has caused a release of hazardous j
waste, the condition must be repaired
within a reasonably prompt period of
time following discovery, in accordance
with the following procedures:
(I) Upon detection of a condition that
has led or could lead to a release of
hazardous waste (e.g.. upon detection of
leakage by the leak detection system).
the owner or operator must:
(i) Enter a record of the discovery m
the facility operating log;
(ii) Immediately remove the portion of
the drip pad affected by the condition
from service; •
(iii) Determine what steps must be
taken to repair the drip pad. remove any
leakage from below the drip pad. and
establish a schedule for accomplishing
the clean up and repairs;
(iv) Within 24 hours after discovery 01
the condition, notify the Regional
Administrator of the condition and.
within 10 working days, provide a
written notice to the Regional
Administrator with a description of the
steps that will be taken to repair the
drip pad, and clean up any leakage, and
the schedule for accomplishing this
(2) The Regional Administrator will
review the information submitted, make
a determination regarding whether the
pad must be removed from service
completely or partially until repairs and
clean up are complete, and notify the
owner or operator of the determination
and the underlying rationale in writing.
(3) Upon completing all repairs and
clean up. the owner or operator must
notify the Regional Administrator in
writing and provide a certification,
signed by an independent qualified. •
registered professional engineer, that the
repairs and clean up have been
completed according to the written plan
submitted in accordance with paragraph
(m)(3) of this section.
(n) The owner or operator must
maintain, as part of the facility
operating log, documentation of past
operating and wasfe handling practices.
This must include identification of
preservative formulations used in the
past, a description of drippage
management practices, and a
description of treated wood storage and
handling practices.
§265.444 Inspections.
(a) During construction or installation.
liners and cover systems (e.g..
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
imperfections (e.g., holes, cracks, thin
spots, or foreign materials). Immediately
after construction or installation, liners
must be inspected and certified as
meeting the requirements of § 265.443 of
this Subpart by an independent
qualified, registered professional
engineer. The certification must be
maintained at the facility as part of the
facility operating record. After
installation liners and covers must be
inspected to ensure tight seams and
joints and the absence of tears,
punctures, or blisters.
(b) While a drip pad is in operation, it
must be inspected weekly and after
storms to detect evidence of any of the
following:
(1) Deterioration, malfunctions or
improper operation of run-on and run-off
control systems;
(2) The presence of leakage in and
proper functioning of leakage detection
system.
(3) Deterioration or cracking of the
drip pad surface.
Note: See S 265.443(m) for remedial action
required if deterioration or leakage is
detected.
§265.445 Closure.
(a) At closure, the owner or operator
must remove or decontaminate all waste
residues, contaminated containment
system components (pad, liners, etc.).
contaminated subsoils, and structures
and equipment contaminated with
waste and leakage, and manage them as
hazardous waste.
(b) If, after removing or
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils,
structures, and equipment as required in
paragraph (a) of this section, the owner
or operator finds that not all
contaminated subsoils can be
practically .removed or decontaminated.
he must close the facility and perform
post/closure care in accordance with
closure and post-closure care
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Federal Register / VoL 55. No. 235 /Thursday/December 6. 1990 / Rules and Regulations 504S3
requirements that apply to landfills
(§ 265.310). For permitted units, the
requirement to have a permit continues
throughout the post-closure period.
(c)(l) The owner or operator of an
existing drip pad, as defined in S 265.440
of this subpart, that does not comply '
with the liner requirements of
5 265.443(b)(l) must
(i) Include in the closure plan for the
drip pad under S 265.112 both a plan for
complying with paragraph (a) of this
section and a contingent plan for
complying with paragraph (b) of this
section in case not all contaminated
subsoils can be practicably removed at
closure; and
(ii) Prepare a contingent post-closure
plan under § 265.118 of this part for
complying with paragraph (b) of this
section in case not all contaminated
subsoils can be practicably removed at
closure.
(2) The cost estimates calculated
under 55 265.112 and 265.144 of this part
for closure and post-closure care of a
drip pad subject to this paragraph must
include-the cost of complying with the
contingent closure plan and the
contingent post-closure plan, but are not
required to include the cost of expected
closure under paragraph (a) of this
section.
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
20. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C 6905,6912,6925,6927.
6939, and 6974.
21.—22. Subpart B of part 270 is
amended by adding § 270.22 as follows:
§ 270.22 Special part B Information
requirements for drip pads.
Except as otherwise provided by
§ 264.1 of this chapter, owners and
operators of hazardous waste treatment,
storage, or disposal facilities that
collect, store, or treat hazardous waste
on drip pads must provide the following
additional information:
(a) A list of hazardous wastes placed
or to be placed on each drip .pad.
(b) If an exemption is sought to
subpart F of part 264 of this chapter, as
provided by S 264.90 of this chapter,
detailed plans and an engineering report
describing how the requirements of
§ 264.90(b)(2) of this chapter will be met.
(c) Detailed plans and an engineering
report describing how the drip pad is or
will be designed, constructed, operated
and maintained to meet the
requirements of 5 264.572 of this chapter,
including the as-built drawings and
specifications. This submission must
address the following items as specified
in 1264.571 of this chapter:
(1) The design characteristics of the
drip pad;
(2) The liner system;
(3) The leakage detection system,
including the leak detection system and
how it is designed to detect the failure of
the drip pad or the presence of any
releases of hazardous waste or
accumulated liquid at the earliest
practicable time; _ .
(4) Practices designed to maintain drip
pads;
(5) The associated collection system;
(6) Control of run-on to the drip pad;
(7) Control of run-off from the drip
pad;
(8) The interval at which drippage and
other materials will be removed from
the associated collection system and a
statement demonstrating that the
interval will be sufficient to prevent .
overflow onto the drip pad;
(9) Procedures for cleaning the drip
pad at least once every seven days to
ensure the removal of any accumulated
residues of waste or other materials,
including but not limited to rinsing,
washing with detergents or other
appropriate solvents, or steam cleaning
and provisions for documenting the
date, time, and cleaning procedure used
each time the pad is cleaned.
(10) Operating practices and
procedures that will be followed to
ensure that tracking of hazardous waste
or waste constituents off the drip pad
due to activities by personnel or
equipment is minimized;
(11) Procedures for ensuring that, after
removal from the treatment vessel,
treated wood from pressure and non- -
pressure processes is held on the drip
pad until drippage has ceased, including
recordkeeping practices;
(12) Provisions for ensuring that
collection and holding units associated
with the run-on and run-off control
systems are emptied or otherwise
managed as soon as possible after
storms to maintain design capacity of
the system;
(13) If treatment is carried out on the
drip pad, details of the process
equipment used, and the nature and
quality of the residuals.
(14) A description of how each drip
pad, including appurtenances for control
of run-on and run-off, will be inspected
in order to meet the requirements of
§ 264.572 of this chapter. This
information should be included in the
inspection plan submitted under
§ 270.14(b}(5) of this part.
(15) A certification signed by an
independent qualified, registered
professional engineer, stating that the
drip pad design meets the requirements
of paragraphs (a) through (f) of § 264.571
of this chapter.
(16) A description of how hazardous
waste residues and contaminated
materials will be removed from the drip
pad at closure, as required under
§ 264.573(a) of this chapter. For any
waste not to be removed from the drip
pad upon closure, the owner or operator
must submit detailed plans and an
engineering report describing how
§ 264.310 (a) and (b) of this chapter will
be complied with. This information
should be included in the closure plan
and, where applicable, the post-closure
plan submitted under S 270.14(b)(13).
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
23. The authority citation for part 271
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
24. Section 271.10) is amended by
adding the following entry to Table 1 in
chronological order by date of
publication and a new footnote 2 to read
as follows:
§ 271.1 Purpose and scope.
*****
U) * * *
TABLE 1—REGULATIONS IMPLEMENTING THE
HAZARDOUS AND SOUD WASTE AMENDMENTS OF 1984
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50490 Federal Register / Vol. 55. No. 235 / Thursday. December 6. 1990 / Rules and Regulations
Table 302.4 are republished without
AuihorUy:42U.S.C.9602!33U.S.C.1321
NOTIFICATION
20. Section 302.4(a) is amended by
adding the waste streams F032, F034,
§30M D«»Jflnatk>h of hazardous
substances.
TABLE 302.4-UST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
Hszaidtxe Substance
Statutexy
Final RO
CASRN
Regutattxy
Synonyms
RQ Codet
RCRA
Waste
Num-
ber
F032
F034
F035
orpwttteMorophenoL.
ttt*$ m*t UM cr»o«ote and/or penuchtorophenol.. ^
• •
1- 4 F032 X
1(0.454)
i • 4 F03S X
1(0.454)
1(0.454)
[FR Doc. 90-28408 Filed 12-5-60:8:45 am)
DIUJMO CODE ««»-»4l
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