I
Thursday
June 13, 1991
Part III
Environmental
Protection Agency
CFR parts 261, 264, and 265
System;
-------
-------
27332
Federal Register / Vol. 56. No. 114 / Thursday, June 13. 1991 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261,264, and 265
[FRL-3963-6]
Hazardous Waste Management
System: Identification and Listing of
Hazardous Waste; Standards for
Owners and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; and Interim Status
Standards for Owners and Operators
of Hazardous Waste Treatment,
Storage, and Disposal Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Administrative stay.
SUMMARY: The Environmental Protection
Agency is today announcing an
administrative stay of the hazardous
waste listings F032. F034, and F035 in
process areas at wood preserving plants.
The primary effect of the stay is to
conditionally extend the effective date
of the drip pad management standards
to February 6,1992, for the upgrade of
existing drip pads and to May 6,1992,
for the installation of new drip pads.
Certain management standards for drip
pads, the inclusion of past users of
chlorophenolic formulations in the
listing description for certain F032
wastes, and the scope of wasiew&ten
with respect to waters Suttdo not come
into contact with preservative are also
being stayed.
DATES: Effective Date: Jane 5,1991. For
reporting deadlines, see section VI of
this preamble.
ADDRESSES: The official record far this
administrative stay is idenfified as
Docket Number F-91-WPWS-FFFFF
and is located in the EPA RCRA Docket,
room M2427.401 M Street SW.,
Washington. DC 20480. The public must
make an appointment in order to review
docket materials by calling (202) 475-
9327. The docket is available for
inspection from 9 ajn. to 4 p.m., Monday
through Friday, excluding Federal
holidays. The public may copy material
from any regulatory docket at a cost of
$0.15 per page.
FOM FURTHER INFORMATION CONTACT:
For general information contact the
RCRA Hotline, toll free at (800) 424-
8346, or at (202) 382-3000. For technical
information concerning this notice,
contact Edward L, Freedman, Office of
Solid Waste (OS-333). VS.
Environmental Protection Agency, 401M
Street SWM Washington. DC 20460.
(202} 245-3657.
SUPPLEMENTARY INFORMATION: The
contents o'f today's notice are listed in
the foflowirrg outline-
I. Background
II. Appropriate Effective Date for Drip Pad
Standards
III. Substantive Standards for Drip Pads
IV. Pentachloropheno! Cross-Contamination
V. Scope of the Wastewater Lasting
VI. Agency Action
VII. Efi'ecls On State Authorization
V!U. Paperwork Reduction Act
I. Background
On December 6.1990. EPA
promulgated regulations listing as
hazardous various wastes generated
from wood preserving processes that
use chiorophenolic. creosote, and/or
inorganic (arsenical and chromium)
preservatives (55 FR 50450 (Dec. 6,1990),
adding hazardous wastes FO32, F034,
and F035 to the lists of hazardous
wastes in 40 CFR 261.31). IB additkm.
and of particular relevance for the
present notice, the Agency promulgated
standards for a new type of waste
management unit, a drip pad (5* FR
50484-69, adding a new subpart W to
parts 264 and 265 of the regulations).
Drip pads receive drippage from treated
wood immediately after the wood is
removed fron tke treatment vessel The
pads are eligible for 90-day generator
accumulation status under 5 262.34
provided they are designed and
operated in compliance with the subpart
W standards (amended § 282.34(«)p}. 55
PR 50983-44). The standards vaiy
somewkat for new and existing drip
Because the rule was promulgated
partially pursuant to the 1984
anendnrents and partially pursuant to
preexisting authorities, the requirements
take effect at different times in different
states. As a HSWA rule, the F032 listing
of various residues from wood
preserving processes using, or that
previously used, chlorophenolic
formulations takes effect on June 6,1991
in authorized and unauthorized States
(55 FR 59469-70 and RCRA section
3001(e)). Drip pads used in connection
with F032 wastes are likewise subject to
the subpart W standards on June 6 i» «fi
States (Id. at 50470). The F034 and P035
listings and related management
standards do not take effect
immediately in authorized States since
they were not adopted pursuant to
HSWA (Id.).
H. Appropriate Effective Date for Drip '
Pad Standards '
The first issue discussed in the
present notice concerns the
effective date for the drip pad =.-%?J
standards. After the rule was "
promulgated, the American Wood
Preservers Institute (AWPI),
representing a significant segment of the
wood preserving industry, conducted a
survey to determine its members' ability
te comply with the drip pad standards "
on June 6. Although results are
somewhat fragmentary, it appears that a
significant number of facilities subject to
the lime 6 date are unable to comply at
that tine. Extrapolation of the survey
results in an estimate of 200 wood
pKserving facilities subject to the June 6
deadline (i.e. those managing F032
wastes, those in unauthorized States.
and those in States authorized for the
wood preserving rule), of which
approxmately 14C (70 percent) report
that they are unable to comply on June
8.
The principal reasons cited for
inability to comply are: (1) Difficulties in
obtaining financing: (2) difficulties in
obtaining a professional engineer's
certification of compliance (see
§ 285.441(a). 55 FR 50487); and (3)
dfficulties in coordinating pad
installation or upgrading activities with
ongoing corrective action at the facility.
{•addition, there has been some
£acussion of difficulties in some
e&nates of constructing pads during
very cold or rainy seasons.
EPA has examined this information
carefully, and conducted its own
independent inquiries and site visits.
The Aeeacy's conclusion is that,
aitfaoogh a significant percentage of
facilities can comply with the June 6
effective date, a significant portion are
••able to meet that date for legitimate
reasons. In this regard, the Agency notes
that it has phased in new design
acquirements for other types of
regulated units to accommodate similar
difficulties to those now facing certain
wood preservers. See § 265.193(a)
{phasing in secondary containment
..xequirements for hazardous waste
tmks); J 265.90(a) (groundwater
monitoring requirements effective 18
ssflBths after promulgation date): 47 FR
J8555 (April 16,1982) (phasing in certain
finnncitil responsibility requirements).
The Affeacy notes further that the issue
of drip pad compliance effective date
did not receive a great deal of attention
daring the rulemaking because the main
focus of the industry's rulemaking
comments challenged the need for
Jhting these wastes at all, and also
feeeause the court-ordered November 15,
1MB. promulgation date necessitated an
Agency review schedule.
Standards for Drip Pads
other affected industry
questioned the
-------
'. Juae 13. 1991 / Rule* TtaA
1
appmprjatenew of raqmringnew drip
pads to be seeled with an impermeable
coating and *o have liners and leak
detection systems « well. In their view,
this level «f control »g either redundant
or unnecessary, fa addition, fhey
questioned the technical feasibility of
finding an impermeable sealer for some
arsenical solutions.
IV. Penlachloropbenol Cross-
Contamination
A further issue that concerns the
wood preserring industry is the scope of
the F032 listing (for wastes torn
processes using pentachJorophenol as a
preservative]. As promulgated, this
listing includes wastes generated by
creosote or CCA plants that previously
used chlorophenolic formulations.
Although the rules provide a procedure
whereby an individual facility can
demonstrate thai cross-
-------
Persons unable to make this
demonstration would have to cease
operation by November 7, 1991. (The
scheme is somewhat similar to the
statutory loss of interim status
provisions which required certain
facilities to certify that the facility was
in compliance with financial
responsibility and groundwater
monitoring requirements by a particular
date or to cease operation fRCRA
section 3005(e)(2))). EPA repeats thai the
rule remains in effect for persons who
do not comply with these conditions.
EPA or the state, as appropriate, may in
its discretion, allow a facility to operate
beyond the November 6. 1991. deadline-
provided, that (1) The respondent
demonstrates that it cannot meet the
November 6.1991. deadline because of
circumstances entirely beyond its
control, despite its best efforts to complv
(e.g.. its impossibility of performance is"
due to corrective action being
undertaken at the wood preserving
facility pursuant to a federal or state
order or permit), and (2) such
authorization to operate is set forth in
an enforceable compliance order.
B. EPA has also decided to issue a
stay of the requirement that new drip
pads be sealed coated, or covered with
an impermeable material
(§ 264.572(a)(4). § 265.443(a)(4)). The
Agency is taking this step because we
are now convinced that this requirement
is unnecessary for pads constructed
with a liner and leak detection system
provided the pad is maintained in good
condition with actions taken to remedy
any cracks that may develop. The Kner
£ f ?^Ae secondary containment
thus fulfilling the Agency's object in
developing management standards for
dnp pads (55 FR at 50453). We
consequently are staying this
requirement. Thus, on May 6.1992 (i e
the date when new pads must comply'
with the regulatory standards), new -
pads will not be required to be sealed.
coated, or covered with an impermeable
material. EPA also intends to initiate
rulemaking to determine whether to
make this a permanent regulatory
change.
EPA intends, however, that this
requirement remain in place for existing
pads, once those pads are required to
comply with the regulatory standards,
because few (if any) existing pads are
known to have liner and leak detection
systems that comply with the subpart W
standards. Thus, on February 6,1992,
existing pads must be sealed, coated, or
covered with an impermeable surface
Because existing pads need not have
liner and leak detection systems
(SS 284JSn, 265.441) the requirement of
an impermeable surface is necessarv to
provide secondary containment. (The
Agency has determined that
commercially available sealants exist
that would be appropriate for use at the
pH of preservative solutions used by the
wood preserving industry.)
C. The Agency is also staying the
portion of the rule that included wastes
from plants generating F034 or F035
wastes that previously used
chlorophenolic formulations as within
the scope of the F032 listing. Upon
reflection, the Agency realizes that
structuring the rule in this way is not
serving any useful environmental
purpose. Wastes from creosote or
inorganic arsenical wood preserving
processes that previously used
chlorophenolics are already classified
as hazardous under the FC34 or F035
listings. The regulatory standards for
F032. F034. and F035 wastes are
identical, so that the F032 listing does
not carry with it a stricter regulatory
regime (55 FR at 50467). The only
immediate regulatory consequence of
the F032 listing for these plants is to
make more facilities subject to the June
6 compliance date. As explained above
in the discussion on compliance dates
for drip pads, this consequence has
negative features because many
facilities that can comply with the drip
pad standards with some additional
time appear unable to do so by June 6
for legitimate reasons. Since the F032
listing does not result in different
substantive regulation for the wastes
other than the timing of the effective
date. EPA has decided to stay the scope
of the F032 listing so that it does not
cover wastes from creosote or inorganic
arsenical plants that previously used
chlorophenolic preservatives as long as
any wastes from that plant are regulated
as F034 or F035 wastes. EPA also
intends to initiate rulemaking to
determine whether to permanently
amend the F032 listing.
The Agency notes, however, that the
issue of chlorophenolic cross-
contamination will be relevant when
EPA establishes treatment standards for
the F032, F034 and F035 wastes under
the land disposal restrictions program
The fact that a waste may be classified
as F034/F035 rather than F032 does not
prevent the Agency from promulgating
treatment standards for the
chlorophenolic formulation, and the
various dioxins and furans that may be
present in these wastes as a result of
equipment cross-contamination. Thus,
the Agency anticipates including
standards for these constituents in ail of
the treatment standards for the listed
wood preserving wastes.
D. Finally. EPA has decided to stay
the listing of wastewaters so that the
listing applies only to wastewaters that
have come in contact with process
contaminants, i.e.. wood preserving
solutions, spent preservatives, and the
like, ll is these process contaminants
that make the wastewater hazardous,
and the Agency did not intend for the
listing to apply to uncontaminated
wastewaters (see 56 FR 21955. May 13.
1991). Thus, if wastewaters are kept
uncontaminated, they will not be (and
should not) be covered by the listing
EPA intends to initiate rulemaking to
determine whether to n.ake this a
permanent regulatory change.
Any wood preserver claiming that
wastewater has not come in contact
with process contaminants would have
the burden of proving that this is the
case. This is because the details of plant
operation, and in particular wastewater
management, are within the special
knowledge of the wood preserving
facility. See 50 FR at 643 (January 4,
1985) and cases there cited. The best
(and perhaps only) way of showing no
contamination would be to segregate
uncontaminated waters (for example,
non-contact cooling water) from normal
process wastes and process areas. Such
segregation also serves a useful waste
minimization function by reducing the
total volume of contaminated
wastewater. Thus, the Agency views
today's action as creating an incentive
for waste minimization. Conversely,
however, the Agency notes that if
initially uncontaminated wastewater is
mixed with contaminated wastewater
(as in a centralized wastewater
treatment system) or with process
contaminants (such as rainwater falling
on a process area drip pad), then the
entire volume of wastewater is
hazardous because of the mixture rule.
E. EPA is issuing this administrative
stay pursuant to 5 U.S.C. 705 which
provides that an agency may postpone
the effective date of action taken by it
when justice so requires, pending
judicial review.' The Agency believes
that this standard is satisfied here
because it appears to be legitimately
mfeasible for a significant number of
wood preserving facilities to comply
with the drip pad standards by June 6.
In addition, the sealant requirement
for new drip pads appears unnecessary
and could add to the time needed to
comply with drip pad standards.
Inclusion of potentially cross-
contaminated wastes within the F032
listing does not serve any direct
"AW* l»* Bed .petition far review of the
PnntmNr Stale.
-------
regulatory p«v«s (given &e uniform
regulatory standards ior F032, F034. and
F035 wastes), and causes more facilities
to be subject to the June 6 effective date
with which they may "be unable to
comply. Inclusion of uncontaminated
wastewaters within the scope of the
listing is not necessary to further any
legitimate environmental objective, and
so should legitimately be stayed.
At the same time, the administrative
stay is structured so as to prevent
environmental abuses from uncontrolled
arippage during the pendency of the
slay, and is further structured to be
available only to facilities making bona
fide efforts to comply. A .significant
number of wood preservers thus could
be harmed irreparably should the drip
pad standards take effect on Jor.e 6. The
conditions on the administralive stay
plus structuring the duration of the stay
to allow time for clean-up of dnppage
contamination in existing process areas.
also assures that the stay win be in the
public interest. The Agency
consequently find, thai iwmng this stay
is in the interests of justice*
VII. Effects on State Aotborieaijoa
The effects of the administrative stay
depend largely «n whether the facility fa,
managing a wood preserving waste
dentified by a HSWA-based listing fi.e
the F032 wastes), as opposed to the '
"I* ? L81!? wastes 'F034 and F035) for
which the listmgdetermmalions were
based on pre-HSWA authority
,u As explained earlier. EPA consider
that both the FQ32 lasting and the new
subpart W dnp pad standards (when
applied to the management of F032
wastes} are based on HSWA authority
AsEPA explained in the December 6.
£^LT uce (see K ra 50469J- *e
"^A.basedFDSZ Irsting and related
snbpart W facility standards take effect
sinralraneousry hi all Stares, regardless
of their authorization stains. With
respect to these HSWA-based
requirements, tins effect of tbe
administrative »tay n to defer in all
States EPA'a implementation and
enforcement of these requirements
Agency does nol regard today's
'
, 80od cause for '
nd fa °"°r '""'" a"d OP"0™""* for commen!
jnd for nixing ,1 immfdidlely ^ffeclive. Th.s IB
oemc out t)j. the penning compliance duie and
of fcc?!m« °f;jomplli"";re for ' Mb«.nnal number
of facilities, *nd mean* of condition.^ the aiav to
MJure continued protection of human health and
Uje environment. In addition. EPA mis sought and
oolumcd comment on thu action not only from the
wood preserving industry but from members of the
enMfonmemal community and (he waste treatment
industry as well. Thefc also was opporVunity to
comment on all
. e aso was opporu
comment on all of these issue* during the
nilemakinB "scif. so that further comment
unnecessary.
er comment may be
beyond fum«, Km. in ncomrJance wtth
Uie ad.nwiBtr.tiw ..bay schedule.
According to the schedule for State
program revisions contained m 4C CFR
271.2l(e). the December 8.1990 Wood
Presenration Rule is subject to • July i
1992 deadline (July 1.1993 if a statutory
change is required) for States to modify
their hazardous waste programs and
thereafter seek approval from EPA for
the program revision. Since the
administrative stay would not extend
any effective dates beyond May 6. 1992.
EPA considers it very unlikely that any
State wiH have received approval from
EPA to implement the December 6,1990
regulation tmder RCRA authority with
earlier or more stringent effective dates
than those set out hi this stay.
Nevertheless, States may modify their
hazardoas waste programs to adopt the
Wood Preservative Rule in tfee interim.
While EPA encourages States to follow
the deferred effective dates announced
in this stay. States nay etea. to
implement the rale with effective dates
earner Bran those imposed under this
stay, as a matter of State law.
In the case of facsntte» managing ft34
and F035 wastes, the effect of the stay
depends on whether the facility is
located in an authorized of? unauthorized
State. The FB34 and RXJ5 fisting
determinations were promulgated
pursuant to pre-HSWA authority, and
EPA considers tbe subpart W drip pad
"FSS?**?*' 8°Vern *• ""«*«"««*
of F034 and F035 wood preserving
wastes to also be based on pre-HSWA
authority. According to the December 6.
1990 Rule notice, these wastes listings
and facility standards would have been
effective on June 6.1991 only in those
States that are not authorized for any
part of RCRA. EPA implements the
RCRA program in unauthorized States,
and the effect of this stay will be to
defer EPA's implementation and
enforcement of the Wood preserving
Rule's F034 and R»5 provisions ki
accordance with the administrative stav
schedule.
In authorized States, the pre-HSWA
basis for the F034 and F035 listings (and
related subpart W drip pad standards)
means that these requirements cannot
be implemented as RCRA requirements
until the State has adopted die
necessary program modifications and
obtained approval for the necessary
program modifications and obtained
approval for the revisions from EPA.
The modification schedule in 40 CFR
271.20(e) requires that States modify
their programs by July 1,1992 (July 1.
1993 if a statutory change is required) to
adopt this regulation and thereafter seek
approval of the revisions from EPA.
Since the stay does not extend any
effective dates beyond May a, 1292. it is
unlikely that States will became
authorized for the F634 and F03S listing*
and fa ciliry standards before tke
deferred effective o*ie* in the stay have
already passed. However, facilities in
both authorized states and unauthorized
states should understand that states
may adopt and implement wood
preserving regulations as a matter of
state law. prior to obtaining EPA
approval. While EPA strongly
encourages States to follow the deferred
effective dates announced in this stay.
States may elect to adopt wood
preserving waste regulations with more
•tringent'fe.f;., carter) effective dates
than those announced in this
administrative stay.
. Paperwork P^^tjnn Act
The information collection
requirements in &* ruieJave been
approved by fte Office of Management
and Budget fOMB) under the Paperwork
RedactioH Act -44 U&C. 3501 et seq.
The OMB approval number is 2050-915.
The public reporting burden for the
wood preserving rale {as pub&hed in
the Ftikul Register OH DecraBfaer*
1990). inclusive of the reporting
requirements in this administrative stay,
is estimated to result in a total of 271
hours per fadfty per yeer. The b«nten
prior to tfeis administrative stay was
estimated te average 272 hears per
facility per year.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions Sot reducing this burden, to
Chief, Information Policy Branch, PM-
223. U.S. Environmental Protection
Agency. 401 M 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."
Da ted: Junes, IWl
F. Henry HabichU
Acting Administrator.
List of Subjects
•to CFR Part 261
Hazards materials. Waste treatment
and disposal. Recycling.
40 CFR Part 264
Hazardous materials, Packaging and
containers. Reporting requirements.
Security measures. Surety bonds. Waste
treatment and disposal.
-------
7336
Federal Register / Vol. 56. No. 114 / Thursday. June 13. 1991 / Rules and Regulations
40 CFR Part 265
Air pollution control, Hazardous
materials, Packaging and containers.
Reporting requirements, Security
measures, Surety bonds, Waste
treatment and disposal, Water supply.
For the reasons set out in the
preamble, title 40, chapter I is amended
as set forth below.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a). 6921.
6922. and 6938.
2. Section 261.31 is amended by
revising the F032, F034, and F035 1,stings
to read as follows:
f 261.31 Hazardous wastes from non-
specific sources. *
Industry ana
EPA
hazardous
waste Mo.
Hazardous waste
Hazard
cooe
F032 '
Wastewaters. process resduals, preservative dnppage. and spent formulauons from wood
°T*L^ SI1*" PreWOUSty "^ ct"°«**e'>°* tormutadons (except potently crossontarnawsa
wa«ecode deleted « accordance w,rh §261.35 of Ms chapter and where the generator does not resume
chtorophenoHc formulabons). Th* ksung does not mdixte K001 bottom sediment sludgVfrom the tre
rwerw processes tha. use creosote and/ex pentachtoroohenoi. (NOTE: The kstnglrf was.ewa.ers
Staye" rt™™™****. The feting for ptante that have prmously used
These
processes oene-aled a' plants a- a- f,
F034 '
F035'
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
3. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 8905, 6912fa). 6924. and
6925.
4. Section 264.572 is amended by
revising paragraph (aj(4) to read as
follows:
§264.572 Design and operating
requirements.
(a) * * «
(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,
or other wastes while being routed to an
associated collection system.
Note: The requirement that new drip pads
be impermeable, e.g., that new drip pads be
sealed, coated, or covered with an
impermeable material it administratively
stayed. The stay will remain in effect until
further administrative action is taken.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
5. The authority citation for part 265
continues to read as follows:
Authority: 42 U.S.C. 6905. 6912(a). 6924,
6925. and 6935.
6. Section 265.443 is amended by
revising paragraph (a){4) to read as
follows:
§ 265.443 Design and operating
requirement*.
(a) * • •
(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.
or other wastes while being routed to an
associated collection system.
Note: The requirement that new drip pads
be impermeable, e.g., that new drip pads be
sealed, coated, or covered with an
impermeable material is administratively
slaved. The stay will remain in effect until
further administrative action is taken.
• * • » *
[FR Doc. 91-13954 Filed 6-12-91: 8:45 am)
BILLING COOE »540-SO-M
-------
------- |