Thursday
December 5, 1991
Part VIII
Environmental
Protection Agency
40 CFR Parts 261, 264, 265, and 302
Wood Preserving; Identification and Listing
of Hazardous Waste; Standards and Interim
Status Standards for Owners and Operators
of Hazardous Waste Treatment, Storage,
and Disposal Facilities; Proposed
Rulemaking
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63848
Federal Register / Vol. 56. No. 234 / Thursday. December 5. 1991 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part* 261,284,265, and 302
[FRU-3986-1]
RIN 2050-AD3S
Wood Preserving; Identification and
Listing of Hazardous Waste; Standards
for Owners and Operators of
Hazardous Waste Treatment, Storage,
and Disposal Facilities; Interim Status
Standards for Owners and Operators
of Hazardous Waste Treatment,
Storage, and Disposal Facilities; and
CERCLA Designation, Reportable
Quantities
AGENCY: Environmental Protection
Agency.
ACTION: Notice of proposed rulemaking
and request for comments.
SUMMARY: The U.S. Environmental
Protection Agency (EPA) today is
proposing to amend the regulations for
hazardous waste management under the
Resource Conservation and Recovery
Act (RCRA) by modifying subpart W
standards for drip pads and modifying
the listings of F032, F034. and F035.
Today's notice proposes to modify
portions of the regulations that were
finalized by EPA on November 15.1990
(55 FR 50449 on December 6,1990) and
administratively stayed on June 5.1991
(56 FR 27332 on June 13.1991). Final
action on these issues will result in the
removal of the June 5.1991
administrative stay of these elements.
This notice also proposes to modify the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) list of hazardous
substances to reflect the proposed
modifications of the F032.P034. and
F035 hazardous waste listings.
DATES: EPA will accept public
comments on this proposed rule until
January 6,1992. Due to the time
sensitivity of this rulemaking, the
comment period cannot be extended.
Comments post-marked after this date
wi(l be marked "late" and may not be
considered. Any person may request a
hearing on this proposed rule by filing a
request with EPA. to be received no
later than December 20.1991.
ADDRESSES: The public must send an
original and two copies of their
comments to: EPA RCRA Docket Clerk.
room 2427 (OS-332), U.S. Environmental
Protection Agency. 401 M Street, SW.,
Washington. DC 20460.
Place "Docket number F91-WP2P-
k'kift't"' on your comments. Copies of
materials relevant to this proposed
rulemaking are located in the docket at
the address listed above. The docket is
open from 9 aun. to 4 p.m., Monday
through Friday, excluding Federal
holidays. The public must make an
appointment to review docket materials
by calling (202) 260-0327. The public
may copy 100 pages from the docket at
no charge: additional copies are $0.15
per page. Requests for a hearing should
be addressed to Mr. David Bussord at
Characterization and Assessment
Division, Office of Solid Waste, U.S.
Environmental Protection Agency, 401M
Street, SW.. Washington, DC 20460.
Comments on the CERCLA proposal
should be sent in triplicate to:
Emergency Response Division. Docket
Clerk. ATTN: Docket No. RQ, room 2427,
U.S. Environmental Protection Agency,
401M Street. SW., Washington. DC
20480.
Copies of materials relevant to the
CERCLA portions of this rulemaking
also are located in room 2427 at Che'
above address.
FOR FURTHER INFORMATION CONTACT;
The RCRA/Superfund Hotline, at (800)
424-9346 (toll-free) or (703) 920-8810, in
the Washington. DC metropolitan area.
The TDD Hotline number is (800) 553-
7672 (toll-free) or (703) 486-3323. locally.
For technical information on the RCRA
hazardous waste listings contact Mr.
Edward L Freedman (202) 260-3657,
Office of Solid Waste (OS-333), U.S.
Environmental Protection Agency, 401M
Street SW.. Washington, DC, 20460.
For technical information on the
CERCLA proposal contact: Gerain H.
Perry, Response Standards and Criteria
Branch. Emergency Response Division
(OS-210). U.S. Environmental Protection
Agency, 401M Street, SW., Washington,
DC 20460. (202) 260-5650.
SUPPIEMENTAKY INFORMATION: The
contents of today's preamble are listed
in the following outline:
L Background
tt, G«meial Overview of the Rule and
Proposed Modification*
A. Current Waste Listing*
B. Elements of the Wood Preserving;
Regulations that require Modification
III. Basil for Rule Modification*
A. Provisional Elimination of the F032
Designation for Waste* Generated by
Past Users of Chlorophenolic
Formulation*
B. Classification of Waatewaters an •
Hazardous Waste
C Drippage in Storage Yards
D. Drip Pad Surface Coating. Sealer, and
Cover Requirement*
E. Proposed Leak Collection Requirements
for New Drip Pads
P. Drip Pad Cleaning Requirements
C. Timeframe for Existing Drip Pads to
Comply with New Drip Pad Standard*
H. Choice of Surface Coatings or Liner/
Leak Detection Systems for New Drip
Pads
IV. State Authority
A. Applicability of Final Rule in Authorized
States
B. Effect on State Authorizations
1. HSWA Provision*
2. Non-HSWA Provisions '
3. Modification Deadlines .
V. CERCLA Designation and,Reportable
Quantities
VL Compliance Procedures and Deadlines '
VH. Regulatory Analyses
A. Executive Order 12291
, E Regulatory Flexibility Act
VIIL Paperwork Reduction Act
L Background '
Section 3001(e) of RCRA required EPA
to determine whether to list wastes
containing chlorinated dioxins and .
chlorinated dibenzofurans. As part of , .
this mandate, the Agency initiated a ;v>
listing investigation of dioxin-cpntaining i
wastes from pentachlorophenol wood . - '
preserving processes and • ,
pentachlorophenate surface protection V
processes. Two other similar wood :4
preserving processes that used creosote '
and aqueous inorganic formulations \\
containing chromium or arsenic were
also included in this investigation.
On December 30,1988, EPA proposed ;
four listings pertaining to wastes'from s.;
wood preserving and surface protection,
as well as a set of standards for the
management of these wastes. The ' "
Agency finalized three generic ,
hazardous waste listings for wastes • ,-
from wood preserving processes and %•
subpart W for the management of these ,
wastes on drip pads on November 15, *
1990 and published the final rule in the
Federal Register on December 6.1990.
On December 31,1990 the American >
Wood Preservers Institute (AWPI) . '
formally requested a stay of the
effective date for compliance, and also
filed a petition for judicial review of the '
rule. The Agency has met with the ? •'
industry to solicit and collect additional "
information to support this request.
After reviewing the information and
conducting independent .studies and site, -
visits, the Administrator signed ah ,
administrative stay on June 5.1991 (see ;
56 FR 27332. June 13,1991). This action > .
conditionally stayed the applicability of
the F032, F034, and F035 listings in
process areas at wood preserving plants
and stayed certain other portions of the
rule, including the impermeability
requirement for the drip pad surface
sealer, coating, Or cover. Furthermore,
the Agency has identified other
problems with implementation. ;
The purpose of this notice is to .
propose changes to the F032, F034, and
F035 listings and portions of the subpart
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Federal Register / Vol. 56. No. 234 / Thursday. December 5, 1991 / Proposed Rules
63849
W requirements for drip pads. The
scope of today's proposed regulation
does not include wastes that are
included in the K001 listing.
II. General Overview of the Rule and
Proposed Modification*
A. Current Waste Listings
On November 15.1990. the Agency
promulgated three generic hazardous
waste listings for wood preserving
wastes from processes that use
formulations of pentachlorophenol,
creosote, or chromium and arsenic.
Portions of these listings were
administratively stayed on June 5,1991
as set forth below:
FD32 ': Wastewaters, process residuals.
preservative drippage, and spent
formulations from wood preserving
processes generated at plants that
currently use or have previously used
chlorophenolic formulations (except
potentially cross-contaminated wastes
that have had the F032 waste code
deleted in accordance with I 261.35 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 that use
creosote and/or pentachlorophenol.
(Note: The listing of wastewaters that
have not come into contact with process
contaminants is stayed administratively.
The listing for plants that have
previously used chlorophenolic
formulations is administratively stayed
whenever these wastes are covered by
the F034 or F035 listings. These stays will
remain in effect until further
administrative action is taken.).
F034 ': Wastewaters, process residuals,
preservative drippage. and spent
formulations from wood preserving
processes generated at plants that use
creosote 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.
(Note: The listing of wastewaters that
have not come into contact with process
contaminants is stayed administratively.
The stay will remain in effect until
further administrative action is taken.).
1 The F032. F034. and F035 lilting* ire
administratively stayed with respect to the process
area receiving drippage of theM waste* provided
penoni desiring to continue operating notify EPA
by August 8,1901 of their intent to upgrade or install
drip pads and by November 8.1991 provide
evidence to EPA that they have adequate financing
to pay for drip pad upgrades or installation at
provided in the administrative stay. The stay of the
listings will remain in effect until February 6,1892
for existing drip pada and until May 8,1882 for new
drip pads.
F035 ': Wastewaters, process residuals,
preservative drippage, and spent
formulations from wood preserving
processes generated at plants that 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.
(Note: The listing of wastewaters that
have not come into contact with process
contaminants is stayed administratively.
The stay will remain in effect until
further administrative action is taken.)
(For detailed discussions of the process
and wastes see the December 30,1988
Federal Register (53 FR at 53286) and the
December 6,1990 Federal Register (55
FR 50449)). In addition to the hazardous
waste listings, the Agency promulgated
Subpart W drip pad standards that
outline design criteria and operating
requirements for drip pads used to
manage treated wood drippage,
precipitation, and/or surface water run-
on. A portion of these standards was
administratively stayed on June 5,1991
(see 56 FR 27332. June 13,1991).
B. Elements of the Wood Preserving
Regulations That Require Modification
With today's notice. EPA is proposing
to revise several elements of the wood
preserving hazardous waste regulations
and is requesting comments on these
issues. The Agency is proposing to: (1)
Eliminate the F032 classification for
certain wastes generated by past users
of chlorophenolic formulations provided
that any wastewaters, drippage, process
residuals, or spent preservative are
regulated as a hazardous waste
(Toxicity Characteristic wastes, F034 or
F035); (2) narrow the scope of the
wastewater listings to those
wastewaters that come in contact with
process contaminants; (3) require
cleanup of storage yard drippage and
contingency plans for response to
incidental drippage in storage yards; (4)
remove the requirement that new drip
pads be impermeable; (5) add a
requirement that new drip pads have
leak collection devices; (6) revise the
requirement that all existing drip pads
be impermeable to reflect data on the
permeabilities of available coatings,
sealers, or coven; (7) require that drip
pad surface materials be chemically
resistant to the preservative being used
and that these surface materials be
maintained free of cracks, gaps,
corrosion, or other deterioration; (8)
revise the requirement that drip pads be
cleaned weekly to a requirement that
drip pads be cleaned in a manner and
frequency such that the entire surface of
drip pads can be inspected weekly; (9)
revise the schedule for upgrading
existing drip pads to allow 15 years for
the incorporation of liners and leak .
detection systems; and (10) revise the
CERCLA designation of hazardous
substances to reflect the modifications
in the listings.
The Agency is also requesting
comment as to whether the standards
for new drip pads should allow the
choice of either an impermeable surface
(e.g., sealers, coatings, or covers for
concrete drip pads) or a liner with a leak
detection system.
III. Basis for Rule Modifications
A. Provisional Elimination of the F032
Designation for Wastes Generated by
Past Users of Chlorophenolic
Formulations
The current listing description for
F032 states that the listing applies to
wastes generated from wood preserving
processes at plants that currently use or
have previously used chlorophenolic
formulations. However, a facility may
"delete" its wastes from the F032 listing
if the process no longer uses
chlorophenolic solutions and if the
facility meets the other criteria outlined
in § 261.35 (see 55 FR 50483),
The Agency is proposing to eliminate
the applicability of the F032 listing to
wastes generated by past users of
chlorophenolic formulations that have
ceased using such formulations provided
that any wastewaters, process residuals,
preservative drippage, and spent
formulations exhibit the toxicity
characteristic (TC) or are listed as F034
or F035. This proposed change would
ap'piy only to wastewaters, process
residuals, preservative drippage, and
spent formulations generated after the
facility ceases to use chlorophenolic
formulations. This proposed amendment
differs from the June 5,1991
administrative stay in that it
incorporates the TC designation as well
as F034 and F035 wastes. Final action on
this issue will result in the removal of
the administrative stay that is currently
in effect for this modification. Wastes
from wood preserving processes that
previously used chlorophenolic
formulations but are currently using
creosote and/or inorganic preservatives
containing arsenic or chromium are
already classified as hazardous under
federal regulations under the F034 and/
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 or result in different
substantive regulation for the wastes
other than the timing of the effective
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63850
Federal Register / Vol. 56. No. 234 / Thursday, December 5, 1991 / Proposed Rules
date. Therefore, there is no additional
environmental benefit from regulating
wastes from past users of
chlorophenolic formulations (F032)
provided that the wastes will be
classified as TC hazardous. F034, or
F035.The Agency requests comment on
this proposed action.
The Agency does note, however, that
the issue of chlorophenolic cross-
contamination will be relevant to
previous use of chlorophenolic
formulations when EPA establishes
treatment standards for FO32. F034. and
F035 wastes under the land disposal
restrictions program. The fact that a_
waste may be classified as F034 and/or
F03S rather than F032 does not eliminate
the need for the Agency to promulgate
treatment standards that address the
chlorophenolic formulations, 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 all of
the treatment standards for the listed
wood preserving wastes.
EPA emphasizes that facilities that
have switched from chlorophenolic
formulations to formulations other than
creosote or inorganic formulations
containing chromium or arsenic are still
subject to the F032 requirements for past
users. Therefore, unless these facilities
have deleted the F032 listing in
accordance with the § 261.33. their
wastes must be classified as F032 and
remain subject to all applicable RCRA
requirements.
Furthermore, this regulatory
modification does not affect the
regulation of materials contaminated '••
with F032 waste under the Agency's
"contained-in" policy {see letter from
EPA to the New York State Department
of Environmental Conservation, dated
June 19.1989). Environmental media
such as soils, ground water, or surface
waters that are contaminated with F032
wastes are considered F032 hazardous
waste when managed because they
"contain" a listed hazardous waste.
Even though the facility may no longer
use chlorophenolics or may no longer be
operating, contaminated media that
contain a listed hazardous waste from
past activities must be managed as the
listed hazardous waste when actively
managed. It is important to note that
media contaminated with wastewaters.
process residuals, preservative drippage.
or spent formulations generated at the
time a chlorophenolic formulation was
in use would still be subject to the F032
listing as a result of the "contained-in"
policy. See the July 1.1991 Federal
Register (56 FR 30192) for additional
discussion. EPA requests information on
the quantities of F032. F034. and F035
wastes that must be disposed of offsite.
and also the quantities and frequency of
generation of contaminated soil and
debris meeting these three listing
descriptions.
B. Classification of Wastewaters as a
Hazardous Waste
In today's notice, the Agency is
proposing to narrow the scope of the
wastewater listings for F032, F034. and
F035 so that uncontaminated
wastewaters are not included in the
listings. Final action on this issue will
result in the removal of the
administrative stay that is currently in
effect regarding this modification. The
preamble to the December 30.1988.
proposed rule (see 53 FR 53288)
described the types of wastewaters to
be included in the scope of the F032.
F034. and F035 listings. The Agency did
not intend for the listings to apply to
uncontaminated waters at wood
preserving plants and subsequently
administratively stayed the applicability1
of the listings to wastewaters that have
not come in contact with process
contaminants (56 FR 27332). "Process
contaminants", as used here, would
include hazardous constituents from
formulations of preservative and any
F032. F034. or F035 wastes. THUS.
wastewaters that have come in contact
with either chlorophenolic formulations,
creosote formulations, or inorganic
formulations of arsenic or chromium or
the listed wastes from wood preserving
plants (e.g., F032. F034, F035). should be
designated as F032. F034. or F035 waste.
' Waters that do not contact
chlorophenolic. creosote, or inorganic
formulations containing arsenic or
chromium or the listed wastes from
wood preserving plants (e.g.. F032, F034.
F035) should not be considered as
within the scope of the F032. F034, or
F035 listings. For example, condensate
from drying kilns (that have never been
used to dry treated wood) used to dry
untreated wood would not be
considered F032. F034. or F035 waste. As
an additional example, wastewater
generated from steam conditioning
untreated wood in cylinders that have
never been used for steam conditioning
treated wood should aiso not be
considered F032. F034. or F035 waste.
Also, rainwater that is collected in a
fashion that keeps it segregated from
preservative formulations or listed
wastes from wood preserving plants
would not be considered F032. F034. or
F035 waste until it contacted
preservative formulations or listed wood
preserving wastes. The Agency requests
comment on this proposed action.
However, if initially uncontaminated
wastewater is mixed with contaminated
wastewater (as in a centralized
wastewater treatment system) or with
process contaminants (such as
rainwater on a process area drip pad or
drip pad washdown), then the entire,
volume of wastewater is hazardous
waste by the mixture rule (40 CFR
26l.3(a)). For example, rainwater
collected on drip pads and conveyed to
associated collection systems would be
considered a hazardous waste because
it contacts listed wastes (such as
drippage. process residuals, and
wastewaters) from wood preserving
operations. Thus, this proposal, if
adopted, could lower hazardous waste
generation where it is cost effective to
segregate wastewaters to prevent
contamination.
C. Drippage in Storage- Yards.
The Agency is proposing to require
that owners/operators of wood , i j •„
preserving plants develop and ?
implement contingency plans for; •'
immediate response to incidental
drippage in storage yards. These ;. .
contingency plans are proposed to be in,
accordance with subparts D of parts 264
and 265. This requirement would apply
to both large quantity generators and .
generators of between 100 kg and 1000 ..,
kg per month. The contingency plan ;, ,-,<•
must describe how owners and ;>
operators plan to respond to incidental
storage yard drippage. Owners and
operators must also document the
response to incidental storage yard
drippage and maintain such
documentation for a period of three
years. Subpart W regulations require
that treated wood remain on the drip
pad until all drippage has ceased before
moving it to the storage yard
(SS 264.573(k) and 2B5.443(k)). Even so,
infrequent and incidental drippage may,
occur from the treated wood after its •
removal from the drip pad. Infrequent ,
and incidental drippage may occur due'
to the effects of weather, type of wood,;,1
or type of preservative. EPA recognized -
in the final rulemaking that the de .
minimis losses that could occur would
not require the storage yard to be
equipped with a drip pad (55 FR at
50456, December 6,1990).
The Agency further notes that this
type of incidental drippage would not
constitute illegal disposal of a
hazardous waste provided that there is
an immediate response to the discharge
of the drippage (5§ 284.1(g)(8)(i)(A) and
265.1(c)(ll)(i)(A) (persons responding
immediately to discharges of hazardous
wastes are not subject to regulatory
standards for the response activities.
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B38S1
although the hazardous wastes become
subject to subtitle C regulation after
they are removed)).
For the purposes of this rulemakmg.
the Agency propose* to require that the
response to incidental storage yard
drippage must include cleanup of the
Sental drippage. The contaminated
media would then be managed as
hazardous waste. Furthermore, the
cleanup must be conducted in
accordance with the contingency plan
and emergency measures of subparts D
of oarts 284 and 285. The requirement*
o SubJa^Dare applicable to incidental
and infrequent drippage because such
drippage would constitute an unplanned
sudden or nonsudden release of
hazardous waste or hazardous waste
constituents to air soil or surface water
(5 254.51(a) and S 265.51{a)). The Agency
reqeusts comment on this proposed
action.
D. Drip Pad Surface Coating, Sealer.
and Cover Requirements
Currently, subpart W requires both
new and existing drip pads to be
impermeable in order to contain
drippage and mixtures of drippage and
precipitation while being routed to an
associated collection system
f§ 264.573(a)(4) and § 285.443(a)(4)). For
example, concrete drip pads would be
required to have impermeable coatings.
sealers, or covers. Subpart W also
requires a synthetic liner and leak
detection svstem for new pads to
prevent releases into the subsurface soil.
ground water, or surface water
(I 2G4.573(b) (1-2) and S 265.443(b) (1-
" The existing regulations allow pads
that were constructed prior to December
6.1990, to operate for 2 years after the
effective date or until the pad reaches 15
years of age. whichever is later, before it
must be upgraded to incorporate liners
and leak detection (§ I 264.571 and
265.441). Installation of liners and leak
detection systems was required for new
drip pads (i.e., those constructed after
December 8,1990) in addition to the
requirement that new drip pads be
impermeable.
The Agency proposes to modify the
regulations for new drip pads to remove
the requirement that they be
impermeable. Thus, for new drip pads, a
liner and leak detection system would
have to be installed below the dnp pad.
but a surface sealer, coating, or cover
would not be required for concrete drip
pads in order to meet the subpart W
requirement*. Although sealers.
coatings, or covers would not be
required for new pads, the Agency does
note that the use of a surface material
could eliminate or minimize the amount
of contaminated pad material to be
disposed of when the facility closes the
pad. The Agency also notes that,
depending on the quality of
construction, a dnp pad without a
surface sealer, coating, or cover may
have an increased possibility of leakage
to the underlying liner (see the following
section on proposed leak collection
requirements for new drip pads) and
thus, recommends use of a sealer.
coating, or cover to reduce the need for
major cleanup efforts if the concrete
cracks, allowing leakage to the liner.
The use of a coating in addition to a
liner, leak collection, and leak detection
would have to be determined by the
facility in consideration of needs to
balance capital and maintenance costs.
The Agency believes that a well-
maintained drip pad of high-quality
construction with no cracks or gaps can
provide substantial containment and
that a liner would provide secondary
containment In *uch a case, the
additional requirement for a sealed.
coated, or covered surface would
unnecessarily increase control beyond
secondary containment EPA requests
comment on the proposal to remove the
requirement for a sealed/coated surface
for new drip pads constructed of
materials such as concrete. The
requirement for a sealed, coated, or
covered surface for existing drip pads
constructed of materials such as
concrete would not be affected by this
proposed modification.
EPA is aware that the requirement for
an absolutely impermeable surface
cannot be practicably met. The Agency's
intent in the December 8.1990. rule was
to require a surface coating, sealer, or
cover for concrete drip pads (or similar
porous or easily-fractured materials of
construction) that would provide
incremental protection against
permeation of preservative into the dnp
pad and thus serve to ensure less
permeability than would be achieved
.with the drip pad itself. This
requirement would be applicable to
concrete or other porous or easily-
fractured materials of construction but
may not be applicable to materials of
construction such as steel. Today, the
Agency is proposing the performance
standard that drip pads have a
hydraulic conductivity of less than
1 xlO"7 centimeters per second. The
Agency recognizes that the most
common material for drip pad
construction is concrete, thus this
standard has been derived from "»e
theoretical conductivity of unfractured,
well-constructed concrete. Thu*. drip
pads made of concrete or other porous
or easily-fractured materials of
construction would be required to have
sealers, coatings, or covers that are
resistant to vertical infiltration of water
vapor such that the hydraulic
conductivity through the surface
materials is less than IX10-'
centimeters per second. The Agency
believe* that the use of water for
infiltration rate determination
represents a "worst case" scenario for
creosote and chlorophenolic ,
formulations at the time when creosote
and chlorophenolic formulations are
mixed with precipitation on uncovered
drip pads, surface run-on water, and
when drip pads are cleaned with steam
or water. Supporting documentation for .
this standard can be found in the docket
for this rulemaking. Several
commercially available surface coatings
providing equivalent or better resistance
to permeation have been identified by
the Agency. A typical method for
measuring the infiltration rate "of water
vapor into a surface coating is ASTM E—
96 Procedure E. Procedure E is a
conservative procedure which is run at a
temperature of 100 degrees Fahrenheit
and uses a desiccant to maximize vapor
pressure differential.
Water seepage is commonly \
expressed as flux (units of mass or
volume per area per time). Flux can be
converted into hydraulic conductivity.
Assuming that a 20,000 Ft2 drip pad has
a 10% constantly wetted surface (i.e.
2.000 ft * is constantly wet), the rate of
water permeation through unfractured,
well-constructed concrete with a
IXIO"7 centimeter per second hydraulic
conductivity would be approximately 4
gallons per day. Use of coatings, sealers,
or covers with a hydraulic conductivity
less than that of well-constructed
concrete would reduce the rate of
permeation, but as greater performance
is required, the availability of suitable
materials is decreased. EPA is proposing
that this quantity of potentially
contaminated water or other wastes that
could permeate a well-designed and
unfractured drip pad is acceptable. EPA
is, however, proposing to require a
coating, sealer, or cover on such pads of
a lower permeability than a well-
designed concrete pad (IX10"'
centimeters per second). The reason for
this is that such surface materials will
help assure that the permeability in
actual field conditions does not exceed
that of a well-designed concrete pad.
The Agency is also proposing to require
that surface materials used to limit
hydraulic conductivity be maintained
free of cracks and gaps that would
adversely affect the hydraulic
conductivity of the surface materials
and is proposing to require that such
materials be chemically compatible with
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83852 Federal Register / Vol. 56. No. 234 / Thursday. December 5. 1991 / Proposed Rules
any preservatives that contact the drip
pad.
The limitation to reliance on concrete
as the only protective containment
barrier for existing pads is that concrete
can develop microfractures that
significantly increase the permeability,
but are difficult to detect visually. A pad
with numerous microfractures could
have permeabilities that may release as
much as 1.000 times more than that of a
pad without microfractures. EPA
believes a low permeability coating will .
help assure that microfractures do not
significantly reduce the protectiveness
of a concrete pad. The stresses that
produce microfractures in some concrete
pads should not produce the same sort
of fractures in the overlying coating
because the coating has different
properties of flexibility and should not
be prone to the same cracking pattern. A
standard for the coatings of less than
lXlO~7centimeters per second provides
that protection while still assuring that a
wide range of coating materials is
available.
EPA is also aware of a number of
coatings available that have
permeabilities on the order of 1 X 10*
centimeters per second. EPA requests
comment and data on whether those
coatings are appropriate for these
circumstances and whether the
permeability standard should be lower
than that proposed by the Agency. The
Agency solicits comments on the
potential compliance costs and
environmental benefits of a lower
permeability standard.
The Agency has found no generally
accepted test methods for determining
the permeability of a surface sealer,
coating, or cover once it has been
applied to a drip pad. The EPA has
found that such information on
permeability is typically provided by
manufacturers. Therefore, the Agency
will rely on permeability data supplied
by the manufacturer of the surface
material in order to verify that it meets
the minimum permeability standard. The
Agency has not required that a specific
test method be used for the
measurement of permeability. However,
the method used must allow for the
determination of the mass of
preservative formulation that passes
through a given area of the surface
material over a given time period.
The Agency has limited information
and no test data regarding nationally-
recognized test methods to measure the
hydraulic conductivity of sealers or
polymer-modified coatings. A potential
application is Army Corps of Engineers •
test method CRD-C 48-73 for water
permeability of concrete. However, the
Agency has no data or indications of
this method's acceptability for use with
sealers. If there are no standard test
methods to determine hydraulic
conductivity of a type of surface
material, the Agency believes that the
material is not suitable for use with drip
pads and would not meet the limited
permeability requirement
An additional problem identified with
sealers is that they do not provide a
protective barrier. A sealer would seep
into the pores to provide a surface that
would wear with the drip pad rather
than prior to wear on the drip pail
Although this provides an advantage
relative to coatings in terms of abrasion
and frequency of replacement, a aealer
may have the disadvantage of cracking
if the drip pad cracks. Coatings may not
crack when the underlying drip pad
cracks. Thus, coatings may be superior
from a protectiveness standpoint.
The Agency would consider
compliance with this proposed standard
as compliance with the impermeability
requirement until a final rule addressing
the coating standard is promulgated. If
the final rule results in a more stringent
standard, the Agency would allow a
compliance period. The Agency requests
comment on the proposed modification
to the impermeability requirement for
drip pad surface materials. The Agency
also requests information or data
regarding sealer and coating
permeabilities, and nationally
recognized test methods for meauuring
permeability.
E, Proposed Leak Collection
Requirements for New Drip Pads
As mentioned in the prior section, a
new drip pad operating without a sealed
or coated surface may incur an
increased possibility of leakage to the
underlying liner system depending on
the quality of drip pad construction.
Pursuant to S 264.573(m)(l)(iii), an
owner/operator who detects a drip pad
condition that may have caused or has
caused a release of hazardous waste
must determine how to repair the drip
pad and clean up any leakage from
below the pad. As noted in the July 1,
1991, Federal Register (56 FR at 30193),
the owner/operator need not dig up the
drip pad to clean up such releases if the
drip pad has a leak collection system
below the pad or a drainage system
leading to a sump. In order to avoid the
necessity of having to dig up drip pads,
the Agency is proposing to amend the
subpart W design and operating
requirements in | 264.573 and § .'265.443
to require that ownera/operatoni of new
drip pads install leak collection nystems
below drip pads and above the liners so
that any leakage that penetrates through
the drip pad can be collected and
removed. The Agency proposes to make
these requirements effective for new
drip pads that are constructed after the
effective date of a final rule
incorporating these requirements.
Owners and operators would also be
required to document the date and
quantity of collection of such leakage.
The documentation requirements would
apply to all leak collection devices,
regardless of when they were installed.
This requirement would also apply to
new drip pads with sealers, coatings,
and covers. The Agency requests
comment on the proposed requirement
for leak collection systems. This
proposed requirement does not affect
the responsibility of the owner/operator
to remove a drip pad to the extent
necessary to clean up any release of
hazardous waste to the environment in .
the event that such a release occurs."
F. Drip Pad Cleaning Requirements
The Agency is proposing to change
the requirements for weekly cleaning of
drip pads. The December 6,1990, final
rule required that drip pad surfaces must
be cleaned thoroughly at least once . . .
every seven days such that accumulated ' A
residues of hazardous waste or other ;;., •,
materials are removed (see 5 264.573(1) ' /
in the July 1.1991 Federal Register
notice and 5 265.443(1) in the December '
6,1990 Federal Register notice).
Furthermore, the regulations required ,: , .
that an appropriate and effective ;. ':
cleaning technique be used that
included, but was not limited to, rinsing,
washing with detergents or other
appropriate solvents, or steam cleaning.
Owners and operators were required to
document the date and time of each
cleaning and the cleaning procedure ' .
used in the facility's operating log. As
, noted in the July 1,1991 Technical :
Correction Notice (see 56 FR at 30193),
the regulations have been
misinterpreted to require weekly water .-
washing of drip pads. This was not the ,;
Agency's intent As previously
described, the Agency's intent for
weekly cleaning was to allow for , • ':..•
thorough inspections of drip pad .' . ;»,
surfaces on a weekly basis. . ._ • .
The Agency is aware that there may -:
be circumstances in which a weekly
cleaning would not serve to improve the ',
quality of inspection of a drip pad ; :s"-v:,
surface but rather would cause the
unnecessary generation of hazardous
wastes. Situations where a drip pad has
not been used during the previous week
and when the type of preservative used
would not obscure the surface of tht
drip pad (such as aqueous solutions) «re :
examples of such circumstances. .
However, situations in which
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Federal Register / Vol. 56. No. 234 / Thursday. December S. 1991 / Proposed Rules 63853
preservative accumulates on the drip
pad or obscures the drip pad in any
manner such that a weekly inspection of
the entire drip pad surface is hindered
should require a weekly cleaning. The
Agency does not believe that water,
steam, or solvent washings and rinses
are the only suitable cleaning methods.
The Agency foresees situations where a
weekly sweeping would be suitable. The
Agency also notes that drip pad
cleaning may in certain situations be
performed more often than weekly to
prevent tracking of hazardous wastes
from drip pads. .
The Agency is today proposing that
cleaning of drip pads be required in a
manner and frequency to allow weekly
inspections of the entire surface of drip
pads. Residues from such cleanings must
be managed as hazardous waste. The
existing requirements to document the
date and time of each cleaning as well
as the cleaning procedure are not
changed. This action may serve a useful
waste minimization function and may
reduce the amount of hazardous waste
generated. This proposed action does
not affect the requirement to clean drip
pads as necessary to meet the 90-day
generator requirements (i.e., drip pads
must be cleaned by rinsing, steam
cleaning, washing with detergents or
other solvents at least once every 90
days). The Agency requests comment on
the proposed modification to the
regulations regarding drip pad cleaning.
G. Timeframe for Existing Drip Pads to
Comply With New Drip Pad Standards
The Agency is proposing to allow 15
years from the effective date of a final
rule promulgating this standard for
owners/operators with existing drip
pads to upgrade the pads to meet new
drip pad standards. The current
regulations require upgrading the pad to
meet new drip pad standards (to include
a liner and leak detection system) when
the pad reaches 15 years of age or 2
years after December 8.1990. whichever
is later. Under the current regulations.
an owner/operator may be granted an
extension to the deadline if the Regional
Administrator finds that the drip pad
will continue to be protective of human
health and the environment
(5 § 264.571(b)(3) and 285.441(b)(3)).
The Agency believes that if an
existing drip pad that meets Subpart W
standards for existing drip pads is well-
constructed, well-maintained, and
certified annually, the maximum pad life
may be greater than 15 years. The 15
year age standard may not reflect the
capability of a drip pad to protect
human health and the environment
Thus, the Agency believe* that factors
including, but not limited to, structural:
integrity, surface integrity, and coating
integrity are more relevant to protection
of human health and the environment
than age of the drip pad. The Agency
recognizes that drip pads do have
limited lives and is proposing the 15
year deadline. The current requirement
to remove from service portions of drip
pads that an structurally unsound or
have cracks or gaps {§ 284.573(m)(l)(ii)
and S 265.443(m)(l)(ii)) would not be
affected by this rulemaking.
Furthermore, the requirement to remove
from service a drip pad that did not pass
the annual certification would not be
affected by this rulemaking. Drip pads
without liners and leak detection
systems must be certified annually. As a
result of these continuing requirements,
the protectiveness of existing drip pads
to human health and the environment
will not be compromised. The 15 year
timeframe will also allow additional
time for facilities to accumulate the
necessary resources required to retrofit
existing drip pads with liners and leak
detection systems.
After 15 yean from the effective date
of a final rule promulgating this
modified standard, facilities will be
required to retrofit existing drip pads
with liners and leak detection systems.
Owners /operators will continue to have
the opportunity to demonstrate to the
Regional Administrator that an existing
drip pad remains protective of the
environment (e.g., that no releases have
occurred to the environment) and thus
may qualify for an extension to the
deadline. EPA requests comment on the
proposed change to the schedule for
upgrading existing drip pads to allow
owner/operators 15 years from the
effective date of a final rulemaking hi
this regard to meet new drip pad
standards. The Agency is specifically
requesting comment as to whether a
time period of less than 15 years should
be considered.
H. Choice of Surface Coatings or Liner/
Leak Detection Systems for New Drip
Pads
Surface sealers and coatings can
provide protection from releases to the
drip pad. However, in the event of drip
pad failure (cracks or deterioration),
contaminants may be released to the
environment without the knowledge of
the facility operator if there is no liner
underlying the pad. For this reason, the
Agency believes that a liner and leak
detection system below the drip pad
offers the greatest degree of protection
of human health and the environment
However, the Agency is interested in
receiving information on the
protectiveness of surface coatings as
compared to that of liner systems.
Specifically, EPA requests comment oa
an alternative approach that would give
owners and operators of new pads the
options of installing either (1) a liner and
leak detection system underneath the
drip pad, or (2) a sealer/coating on the
surface of the drip pad. Under this
approach, new pads with no liner/leak
detection system would be deemed in
compliance with Subpart W if they
applied a surface sealer/coating to the
drip pad that met the permeability
requirements proposed today. The
Agency requests data that demonstrate
whether the level of protection provided
by a surface sealer/coating is equivalent
to that afforded by a liner and leak
detection system.
Technical differences exist between
liner/leak detection systems installed
below a drip pad and surface materials .
used to coat or cover a drip pad. The
goals of the two systems also 'differ. A
coating provides a primary barrier
against continuous chemical attack and
limits permeation through the pad.
whereas a liner provides backup
protection against unplanned,
infrequent, and short term chemical
exposure. Coatings experience moderate
to heavy traffic by machinery and
personnel: liners do not experience
direct traffic, although they may be
subject to physical stress resulting from
activity on the overlying drip pad.
The Agency has compiled the
following information on the technical
and economic differences between
surface coatings and liners. The major
design criteria are more complex for
coatings due to the different operating
conditions to which they are exposed.
For instance, the selection factors that
must be considered for coatings include
chemical resistance, bonding capability.
flexibility, permeability, method and .
ease of application, and resistance to
impact Also, it may be difficult to
determine when a coated or sealed
surface has been breached. When
selecting a liner, however, the factors
that must be considered are greatly
reduced in number due to the fact that
direct vehicular contact and frequent
exposure to preservative need not be
considered. However, liner/leak
detection systems are also subject to
significant design considerations such
as permeability and chemical resistance.
Verification of proper operation of liner/
leak detection systems may be difficult
to ascertain after installation has been
completed. •
It is the Agency's position that a drip
pad with a liner/leak detection system
provides better environmental
protection and requires less
maintenance than a drip pad with a
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63854
Federal Register / Vol. 56. No. 234 / Thursday. December 5. 1991 / Proposed Rules
surface coating only. Tradeoffs between
the systems exist in terms of cost of
initial installation and long-term
maintenance and replacement The
Agency intends to maintain the current
requirements for new drip pads to have
liners and leak detection systems and
for existing drip pads to retrofit with
liner and leak detection systems in the
future. However, the Agency requests
comment on the relative merits of this
approach as compared to allowing a
choice of liners and leak detection
system or surface coatings for new drip
pads.
IV. 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
3007,3008, 3013, and 7003 of RCRA.
although authorized States have primary
enforcement responsibility.
Before the Hazardous and Solid
Waste Amendments of 1984 (HSWA)
amended RCRA, a State with final
authorization administered its
hazardous waste program entirely in
lieu of the Federal program in that State.
The Federal requirements no longer
applied in the authorized State, and EPA
could not issue permits for any facilities
located in the State with permitting
authorization. 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.
By contrast, under section 3006(g) of
RCRA, 42 U.S.C. 6926(g). new
requirements and prohibitions imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in nonauthorized States. EPA is
directed to implement those
requirements and prohibitions in
authorized States, including the issuance
of permits, until the State is granted
authorization to do so. While States
must still adopt HSWA-related
provisions as State law to retain final .
authorization, the HSWA requirements
apply in authorized States in the interim.
Certain portions of today's rule are
proposed pursuant to section 3001(e)(2)
of RCRA, a provision added by HSWA.
These portions include the listing of
F032. Therefore, the Agency is proposing
to amend Table 1 in 40 CFR 271.1(j),
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 (in 40 CFR 271.1(j)), as discussed
in the following section of this preamble.
The remaining portion of today'it rule, as
applied to F034 and F03S, are proposed
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 Authorizations
As noted above, EPA would
implement the HSWA provisions in
today's proposed rule when a final rule
has been promulgated and is in affect in
authorized States until they modify their
programs to adopt the final rule, and the
modification is approved by EPA.
Pursuant to section 3001(e) of RCRA, a
provision added by HSWA, EPA added
F032 to the list of hazardous wastes
from nonspecific sources (40 CFR 261.31)
in the December 6,1990 rule. Thus the
changes proposed in today's rule, in
connection with F032, will take effect in
all States (authorized and unauthorized)
on the effective date. The elements of
today's proposed rule as they apply to
F034 and F035 are not immediately
effective in authorized States since the
requirements are not imposed pursuant
to HSWA. These regulations will apply
in authorized States when F034 and F03S
become hazardous wastes hi that State,
and when the State is authorized for the
drip pad standards. However, should
such wastes exhibit the Toxicity
Characteristic, which was promulgated
under HSWA authority and is effective
in authorized States, then such wastes
may be managed on drip pads meeting
the modified Subpart W standards.
1. HSWA Provisions
Because portions of the final rule
would be promulgated pursuant to
HSWA, a State submitting a program
modification would be able to apply to
receive either interim or final
authorization under section 3006(g)(2) or
3006(b), respectively, on the basin of
requirements that are substantially
equivalent or equivalent to EPA'n
requirements. The procedures and
schedule for State program
modifications under section 3006(b) are
described in 40 CFR 271.21. It should be
noted that all HSWA interim
authorizations will expire January 1,
1993 (see 40 CFR 271.24(c)).
2. Non-HSWA Provisions
Other portions of today's notice will
not be effective in authorized States
since the requirements are not being
imposed pursuant to HSWA. These
portions include the modifications to the
December 6,1990 rule as they apply to
F034 and F035. These requirements will .
be applicable only in those States that '.;•
do not have final authorization. In *, '
authorized States, these requirements-.'.'
will not be applicable until the States
revise their programs to adopt
equivalent requirements under State
law, unless the wastes are designated as
hazardous due to the Toxicity
Characteristic, which would require an
owner or operator to comply with the
drip pad standards administered under
Federal law.
3. Modification Deadlines ' <
40 CFR 271.21(e)(2) requires that
States with final authorization .must
modify their programs to reflect Federal; i
program changes and submit the • v
modifications to EPA for approval. The ,
deadline by which the States must
modify their programs to adopt this
proposed regulation will be determined
by the date of promulgation of the final
rule in accordance with section ,
271.21(e)(2). Once EPA approves the
modification, the State requirements
become subtitle C RCRA requirements:
States with authorized RCRA
programs already may have regulations .
similar to those in today's proposed rule.
These State regulations have not been
assessed against the Federal regulations
being proposed today to determine- l
whether they meet the tests for •-.-).
authorization. Thus, a State would not".
be authorized to implement these
proposed regulations as RCRA
requirements until State program: •; •
modifications are submitted to EPA and
approved. Of course. States with
existing regulations may continue to
administer and enforce their regulations
as a matter of State law. : ,,,
States that submit their official •»
application for final authorization less '
than 12 months after the effective date
of these standards an not required to • •
include standards equivalent to these «
standards in their application. However. : .
States must modify their programs by
the deadlines set forth in 40 CFR
271.21(e). States that submit official
applications for final authorization 12
months.or more after the effective date
of these standards must include
standards equivalent to these standards
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Federal Register / Vol. 56i No. 234 / Thursday. December 5. 1991 / Propo8ed_Rules_
63855
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
Btrinaent or broader in scope than
Sng 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
m reduce the scope of the Federal
program. States are not requiredto
modify their programs. See 40 CFR
..
V. 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. 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
quantity that is equal to or greater than
its RQ shall immediately notify the
National Response Center of the release
at 1-800/ 424-8802 or at 1-202/ 426-2675.
In addition, section 304 of the Super-
fund Amendments and Reauthorization
Act of 1986 (SARA) requires the owner
or operator of a facility to report the
release of a CERCLA hazardous
substance or an extremely hazardous
substance to the 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.
Accordingly to the "mixture rule"
developed in connection with the Clean
Water Act section 311 regulations and
also used in notification under CERCLA
and SARA (50 FR 13463S April 4. 1985),
the release of mixtures and solutions
containing hazardous wastes would
need to be reported to the NRC, and to
the appropriate LEFT and SERC, when
the RQ of any of its component
hazardous substances is equalled or
exceeded. The mixture rule provides
that "Idlischarges of mixtures and
solutions are subject to these regulations
only where a component hazardous
substance of the mixture or solution is
discharged in a quantity 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
The F032, F034, and F035 listings
under RCRA are administratively stayed
with respect to the process area
receiving drippage of these wastes,
provided that persons desiring to
continue operating notify EPA by
August 6,1991, of their intent to upgrade
or install drip pads, and by November 6,
1991. provide evidence to EPA that they
have adequate financing to pay for drip1
pad upgrades or installation as provided
in the administrative stay. During the
period of the administrative stay, lasting
until February 6,1992, for existing drip
pads and until May 6,1992, for new drip
pads, releases to the environment.
within the process area, of drippage that
is not a RCRA hazardous waste (and is
not otherwise listed as a hazardous
substance under CERCLA) will not be
considered a release of a CERCLA
hazardous substance. Releases to the
environment not covered by the
administrative stay, or releases to the
environment that occur after expiration
of the administrative stay, are
considered releases of CERCLA
hazardous substances and all release
reporting and liability provisions of
CERCLA will apply.
Under section 102(b) of CERCLA, all
hazardous waste streams 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 the amended waste
stream listings, the Agency today is
proposing to amend the listings of waste
streams F032, F034. and F035 at 40 CFR
302.4, the codified list of CERCLA
hazardous substances, and proposing
adjusted RQs of one pound.
VI. Compliance Procedures and
Deadlines
For discussion on compliance
procedures for the final wood preserving
rule, see section XI of the December 6.
1990 preamble (55 FR 50479) and the
administrative stay published on June
13.1991 (58 FR 27332). Specifically, in
regard to meeting the permeability
requirements of this proposed rule, the
Agency has decided to extend the
compliance date six months if a
different permeability number is chosen
which is lower than the proposed
1 X I0"7cm/s. If the minimum
permeability value does not change, the
compliance date will be the same as the
promulgation date of this final
modification rule.
VII. Regulatory Analyses
A. Executive Order 12291
Under Executive Order 12291. the
Agency must judge whether a regulation
is "major" and thus subject to the
requirement to prepare a Regulatory
Impact Analysis. The proposed rule
today is not major because it will not
result in an effect on the economy of
$100 million or more, will not result in
significantly increased costs or prices
(indeed, it may result in decreased
costs), will not have significant adverse
effects on competition, employment.
investment, productivity, and
innovation, and will.not significantly
disrupt domestic or export markets.
Therefore, the Agency has not prepared
a Regulatory Impact Analysis under the
Executive Order for these proposed
modifications. This regulation was
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291.
Although the Agency is not required
to prepare a Regulatory Impact Analysis
for this proposed rule, for the benefit of
the regulated community, the economic
impact of modifications presented in
this proposed rule are discussed below.
Where the Agency has insufficient data
to quantify the impact, economic effects
are qualitatively discussed. The Agency
requests comments and data specifically
pertaining to the economic effects of
these proposed modifications. The
Agency is not requesting comment on
the Regulatory Impact Analysis
prepared for the wood preserving final
rule which was published in the
December 6,1990, Federal Register.
Comments received on the Regulatory
Impact Analysis will not be responded
to.
The exclusion from the listing
descriptions for wastewaters that have
not come into contact with process
contaminants will result in a decrease in
costs to the extent that segregation of
wastewater results in a decreased
hazardous waste generation rate. For
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83856
Federal Regteer / VoL 06. No. 234 / Thursday. December S. 1991 / Proposed Rule.
example, collection of rainwater in a
vessel rather than on a drip pad could
result in decreased hazardous waste
generation. Because generated
hazardous waste is taxed in some
locations, there may be additional cost
savings in the form of decrease in tax
liability. Increases in cost may be
incurred in the form of a decrease in tax
liability. Increases in cost may be
incurred in the form of expenditures for
collection equipment that may be
required to segregate such wastewaters.
The Agency has insufficient information
to quantify such cost savings or
additional costs and requests comment
on the cost effects attributable to the
proposed wastewater exclusion.
The proposed removal of the
applicability of the F032 listing to past
users of chlorophenolic formulations
that currently generate TC, F034, or F035
wastes will have a negligible impact on
costs. The regulatory requirements
associated with a waste that is listed as
F032 are not substantively different from
those that are listed as F034, F035. or
exhibit the TC. Furthermore, the Agency
anticipates including standards for
dioxins and furans in wood preserving
wastes when the treatment standards
under the land disposal restrictions
program are established. The Agency
requests comment on its estimate of
minimal cost effects attributable to the
proposed revision to the applicability of
the F032 listing.
The requirement to clean up
incidental and infrequent drippage in
storage yards will have cost effects that
are highly site, weather, and situation
dependent. There will also be costs
associated with documenting the
cleanup of storage yard drippage. Costs
associated with this requirement are
also dependent on the efforts
undertaken by individual plants to
eliminate or minimize such drippage to
incidental amounts. These efforts would
include the use of vacuum cycles and
holding treated wood on drip pads for
an appropriate amount of time. Because
storage yard drippage is expected to
occur infrequently and only in incidental
amounts, the disposal costs associated
with storage yard drippage should be
minimal and will amount to
approximately $100 per 55-gallon drum
of inorganic-contaminated soils and
range from $60 to $450 per drum of
organic-contaminated soil, depending on
whether the soil is landfilled or
incinerated. The Agency requests
comments on its estimate of minimal
cost effects attributable to the proposed
requirement for cleanup of incidental
and infrequent storage yard drippage
and the costs of documentation
associated with such cleanup*.
The proposed allowance of a IS year
time period for the upgrading of existing
drip pads to new drip pad standairds will
result in a decrease in costs. The cost
savings resulting from this proposed
action are due to the incnrrence of
upgrade costs at a later time than would
be the case under the current schedule
which is based on drip pad age. The
Agency does not have data that reflects
the age distribution of existing drip
pads. However, under an assumption
that all wood preserving plants were
required to immediately install new drip
pads, a 15 year deferral in this
requirement would amount to an
estimated $5.5 million annual cost
savings to the industry for the next 20
years. The Agency requests comment on
the costs/benefits attributable to a 15
year upgrade schedule.
The proposed removal of the
requirement that new drip pads be
impermeable will decrease costs by the
amount attributable to the application of
coatings and sealers. The installed cost
of low cost sealers and coatings ranges
between $2 to $5 per square foot of drip
pad. the savings to a plant with a 10,000
square foot drip pad would range from
$20,000 to $50,000. The Agency requests
comment on the cost benefits
attributable to the removal of the
requirement for coatings or sealers.
The proposed change in the drip pad
cleaning requirements from a weekly
basis to as needed to conduct weekly
drip pad inspections will also reduce
costs. Cost reductions will mostly
benefit users of inorganic preservatives
which are dissolved in water. Such
aqueous solutions will tend to not
obscure drip pad surfaces and will result
in a greatly decreased frequency of
cleaning. The oil-based preservatives,
particularly creosote, will not benefit to
the same degree because they will tend
to obscure the drip pad surface. The cost
savings may primarily result from
reduced taxes on hazardous waste
generation. The Agency has insufficient
data to quantify these cost effects and
requests comments regarding the coat
savings resulting from the proposed
changes in the cleaning requirements.
The proposed change in drip pad
permeability requirements (from
"impermeable" to lxlO~7 centimeter*
per second) should have no cost effect*
because there are no change* in
requirement* for a surface coating or
sealer where these requirement* would
be applicable. The Agency request* .
comment on the estimated negligible
cost effect attributable to the limited
permeability requirement
The proposed requirement that new
drip pad* have leak collection device*
should have minimal impact on costs.
The previous requirement for leak
detection devices can be considered the
same requirement if a perforated pipe
leading to a sump is used to detect
leakage. The Agency request comment
on its assessment of the cost impact
resulting from the proposed leak
collection requirement
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility
Act 5 U.S.C 601-612, whenever an
agency is required to publish a general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). However, if the head of
the agency certifies that the rule will not
have a significant impact on a
substantial number of small entities, no
regulatory flexibility analysis is
required. \
The Agency examined the potential '
effects on small entities for the
December 6,1990 final rule. In that rule,
EPA concluded that the rule did net
have a significant effect on a substantial
number of small entities. Therefore; EPA
did not prepare a formal Regulatory
Flexibility Analysis (RFA) in support of
the rule. Details on small business
impacts are available in the Regulatory
Impact Analysis for the rule. Today'* ;,,
proposed rule reduces the potential t\
effects identified for the December 6, '
1990 rule, particularly by removing the
applicability of the F032 listing to past
users of chlorophenolic formulation* '
that generate TC, F034 or F035,wastes.
As a result a formal RFA was not
prepared in support of today's proposed
rule. . '••'
Vm. Paperwork Reduction Act . .
The information collection
requirement* in today'* proposed rule
will be submitted for approval to the
Office of Management and Budget ;
(OMB) under the Paperwork Reduction
Act44U.S.C.3501et*eq.An
Information Collection Request
document ha* been prepared by EPA
(ICR No, 1579) and a copy may be
obtained from Sandy Fanner,
Information Policy Branch. EPA. 401M
Street, SW. (PM-223Y), Washington. DC
20480 or by calling (202) 280-2740. Thi*
ICR will amend the information
collection requirements submitted to
support the administrative stay that waa
published Jury 13,1901 (59 FR 27332) and
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Federal Register / Vol. 56, No. 234 / Thursday, December 5. 1991 / Proposed Rules 63857
approved by the Office of Management
and Budget under the control number
2050-0115.
A revised public reporting burden for
this collection of information is
estimated to average about 338 hours.
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
required data, and completing and
reviewing the collection of information.
Also included are notification
requirements for complying with the
administrative stay.
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 Street. 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." The
final rule will respond to any OMB or
public comments on the information
collection requirements contained in this
proposal.
List of Subjects
40 CFR Part261
Hazardous 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.
40 CFR Part 265
Air pollution control. Hazardous
materials, Packaging and containers.
Reporting requirements, Security
measures, Surety bonds, Waste
treatment and disposal. Water supply.
40 CFR Part 302
Air pollution control, Chemicals,
Hazardous materials transportation,
Hazardous substances,
Intergovernmental relations. Natural
resources. Nuclear materials, Pesticides
and pests, Radioactive materials,
Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal, Water pollution
control.
Dated: November 22,1991.
William K. Reilly.
Administrator.
For the reasons set out in the
preamble, title 40, Chapter I of the Code
of Federal Regulations is proposed to be
amended as follows.
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.
6922.6934. and 6938.
2. The table in § 261.31 is amended by
revising the F032, F034, and F035
listings. The appropriate footnotes to
section 261.31 are republished without
change.
S 261.31 Hazardous wastes from non-
. specific MUTCCS.
Industry
and EPA
hazard-
ous
waste No.
Hazardous wast*
Hazard
code
• ™ "
F032 > Wastewaters (except those that haw not come into contact with process contaminants), process residuals, preservative drippage, and spent
formulation* from wood preserving processes generated at plants that currently use or have previously used chkxophemlic formulations
(except potentially cross-contaminated wastes that have had the F032 waste code deleted in accordance with { 261.35 of this chapter or
potentially cross-contaminated wastes that are otherwise currently regulated as hazardous wastes (i.e.. (=034. F035. Toxterty Characteristic).
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 that use creosote and/or pentachtorophenol.
F034 ' Wastewater* (except those that have not come into contact with process contaminants), process residuals, preservative dnppage, and spent
formulations from wood preserving processes generated at plants that us* creosote formulations. This listing does not include K001
bottom s*dim*nt sludge from the treatment of wastewater from wood preserving processes that use creosote and/or pentachlorophenol.
F035 ' Wastewaters (except those that have not come into contact with process contaminants), process residuals, preservative dnppage. and spent
formulation* from wood preserving processes generated at plants that use inorganic preservative* containing arsenic or chromium. This
listing doe* not include K001 bottom sediment sludge from the t»atm«nt of wMtwrater fro«i wcwd preservir« processes that use creosote
and/or pentachlorophenol. . .
O)
4 and (=035 toting* are administratively stayed with respect to th* process area receiving drippage of these wastes providedjwrsons desinng to
connnue oowanno noWvEPAby August T1991 of theV Wentto upgraoTorinstall drip pad* and by November 6.1991 provide evidence to EPA that mey have
a^oCaTe^S^ to pay tor oVp«duP9ra*» » installation as proSded in the adrrenistrativ* stay. Th* stay of th* Kstmgs writ remain m effect unU February 6,
1992 for existing drip pads and until May 6.1992 for new dnp pads.
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. 6905,6912(a). 6924, and
6925.
4. Section 264.570 is amended by
adding paragraph (c) to read as follows:
§264.570 Applicability.
(c) The requirements of this subpart
are not applicable to the management of
infrequent and incidental drippage in
storage yards provided that:
(1) the owner or operator has a
contingency plan that meets the
requirements contained in the
contingency plan and emergency
measures of subpart D of 40 CFR part
264: and
(2) the owner or operator responds
immediately to the discharge of such
infrequent and incidental drippage by
implementing the contingency plan and
emergency measures of subpart D of 40
CFR part 264 by.
(i) Cleaning up the drippage; and
(ii) Documenting the cleanup of the
drippage; and
(tii) Retaining documents regarding
cleanup for three years; and
(iv) Disposing of the contaminated
media as hazardous waste.
5. Section 264.571 is amended by
revising paragraph (b)(l), removing
paragraph (b)(2). redesignating
paragraph (b){3) as paragraph (b){2), and
revising the new paragraph (b)(2) to
read as follows:
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63858
Federal Register / Vol. 56, No. 234 / Thursday. December 5. 1991 / Proposed Rules
§264.571 Assessment of existing drip pad
Integrity,
(lj All upgrades, repairs, and
modifications must be completed within
15 years of [insert effective date of this
rule].
(2) If the owner or operator believes
that the drip pad will continue to meet
all of the requirements of 5 264.573 of
this subpart after the date upon which
all upgrades, repairs, and modifications
must be completed as established under
paragraph (b)(l) of this section, the
owner or operator may petition the
Regional Administrator for an extension
of the deadline specified hi paragraph
(b)(l) 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
I 264.573, except those fpr liners and
leak detection systems specified in
§ 264.573(b), and that it will continue to
be protective of human health and the
environment.
*****
6. Section 264.572 is revised to read as
follows:
§ 264372 Design and Installation of new
drip pads.
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 55 264.573 (except
264.573(a)(4)), 264.574 and 264.575 of this
subpart.
7. Section 264.573 is amended by
revising paragraphs (a)(4) and (i) and
adding paragraph (b)(3) to read as
follows;
{264.573 D«sisn and operating
requirement*,
(a) * ' *
(4) Have a hydraulic conductivity of
less than 1 X 10"T centimeters per
second, e.g., concrete drip pads must be
sealed, coated, or covered with a
surface material with a hydraulic
conductivity of less thanl X 10~T
centimeters per second such that the
entire surface where drippage occur* 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. This
surface material must be maintained
free of cracks and gaps that could
adversely affect its hydraulic
conductivity, and the material most be
chemically compatible- with the
preservatives that contact the drip pad.
(3) A leakage collection system
immediately above the liner that is
designed, constructed, maintained and
operated to collect leakage from the drip
pad such that it can be removed from
below the drip pad. The date, time, and
quantity of any leakage collected in this
system must be documented in the
operating log and the leakage must be
managed as hazardous waste.
• *•**•
(i) The drip pad surface must be
cleaned thoroughly in a manner and
frequency such that accumulated
residues of hazardous waste or other
materials are removed, with residues
being properly disposed of as hazardous
waste, so as to allow weekly inspections
of the entire drip pad surface without
interference or hindrance from
accumulated residues of hazardous
waste or other materials on the drip pad.
The owner or operator must document
the date and time of each cleaning and
the cleaning procedure used in the
facility's operating log.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
8. The authority citation for part 265
continues to read as follows:
Authority: 42 U.S.C. 6005.6912(a), 6624,
6825, and 6935.
9. Section 265.440 is amended by
adding paragraph (c) to read as follows:
I288V440 .AppfeaMity.
*****
(c) The requirements of this subpart
are not applicable to the management of
infrequent and incidental drippage in
storage yards provided that:
(1) the owner or operator has a
contingency plan that meets the
requirements contained in the
contingency plan and emergency
measures of subpart O of 40 CFK part
265; and
(2) the owner or operator responds
immediately to the discharge of such
infrequent and incidental drippage by
implementing the contingency plan and
emergency measures of subpart O of 40
CFR part 265 by:
(i) Cleaning up the drippage: and
(ii) Documenting the cleanup of the
drippage: and
(iii) Retaining documents regarding
cleanup for three yean: and
(iv) Disposing of the contaminated
media as hazardous waste.
10. Section 285.441 is amended by
revising paragraph (b)(l), removing
paragraph (b)(2), redesignating
paragraph (b)(3) as paragraph (b}(2), and
revising the new paragraph (b](2) to
read as follows:
§265.441 Assessment of existing drip pad
Integrity.
*****
(b) - * *
(1) All upgrades, repairs, and
modifications must be completed within
15 years of [insert effective date of this
rule]. '
(2) If the owner or operator believes
that the drip pad will continue to meet .
all of the requirements of 8 265.442 of
this subpart after the date upon Which •
all upgrades, repairs, and modifications
must be completed as established under
paragraph (b)(l) of this section, the
owner or operator may petition the
Regional Administrator for an extension
of the deadline specified La paragraph
(b)(l) 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
S 265.443, except those for liners and •
leak detection systems specified in ; :
\ 265.443(0). and that it will continue to
be protective of human health and the
environment
*****
11. Section 265.442 is revised to read ,
as follows:
i of new.
{2C&442
dripped*.
Owners and operators of new drip
pads must ensure that the pads are i,
designed, installed, and operated in
accordance with all of the applicable
requirement* of IJ 265.443 (except
285.443(8X4)), 285.444 and 265.445 of this
subpart
12. Section 265.443 is amended by
revising paragraphs (a)(4) and (i) and
adding paragraph (b)(3) to read as
follows:
Design and operating
8265.443
requlrem*
(a)* • • .
(4) Have a hydraulic conductivity of
less than 1X10~7 centimeter* per
second, e.g.. concrete drip pads must be
sealed, coated, or covered with a
surface material with a hydraulic
conductivity of less than 1 X10"T
centimeters per second such that the
entire surface where drippage occurs or
may ran 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. This
surface material must be maintained
free of cracks and gaps that could
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Federal Regster / Vol. 56, No. 234 / Thursday. December 5. 1991 /
£3859
fhl * * *
[31 A leakage collection system
immediately above the liner that is
designed, constructed, maintained and
operated to collect leakage from the drip
pad such that it can be removed from
below the drip pad. The date, time, and
quantity of any leakage collected in this
system must be documented m the
operating log and the leakage must be
managed as hazardous waste.
(i) The drip pad surface must be
cleaned thoroughly in a manner and
frequency such that accumulated
residues of hazardous waste or other
materials are removed, with residues
being properly disposed of as hazardous
waste, so as to allow weekly inspections
of the entire drip pad surface without
interference or hindrance from
accumulated residues of hazardous
waste or other materials on the drip pad.
The owner or operator must document
the date and time of each cleaning and
the cleaning procedure used in the
facility's operating log.
PART 302-DESM5NATION,
REPORTABLE QUANTITIES, AND
NOTIFICATION
11. The authority citation for part 302
continues to read as follows:
Authority: 42 U.S.C. 9602; 33 U.S.C. 132t
and 1381.
12. Section 302.4{a) is amended by
revising the listings for waste streams
F032, F034, and'FOSS in Table 302.4. The
appropriate footnotes to Table 302.4 are
republished without change.
§302.4 Designation of hazardous
sutxtanc**.
(a) * * *
TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPOHTABLE QUANTITIES
Hazardous substance
CASRN
Regulatory
synonyms
Statutory
Proposed HO
RQ
Code'
RCRAwttt*
No.
Category
Pounds (Kg)
F032 -
Wastewaters (except those that have
not come into contact with process
contaminants), process residuals.
preservative drippage, and spent for-
mulations from wocd preserving
processes generated at plants that
currently use or have pr&vicusly
used chloroohenolic formulations
(except 'potentially cross-contaminat-
ed wastes that have had the F032
waste code deletad in accordance
with § 261.35 of this chapter or po-
tentially cross-contaminated wastes
that are otherwise currently regulat-
ed as hazardous wastes (i.e., F034,
F035. Toxicity Characteristic), and
where the generator does not
resume or initiate use of chlorophen-
oiic formulations). This listing does
not include K001 bottom sediment
sludge from the treatment of
wastewater from wood preserving
processes that use creosote and/or
pentachlorophonol.
FQ34
Wastewa'.ers (except those that have
not come into contact with process
contaminants), process rasiduals.
presarvatrve drppago. and spent for-
rrvjiations from wood preserving
processes generated at plants that
use creosote Icrmulaoons. This list-
ing does not include K001 bottom
sediment sludge from the treatment
of wastewatw from wood preserving
processes that use creosote and/or
pantachlorophwwl.
F035_. -
O
(«) F032
1(0.454)
(•) F034
1(0.454)
n
F035
1(0.454)
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03880 Federal Register / Vol. 56. No. 234 / Thursday. December 5. 1991 / Proposed Rules
TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES—Continued
Hazardous substance
CASRN
Regulatory
synonyms
Statutory
Proposed RQ
RO
Code*
RCRA waste
No.
Category Pounds (Kg)
Wastewaters (except those that have
not come kilo contact with process
contaminarrti), process residuals.
preservative drippege. and spent for-
mulations from wood preserving
processes general*) at plants that
use inorganic preservatives contain-
ing arsenic or chromium. This listing
does not Include K001 bottom sedi-
ment sludge from the treatment of
wastewater from wood praeerving
processes that use creosote and/or
pentacMorophenoL
* Indicates the statutory source as defined by 1,2,3.4. or 5 below.
* Indicates ttwt the statutory source for designation of this hazardous substance under CERCLA is RCRA Section 3001.
" Indicates mat the 1-pound RQ is a CERCLA statutory RO.
[PR Doc. 91-28960 Filed 12-4-91; 8:45 am)
•mmo COM (MO-**-*
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