Unrted States Solid Waste and
Environmental Protection Emergency Response EPA/530-SW-91-074
Agency (OS-305) November 1991
Office of Solid Waste
Environmental
Fact Sheet
MODIFICATIONS PROPOSED
FOR WOOD PRESERVING
REGULATIONS
The Environmental Protection Agency (EPA) has issued a notice of
proposed rulemaking that would modify several aspects of a rule that
regulates wastes from the wood preserving industry under the Resource
Conservation and Recovery Act (RCRA). EPA is requesting comments
on the proposed modifications.
Background
On December 6, 1990, EPA published in the Federal Register a final
rule listing three categories of wood preserving wastes as
"hazardous." The rule subjected the management of these wastes
to regulation under RCRA and established standards for managing
hazardous wastes on "drip pads," a containment and collection
system commonly used in the wood preserving industry.
Following promulgation of the December 1990 rule, EPA and
industry representatives identified problems with implementing and
interpreting the regulations. As a result, EPA agreed to extend the
compliance dates for the drip pad management standards and to
propose certain modifications to the rule. On June 5, 1991, the EPA
Administrator signed an administrative stay that addressed most of the
elements of the final rule now being proposed for modification.
Action
EPA is proposing to revise the wood preserving rule to develop more
practical drip pad management and design standards, while main-
taining the environmental protectiveness of the rule. This notice will
provide an opportunity for public comment on the issues raised in the
U.S. Environmental Protection Agency
Region 5, Library (PL-12J)
77 West Jackson Boulevard, 12th Floor
Chicago, IL 60604-3590
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-2-
June 1991 administrative stay and on other implementation problems
involved with the wood preserving rule. EPA's proposed revisions
include:
• narrowing the scope of the wastewater listings to those wastewaters
that come in contact with process contaminants,
• eliminating the F032 designation for past users of chlorophenolic
formulations if F034, F035, or Toxicity Characteristic wastes are
currently being generated,
• revising the drip pad cleaning requirements to require cleaning as
needed to facilitate weekly inspections,
• adding requirements that drip pad surface materials be chemically
resistant and be maintained to prevent deterioration,
• revising the new drip pad standards to require leak collection
systems,
• removing the requirement that new drip pads be "impermeable,"
• replacing the requirement that existing drip pads be "impermeable"
with a requirement that they meet a numerical permeabiltiy
standard,
• revising the schedule for upgrading existing drip pads to allow 15
years for incorporating liners and leak detection systems rather
than a schedule based on the age of the drip pad, and
• requiring the cleanup of storage yard "drippage" and contingency
plans for such cleanup.
Public Comment
EPA is requesting public comment on this proposed rule.
Comments should be submitted to EPA within 30 days of the
publication of the Federal Register notice announcing this action. For
instructions on submitting written comments, please see the Federal
Register notice. It is available at no charge by calling the RCRA Hotline
or by going to EPA's RCRA Information Center in Washington, D.C.
Contact
For further information, or to order a copy of the Federal Register
notice, please call the RCRA Hotline Monday through Friday, 8:30 a.m.
to 7:30 p.m., EST. The national toll-free number is (800) 424-9346; for
the hearing impaired, it is (TDD) (800) 553-7672. In Washington, D.C.,
the number is (703) 920-9810 or TDD(703) 486-3323. Or write to:
RCRA Information Center, Office of Solid Waste (OS-305), U.S. EPA,
401 M Street, S.W., Washington, D.C. 20460. Information is also
available from the Small Business Ombudsman Hotline. The national
toll-free number is (800) 368-5888.
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U.S. ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261, 264, 265, and 302
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: U.S. Environmental Protection Agency
ACTION: Notice of Proposed RulemaJcing 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
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Response, Compensation, and Liability Act (CERCLA) list of
hazardous substances to reflect the proposed modifications of the
F032, F034, and F035 hazardous waste listings.
DATES: EPA will accept public comments on this proposed rule
until [insert data 30 days from publication]. Due to the time
sensitivity of this rulemaking, the comment period cannot be
extended. Comments post-marked after this date will 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 [insert 15 days from publication].
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-FFFFF" 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 9:00
a.m. to 4:00 p.m., Monday through Friday, excluding Federal
holidays. The public must make an appointment to review docket
materials by calling (202) 260-9327. 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 Bussard at:
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Characterization and Assessment Division
Office of Solid Waste
U.S. Environmental Protection Agency
401 M 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
401 M Street, SW
Washington, DC 20460
Copies of materials relevant to the CERCLA portions of this
rulemaking also are located in Room 2427 at the above address.
FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline, at
(800) 424-9346 (toll-free) or (703) 920-9810, 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, 401 M 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, 401 M Street, SW, Washington, DC 20460, (202)
260-5650.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are
listed in the following outline:
I. Background
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II. General Overview of the Rule and Proposed Modifications
A. Current Waste Listings
B. Elements of the Wood Preserving Regulations that
require Modification
III. Basis for Rule Modifications
A. Provisional Elimination of the F032 Designation for
Wastes Generated by Past Users of Chlorophenolic
Formulations
B. Classification of Wastewaters as a Hazardous Waste
C. Drippage in Storage Yards
D. Drip Pad Surface Coating, Sealer, and Cover
Requirements
E. Proposed Leak Collection Requirements for New Drip Pads
F. Drip Pad Cleaning Requirements
G. Timeframe for Existing Drip Pads to Comply with New
Drip Pad Standards
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 Provisions
2. Non-HSWA Provisions
3. Modification Deadlines
V. CERCLA Designation and Reportable Quantities
VI. Compliance Procedures and Deadlines
VII. Regulatory Analyses
A. Executive Order 12291
B. Regulatory Flexibility Act
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VIII. Paperwork Reduction Act
I. 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
listing investigation of dioxin-containing wastes from
pentachlorophenol wood preserving processes and
pentachlorophenate surface protection processes. Two other
similar wood 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 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
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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 an administrative stay on
June 5, 1991 (see 56 PR 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 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 Modifications
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
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administratively stayed on June 5, 1991 as set forth below:
F0321
F0341
F0351
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 $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.).
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.).
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.).
'The F032, F034, and F035 listings are administratively
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stayed with respect to the process area receiving drippage of
these wastes provided 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 drip pad upgrades or
installation as provided in the administrative stay. The stay of
the listings will remain in effect until February 6, 1992 for
existing drip pads and until May 6, 1992 for new drip pads.
(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 at 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
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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 covers; (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.
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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 PR 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 apply 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
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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 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 F032, F034, and F035 wastes under the land disposal
restrictions program. The fact that a waste may be classified as
F034 and/or F035 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.
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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 §261.35, 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 l, 1991 Federal Register (56 PR 30192) for additional
discussion. EPA requests information on the quantities of F032,
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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 Wastawaters 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 applicability of the listings to
wastewaters that have not come in contact with process
contaminants (56 PR 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,
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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 also 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
(40CFR 261.3(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
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preserving operations. Thus, this proposal, if adopted, could
lower hazardous waste generation where it is cost effective to
segregate wastewaters to prevent contamination.
c. Drippaga in storage Yards
The Agency is proposing to require that owners/operators of
wood 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
(§S264.573(k) and 265.443(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, 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 PR at 50456, December 6,
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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 (SS 264.l(g)(8)(i)(A) and
265.1(c)(11)(i)(A) (persons responding immediately to discharges
of hazardous wastes are not subject to regulatory standards for
the response activities, although the hazardous wastes become
subject to subtitle C regulation after they are removed)).
For the purposes of this rulemaking, the Agency proposes to
require that the response to incidental storage yard drippage
must include cleanup of the incidental 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 parts
264 and 265. The requirements of Subpart D are 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 (§ 264.51(a) and § 265.51(a)). The Agency requests comment
on this proposed action.
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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 [§264.573(a)(4) and S265.443(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 system for new pads to prevent
releases into the subsurface soil, ground water, or surface water
[§264.573(b)(1-2) and §265.443(b)(1-2)].
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 (SS 264.571 and 265.441). Installation
of liners and leak detection systems was required for new drip
pads (i.e., those constructed after December 6, 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 drip pad, but a surface sealer,
coating, or cover would not be required for concrete drip pads in
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order to meet the Subpart W requirements. 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 drip pad
without a surface sealer, coating, or sealer 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 such 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.
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EPA is aware that the requirement for an absolutely
impermeable surface cannot be practicably met. The Agency's
intent in the December 6, 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 drip 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 x 1CT7 centimeters per
second. The Agency recognizes that the most common material for
drip pad construction is concrete, thus this standard has been
derived from the theoretical conductivity of unfractured, well-
constructed concrete. Thus, 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 material is less than 1 x 10'7
centimeters per second. The Agency believes 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,
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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 20,000ft2 drip pad has a
10% constantly wetted surface (i.e. 2,000 ft2 is constantly wet),
the rate of water permeation through unfractured, well-
constructed concrete with a 1 x 10'7 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 (1 x 10'7 centimeters per
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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 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 1000 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 1 x 10"7 centimeters per second provides that protection
while still assuring that a wide range of coating materials are
available.
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EPA is also aware of a number of coatings available that
have permeabilities on the order of 1 x 1CT9 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.
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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 pad. Although this
provides an advantage relative to coatings in terms of abrasion
and frequency of replacement, a sealer 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
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or data regarding sealer and coating permeabilities, and
nationally recognized test methods for measuring 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 §
264.573(m)(1)(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 S 264.573 and § 265.443 to
require that owners/operators of new drip pads install leak
collection systems 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
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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 residues of
hazardous waste or other materials are removed (see §264.573(i)
in the July 1, 1991 Federal Register notice and §265.443(i) 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
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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 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 where the
type of preservative used would not obscure the surface of the
drip pad (such as aqueous solutions) are examples of such
circumstances. However, situations in which 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
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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.
6. Timeframc 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 6, 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 (SS264.571(b)(3) and 265.441(b)(3)).
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The Agency believes that if an existing drip pad that meets
Subpart W standards for existing drip pads is well-constructed,
we11-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 believes 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 are structurally
unsound or have cracks or gaps (S 264.573 (m)(1)(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 years from the effective date of a final rule
promulgating this modified standard, facilities will be required
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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 in 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/Laak Detection Systems
for Nav 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 th6
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 on an alternative approach that would give owners and
operators of new pads the option of installing either 1) a liner
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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
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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
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.
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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.
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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.l(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.l(j)], as discussed in the following section of
this preamble. The remaining portions of today's rule, as
applied to F034 and F035, 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.
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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 effect 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 non-
specific 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 F035 become hazardous wastes in
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.
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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 basis of requirements that are substantially equivalent or
equivalent to EPA's 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
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law.
3. Modification Deadlines
40 CFR 271.21(e)(2) requires that States with final
authorization must modify their programs to reflect Federal
program changes and submit the 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 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
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these standards are 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 in
their applications. 40 CFR 271.3 sets forth the requirements
that States must meet when submitting final authorization
applications.
It should be noted that authorized States are only required
to modify their programs when EPA promulgates Federal standards
that are more stringent or broader in scope that existing Federal
standards. Section 3009 of RCRA allows States to impose
standards more stringent than those in the Federal program. For
those Federal program changes that are less stringent or reduce
the scope of the Federal program, States are not required to
modify their programs. See 40 CFR 271.l(i).
V. CERCLA Designation and Reportabl* Quantities
All hazardous wastes listed pursuant to 40 CFR Section
261.31 through Section 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 Section 261.21 through Section
261.24), are hazardous substances as defined at Section 101(14)
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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 Section 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 Superfund
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. According 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 13463, April 4, 1985), the release of mixtures and
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solutions containing hazardous wastes would need to be reported
to the NRC, and to the appropriate LEPC and SERC, when the RQ of
any of its component hazardous substances is equalled or
exceeded. The mixture rule provides that "[discharges of
mixtures and solutions are subject to these regulations only
where a component hazardous substance of the mixture or solution
is discharged in a 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 drip 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
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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 (56 PR 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
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x 10'7 cm/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 impacts of modifications
presented in this proposed rule are discussed below. Where the
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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 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 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
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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
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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 cleanups.
The proposed allowance of a 15 year time period for the
upgrading of existing drip pads to new drip pad standards will
result in a decrease in costs. The cost savings resulting from
this proposed action are due to the incurrence 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
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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 cost savings resulting from the
proposed changes in the cleaning requirements.
The proposed change in drip pad permeability requirements
(from "impermeable" to 1 x 1CT7 centimeters per second) should
have no cost effects because there are no changes in requirements
for a surface coating or sealer where these requirements would -be
applicable. The Agency requests comment on the estimated
negligible cost effect attributable to the limited permeability
requirement.
The proposed requirement that new drip pads have leak
collection devices should have minimal impact on costs. The
45
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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 requests 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 govern-
mental 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 not 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's proposed rule
46
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reduces the potential effects identified for the December 6, 1990
rule, particularly by removing the applicability of the F032
listing to past users of chlorophenolic formulations that
generate TC, F034 or F035 wastes. As a result, a formal RFA was
not prepared in support of today's proposed rule.
VIII. Paperwork Reduction Act
The information collection requirements in today's proposed
rule will be submitted for approval to the Office of Management
and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C.
3501 et. seq. An Information Collection Request document has
been prepared by EPA (ICR No. 1579) and a copy may be obtained
from Sandy Farmer, Information Policy Branch, EPA, 401 M Street,
S.W. (PM-223Y), Washington, D.C. 20460 or by calling (202) 260-
2740. This ICR will amend the information collection
requirements submitted to support the administrative stay that
was published July 13, 1991 (56 FR 27332) and 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
47
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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, 401 M 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 Subjacts
40 CFR Part 261
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
48
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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.
NOV 2 2
Date
William K. Reilly,
Administrator
49
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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. Section 261.31 is amended by revising the F032, F034, and
F035 listings. The appropriate footnotes to section 261.31 are
republished without change.
§ 261.31 Hazardous wastes from non-specific sources.
*****
Industry and ~~~"
EPA Hazardous waste Hazard
hazardous code
waste No.
F0321 Wastewaters (except those that have not (T)
come into contact with process
contaminants), 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 §
261.35 of this chapter or potentially
cross-contaminated wastes that are
otherwise currently regulated as hazardous
wastes (i.e., F034, F035, Toxicity
Characteristic), and where the generator
does not resume or initiate use of
50
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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.
F0341 Wastewaters (except those that have not (T)
come into contact with process
contaminants), 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.
F0351 Wastewaters (except those that have not (T)
come into contact with process
contaminants), 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.
JThe F032, F034, and F035 listings are administratively
stayed with respect to the process area receiving drippage of
these wastes provided 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 drip pad upgrades or
installation as provided in the administrative stay. The stay of
the listings will remain in effect until February 6, 1992 for
existing drip pads and until May 6, 1992 for new drip pads.
51
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PART 264—STANDARDS FOR OWNERS AND OPERATORS OP 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:
S 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:
52
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(i) cleaning up the drippage; and
(ii) documenting the cleanup of the drippage; and
(iii) 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),
deleting paragraph (b)(2), redesignating paragraph (b)(3) as
paragraph (b)(2), and revising the new paragraph (b)(2) to read
as follows:
5 264.571 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 § 264.573 of
this subpart after the date upon which all upgrades, repairs, and
53
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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
in paragraph (b)(I) of this section. The Regional Administrator
will grant the petition for extension based on a finding that the
drip pad meets all of the requirements of § 264.573, except those
for 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:
S 264.572 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 §§ 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:
54
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§ 264.573 Design and operating requirements,
(a)
* * *
*****
(4) Have a hydraulic conductivity of less than 1 x 10'7
centimeters 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 x 10'7 centimeters per second 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. This surface material must
be maintained free of cracks and gaps that could adversely affect
its hydraulic conductivity, and the material must be chemically
compatible with the preservatives that contact the drip pad.
(b) * * *
*****
(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
55
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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. 6905, 6912(a), 6924, 6925, and 6935.
9. Section 265.440 is amended by adding paragraph (c) to read
56
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as follows:
S 265.440 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 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 D 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 years; and
(iv) disposing of the contaminated media as hazardous waste.
10. Section 265.441 is amended by revising paragraph (b)(1),
57
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deleting 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 § 265.443 of
this subpart after the date upon which all upgrades, repairs, and
modifications must be completed as established under paragraph
(b)(1) of this section, the owner or operator may petition the
Regional Administrator for an extension of the deadline specified
in paragraph (b)(1) of this section. The Regional Administrator
will grant the petition for extension based on a finding that the
drip pad meets all of the requirements of § 265.443, except those
for liners and leak detection systems specified in § 265.443(b),
and that it will continue to be protective of human health and
the environment.
58
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11. Section 265.442 is revised to read as follows:
§ 265.442 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 SS 265.443 (except
265.443(a)(4)), 265.444 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:
S 265.443 Design and operating requirements.
(a)
(4) have a hydraulic conductivity of less than 1 x 1C)'7
centimeters 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 x 10'7 centimeters per second such
that the entire surface where drippage occurs or may run across
is capable of containing such drippage and mixtures of drippage
59
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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 must be chemically
compatible with the preservatives that contact the drip pad.
(b)
(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
60
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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—DESIGNATION, 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. 1321 and 1361.
12. Section 302.4(a) is amended by revising the listings for
waste streams F032, F034, and F035 in Table 302.4. The
appropriate footnotes to Table 302.4 are republished without
change.
§302.4 Designation of hazardous substances.
(a) * * *
61
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TABLE 302.4 - LIST Of HAZARDOUS SUBSTANCES AMD REPORTABLE QUANTITIES
HAZARDOUS SUBSTANCE
* *
F032
Uastewaters (except those that have not come into
contact with process contaminants), 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 § 261.35 of this chapter or potentially
cross-contaminated wastes that are otherwise
currently regulated as hazardous wastes (i.e..
F034. F035, Toxicity 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
pentach lorophenol .
F034
Uastewaters (except those that have not come into
contact with process contaminants), 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 pentach lorophenol.
CASRN
i
REGULATORY SYNONYMS
|
I
i
j
i
j
j
'• it
; |
! I
! ji
i
I
*
«
i
J.|
?
!
STATUTORY
RO
1*
1*
CODE f
4
4
RCRA
WASTE
NUMBER
*
F032
F034
PROPOSED RQ
CATEGORY
X
X
POUNDS (Kg)
*
1(0.454)
1(0.454)
f Indicates the statutory source as defined by 1, 2, 3, 4, or 5 below.
4 Indicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA Section 3001.
1' Indicates that the 1-pound RQ is a CERCLA statutory RQ.
-------
TABLE 302.4 - LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES (cant.)
HAZARDOUS SUBSTANCE
F035
Wasteuaters (except those that have not cone into
contact with process contaminants), 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 uastewater from wood
preserving processes that use creosote and/or
pentach lorophenol .
* *
CASRN
REGULATORY SYNONYMS
*
STATUTORY
RQ
1*
CODE t
4
RCRA
WASTE
NUNUk-
F035
*
PROPOSED RQ
CATEGORY
X
POUNDS (Kg)
1(0.454)
f Indicates the statutory source as defined by 1, 2, 3, 4, or 5 below.
4 Indicates that the statutory source for designation of this hazardous substance under CERCLA is ROM Section 3001.
1* Indicates that the 1-pound RQ is a CERCLA statutory RQ.
63
U.S. Environmental Protection Agency
7R7e^n 5. Library (PL-12J)
//West Jackson Boulevard, 12th Floor
Chicago, IL 60604-3590
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