United States Solid Waste and
Environmental Protection Emergency Response EPA/530-SW-91-077
Agency (OS-305) October 1991
&EPA Regulatory
Determination
Landfills and Surface
Impoundments Receiving
Pulp and Paper Mill Sludge
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV -8 '9Hi
OFFICE OP
SOLID WASTE AND EMERGENCY RESPONSE
Mark Van Putten, Esq.
National Wildlife Federation
Great Lakes National Resource Center
802 Monroe
Ann Arbor, MI 48104
Karen Florini, Esq.
Environmental Defense Fund
1616 P Street, N.W.
Washington, D.C. 20036
Re: Consent Decree in Environmental Defense Fund and
National Wildlife Federation v. Thomas. (D.D.C. No. 85-
0973, July 27, 1988)
Dear Counsel:
The Environmental Protection Agency (EPA), in compliance with
paragraph 17(B) of the subject Consent Decree, hereby informs you
that it has made a determination not to promulgate additional
regulations for landfills and surface impoundments receiving sludge
from chlorine and chlorine derivative bleached pulp and paper mills
under Subtitle D of the Resource Conservation and Recovery Act
(RCRA). EPA has based its determination on several factors.
EPA has concluded that, under current conditions, dioxin
contained in pulp and paper mill sludges does not pose an
unreasonable risk to human health and the environment when disposed
in landfills and surface impoundments.
The Agency's initial comprehensive risk assessment (provided
to you in 1990 under this consent decree) indicated that the major
potential risk to human health from these disposal units is
contamination of surface waters and subsequent bioaccumulation of
dioxin in fish resulting from run-off from these units. Based on
information more recently collected by the Agency under this
consent decree, EPA has concluded that human health risks are
minimal because: (1) almost all of these facilities have run-off
controls that would substantially mitigate potential risk and (2)
the incorporation of more realistic assumptions and new site
specific information in EPA's risk assessment show the risks to
human health are considerably lower than previously estimated, even
without run-off controls.
The Agency has also evaluated the potential risks to wildlife
from these disposal units as part of today's action, even though in
the 1990 risk assessment this pathway was not considered
or
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significant enough to evaluate. The Agency has concluded that
there would be exposure and potential risk to wildlife that
actively forage in these disposal units. However, current evidence
does not indicate significant levels of foraging or other
biological activities that would lead to significant exposure at
these units. In addition, there are significant ecological
differences that" generally exist between these units and land
application sites where pulp and paper mill sludges are disposed
directly into wildlife habitats and feeding areas (and for which
the Agency recently proposed regulations under the Toxic Substances
Control Act (TSCA)). EPA has no reason to believe, therefore, that
there is significant exposure at these sites.
The conditions within these sludge disposal units are visibly
and biologically different from the conditions at land application
sites. For example, because of the physical nature of these units,
active landfills and surface impoundments do not appear to provide
a suitable habitat (i.e., a place to live) for many species. Daily
disposal operations, using trucks, bulldozers, pipelines and other
types of sludge spreaders, are expected to further reduce the
likelihood that individual landfills and surface impoundments would
be available for wildlife as a feeding source. Therefore, wildlife
would generally have to come from habitat areas outside the
landfill or surface impoundment to feed. Landfills and surface
impoundments are often at least partially separated from habitat
areas by industrial activity and structures, which would impede
access to these units. EPA has enclosed photographs with this
letter which illustrate differences in the physical nature of
landfills and surface impoundments versus land application
facilities.
EPA also has information which indicates that other types of
pulp and paper mill waste, including fly ash and lime (which are
not wildlife food sources) are sometimes co-disposed with sludge in
these waste management units, which would further reduce the
likelihood that these units would serve as a source of food.
The remainder of this letter discusses the risk assessment
and other factors that lead to EPA's determination in more detail.
We have enclosed copies of key supporting documents with this
letter. We have also enclosed a list of all supporting information
contained in RCRA docket No. F-91-PSLD, the docket established to
support this determination, should you need to see any additional
documents which do not accompany this letter.
As you are aware, EPA's Office of Research and Development
(ORD) is currently reassessing the risks of dioxin to human health
and the environment. If ORD's reassessment indicates that dioxin
could pose greater risks to human health and the environment than
the risks estimated in today's action regarding pulp and paper
sludge, EPA will reconsider its decision not to regulate these
facilities under Subtitle D of RCRA, and will so notify you. Such
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reconsideration, however, is independent of EPA's obligation under
the consent decree. This letter fulfills EPA's obligations under
the consent decree.
Background:
The consent decree which is the subject of today's action
required EPA to undertake a number of regulatory activities
regarding pulp and paper mills, including a multi-media, multi-
pathway risk assessment for 2,3,7,8-TCDD and 2,3,7,8-TCDF effluents
and wastes from these facilities. EPA, the Food and Drug
Administration (FDA), and the Consumer Product Safety Commission
(CPSC) performed the risk assessment. The risk assessment consists
of 10 separate assessments examining approximately 120 exposure
pathways, including sludge disposal in landfills and surface
impoundments. The multi-pathway risk assessment is entitled
"Integrated Risk Assessment for Dioxins and Furans from Chlorine
Bleaching in Pulp and Paper Mills" (EPA 560/90-011, July, 1990.
The sludge risk assessment is entitled "Assessment of Risks from
Exposure of Humans, Terrestrial and Avian Wildlife, and Aquatic
Life to Dioxins and Furans from Disposal and Use of Sludge from
Bleached Kraft and Sulfite Pulp and Paper Mills" (EPA 560/5-90-013,
July, 1990) .
Paragraph 17(B) of the consent decree required EPA to take at
least one of four possible actions by April 30, 1990, concerning
matters addressed in the risk assessment. The four options were:
1. Commit to propose regulations controlling risks from
various exposure pathways of concern by April 30, 1991.
2. Commit to refer, under Section 9 of the Toxic Substances
Control Act (TSCA), some or all matters under consideration to
another Federal agency or agencies by October 30, 1990;
3. Determine not to propose regulations or make referrals
to other agencies; and
4. Determine that EPA does not have sufficient information
to make one of the above determinations, and establish a
schedule to obtain the required information by April 30, 1991,
then within 180 days after the information is gathered, take
at least one of the required actions permitted in options one,
two or three.
In a letter dated April 30, 1990, EPA's Deputy Administrator
informed you of the results of the Agency's multi-pathway risk
assessment that considered potential risks from 104 mills of
concern. EPA used the results of this risk assessment to determine
which pathways should be targeted for further action. Based on the
results of the risk assessment, EPA informed you of the Agency's
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decision to revise effluent guidelines and standards for chlorine
bleaching pulp and paper mills under the Clean Water Act and to
address the risks associated with land application (soil
conditioning) of sludge from these mills under the TSCA.
EPA also used the multi-pathway risk assessment to make an
initial determination concerning potential exposure pathways from
landfills and surface impoundments that receive sludge from pulp
and paper mill waste water treatment. Based on the multi-pathway
risk assessment, EPA concluded that the run-off pathway was the
only pathway of concern regarding risks to human health and aquatic
organisms from dioxin in landfills and surface impoundments
containing pulp and paper mill sludge. This result was based on
extreme worst case assumptions concerning the location and physical
characteristics of landfills and surface impoundments, and on
available data from EPA's "104 mill" study reports on pulp and
paper mill sludge concentrations.
Based on this assessment, EPA determined that additional time
was needed to gather information to more thoroughly evaluate the
run-off pathway from landfills and surface impoundments. EPA
notified you in its April 30, 1990, letter that the Agency would
gather additional information in accordance with option 4 described
above.
EPA also committed in the letter to "study possible regulation
of sludge run-off from landfills and surface impoundments under the
Resource Conservation and Recovery Act (RCRA)" and, based on the
results of its study, to make a determination to regulate or not
regulate landfills and surface impoundments under RCRA by the end
of October, 1991. Today's action fulfills these commitments.
Today's action addresses, in addition to the run-off pathway,
potential terrestrial wildlife risks that may result from ingestion
of sludge by animals that forage in landfills or surface
impoundments. While this pathway was not an initial concern in the
1990 risk assessment, subsequent analysis of potential risks from
the land application of sludge indicated that direct ingestion is,
in fact, a pathway of concern regarding terrestrial wildlife.
Consequently, EPA has addressed this pathway in today's action.
Basis for EPA's Determination:
Section 4004(a) of RCRA provides the Agency with authority to
publish criteria to ensure that no reasonable probability of
adverse effects on health or the environment results from solid
waste disposal (42 U.S.C. 6944 (a)). A facility or practice which
meets such criteria is classified as a sanitary landfill. A
facility failing to meet the criteria is classified as an open
dump. Open dumping is prohibited under RCRA section 4005 (a).
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The legislative history of the Solid Waste Disposal Act does
not elaborate upon the meaning of the phrase in Section 4004(a) "no
reasonable probability of adverse effects." However, case law
addressing the meaning of the word "reasonable" in other contexts
indicates that EPA has discretion in deciding when regulation is
necessary under Subtitle D. Specifically, the term "reasonable" in
other statutes has been read to imply a balancing of competing
factors (See e.g., American Textile Manufacturers Institute, Inc.
v. Donovan. 452 U.S. 490 (1981); Citv of New York v. EPA. 543 F. X.
1084 (S.D.N.Y. 1981.).
EPA has determined not to initiate rulemaking under RCRA
section 4004 (a) to manage the disposal of pulp and paper mill
sludges in landfills and surface impoundments based on several
factors.1 These factors include:
1. Potential risk to human health and aquatic organisms:
EPA's revised risk assessment, which reflects more appropriate
exposure assumptions and new data on existing waste management
practices and site specific exposure parameters, indicates the
potential for run-off and resulting risks to human health are
significantly below previous estimates and minimal, even for
the hypothetical most exposed individual.
2. Potential risk to wildlife: EPA's risk assessment
indicates that foraging in landfills or surface impoundments
may pose a potential risk to wildlife. However, current
evidence does not indicate that there is sufficient wildlife
activity at these sites to result in an unreasonable risk..
3. Existing State and Federal regulations: Existing State
regulations provide adequate authority for protection against
adverse effects to human health and the environment
originating from the run-off pathway discussed under factor 1
above.
These factors are explained further below.
1 Today's action does not address the separate criteria f?r
listing hazardous wastes under Section 3001 of RCRA. EPA - »j
committed to consider a Subtitle C listing for these wastes uri-^r
the conditions set out in the proposed consent decree per.dL.--j
before the U.S. District Court for the District of Columbia . -
Environmental Defense Fund v. Reilly. D.D.C. No. 89-0598 (the "?::.\
mega-deadline" litigation). Also, in making today's decision t-\*
generic rulemaking under RCRA Subtitle D is not warranted, •-••
Agency did not assess the potential need for any site spec i: . •
order to abate any imminent and substantial endangerment to h . - \-
health or the environment under RCRA Section 7003 or C---T
authorities.
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1. potential Risk to human health and aquatic organisms: Revised
exposure assumptions and new data which more accurately reflect
current practices show that existing waste management practices and
site specific exposure parameters reduce the potential for run-off
and resulting potential risks to human health to levels well below
previous estimates.
EPA used the same risk assessment methodology for today's
determination as was used in the multi-pathway risk assessment.
However, EPA has made some changes in assumptions used in the
original multi-pathway risk assessment, which were often extreme
worst-case assumptions. These generic changes were previously
included in the analysis for the proposed pulp and paper mill
sludge land application rule (56 FR 21802, May 10, 1991). For
example, more realistic parameters concerning size of run-off
drainage areas and type of vegetative cover have been incorporated
into the risk assessment supporting today's action compared to the
values that were used in the 1990 risk assessment. For today's
determination, EPA also used site-specific exposure information
such as landfill size and distance to surface water. In addition,
this assessment uses site specific information on run-off and
erosion controls (gathered using section 308 authority of the Clean
Water Act, section 3007 of RCRA, and section 104 of the Clean Air
Act) to better assess the potential for run-off at the facilities
of concern.
In addition to the site-specific run-off control information,
EPA collected section 308 data on the types of production process
changes individual mills have made to reduce or eliminate chlorine
use in bleaching processes and consequently reduce the
concentration of dioxins in products, effluents and sludges. These
new data were not factored directly into the risk assessment model,
but were considered as supplemental information in support of
today's action. The supplemental data showed that 64 facilities
have made substantial changes to their bleach plant operations that
in some cases may have reduced dioxin levels in effluents below the
levels recorded in EPA's earlier "104 mill study" reports (which
provided dioxin concentrations for the 1990 multi-pathway risk
assessment). EPA has noted at least 8 categories of trends in the
reduction or elimination of chlorine in pulp and paper bleaching,
including, for example:
o Increased substitution of chlorine dioxide for chorine
in the chlorination stage of the bleaching process;
o Modernization and improvement in controlling chlorine
bleaching, and
o Increased use of peroxide to enhance the extraction
stages of the bleaching process.
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EPA is collecting data on additional dioxin-reducing process
changes implemented since 1990.
EPA's revised risk assessment, taken together with the
supplemental data, indicates that potential risks are likely to be
significantly lower than EPA's previous estimates. The Agency
recognizes that the site specific run-off controls, which have
recently been identified, may not completely eliminate run-off;
however, EPA is certain that these controls will substantially
mitigate potential risks below EPA's previous estimates, which were
based on a completely uncontrolled run-off scenario. The resulting
risks to human health and aquatic organisms are negligible for the
average exposed individual and minimal to the hypothetical maximum
exposed individual (MEI).
2. Potential risk to wildlife: EPA's risk analysis for landfills
and surface impoundments indicates there is a potential for risk to
wildlife that feed in landfills or surface impoundments, but these
risks appear to be limited.
The Agency's multi-pathway risk assessment did not consider
risks to wildlife (other than aquatic species affected by runoff)
from landfills and surface impoundments. Since that time, EPA has
expanded its assessment of potential risks to wildlife. As part of
the analysis of alternative disposal practices discussed in the
EPA's recently proposed pulp and paper mill sludge land application
rule, EPA examined potential risks to birds and small mammals which
may forage in land application areas and sludge landfills and
surface impoundments. Today's action reflects that analysis.
EPA concluded, based on the results of the revised risk
assessment, that risks to wildlife at landfills and surface
impoundments are limited and are considerably less than the risks
to wildlife in areas where sludge has been land applied for two key
reasons. First, the active portions of many landfills and surface
impoundments do not provide a habitat (i.e., a place to live) and,
second, they do not provide an attractive food source for wildlife.
In contrast, open fields and forests, which are often used as land
application sites, do provide habitat and a more accessible food
source. These reasons are further explained below.
On an individual site basis, landfills and surface
impoundments are typically much smaller than land application
sites. A typical landfill or surface impoundment is 30 acres in
size, although some are larger. In contrast a typical sludge land
application site is 200 acres in size (again, some are larger) .
Even though there are many more landfills and surface impoundments
than land application sites, the smaller site sizes and the lack of
habitat will limit the number of animals feeding there.
As noted in the introduction to this letter (but repeated here
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for convenience) EPA believes, based on the limited data we have,
that active landfills and surface impoundments do not provide a
suitable habitat (i.e., a place to live) for many species.
Therefore, wildlife would have to come from habitat areas outside
the landfill or surface impoundment to feed. Landfills and surface
impoundments are often separated from habitat areas by industrial
activity and structures, which would impede access to these units.
Daily disposal-operations, using trucks, bulldozers, pipelines
and other types of sludge spreaders, are likely to further reduce
the likelihood that individual landfills and surface impoundments
would be available for feeding. EPA has data that indicates that
other types of pulp and paper mill waste, including fly ash and
lime (which are not wildlife food sources) are sometimes co-
disposed with sludge in these waste management units, which would
make these units even less accessible as potential food sources.
The projected risks to wildlife that forage in these
facilities could possibly be reduced by consistent application of
daily or frequent soil cover. Nearly all States require daily or
periodic cover for landfills, although the responses to the section
308 questionnaires showed that these requirements are often not
implemented. Although EPA has concluded that actual exposures are
unlikely to be significant, EPA plans to share information on the
terrestrial risks to wildlife with the States, encourage them to
determine whether any wildlife are actually feeding at landfills
and use existing State cover requirements if they find wildlife
feeding at the units. Applying daily cover to surface impoundments
would not be practical unless the sludge is further dewatered. The
costs of converting surface impoundment practices (including the
costs of closing surface impoundments or converting them to
landfills, investing in dewatering equipment, expanding landfill
operations, and applying daily cover for expanded landfill
operations), however, are likely to be substantial. EPA has
concluded that imposing these costs is not warranted in light of
the low possibility that significant numbers of wildlife are
actually exposed due to feeding at surface impoundments.
Notwithstanding the previous discussion, the Agency is
currently reassessing the risks of dioxin to human health and the
environment, including wildlife. If the reassessment indicates
greater risks or additional data collected by EPA shows significant
wildlife risks, EPA will reconsider its decision not to regulate
these facilities. Such activities, however, will be independent of
EPA's obligations under the consent decree.
3. Existing State and Federal regulations provide reasonable
protection against potential risks from run-off:
EPA has gathered information on how States regulate landfills
and surface impoundments receiving sludge from pulp and paper mills
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and concludes that, except in the limited circumstances discussed
below, existing State regulatory requirements provide adequate
regulatory safeguards against potential risks to human health and
wildlife that could result from run-off from these facilities.
EPA found that nearly all the 29 states in which these
facilities are located require run-off and erosion controls. These
controls often include berms (a widely used engineering practice)
around disposal units to prevent contaminated run-off from entering
or exiting the unit. Other practices include structures such as
diversion ditches and final cover on the closed unit.
EPA's section 308 data on facility-specific waste management
practices indicate that four facilities (three landfills and one
surface impoundment) do not have run-off controls in place,
although the State regulations in which these landfills are located
specifically require run-off controls. The State in which the
surface impoundment is located has very specific regulatory
requirements to prevent run-off from landfills, but the State's
regulations do not specifically identify surface impoundment
run-off requirements.
Considering the scope of existing State regulations, EPA has
determined that the best use of its resources is to work directly
with the four States in which these facilities are located to
determine whether there is, in fact, a potential for run-off and
resulting risk at the four sites in question. Where significant
problems are identified, EPA will either work with the States using
existing State authorities, or take independent action using
Federal authority (such as RCRA 7003 authority, if an imminent and
substantial endangerment to human health or the environment exists,
or Clean Water Act authority as described below) to correct these
problems. Where appropriate, EPA will also work with the States to
provide technical assistance to the companies to improve waste
management practices where they are needed.
In addition to existing state regulations, EPA has recently
promulgated permit application regulations under the Clean Water
Act (CWA) National Pollutant Discharge Elimination System (NPDES)
that address certain storm water discharges (55 FR 47990, November
16, 1990) and may have applicability at some of the sites of
concern. The November 16, 1990, rule addresses point source
discharges of storm water from certain industrial facilities,
including landfills, land application sites, and open dumps that
receive or have received industrial wastes, such as pulp and paper
mill sludge. Under this program, EPA or authorized NPDES States
will incorporate appropriate effluent limitation guidelines into
NPDES permits for such discharges after the effluent guideline for
this industry is revised in accordance with the schedule of this
consent decree. Before the issuance of a revised effluent
guideline, EPA has the authority to incorporate technology-based
performance requirements and water quality-based controls as
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appropriate and monitoring for storm water discharges in NPDES
permits on a case-by-case basis in the 12 States for which EPA has
Clean Water Act permitting authority. This authority is reflected
in a series of draft NPDES general permits for this program (see 56
FR 40948, August 16, 1991). The Agency is encouraging authorized
NPDES States to incorporate similar requirements in individual
and/or general permits issued to facilities in their respective
States. The Agency recognizes this permit program is in its early
stages and therefore may be, in the short term, limited in its
application at these facilities.
Summary and Conclusions:
Based on a careful consideration of the factors discussed
above, EPA has concluded that dioxin contained in pulp and paper
mill sludges does not pose an unreasonable probability of adverse
effects on human health and the environment when disposed in
landfills and surface impoundments. Consequently, EPA has
determined that further regulation of these facilities under
Subtitle D of RCRA to further reduce potential dioxin-related risks
is not warranted.
This action completes the Agency's obligation under section
17(B)(iii) of Consent Decree No. 85-0973.
Sincerely yours
DATE DUE
Don R.
Assistant Administrator
Enclosures
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