United States Office of Solid Waste
Environmental Protection and Emergency Response EPA/530-SW-91-052
Agency (OS-305) May 1991
Office of Solid Waste
v>EPA Environmental
Fact Sheet
ADMINISTRATIVE STAY OF
WOOD PRESERVING RULE
The Environmental Protection Agency (EPA) has issued an
administrative stay that will extend the time allowed wood preservers to
construct or repair "drip pads" at their facilities in order to remain within
compliance of recently promulgated EPA regulations. The deadline for
the upgrade of existing drip pads is extended to February 6, 1992, and
to May 6, 1992, for the installation of new drip pads. The stay is available
only for wood preservers who demonstrate bona fide efforts to comply
with the new rule.
BACKGROUND
On December 6, 1990, EPA promulgated a final rule that lists
wastes from wood preserving processes as hazardous, making the
management of these wastes subject to regulation under Subtitle C of
the Resource Conservation and Recovery Act (RCRA). The rule lists as
hazardous three categories of wastes that use chlorophenolic (F032),
creosote (F034), and/or inorganic arsenic and chromium (F035) preser-
vatives. The rule also establishes standards for the management of
hazardous waste on drip pads, a containment and collection system
commonly used in the wood preserving industry.
On December 31, 1990, the American Wood Preservers Institute
(AWPI) requested EPA to stay, or extend, the effective date of the rule,
contending that the management requirements of the rule cannot be
complied with by many wood preserving facilities before the effective
date of the rule. Through meetings and correspondence with industry
representatives, EPA has determined that approximately 200 facilities
out of 600 total are subject to a June 6, 1991, effective date and that
approximately 140 of these facilites are unable to comply by that time.
ACTION
EPA has taken action that will allow sufficient time for compliance
with specific drip pad requirements at wood preserving facilities while
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maintaining the environmental protectiveness of the rule.
The treatment, storage, and disposal of wastes removed from the
facilities' process areas, including soil contaminated with these wastes,
will still be subject to the deadlines and management standards
established by the final rule.
The effect of the stay is that activities that would otherwise consti-
tute disposal of F032, F034, and F035 wastes into the process areas,
or onto existing drip pads in these areas, are not covered by the respec-
tive waste listings during the duration of the stay.
The stay will apply only to those facilities that intend to comply with
the drip pad management standards and that are willing to make bona
fide efforts to do so during the stay period. By August 6, 1991, all
wood preserving facilities affected by the stay must notify EPA of their
intent to follow one of the following courses of action: upgrade an
existing drip pad by February 6, 1992; install a new pad by May 6,
1992; operate with an existing pad in compliance with the management
standards; or cease operations by August 7, 1991.
On November 6, 1991, facilities intending to comply with the drip
pad standards must submit a second notification providing evidence
that they have an estimate of the cost of compliance and evidence of
adequate financing. Facilities unable to make this demonstration
would have to cease operation by November 7, 1991, unless authori-
zation for continued operation (set forth in a compliance order) is
provided by EPA or the applicable state.
EPA is also staying, until further administrative action, certain
management standards for drip pads and the applicability of the
listings to wastewaters that do not contact process contaminants. In
addition, the listing description for F032 will not include past users of
chlorophenolic formulations who currently use creosote or inorganic
arsenic/chromium formulations.
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, SW, Washington, D.C. 20460.
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR FARTS 261, 264, .265
HAZARDOUS WASTE MANAGEMENT SYSTEM: IDENTIFICATION AND LISTING OF
HAZARDOUS WASTE; STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES; and INTERIM
STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
AGENCY: Environmental Protection Agency
ACTION: Administrative Stay
SUMMARY: The Environmental Protection Agency is today announcing
an administrative stay of the hazardous waste listings F032, F034,
and F035 in process areas at wood preserving plants. The primary
effect of the stay is to conditionally extend the effective date
of.the drip pad management standards to February 6, 1992, for the
upgrade of existing drip pads and to May 6, 1992, for the
installation of new drip pads. Certain management standards for
drip pads, the inclusion of past users of chlorophenolic
formulations in the listing description for certain F032 wastes,
and the scope of wastewaters with respect to waters that do not
come into contact with preservative are also being stayed.
DATES: Effective Date: [insert date of signature]. For
reporting deadlines, see section VI of this preamble.
ADDRESSES: The official record for this administrative stay is
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identified as Docket Number F-91-WPWS-FFFFF and is located in the
EPA RCRA Docket, room M2427, 401 M Street, SW, Washington, DC
20460. The public must make an appointment in order to review
docket materials by calling (202) 475-9327. The docket is
available for inspection from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. The public may copy material
from any regulatory docket at a cost of $0.15 per page.
POR FURTHER INFORMATION CONTACT: For general information contact
the RCRA Hotline, toll free at (800) 424-9346, or at (202) 382-
3000. For technical information concerning this notice, contact
Edward L. Freedman, Office of Solid Waste (OS-333), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, (202) 245-3657.
SUPPLEMENTARY INFORMATION: The contents of today's notice are
listed in the following outline:
I. Background
II. Appropriate Effective Date for Drip Pad Standards
III. Substantive Standards for Drip Pads
IV. Pentachlorophenol Cross-Contamination
V. Scope of the Wastewater Listing
VI. Agency Action
VII. Effects On State Authorization
Viil. Paperwork Reduction Act
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Z. BACKGROUND
On December 6, 1990, EPA promulgated regulations listing as
hazardous various wastes generated from wood preserving processes
that use chlorophenolic, creosote, and/or inorganic (arsenical and
chromium) preservatives (55 FR 50450 (Dec. 6, 1990), adding
hazardous wastes F032, F034, and F035 to the lists of hazardous
wastes in 40 CFR § 261.31). In addition, and of particular
relevance for the present notice, the Agency promulgated standards
for a new type of waste management unit, a drip pad (55 FR 50484-
89, adding a new Subpart W to Part 264 and 265 of the regulations) .
Drip pads receive drippage from treated wood immediately after the
wood is removed from the treatment vessel. The pads are eligible
for 90-day generator accumulation status under § 262.34 provided
they are designed and operated in compliance with the Subpart W
standards (Amended § 262.34 (a) (2) , 55 FR 50483-84). The
standards vary somewhat for new and existing drip pads.
Because the rule was promulgated partially pursuant to the
1984 amendments and partially pursuant to preexisting authorities,
the requirements take effect at different times in different
states. As a HSWA rule, the F032 listing of various residues from
wood preserving processes using, or that previously used,
chlorophenolic formulations takes effect on June 6, 1991 in
authorized and unauthorized States (55 FR 59469-70 and RCRA section
3001 (e)). Drip pads used in connection with F032 wastes are
likewise subject to the Subpart W standards on June 6 in all States
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(Id. at 50470). The F034 and F035 listings and related management
standards do not take effect immediately in authorized states since
they were not adopted pursuant to HSWA (Id.).
XX. APPROPRIATE EFFECTIVE DATE FOR DRIP PAD STANDARDS
The first issue discussed in the present notice concerns the
appropriate effective date for the drip pad standards. After the
rule was promulgated, the American Wood Preservers Institute
(AWPI), representing a significant segment of the wood preserving
industry, conducted a survey to determine its members' ability to
comply with the drip pad standards on June 6. Although results
are somewhat fragmentary, it appears that a significant number of
facilities subject to the June 6 date are unable to comply at that
time. Extrapolation of the survey results in an estimate of 200
wood preserving facilities subject to the June 6 deadline (i.e.
those managing F032 wastes, those in unauthorized states, and those
in states authorized for the wood preserving rule), of which
approximately 140 (70%) report that they are unable to comply on
June 6.
The principal reasons cited for inability to comply are: 1)
difficulties in obtaining financing; 2) difficulties in obtaining
a professional engineer's certification of compliance (see § 265.
441 (a), 55 FR 50487); and 3) difficulties in coordinating pad
installation or upgrading activities with ongoing corrective action
at the facility. In addition, there has been some discussion of
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difficulties in some climates of constructing pads during very cold
or rainy seasons.
EPA has examined this information carefully, and conducted its
own independent inquiries and site visits. The Agency's conclusion
is that, although a significant percentage of facilities can comply
with the June 6 effective date, a significant portion are unable
to meet that date for legitimate reasons. In this regard, the
Agency notes that it has phased in new design requirements for
other types of regulated units to accommodate similar difficulties
to those now facing certain wood preservers. See § 265.193 (a)
(phasing in secondary containment requirements for hazardous waste
tanks); § 265.90 (a) (groundwater monitoring requirements effective
18 months after promulgation date); 47 PR at 16555 (April 16, 1982)
(phasing in certain financial responsibility requirements). The
Agency notes further that the issue of drip pad compliance
effective date did not receive a great deal of attention during the
rulemaking because the main focus of the industry's rulemaking
comments challenged the need for listing these wastes at all, and
also because the court-ordered November 15, 1990, promulgation date
necessitated an expedited Agency review schedule.
III. SUBSTANTIVE STANDARDS FOR DRIP PADS
AWPI and other affected industry parties also questioned the
appropriateness of requiring new drip pads to be sealed with an
impermeable coating and to have liners and leak detection systems
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as well. In their view, this level of control is either redundant
or unnecessary. In addition, they questioned the technical
feasibility of finding an impermeable sealer for some arsenical
solutions.
IV. PENTACHLOROPHENOL CROSS-CONTAMINATION
A further issue that concerns the wood preserving industry is
the scope of the F032 listing (for wastes from processes using
pentachlorophenol as a preservative). As promulgated, this listing
includes wastes generated by creosote or CCA plants that previously
used chlorophenolic formulations. Although the rules provide a
procedure whereby an individual facility can demonstrate that
cross-contamination is no longer occurring (in which case the
wastes from the process would still be hazardous but classified
under either the F034 or F035 waste codes), the industry argues
that these procedures are potentially unnecessary and
impracticable. Furthermore, by including potentially cross-
contaminated wastes within the scope of the F032 listing, more
facilities become subject to the June 6 deadline, since the F032
listing takes effect on that date in both authorized and
unauthorized states since it is a HSWA rule. This increases the
number of wood preserving facilities potentially unable to comply
with the drip pad standards on that date.
V. SCOPE OF THE WASTEWATER LISTINGS
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The wood preserving industry further questioned the scope of
the listing of wood preserving wastewaters. Among other points,
they contend that certain wastewaters are not hazardous because the
wastewaters do not cone in contact with process contaminants, and
maintain further that processes can be reconfigured to avoid
contamination of other water, such as rainwater. Because the
listing applies to all wastewaters, however, these efforts would
be without point because all the wastewaters would remain hazardous
(unless and until delisted).
VI. AGENCY ACTION
A. EPA has determined to issue an administrative stay of the
applicability of the F032, F034 and F035 listings to the process
area receiving drippage of these wastes, i.e. the area potentially
covered by the subpart W drip pad standards. As explained below,
this stay is available only for wood preserving facilities-meeting
certain conditions intended to limit the extension to those
facilities making bona fide efforts to comply with the rule. For
existing drip pads, the stay will remain in effect until February
6, 1992 and for new drip pads, the stay will remain in effect until
May 6, 1992.
The Agency has selected these dates for the following reasons.
The Agency believes that two months of time beyond the June 6,
1991, effective date is necessary for wood preserving plants to
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determine and report their definite intentions as to compliance
with the rule. The Agency believes that up to three additional
months will be required for all facilities intending to come into
compliance to fully investigate and obtain the necessary funding
required to retrofit existing pads and to construct new pads. The
retrofitting of existing drip pads will require less time than the
construction of new drip pads. Thus, the Agency has allowed up to
three additional months for the retrofitting of existing drip pads
and up to six additional months for the construction of new drip
pads. These estimates are consistent with information supplied by
the wood preserving industry. Based on these estimates, the Agency
feels that final compliance dates of February 6, 1992, and May 6,
1992, are reasonable compliance dates for plants with existing drip
pads and newly constructed drip pads, respectively.
«
The effect of the administrative stay is that activities that
would otherwise constitute disposal of F032, F034, or F035 wastes
into the process area, or onto existing drip pads in process areas,
are not covered by the respective wood preservative waste iistings
during the duration of the stay. The stay is limited to the
process area, however. Thus, the listings are not stayed for F032,
F034, or F035 wastes, including soil contaminated with these
wastes, that are removed from this area. (During the term of the
administrative stay, such removal would be considered generation
of an F032, F034, or F035 waste. 53 PR 31147-49 (August 17,
1988}).
As noted above, the Agency intends (and AWPI expressly agrees)
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that this limited stay should apply only to those facilities that
intend to comply with the Subpart W standards and that are willing
to aake bona fide efforts to do so during the stay period. It
obviously makes no sense to extend the rule's compliance date for
facilities simply desiring to continue operations that are
environmentally unsound (such as operating without a drip pad or
with defective pads) until they are forced to close. Consequently,
the Agency is making the stay applicable only to those facilities
that comply with the conditions described below. Failure to comply
with these conditions means that the listings remain in effect, in
which case process area drippage can only .occur lawfully for
facilities with compliant drip pads, or for facilities in
compliance with requirements for land disposal of hazardous waste
(or other units meeting applicable technical standards). It should
be noted that all portions of the rule that are not stayed remain
in effect. For example, the stay does not affect the March 6,
1991, 3010 notification deadline for generators and TSDs handling
F034 and F035 in unauthorized states or F032 in all states. Thus,
those generators and TSDs that were managing the forementioned
wastes, that had not previously notified the Agency of hazardous
waste activity, and that did not submit a 3010 notification to the
Agency by the deadline are in violation of that requirement.
First, by August 6, 1991, all wood preserving facilities
affected by the stay (i.e. those otherwise subject to the June 6
compliance date) must notify either the Agency's applicable
Regional Office or an authorized state of their intention to follow
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one of four courses of action: 1) to upgrade an existing drip pad
by February 6, 1992; 2) to install a new drip pad by May 6, 1992;
3) the facility already has installed a drip pad in compliance with
Subpart W; or 4) the facility will cease operation by August 7.
A facility notifying that it intends to cease operation must cease
operation by August 7 or its drippage in the process area becomes
subject to all applicable subtitle C regulations. The drip pads
already installed in compliance with Subpart W are not subject to
regulation until February 6, 1992, and owners and operators of such
pads need not submit any further notification to the Agency other
than the August 6 notice. Facilities notifying that they intend
to comply by February 6, 1992 or May 6, 1992 must further state
that they will use best efforts to minimize drippage that occurs
during the duration of the stay.
Second, on November 6, 1991, facilities intending to comply
with drip pad standards must submit a second notification providing
evidence that they are making good faith efforts to comply and have
a reasonable expectation of doing so. To make this showing, the
notification must include an estimate of the cost of compliance,
and evidence of financing to pay this expense. Evidence could take
the form of an agreement with a bank or other lending institution,
or an escrow account dedicated to paying for installation of drip
pads.
Persons unable to make this demonstration would have to cease
operation by November 7, 1991. (The scheme is somewhat similar to
the .statutory loss of interim status provisions which required
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certain facilities to certify that the facility was in compliance
with financial responsibility and groundwater monitoring
requirements by a particular date or to cease operation (RCRA
section 3005 (e) (2))). EPA repeats that the rule remains in
effect for persons who do not comply with these conditions. EPA
or the state, as appropriate, may in its discretion, allow a
facility to operate beyond the November 6, 1991, deadline, provided
that (1) the respondent demonstrates that it cannot meet the
November 6, 1991, deadline because of circumstances entirely beyond
its control, despite its best efforts to comply (e.g., its
impossibility of performance is due to corrective action being
undertaken at the wood preserving facility pursuant to a federal
or state order or permit), and (2) such authorization to operate
is set forth in an enforceable compliance order.
B. EPA has also decided to issue a stay of the requirement
that new drip pads be sealed, coated, or covered with an
impermeable material (§ 264.572 (a) (4), § 265.443 (a) (4)). The
Agency is taking this step because we are now convinced that this
requirement is unnecessary for pads constructed with a liner and
leak detection system provided the pad is maintained in good
condition with actions taken to remedy any cracks that may develop.
The liner would provide secondary containment, thus fulfilling the
Agency's object in developing management standards for drip pads
( 55 PR at 50453). We consequently are staying this requirement.
Thus, on May 6, 1992 (i.e. the date when new pads must comply with
the regulatory standards) , new pads will not be required to be
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sealed, coated, or covered with an impermeable material. EPA also
intends to initiate rulemaking to determine whether to make this
a permanent regulatory change.
EPA intends, however, that this requirement remain in place
for existing pads, once those pads are required to comply with the
regulatory standards, because few (if any) existing pads are known
to have liner and leak detection systems that comply with the
Subpart w standards. Thus, on February 6, 1992, existing pads must
be sealed, coated, or covered with an impermeable surface. Because
existing pads need not have liner and leak detection systems (§
264.571, 265.441) the requirement of an impermeable surface is
necessary to provide secondary containment. (The Agency has
determined that commercially available sealants exist that would
be appropriate for use at the pH of preservative solutions used by
the wood preserving industry.)
C. The Agency is also staying the portion of the rule that
included wastes from plants generating F034 or F035 wastes that
previously used chlorophenolic formulations as within the scope of
the F032 listing. Upon reflection, the Agency realizes that
structuring the rule in this way is not serving any useful
environmental purpose. Wastes from creosote or inorganic arsenical
wood preserving processes that previously used chlorophenolics are
already classified as hazardous under the F034 or F035 listings.
The regulatory standards for F032, F034, and F035 wastes are
identical, so that the F032 listing does not carry with it a
stricter regulatory regime (55 PR at 50467). The only immediate
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regulatory consequence of the F032 listing for these plants is to
make more facilities subject to the June 6 compliance date. As
explained above in the discussion on compliance dates for drip
pads, this consequence has negative features because many
facilities that can comply with the drip pad standt Us with some
additional time appear unable to do so by June 6 for legitimate
reasons. Since the F032 listing does not result in different
substantive regulation for the wastes other than the timing of the
effective date, EPA has decided to stay the scope of the F032
listing so that it does not cover wastes from creosote or inorganic
arsenical plants that previously used chlorophenolic preservatives
as long as any wastes from that plant are regulated as F034 or F035
wastes. EPA also intends to initiate rulemaking to determine
whether to permanently amend the F032 listing.
*
The Agency notes, however, that the issue of chlorophenolic
cross-contamination will be relevant when EPA establishes treatment
standards for the F032, F034 and F035 wastes under the land
disposal restrictions program. The fact that a waste may be
classified as F034/F035 rather than F032 does not prevent the
Agency from promulgating treatment standards for the chlorophenolic
formulation, and the various dioxins and furans that may be present
in these wastes as a result of equipment cross-contamination.
Thus, the Agency anticipates including standards for these
constituents in all of the treatment standards for the listed wood
preserving wastes.
D. Finally, EPA has decided to stay the listing of
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vastevaters so that the listing applies only to wastewaters that
have come in contact with process contaminants, i.e. wood
preserving solutions, spent preservatives, and the like. It is
these process contaminants that make the vastewater hazardous, and
the Agency did not intend for the listing to apply to
uncontaminated wastewaters (see 56 PR 21955, May 13, 1991). Thus,
if vastewaters are kept uncontaminated, they will not be (and
should not) be covered by the listing. EPA intends to initiate
rulemaking to determine whether to make this a permanent regulatory
change.
Any wood preserver claiming that wastewater has not come in
contact with process contaminants would have the burden of proving
that this is the case. This is because the details of plant
operation, and in particular wastewater management, are within the
special knowledge of the wood preserving facility. See 50 PR at
643 (January 4, 1985) and cases there cited. The best (and perhaps
only) way of showing no contamination would be to segregate
uncontaminated waters (for example, non-contact cooling water) from
normal process wastes and process areas. Such segregation also
serves a useful waste minimization function by reducing the total
volume of contaminated wastewater. Thus, the Agency views today's
action as creating an incentive for waste minimization.
Conversely, however, the Agency notes that if initially
uncontaminated wastewater is mixed with contaminated wastewater (as
in a centralized wastewater treatment system) or with process
contaminants (such as rainwater falling on a process area drip
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pad) , then the entire volume of vastevater is hazardous because of
the mixture rule.
E. EPA is issuing this administrative stay pursuant to
5 U.S.C. § 705 which provides that an agency may postpone the
effective date of action taken by it when justice so requires,
pending judicial review.1 The Agency believes that this standard
is satisfied here because it appears to be legitimately infeasible
for a significant number of wood preserving facilities to comply
with the drip pad standards by June 6.
In addition, the sealant requirement for new drip pads appears
unnecessary and could add to the time needed to comply with drip
pad standards. Inclusion of potentially cross-contaminated wastes
within the F032 listing does not serve any direct regulatory
purpose (given the uniform regulatory standards for F032, F034, and
F035 wastes), and causes more facilities to be subject to the June
6 effective date with which they may be unable to comply.
Inclusion of uncontaminated wastewaters within the scope of the
listing is not necessary to further any legitimate environmental
objective, and so should legitimately be stayed.
At the same time, the administrative stay is structured so as
to prevent environmental abuses from uncontrolled drippage during
the pendency of the stay, and is further structured to be available
only to facilities making bona fide efforts to comply. A
significant number of wood preservers thus could be harmed
""AWPI has filed a petition for review of the December 6 rule.
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irreparably should the drip pad standards take effect on June 6.
The conditions on the administrative stay, plus structuring the
duration of the stay to allow time for clean-up of drippage
contamination in existing process areas, also assures that the stay
will be in the public interest. The Agency consequently finds that
issuing this stay is in the interests of justice.2
VII. EFFECTS ON STATE AUTHORIZATION
The effects of the administrative stay depend largely on
whether the facility is managing a wood preserving waste identified
by a HSWA-based listing (i.e., the F032 wastes), as opposed to the
2 Although the Agency does not regard today's action as a
rule, were it to be viewed as a rule the Agency believes that there
is good cause for issuing it without prior notice and opportunity
for comment and for making it immediately effective. This is borne
out by the pending compliance date and infeasibility of compliance
for a substantial number of facilities, and means of conditioning
the stay to assure continued protection of human health and the
environment. In addition, EPA has sought and obtained comment on
this action not only from the wood preserving industry but from
members of the environmental community and the waste treatment
industry as well. There also was opportunity to comment on all of
these issues during the rulemaking itself, so that further comment
may be unnecessary.
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newly listed wastes (F034 and F035) for which the listing
determinations were based on pre-HSWA authority.
As explained earlier, EPA considers that both the F032 listing
and the new Subpart W drip pad standards (when applied
to the management of F032 wastes) are based on HSWA authority. As
EPA explained in the December 6, 1990 notice (see 55 FR 50469), the
HSWA-based F032 listing and related Subpart W facility standards
take effect simultaneously in all States, regardless of their
authorization status. With respect to these HSWA-based
requirements, the effect of the administrative stay is to defer in
.all States EPA's implementation and enforcement of these
requirements beyond June 6, 1991, in accordance with the
a'dministrative stay schedule. According to the schedule for state
program revisions contained in 40 CFR 271.21(e), the December 6,
1990 Wood Preservation Rule is subject to a July 1, 1992 deadline
(July 1, 1993 if a statutory change is required) for States to
modify their hazardous waste programs and thereafter seek approval
from EPA for the program revision. Since the administrative stay
would not extend any effective dates beyond May 6, 1992, EPA
considers it very unlikely that any State will have received
approval from EPA to implement the December 6, 1990 regulation
under RCRA authority with earlier or more stringent effective dates
than those set out in this stay. Nevertheless, States may modify
their hazardous waste programs to adopt the Wood Preservative Rule
in the interim. While EPA encourages States to follow the deferred
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effective dates announced in this stay, states may elect to
implement the Rule with effective dates earlier than those imposed
under this stay, as a matter of state law.
In the case of facilities managing F034 and F035 wastes, the
effect of the stay depends on whether the facility is located in
an authorized or unauthorized States. The F034 and F035 listing
determinations were promulgated pursuant to pre-HSWA authority,
and EPA considers the Subpart W drip pad standards that govern the
management of F034 and F035 wood preserving wastes to also be based
on pre-HSWA authority. According to the December 6, 1990 Rule
notice, these wastes listings and facility standards would have
been effective on June 6, 1991 only in those states that are not
authorized for any part of RCRA. EPA implements the RCRA program
in unauthorized States, and the effect of this stay will be to
defer EPA's implementation and enforcement of the Wood preserving
Rule's F034 and F035 provisions in accordance with the
administrative stay schedule.
In authorized States, the pre-HSWA basis for the F034 and F035
listings (and related Subpart W drip pad standards) means
that these requirements cannot be implemented as RCRA requirements
until the State has adopted the necessary program modifications and
obtained approval for the necessary program modifications and
obtained approval for the revisions from EPA. The modification
schedule in 40 CFR section 271.20(e) requires that States modify
their programs by July 1, 1992 (July 1, 1993 if a statutory change
is required) to adopt this regulation and thereafter seek approval
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of the revisions from EPA. Since the stay does not extend any
effective dates beyond May 6, 1992, it is unlikely that States will
become authorized for the F034 and F035 listings and facility
standards before the deferred effective dates in the stay have
already passed. However, facilities in both authorized states and
unauthorized states should understand that states may adopt and
implement wood preserving regulations as a matter of state law,
prior to obtaining EPA approval. While EPA strongly encourages
States to follow the deferred effective dates announced in this
stay, States may elect to adopt wood preserving waste regulations
with more stringent (e.g., earlier) effective dates than those
announced in this administrative stay.
VIII. PAPERWORK REDUCTION ACT
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
public reporting burden for the wood preserving rule (as published
in the Federal Register on December 6, 1990), inclusive of the
reporting requirements in this administrative stay, is estimated
to result in a total of 271 hours per facility per year. The
burden prior to this administrative stay was estimated to average
272 hours per facility per year.
Send comments regarding the burden estimate or any other
aspect of this collection of information, including suggestions for
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U.S. Environmental Protection Agency, 401 M St., S.W., Washington,
DC 20460? and to the Office of Information and Regulatory Affairs,
A
Office of Management and Budget, Washington, DC 20503 markec
"Attention: Desk Officer for EPA."
Administrator
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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, and 6938.
2. Section 261.31 is amended by revising the F032, F034, and
F035 listings to read as follows:
*****
Industry and EPA Hazardous Waste Hazard
Hazardous Waste No. ' Code
F032** Wastewaters, process residuals, (T)
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
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administratively stayed
whenever these wastes are
covered by the F034 or F035
listings. These stays will
remain in effect until further
administrative action is
taken.)
F034** Wastewaters, process residuals, (T)
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.)
F035** Wastewaters, process residuals, (T)
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 stayed
with respect to the process area receiving drippage of these
wastes provided persons desiring to continue operating notify
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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.
PART 264 — STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
3. Section 264.572 is amended by revising paragraph (a)(4)
to read as follows:
(a) * * *
(4) Be impermeable, e.g., concrete pads must be sealed,
coated, or covered with an impermeable material such that the
entire surface where drippage occurs or may run across is capable
of containing such drippage and mixtures of drippage and
precipitation, materials, or other wastes while being routed to an
associated collection system (NOTE: The requirement that new drip
pads be impermeable, e.g., that new drip pads be sealed, coated,
or covered with an impermeable material is administratively stayed.
The stay will remain in effect until further administrative action
is taken.)
FART 265 — INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
4. Section 265.443 is amended by revising paragraph (a)(4)
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to read as follows:
(a) * * *
(4) Be impermeable, e.g., concrete pads must be sealed,
coated, or covered with an impermeable material such that the
entire surface where drippage occurs or may run across is capable
of containing such drippage and mixtures of drippage and
precipitation, materials, or other wastes while being routed to an
associated collection system (NOTE: The requirement that new drip
pads be impermeable, e.g., that new drip pads be sealed, coated,
or covered with an impermeable material is administratively stayed.
The stay will remain in effect until further administrative action
is taken.)
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